Palmer v. Elmore County Board of Education

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JONICKA PALMER, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:21cv49-MHT

) (WO)

ELMORE COUNTY BOARD OF )

EDUCATION and TEMEYRA )

McELRATH, )

)

Defendants. )

OPINION

Plaintiff Jonicka Palmer brings this lawsuit

against defendants Elmore County Board of Education and

Temeyra McElrath, the director of special education for

the district.* She alleges that the board and McElrath

retaliated against her because of her continued

advocacy on behalf of her disabled child. She rests

her claim against the school board on § 504 of the

*According to the complaint, the Elmore County

Board of Education is the “Alabama governmental entity

that bears exclusive responsibility for the operation,

management, and control of the Elmore County school

system/district.” Complaint (Doc. 1) at ¶ 2.

Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title

II of the Americans with Disabilities Act (ADA), 42

U.S.C. § 12132. She rests her claim against McElrath

on the First Amendment, as enforced through 42 U.S.C.

§ 1983. The court has jurisdiction pursuant to 28

U.S.C. § 1331 (federal question) and 28 U.S.C.

§§ 1343(a)(3-4) (deprivations of civil rights).

This lawsuit is now before the court on the school

board and McElrath’s motion for summary judgment. Oral

argument was held on the motion at the pretrial

conference on January 19, 2023. For the following

reasons, the motion will be granted.

I. Summary-Judgment Standard

“A party may move for summary judgment, identifying

each claim or defense--or the part of each claim or

defense—on which summary judgment is sought. The court

shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party can do this by

demonstrating that the nonmoving party has failed to

make a showing “sufficient to establish the existence

of an element essential to the [nonmovant’s] case, and

on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 4744 U.S. 317, 322

(1986). The court must view the evidence in the light

most favorable to the non-moving party and draw all

reasonable inferences in favor of that party. See

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). Summary judgment is

appropriate “[w]here the record taken as a whole could

not lead a rational trier of fact to find for the

non-moving part.” Id.

II. Factual and Procedural Background

For many years, Palmer has engaged in advocacy on

behalf of her son, A.W., who has severe disabilities.

In 2017, she filed a due process complaint with the

Elmore County Board of Education, alleging that he was

being wrongfully physically excluded by the school

district. In April 2018, the parties reached a

settlement requiring the school district to permit A.W.

to attend school for the length of the full school day,

among other stipulations. See Settlement Agreement

(Doc. 36-7) at 5 (under seal). That settlement was

reduced to an enforceable judgment. See id. at 4.

Shortly after the 2018-2019 school year began, the

Elmore County School District once again denied A.W.

the ability to attend school for the duration of a full

school day. In January 2019, Palmer filed a new

due-process complaint, arguing that the school district

was violating the terms of the April 2018 settlement.

After a four-day trial, an administrative hearing

officer ruled in her favor, finding that the school

district’s actions “clearly did not comply” with the

parties’ agreement. See Hearing Decision (Doc. 36-8)

at 22 (under seal). The hearing officer entered an

additional order requiring the district to abide by the

terms of the settlement, including allowing A.W. to

attend school in person. See id. at 24.

The events of the instant case began during the

period of time in which school district administrators

were restricting A.W. from attending school, over

Palmer’s repeated objections. In January 2019, she

received two letters from Millbrook Middle School,

alerting her that her son “had accumulated five

truancies (unexcused absences).” First Letter (Doc.

36-2); see also Second Letter (Doc. 36-3) (stating

same). The letters warned that her failure to attend a

mandatory conference with the district attendance

supervisor could “result in the filing of a complaint

against the parent.” First Letter (Doc. 36-2).

On January 23, 2019, Palmer arrived at the middle

school for the mandatory conference with Andre Jackson,

the director of administrative services for the

district. She was accompanied by an employee from her

lawyer’s office. Jackson, who believed the employee

was Palmer’s attorney, called McElrath, the special

education coordinator, to see how he should proceed.

McElrath is not Jackson’s supervisor, but Jackson was

aware that A.W. had an individualized education plan in

place, which is why he sought McElrath’s consultation.

According to a transcript of the meeting provided

to the defendants by Palmer’s counsel, Jackson told

McElrath that he was meeting with “the parent of

[A.W.]” and her attorney. Defs.’ Brief in Favor of

Summary Judgment (Doc. 37) at 19-20. He asked her if

he should conduct the conference with an attorney

present. The transcript does not indicate McElrath’s

response, but it prompted Jackson to reply “very good,

that’s what I thought.” Id. Jackson ended the

meeting, adding that Palmer might hear from the

district again once the district’s representatives also

had an attorney present. Id.

According to testimony Jackson provided on a

separate occasion, when he informed McElrath that A.W.

had been flagged for excessive absences, she instructed

him to “follow procedure.” Complaint (Doc. 1) at 18.

She did not provide him with any additional context

about A.W. or the April 2018 settlement.

In a sworn affidavit, McElrath recounts that she

“simply advised [Jackson] that he had a right to have

counsel present” during their phone call. McElrath

Aff. (Doc 36-5) at 6. She did not otherwise “direct or

instruct Mr. Jackson on what to do or not do,” and “did

not have any context” about why he was meeting with

Palmer. Id.

Three weeks after the interrupted meeting with

Jackson, Palmer received a third truancy-related

letter, this time from the Elmore County district

attorney’s office. The letter said that, as a result of

A.W.’s truancy issues, she would be required to

“participate in a process of family evaluation and

interventions.” Third Letter (Doc. 36-4). Her attorney

called the D.A.’s office to explain the situation,

after which the matter was dropped. Neither the school

district nor the district attorney’s office pursued the

truancy matter further.

III. Legal Analysis

At oral argument on the summary-judgment motion on

January 19, 2023, Palmer’s attorney agreed that the

alleged retaliatory conduct at issue was McElrath’s

failure to inform Jackson of the broader context

surrounding A.W.’s absences during their phone call, or

at any point thereafter. The attorney argued that,

when McElrath became aware that A.W. had been placed in

truancy proceedings, she should have taken proactive

steps to explain the terms of the April 2018 settlement

to attendance officials. The attorney conceded that

there was no additional evidence to support allegations

that McElrath retaliated against Palmer in any

capacity.

To state a prima-facie case of retaliation under

the ADA or § 504 of the Rehabilitation Act, or for

retaliation under § 1983 First Amendment claim, a

plaintiff must prove the following elements: first,

that she engaged in statutorily or constitutionally

protected expression; second, that she suffered an

adverse action; and third, that “the adverse action was

causally related to her protected expression.” Higdon

v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004)

(stating necessary elements for a prima-facie case of

retaliation under the ADA); see also Burgos-Stefanelli

v. Sec’y, U.S. Dept. of Homeland Sec., 410 F. App’x

243, 245 (11th Cir. 2011) (stating elements for § 504

claims) and DeMartini v. Town of Gulf Stream, 942 F.3d

1277, 1289 (11th Cir. 2019) (stating elements for

§ 1983 First Amendment claims). “The failure to satisfy

any of these elements is fatal to a complaint of

retaliation.” Higdon, 393 F.3d at 1219.

For purposes of summary judgment, and viewing the

evidence in the light most favorable to Palmer, the

court will accept her assertion that merely receiving

the three truancy-related letters constituted an

adverse action. However, she fails to offer any

evidence of a causal relationship between her advocacy

and the letters.

McElrath, the special-education coordinator, was

fully aware of Palmer’s ongoing advocacy efforts. But

Palmer fails to show that McElrath had anything more

than limited awareness of the “adverse action,” and

does not present any evidence of a causal relationship

between the two. McElrath did not initiate the truancy

proceedings, and her office is not responsible for

general matters of attendance tracking. None of the

letters that Palmer received mention McElrath’s name or

her office. Palmer does not offer any evidence that

McElrath even knew the first and second letters would

be sent.

Moreover, Palmer offers no evidence that any of the

district employees who were involved in sending the

truancy letters had any knowledge of her advocacy, or

the settlement she had negotiated.

Because Palmer fails to establish a causal relation

between her advocacy and the truancy letters she

received, she has not made a showing sufficient to

establish an element essential to her claims. For this

reason, this court finds that summary judgment in favor

of McElrath is appropriate.

At the oral argument on January 19, 2023, Palmer’s

attorneys also conceded that the school board’s

liability depended exclusively on McElrath’s conduct.

For this reason, the court also grants summary judgment

in favor of the school board.

Accordingly, the school board and McElrath’s motion

for summary judgment will be granted in full.

An appropriate judgment will be entered.

DONE, this the 1st day of February, 2023.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE