S.B. Ex Rel. A.L. v. Board of Education

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1474

S.B., a minor, by and through his Guardian and next friend,

A.L.; T.L., in his own right,

Plaintiffs – Appellants,

and

A.L., in her own right,

Plaintiff,

v.

BOARD OF EDUCATION OF HARFORD COUNTY,

Defendant – Appellee,

and

DR. ROBERT TOMBACK; WILLIAM LAWRENCE; MICHAEL OʹBRIEN,

Defendants.

-----------------------------------------

COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,

Amicus Supporting Appellants,

NATIONAL SCHOOL BOARDS ASSOCIATION; MARYLAND ASSOCIATION OF

BOARDS OF EDUCATION,

Amici Supporting Appellee.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. J. Frederick Motz, Senior District

Judge. (1:13-cv-01068-JFM)

Argued: January 27, 2016 Decided: April 8, 2016

Before WYNN and HARRIS, Circuit Judges, and Loretta C. BIGGS,

United States District Judge for the Middle District of North

Carolina, sitting by designation.

Affirmed by published opinion. Judge Harris wrote the opinion,

in which Judge Wynn and Judge Biggs joined.

ARGUED: Martin Jay Cirkiel, CIRKIEL & ASSOCIATES, P.C., Round

Rock, Texas; Tracy Diana Rezvani, REZVANI VOLIN P.C.,

Washington, D.C., for Appellants. Andrew G. Scott, PESSIN KATZ

LAW, P.A., Towson, Maryland, for Appellee. ON BRIEF: Edmund J.

O’Meally, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellee.

Selene Almazan-Altobelli, COUNCIL OF PARENT ATTORNEYS AND

ADVOCATES, INC., Towson, Maryland; Mark B. Martin, LAW OFFICES

OF MARK B. MARTIN, P.A., Baltimore, Maryland, for Amicus Council

of Parent Attorneys and Advocates. Francisco M. Negrόn, Jr.,

General Counsel, NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria,

Virginia, for Amici National School Boards Association and

Maryland Association of Boards of Education.

2

PAMELA HARRIS, Circuit Judge:

This case arises from the student-on-student bullying and

harassment of S.B., a disabled student who attended Aberdeen

High School in Harford County, Maryland. S.B., by and through

his mother, A.L., sued the Harford County Board of Education

(the “Board”), alleging primarily that by allowing other

students to harass S.B. based on his disability, the Board

violated § 504 of the Rehabilitation Act. S.B.’s stepfather,

T.L., a teacher and athletic director at Aberdeen High School,

sued in his own right, claiming that the Board also violated

§ 504 by retaliating against him for advocating on S.B.’s

behalf. 1

After extensive discovery, the district court granted

summary judgment to the Board, holding that there was no record

evidence to support either S.B.’s or T.L.’s claims. And while

we sympathize with students and parents who face school bullying

issues, we agree. S.B. has provided no evidence that the Board

acted with the deliberate indifference necessary to hold it

liable for student-on-student harassment. Nor does the record

substantiate T.L.’s allegation of a causal connection between

his advocacy for S.B. and any adverse action taken by the Board.

Accordingly, we affirm the judgment of the district court.

1

Like the district court, we refer to S.B. and his parents

only by their initials.

3

I.

A.

In reviewing the district court’s grant of summary judgment

to the Board, we present the facts of the case in the light most

favorable to S.B. and T.L., the non-moving parties. See Blake

v. Ross, 787 F.3d 693, 695 (4th Cir. 2015).

S.B. was a student with disabilities such as Attention

Deficit Hyperactivity Disorder, weak visual-spatial ability, and

a nonverbal learning disability. 2 There is no question but that

his years at Aberdeen High School, which he entered in the fall

of 2010, were difficult ones. S.B.’s fellow students often

bullied him, sometimes severely. Some of S.B.’s classmates

insulted him using homophobic slurs. Others sexually harassed

or physically threatened him. And S.B. faced — and sometimes

contributed to — racial tensions with his classmates; in one

significant episode, S.B. responded to three black students who

had been calling him names with a racial epithet and made other

threatening remarks.

S.B. or his parents reported most of these incidents to the

school, and the school, in turn, investigated each reported

2As required by the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. § 1400 et seq., Aberdeen High School

provided S.B. with an Individualized Education Plan and

assembled a team to implement that plan. S.B. has not alleged

that the school failed to meet its obligations under the IDEA.

4

incident. In almost every case, the school disciplined the

offenders, using measures such as student warnings and

conferences, parent phone calls, detentions, and suspensions.

From January 2013 to June 2013, the school also assigned a

school-employed paraeducator to follow S.B. during the school

day, monitoring his safety and acting as an objective witness to

any alleged acts of bullying.

S.B.’s parents were very concerned about the bullying

issues S.B. was confronting at school. Both had close

connections to Aberdeen High School: S.B.’s mother A.L. was a

substitute teacher, and T.L., as noted above, was the school’s

athletic director and a physical education teacher. A.L.

frequently emailed school principal Michael O’Brien about the

bullying of S.B., and O’Brien consistently responded, though not

always to A.L.’s satisfaction.

Eventually, both A.L. and T.L. began publicly criticizing

and questioning the school’s efforts to prevent the harassment

of their son. For instance, in November 2012, A.L. posted her

email conversation with O’Brien on Facebook in order to

publicize her complaints. In the same month, both parents

attended a hearing on whether the school should have suspended

S.B. for using a racial epithet. In April 2013, A.L. and T.L.,

along with S.B., filed the original complaint in this action.

And after filing this suit, T.L. raised concerns at an October

5

2013 parents’ forum about the lack of harassment reporting forms

available at the high school.

At around the same time, the school took several actions

with respect to T.L. that figure in T.L.’s retaliation claim.

In November 2012, O’Brien denied T.L. the opportunity to

complete a practicum for his master’s degree program on-site at

Aberdeen High School. As a result, T.L. instead completed the

practicum at the school district’s central office, working under

the district’s athletic supervisor. In the spring of 2013, the

school failed to give T.L. tickets to a scholarship banquet for

student-athletes. And in April 2013, O’Brien informed T.L. that

T.L. would not be teaching the school’s summer physical

education class that year, though he had taught it for the three

previous years.

Just over a year later, in June 2014, S.B. graduated on

time from Aberdeen High School. During high school, S.B.

consistently achieved passing grades, and in fall 2014, he began

taking classes at Harford Community College.

B.

In their amended complaint against the Board, filed in

July 2013, S.B. and his parents alleged violations of § 504 of

the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq.; and 42 U.S.C. §§ 1983 and 1985. The gist of all of those

6

claims was that the defendants had discriminated against S.B.

based on his disability, primarily by failing to prevent

student-on-student bullying and harassment, and retaliated

against S.B.’s parents when they sought to remedy that

discrimination.

The focus of the case was narrowed in the district court.

First, in September 2013, the district court granted in part the

Board’s motion to dismiss, dismissing from the suit all

individual defendants and S.B.’s claims under §§ 1983 and 1985.

Subsequently, A.L. voluntarily dismissed her retaliation claims.

That left the claims that are before us now: S.B.’s claim of

disability-based discrimination under § 504 and the ADA, and

T.L.’s claim of retaliation under § 504.

The district court denied the Board’s motion to dismiss on

those claims, allowing the parties to move forward to discovery.

But the court was skeptical that the claims could succeed,

expressing doubt that S.B. could establish that the Board had

discriminated against him by acting with “deliberate

indifference” to student-on-student bullying, or that T.L. could

show that the Board had retaliated against him because of his

advocacy on behalf of S.B. Memo to Counsel, S.B. v. Bd. of

Educ. of Harford Cty., No. 1:13-cv-1068-JFM, ECF. No. 35 (D. Md.

Sept. 30, 2013); J.A. 114.

7

After substantial discovery, in April 2015 the district

court granted summary judgment to the Board. According to the

district court, its initial skepticism “proved to be well-

founded.” S.B. v. Bd. of Educ. of Harford Cty., 1:13-cv-1068-

JFM, slip op. at 1 (D. Md. Apr. 17, 2015) (“District Court

Decision”); J.A. 2389. The court observed that “[d]espite the

extensive discovery that has been taken and the voluminous

papers that have been filed, it is now clear that the action is

a frivolous one.” Id. at 1–2.

Specifically, regarding S.B.’s claim of disability-based

discrimination, the district court first found that “it is not

at all clear that any harassment directed toward [S.B.] was on

account of his disability.” Id. at 2. But the district court

rested its decision on a different ground: that there was

“absolutely no evidence” in the record that the Board had

discriminated against S.B. by acting with “bad faith, gross

misjudgment or deliberate indifference in responding to”

student-on-student harassment. Id. Instead, the record showed

that the “Board investigated every harassment claim against S.B.

brought to its attention and assigned a person to be with S.B.

throughout the school.” Id. As to T.L.’s retaliation claim,

the district court concluded that there was “no evidence

whatsoever” of a causal link between T.L.’s advocacy of S.B.’s

rights and any action taken by the Board. Id.

8

S.B. and T.L. timely appealed the district court’s

judgment.

II.

We review the district court’s grant of summary judgment de

novo. Summary judgment is appropriate “when ‘there is no

genuine dispute as to any material fact and the movant is

entitled to [] judgment as a matter of law.’” Dash v.

Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (quoting Fed. R.

Civ. P. 56(a)). We view the facts in the light most favorable

to S.B. and T.L. as the non-moving parties and draw all

reasonable inferences in their favor. Blake, 787 F.3d at 695.

But if “no reasonable jury could find for the nonmoving party on

the evidence before it,” then we will affirm the grant of

summary judgment. Perini Corp. v. Perini Constr., Inc., 915

F.2d 121, 124 (4th Cir. 1990).

A.

We begin with S.B.’s claim that the Board discriminated

against him based on his disability in violation of § 504 of the

Rehabilitation Act. Section 504 provides that “[n]o otherwise

qualified individual with a disability . . . 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

9

financial assistance.” 29 U.S.C. § 794(a). According to S.B.,

he was subjected for years to sustained and pervasive student-

on-student harassment and bullying based on his disability, and

by failing to prevent that harassment, the Board itself engaged

in disability-based discrimination prohibited by § 504. 3

1.

The Supreme Court addressed a very similar claim in Davis

v. Monroe County Board of Education, 526 U.S. 629 (1999), a

student-on-student sexual harassment case brought under Title IX

of the Education Amendments of 1972, 20 U.S.C. § 1681(a). Like

§ 504, Title IX is what is known as Spending Clause legislation,

applying to schools and educational programs that receive

federal funds; and much like § 504, Title IX provides that no

person “shall, on the basis of sex, be excluded from

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

discrimination” in a federally funded program. Id. Given that

3 S.B. also refers on appeal, though only briefly, to his

distinct claim under the ADA. Though his argument is not

entirely clear, S.B. appears to take the position that the Board

engaged in disability-based discrimination under the ADA by

failing to supplement its anti-bullying policy with a special

policy tailored to the needs of disabled students. S.B. cites

no case law in support of such a duty, and we decline to hold

that a school discriminates on the basis of disability unless it

establishes a second and separate anti-bullying policy specific

to disabled students.

10

statutory structure, the Court held in Davis, a school could be

liable in damages for student-on-student sexual harassment only

if it was “deliberately indifferent” to known acts of such

harassment. 526 U.S. at 642, 649.

The Court started with the well-established rule that

recipients of federal funds must have adequate notice that they

may be liable for certain conduct before a private damages

action will be allowed. Id. at 640. It followed, the Court

concluded, that schools may not be held liable under Title IX

for the misconduct of their students, but only for their “own

decision to remain idle in the face of known student-on-student

harassment,” id. at 641 (emphasis in original) — “intentional

conduct that violates the clear terms of the statute,” id. at

642. A negligent failure to learn of or react to its students’

independent actions, in other words, will not subject a school

to liability, but “deliberate indifference to known acts of

harassment” will. Id. at 642–43.

Like most of the federal courts to consider the question,

we think it clear that the same reasoning applies to § 504

claims arising from student-on-student harassment or bullying.

See, e.g., Estate of Lance v. Lewisville Indep. Sch. Dist., 743

F.3d 982, 995–96 (5th Cir. 2014) (citing cases from other

circuits); S.S. v. E. Ky. Univ., 532 F.3d 445, 454 (6th Cir.

2008) (citing cases from district courts). As noted above,

11

§ 504, like Title IX, is Spending Clause legislation, which

means that fund recipients must be on notice that they could be

liable for student-on-student wrongdoing — a condition satisfied

by intentional and official conduct in the form of “deliberate

indifference.” See Davis, 526 U.S. at 640–42. And § 504’s

operative language is strikingly similar to Title IX’s,

prohibiting the same “exclu[sion] from participation,” “deni[al]

of benefits,” and “discrimination” in federally funded programs.

See Lance, 743 F.3d at 996 (noting similarities in wording of

§ 504 and Title IX). Given these parallels, it plainly follows

from Davis that § 504 claims predicated on student-on-student

harassment, like their Title IX counterparts, require a showing

of deliberate indifference on the part of the funding recipient.

S.B. argues that our circuit has adopted a different

standard by holding in Sellers v. School Board of City of

Manassas, 141 F.3d 524, 529 (4th Cir. 1998), that a school may

be liable for damages under § 504 if it acts with “bad faith or

gross misjudgment.” And we note that the district court, likely

in an excess of caution, applied the “bad faith or gross

misjudgment” standard as well as the “deliberate indifference”

standard and held that S.B. could satisfy neither. See District

Court Decision at 2. But the Sellers standard does not govern

this case, because Sellers did not involve school liability for

student-on-student misconduct. Instead, Sellers presented a

12

straightforward claim that a school’s own direct conduct — an

alleged failure to provide a free appropriate public education

under the Individuals with Disabilities Education Act (“IDEA”) —

constituted § 504 discrimination, and held only that “bad faith

or gross misjudgment” was required “in the context of education

of handicapped children” to turn an IDEA violation into § 504

discrimination. Sellers, 141 F.3d at 529. 4 To resolve the

distinct issues implicated by school liability arising from

student misconduct, we are guided not by Sellers but by Davis,

which addressed those issues directly.

2.

In the § 504 context, the Davis deliberate indifference

standard requires a plaintiff like S.B. to show that he was an

individual with a disability, harassed by fellow students based

on his disability; that the disability-based harassment was

sufficiently “severe, pervasive, and objectively offensive” that

it effectively deprived him of “access to educational benefits

and opportunities” at school, Davis, 526 U.S. at 650; and that

the school knew about the disability-based student-on-student

4

We took the same view of Sellers in Shirey ex rel. Kyger

v. City of Alexandria Sch. Bd., 229 F.3d 1143, 2000 WL 1198054,

at *4 (4th Cir. 2000) (unpublished table decision), explaining

that Sellers “adopted the heightened standard of ‘bad faith or

gross misjudgment’ for proving discrimination in the specific

context of developing appropriate [Individualized Education

Plans] for disabled children” under the IDEA.

13

harassment and was deliberately indifferent to it. See Lance,

743 F.3d at 996; S.S., 532 F.3d at 454; cf. Davis, 526 U.S. at

649–50 (same under Title IX). Like the district court, we

conclude that on the record evidence in this case, no reasonable

jury could find that S.B. has made the necessary showing.

The district court held first that “it is not at all clear”

that S.B. could establish that the student-on-student bullying

he suffered and reported to the school was based on his

disability, as required for a violation of § 504. District

Court Decision at 2. We agree with that assessment. Read most

generously to S.B., the record contains, at best, only the

slightest of evidence that S.B. was harassed because of his

disability, mostly in the form of S.B.’s self-serving affidavit.

Instead, as the Board argues, S.B’s own evidentiary submissions

strongly suggest that S.B. most often was the victim (and

sometimes the perpetrator) of race-based bullying and slurs —

conduct that is deplorable and damaging in its own right, but

cannot give rise to § 504 liability.

Moreover, though there is no question but that the school

was on notice that S.B. was being bullied, there is very much a

question as to whether the school knew of any disability-based

bullying, as would be required for S.B. to prevail under the

Davis standard. Even assuming that S.B. was on occasion

harassed because of his disability, none of the email

14

communications or harassment reports filed by S.B. or his

parents and included in the record informed the school of that

fact. S.B. argues that the school should have known, by way of

investigation, that the harassment of which he complained was

based on his disability — but the Supreme Court rejected

precisely that negligence standard in Davis, 526 U.S. at 642

(declining to impose liability under “what amount[s] to a

negligence standard” for failure to respond to harassment of

which a school “knew or should have known” (emphasis in

original)), and we cannot employ it here.

In any event, and like the district court, we find that

whatever the nature of the harassment directed at S.B., there is

no record evidence suggesting that the Board responded to it

with the deliberate indifference required by Davis. See

District Court Decision at 2. Davis sets the bar high for

deliberate indifference. The point, again, is that a school may

not be held liable under Title IX or § 504 for what its students

do, but only for what is effectively “an official decision by

[the school] not to remedy” student-on-student harassment. 526

U.S. at 642. Thus, it is not enough that a school has failed to

eliminate student-on-student harassment, or to impose the

disciplinary sanctions sought by a victim. Id. at 648; see

Lance, 743 F.3d at 996 (under Davis standard, “[s]ection 504

does not require that schools eradicate each instance of

15

bullying from their hallways to avoid liability”). Instead, a

school will be liable for student-on-student harassment only

where its “response . . . or lack thereof is clearly

unreasonable in light of the known circumstances.” Davis, 526

U.S. at 648.

Without making any effort to tie his argument to the

record, S.B. asserts generally that the Board either did nothing

in response to repeated complaints about the bullying he

confronted, or failed to investigate and address those

complaints in a meaningful way. 5 But the record is squarely to

the contrary. First, the record shows conclusively that the

school in fact investigated every single incident of alleged

harassment of which it was informed by S.B. or his parents. And

in nearly every case, the school disciplined offenders with

measures ranging from parent phone calls to detentions to

suspensions. Finally, as the district court emphasized, from

January 2013 to June 2013, the school assigned a paraeducator —

a school professional who works with students — to accompany

5In the fact section of his brief, S.B. alleges generally

that, with two exceptions, “no formal disciplinary or other

remedial action[] was taken against students who bullied S.B.”

Appellants’ Br. at 26. That claim is flatly belied by the

record, which contains evidence of numerous disciplinary actions

beyond the two noted by S.B. See, e.g., J.A. 1797 (parent phone

call and letter, student conference and warning, detention);

J.A. 1816 (parent phone call and letter, student conference);

J.A. 1870 (student conference and warning).

16

S.B. during the school day to ensure S.B.’s safety as well as to

provide objective witness to alleged acts of bullying.

There is no “decision to remain idle” on this record — no

“official decision by [the school] not to remedy” known student-

on-student harassment. See Davis, 526 U.S. at 641–42. That is

not to say, of course, that only a complete failure to act can

constitute deliberate indifference, or that any half-hearted

investigation or remedial action will suffice to shield a school

from liability. Where, for instance, a school has knowledge

that a series of “verbal reprimands” is leaving student-on-

student harassment unchecked, then its failure to do more may

amount to deliberate indifference under Davis. Patterson v.

Hudson Area Schs., 551 F.3d 438, 448–49 (6th Cir. 2009); see

also Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70

(2d Cir. 2012) (school response to student-on-student harassment

may be unreasonable where school “dragged its feet” before

implementing “little more than half-hearted measures”). But

school administrators are entitled to substantial deference when

they calibrate a disciplinary response to student-on-student

bullying or harassment, see Davis, 526 U.S. at 648; Lance, 743

F.3d at 996–97, and a school’s actions do not become “clearly

unreasonable” simply because a victim or his parents advocated

for stronger remedial measures, Zeno, 702 F.3d at 666. In this

case, no reasonable juror could find that the school was less

17

than fully engaged with S.B.’s problems, using escalating

disciplinary sanctions to punish and deter student-on-student

harassment and taking other protective measures on S.B.’s

behalf. Accordingly, as the district court held, S.B. simply

cannot make out a case of deliberate indifference under Davis.

B.

We now turn to T.L.’s retaliation claim under § 504, which

we can dispense with more briefly. Absent direct evidence of

retaliation, T.L. may proceed under the familiar burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973), making a prima facie case of retaliation by showing

(1) that he engaged in protected activity, (2) that the Board

took an adverse action against him, and (3) that the adverse

action was causally connected to his protected activity. See

Rhoads v. F.D.I.C., 257 F.3d 373, 392 (4th Cir. 2001) (ADA

retaliation claim). 6 If T.L. can meet this burden, then the

Board must articulate a “legitimate nonretaliatory reason for

its actions,” at which point the burden shifts back to T.L. to

6

As the parties agree, retaliation claims under § 504 are

subject to the same standard as ADA retaliation claims. See

Lyons v. Shinseki, 454 F. App’x 181, 182, 184 (4th Cir. 2011)

(per curiam) (unpublished) (applying same standard to ADA and

§ 504 retaliation claims); Myers v. Hose, 50 F.3d 278, 281 (4th

Cir. 1995) (noting that “the substantive standards for

determining liability are the same” under the Rehabilitation Act

and the ADA); see also Reinhardt v. Albuquerque Pub. Schs. Bd.

of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010).

18

“demonstrate that the proffered reason is a pretext for

forbidden retaliation.” Id.

The Board does not dispute that T.L. advocated on behalf of

S.B., a disabled student, and thus engaged in protected activity

for purposes of a retaliation claim. And although the Board

does contest the second element of the analysis, we think it

clear that one of the actions identified by T.L. — the decision

not to rehire T.L. to teach the summer physical education class

he had taught for three previous years — amounted to the kind of

“materially adverse” action that can give rise to a retaliation

claim. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 68 (2006) (Title VII retaliation claim); Rhoads, 257 F.3d at

391 (applying Title VII retaliation standards to ADA retaliation

claim). Even if, as the Board argues, T.L. did not have a

legally cognizable “expectation of continued employment” as a

summer teacher, Appellee’s Br. at 55, the loss of a summer job

and wages that had been available for the past three years “well

might” be enough to “dissuade[] a reasonable worker from making

or supporting a charge of discrimination,” and that is enough to

satisfy the “materially adverse” standard. Burlington, 548 U.S.

at 54; see Reinhardt v. Albuquerque Pub. Schs. Bd. of Educ., 595

F.3d 1126, 1133 (10th Cir. 2010) (loss of salary customarily

19

received for usual extended contract may constitute materially

adverse action). 7

Like the district court, however, we think the Board

nevertheless was entitled to summary judgment because no

reasonable jury could find the necessary causal connection

between the Board’s adverse action and T.L.’s protected

activity. The Board has come forward with a legitimate and

plausible nonretaliatory reason for its decision: According to

school principal O’Brien, because of the number of female

students enrolled in the summer physical education class, he

concluded that the class should be taught by one female and one

male teacher, and he selected a male teacher who had more

experience than T.L. in teaching physical education. And the

next year, when O’Brien needed an additional teacher for the

summer of 2014, he chose T.L. for the slot. The burden now

shifts to T.L. to demonstrate that this explanation is

pretextual, and that the decision to hire the more experienced

teacher in 2013 in fact was causally linked to his protected

7

T.L. complains of two additional actions by the Board:

first, the Board’s failure to provide him with tickets to a

student-athlete scholarship banquet; and second, the Board’s

decision that he could not complete his practicum at Aberdeen

High School, which required him to complete it at the school

district’s central office instead. Viewing the related facts in

the light most favorable to T.L., we are convinced that neither

of those actions rises to the level of “materially adverse.”

See Burlington, 548 U.S. at 68 (“trivial harms” and “minor

annoyances” are not actionable in a retaliation claim).

20

activity. But there simply is no record evidence to support

that proposition. While the temporal proximity between T.L.’s

protected activity and the reassignment of the summer teaching

job may be sufficient to make an initial prima facie showing of

causation, see Jacobs v. N.C. Admin. Office of the Courts, 780

F.3d 562, 579 (4th Cir. 2015), timing alone generally cannot

defeat summary judgment once an employer has offered a

convincing, nonretaliatory explanation. See Pinkerton v. Colo.

Dep’t of Transp., 563 F.3d 1052, 1066 (10th Cir. 2009). Without

more than his own assertions, T.L. cannot meet his burden at

summary judgment. See Haulbrook v. Michelin N. Am., Inc., 252

F.3d 696, 705–06 (4th Cir. 2001) (rejecting plaintiff’s

retaliation claim at summary judgment because no reasonable jury

could find the employer’s explanation pretextual). 8

III.

For the reasons set forth above, we affirm the judgment of

the district court.

AFFIRMED

8

S.B. and T.L. also appeal the denial of their motion for

sanctions based on alleged spoliation of evidence by the Board,

and argue that the district court erred in ignoring certain

evidentiary objections. We find no error in the district

court’s ruling on spoliation, and our decision today relies on

none of the evidence to which S.B. and T.L. object.

21