NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
COREY CAMFIELD and MISTY No. 17-56072 CAMFIELD, D.C. No. Plaintiffs-Appellants 2:16-cv-02367-ODW-FFM
v. MEMORANDUM*
BOARD OF TRUSTEES OF REDONDO BEACH UNIFIED SCHOOL DISTRICT, et al., Defendants-Appellees
Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding
Argued and Submitted May 17, 2019 Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District Judge.
Corey and Misty Camfield appeal an adverse judgment in this action against
the Redondo Beach Unified School District and several of its administrators raising
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
1 claims under the Americans with Disability Act (“ADA”), 42 U.S.C. § 12132, the
Rehabilitation Act, 29 U.S.C. § 794, and California law.1 We have jurisdiction under
28 U.S.C. § 1291 and affirm.
1. The claims arise primarily out of a disruptive parent letter (“DPL”) issued
to Misty by the School District in March 2015, requiring her to seek permission from
the principal of Jefferson Elementary School twenty-four hours prior to any on-
campus visit. Three Camfield children were enrolled in the school at the time; one
(Minor 1) suffers from cerebral palsy.
The DPL concerned Misty’s conduct in February 2015, when she learned that
a Ms. Comeaux was assigned as an instructional aide for Minor 1 for one entire day
each week and a half day every other day of the week. The DPL recites that Misty
“began approaching an instructional assistant, Ms. Comeaux, about her daily
schedule starting in the morning of her first day on the job” and repeatedly called
the cell phones of the two other instructional assistants to ask about Ms. Comeaux’s
assignment. The letter then focused on the following undisputed behavior by Misty:
1. On February 25, Misty asked Ms. Comeaux on school grounds if she would be the aide for “Minor 1” for the entire day, and if so, Misty said, “[T]hat shit’s not flying.”
2. The same day, Misty said to Ms. Siu, another instructional aide, on school grounds, “Do you know if this is gonna happen all the time? Because there ain’t no fucking way that I’m going to put up with this shit. There is no way
1 The Camfields’ motion to strike portions of the answering brief is denied.
2 [Minor 1] is going to have just one aide at the middle school. I have a lawyer that’s gonna take care of all this.”
3. As a result of Misty’s actions, “Ms. Comeaux felt so uncomfortable that she would hide inside a locked classroom until Misty left the campus in order to avoid the unpleasant interactions with her.”
4. “On February 27, in a conversation with the school custodian,” Misty said, “The kids are saying that Ms. Comeaux is an airhead and a ditz,” and that another special education teacher was “breaking the IEP.”
Prior to issuance of the March DPL, Misty had called the school principal a
“fucking bitch” in a classroom and in the presence of Corey and a teacher. After
meetings with the Camfields, the District had decided not to issue a DPL in response
to that conduct.
2. Misty claims that the March DPL was in retaliation for her advocacy on
behalf of Minor 1, and therefore violated the ADA and the Rehabilitation Act. But
she does not contest that the events cited in the DPL took place. Nor can she contest
that the School District reasonably concluded that her conduct was “likely to
interfere with the peaceful conduct of the facility.” See Cal. Penal Code § 627(a).
Moreover, Misty produced no evidence that the twenty-four-hour notice requirement
interfered with her ability to advocate on behalf of Minor 1. Even after the DPL was
issued, Misty was not denied permission to attend any event involving Minor 1 or to
meet with any representative of the District concerning the child’s education. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“The [Title VII]
antiretaliation provision protects an individual not from all retaliation, but from
3 retaliation that produces an injury or harm.”); T.B. ex rel. Brenneise v. San Diego
Unified School Dist., 806 F.3d 451, 472-73 (9th Cir. 2015) (applying Title VII
retaliation framework to the ADA); see also Castle v. Eurofresh, Inc., 731 F.3d 901,
908 (9th Cir. 2013) (“The Rehabilitation Act is materially identical to and the model
for the ADA. . .). Merely being required to make an appointment one day in advance
to enter an elementary school campus does not produce an injury or harm forbidden
by federal law, particularly when future advocacy is not banned.
3. We reject Misty’s argument that the arguable miscitation of statutory
authority in the DPL is evidence of a pretext for discrimination. The letter was
plainly authorized under California law, see Cal. Penal Code § 627(a), if not under
all provisions cited by the District. Similarly, we find no evidence of pretext in the
fact that the DPL only refers to activities occurring since January 2015 while the
School District’s brief also references additional activities. Rather, that uncontested
history provides useful context for the District’s eventual decision to issue the DPL
in March after previously refraining from doing so.2
4. We also reject Misty’s claim for retaliation for the exercise of First
2 Our dissenting colleague finds evidence of pretext in the “temporal proximity between the DPL’s issuance” and “the conduct it provides as a basis for exclusion,” as well as a “rising hostility to Camfield in response to her complaints.” Dissent 1– 2. But because Misty did not make these arguments in her opening brief, we decline to address them. See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir. 2010).
4 Amendment rights. Jefferson Elementary is a non-public forum where regulations
on speech are permissible so long as they are “reasonable and not an effort to
suppress expression merely because public officials oppose the speaker’s view.”
Flint v. Dennison, 488 F.3d 816, 830–31 (9th Cir. 2007) (quoting Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)). Requiring the Camfields
to seek permission twenty-four hours prior to entering campus was a reasonable
regulation unrelated to viewpoint discrimination, and the record contains no
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
COREY CAMFIELD and MISTY No. 17-56072 CAMFIELD, D.C. No. Plaintiffs-Appellants 2:16-cv-02367-ODW-FFM
v. MEMORANDUM*
BOARD OF TRUSTEES OF REDONDO BEACH UNIFIED SCHOOL DISTRICT, et al., Defendants-Appellees
Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding
Argued and Submitted May 17, 2019 Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District Judge.
Corey and Misty Camfield appeal an adverse judgment in this action against
the Redondo Beach Unified School District and several of its administrators raising
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
1 claims under the Americans with Disability Act (“ADA”), 42 U.S.C. § 12132, the
Rehabilitation Act, 29 U.S.C. § 794, and California law.1 We have jurisdiction under
28 U.S.C. § 1291 and affirm.
1. The claims arise primarily out of a disruptive parent letter (“DPL”) issued
to Misty by the School District in March 2015, requiring her to seek permission from
the principal of Jefferson Elementary School twenty-four hours prior to any on-
campus visit. Three Camfield children were enrolled in the school at the time; one
(Minor 1) suffers from cerebral palsy.
The DPL concerned Misty’s conduct in February 2015, when she learned that
a Ms. Comeaux was assigned as an instructional aide for Minor 1 for one entire day
each week and a half day every other day of the week. The DPL recites that Misty
“began approaching an instructional assistant, Ms. Comeaux, about her daily
schedule starting in the morning of her first day on the job” and repeatedly called
the cell phones of the two other instructional assistants to ask about Ms. Comeaux’s
assignment. The letter then focused on the following undisputed behavior by Misty:
1. On February 25, Misty asked Ms. Comeaux on school grounds if she would be the aide for “Minor 1” for the entire day, and if so, Misty said, “[T]hat shit’s not flying.”
2. The same day, Misty said to Ms. Siu, another instructional aide, on school grounds, “Do you know if this is gonna happen all the time? Because there ain’t no fucking way that I’m going to put up with this shit. There is no way
1 The Camfields’ motion to strike portions of the answering brief is denied.
2 [Minor 1] is going to have just one aide at the middle school. I have a lawyer that’s gonna take care of all this.”
3. As a result of Misty’s actions, “Ms. Comeaux felt so uncomfortable that she would hide inside a locked classroom until Misty left the campus in order to avoid the unpleasant interactions with her.”
4. “On February 27, in a conversation with the school custodian,” Misty said, “The kids are saying that Ms. Comeaux is an airhead and a ditz,” and that another special education teacher was “breaking the IEP.”
Prior to issuance of the March DPL, Misty had called the school principal a
“fucking bitch” in a classroom and in the presence of Corey and a teacher. After
meetings with the Camfields, the District had decided not to issue a DPL in response
to that conduct.
2. Misty claims that the March DPL was in retaliation for her advocacy on
behalf of Minor 1, and therefore violated the ADA and the Rehabilitation Act. But
she does not contest that the events cited in the DPL took place. Nor can she contest
that the School District reasonably concluded that her conduct was “likely to
interfere with the peaceful conduct of the facility.” See Cal. Penal Code § 627(a).
Moreover, Misty produced no evidence that the twenty-four-hour notice requirement
interfered with her ability to advocate on behalf of Minor 1. Even after the DPL was
issued, Misty was not denied permission to attend any event involving Minor 1 or to
meet with any representative of the District concerning the child’s education. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“The [Title VII]
antiretaliation provision protects an individual not from all retaliation, but from
3 retaliation that produces an injury or harm.”); T.B. ex rel. Brenneise v. San Diego
Unified School Dist., 806 F.3d 451, 472-73 (9th Cir. 2015) (applying Title VII
retaliation framework to the ADA); see also Castle v. Eurofresh, Inc., 731 F.3d 901,
908 (9th Cir. 2013) (“The Rehabilitation Act is materially identical to and the model
for the ADA. . .). Merely being required to make an appointment one day in advance
to enter an elementary school campus does not produce an injury or harm forbidden
by federal law, particularly when future advocacy is not banned.
3. We reject Misty’s argument that the arguable miscitation of statutory
authority in the DPL is evidence of a pretext for discrimination. The letter was
plainly authorized under California law, see Cal. Penal Code § 627(a), if not under
all provisions cited by the District. Similarly, we find no evidence of pretext in the
fact that the DPL only refers to activities occurring since January 2015 while the
School District’s brief also references additional activities. Rather, that uncontested
history provides useful context for the District’s eventual decision to issue the DPL
in March after previously refraining from doing so.2
4. We also reject Misty’s claim for retaliation for the exercise of First
2 Our dissenting colleague finds evidence of pretext in the “temporal proximity between the DPL’s issuance” and “the conduct it provides as a basis for exclusion,” as well as a “rising hostility to Camfield in response to her complaints.” Dissent 1– 2. But because Misty did not make these arguments in her opening brief, we decline to address them. See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir. 2010).
4 Amendment rights. Jefferson Elementary is a non-public forum where regulations
on speech are permissible so long as they are “reasonable and not an effort to
suppress expression merely because public officials oppose the speaker’s view.”
Flint v. Dennison, 488 F.3d 816, 830–31 (9th Cir. 2007) (quoting Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)). Requiring the Camfields
to seek permission twenty-four hours prior to entering campus was a reasonable
regulation unrelated to viewpoint discrimination, and the record contains no
evidence that the restrictions were used to suppress expression, but merely to control
disruption of the educational environment.
5. Even assuming that California Education Code § 51101 creates a private
cause of action, the DPLs issued to Corey and Misty did not violate it. Section 51101
allows parents to enter campus “within a reasonable period of time following making
the request.” Twenty-four hours is “a reasonable period of time.” The Camfields
obtained permission and entered campus on numerous occasions after the DPLs
were issued. The Camfields’ proposed cause of action for negligently breaching the
“duty of care [the School District] owed to parents, including [the Camfields], to
assure that they are afforded appropriate access to the campus in order to exercise
[their] rights” under Section 51101 is simply another way of stating the same claim.
6. The district court correctly dismissed the Camfields’ Bane Act claim
because they “fail[ed] to plead sufficient facts that Defendants’ communications
5 contained ‘threats, intimidation or coercion.’” See Cal. Civ. Code § 52.1(b)–(c).
The School District’s communications to the Camfields prior to the DPL were not
threats. Nor did those communications unreasonably interfere with the exercise of
any constitutional or statutory rights.
7. The Camfields’ claim that the defendants “unilaterally den[ied] them their
statutory and constitutional rights without due process of law” fails for the reasons
noted above and by the district court.
AFFIRMED.
6 FILED Camfield v. Bd. of Trustees of Redondo Beach Unified Sch. Dist., No. 17-56072 SEP 18 2019 WARDLAW, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I part ways with my colleagues on a narrow issue: Misty Camfield adduced
sufficient evidence to survive summary judgment on her unlawful retaliation
claims under the Americans with Disabilities Act (ADA) and Rehabilitation Act
against the District. The District conceded that Camfield established a prima-facie
case of retaliation, but offered several reasons for its adverse action, the Disruptive
Parent Letter (DPL), that it asserts, and the majority accepts, were legitimate and
nondiscriminatory. Unlike the majority, I conclude that Camfield provided
specific and substantial evidence of pretext, Stegall v. Citadel Broad. Co., 350 F.3d
1061, 1066 (9th Cir. 2003).
The contemporaneous reasons for issuing the DPL are stated clearly in it,
and they relate exclusively to Camfield’s advocacy on behalf of her disabled son.
Yet, throughout this litigation the District has offered other, inconsistent
justifications for Camfield’s exclusion. 1 Moreover, the DPL purports to rely on
sections of the California Penal Code that explicitly exclude applicability to
parents or guardians of a pupil of the school. There is temporal proximity between
the DPL’s issuance on March 3, 2015 and the conduct it provides as a basis for
exclusion dating from January 2015 (including two complaints Camfield made less
1 Even the majority opinion relies on “undisputed facts” not set forth in the DPL itself to bolster the basis for Camfield’s exclusion. than a week before the DPL). That school administrators exhibited rising hostility
to Camfield in response to her complaints about her disabled child’s education is
apparently undisputed, and it is also clearly described in the DPL. Each of these
factors has been deemed evidence of pretext in our circuit, and thus a genuine
dispute of material fact exists. See, e.g., Dominguez-Curry v. Nev. Transp. Dep’t,
424 F.3d 1027, 1037 (9th Cir. 2005) (noting that a plaintiff may demonstrate
pretext “by showing that the [defendant’s] proffered explanation is . . . inconsistent
or otherwise not believable”); Stegall, 350 F.3d at 1071 (holding hostility and
temporal proximity are highly probative of pretext).