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Blazquez v. Board of Education of the City of Chicago

August 20, 2007

ALMA BLAZQUEZ, PLAINTIFF
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO; BARRY FRAZIN, PERSONALLY AND AS FORMER VICE PRINCIPAL OF JOHN COONLEY SCHOOL; EDWARD RUYACK, PERSONALLY AND AS FORMER PRINCIPAL OF JOHN COONLEY SCHOOL, DEFENDANT.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Before this Court are the motions for summary judgment of the Board of Education of the City of Chicago ("Board") (Doc. No. 93), Barry Frazin ("Frazin") (Doc. No. 98), and Edward Ruyack ("Ruyack") (Doc. No. 101) (collectively "Defendants") against Plaintiff Alma Blazquez ("Plaintiff") pursuant to Federal Rules of Civil Procedure 56. For the reasons stated below, Defendants' motions are GRANTED in part and DENIED in part.

FACTS*fn1

Plaintiff was hired by the Board in August of 1999 to work within the Chicago Public Schools ("CPS") system as a special education teacher at John Coonley Elementary School ("Coonley"). Over the next four years, Blazquez worked as a full-time basis substitute teacher ("FTB"). During her last year at Coonley, from 2002 through 2003, Plaintiff worked in room 308, an "upper cycle cross-categorical" classroom that included students from the sixth, seventh, and eighth grades who exhibited some type of learning disability.*fn2 Plaintiff received positive evaluations from Coonley administrators leading up to the 2002-2003 academic year.

Plaintiff did not believe that her students were being treated equally to other Coonley students. The students were not included on a multitude of seventh- and eighth-grade field trips.*fn3

Plaintiff does not deny, however, that field trips were organized and implemented by a committee of eight-grade teachers, that it was incumbent on teachers to initiate their own trips, and that Ruyack had told Plaintiff that field trip buses could not be reserved for a group as small as room 308 alone. While some special education teachers were given one or two teaching aides, Plaintiff received only occasional assistance from office clerks through 2001. In January of 2002, an aide by the name of Juan Castro ("Castro") was assigned to Plaintiff's classroom and remained there until Plaintiff was displaced from Coonley. In-school and out-of-school suspensions were meted out to students for classroom problems, and Plaintiff maintains that the administration was reluctant to provide this punitive measure for her students. Finally, while she was on leave, a word wall that Plaintiff had constructed for her students was torn down. Plaintiff complained to Frazin several times about students in her room misbehaving. Students' parents would also complain regarding abuse their children were suffering in room 308 at the hands of their classmates, and a perceived lack of administrative support.

Plaintiff attributes many of the failings at Coonley to the distractions created by a private magazine distribution business in which Defendant Frazin had a financial stake. Frazin first revealed the existence of this business to Plaintiff during the 1999-2000 school year. Several other Coonley employees assisted in the distribution of these magazines, specifically, music teacher Gabor and Blazquez's aide Castro. The use of school computers, the contributions of Coonley staff, and/or the use of school property for unloading trucks were sufficient for a later investigation to find that there "was some activity that was going on at the school," and that "[t]here was evidence of some sort of magazine business." Plaintiff alternatively attributes Coonley administration's failures to discrimination.

During the 2002-2003 school year, a disruptive and abusive eighth-grade student referred to as "D.R." was placed in Blazquez's classroom.*fn4 D.R. consistently harassed the other students, interrupted Plaintiff's lessons, and generally undermined the educational environment of room 308. Plaintiff gave administrators numerous notices of the disruptions and threats D.R. brought to the classroom, but the student was not removed and does not appear to have been significantly disciplined. Special Education Student Development Teacher Terry Mitter ("Mitter") was responsible for assigning special education students to the appropriate special education classroom at all relevant times. Mitter never received information which led him to believe that D.R. needed to be removed from Coonley , or that it was necessary or possible to change D.R.'s placement within the school.

Some attempts were made to improve the situation with D.R. During the 2002-2003 academic year, Ruyack had D.R. attend extra gym classes, apparently to let him expend excess energy, incentivize good behavior, and keep him out of the classroom for longer periods of time. In addition, in the fall of 2002, Plaintiff was visited at Coonley by Dr. Carleen Lorys ("Lorys"), a special education specialist. Lorys was responsible for compliance for special education programs, instructional support to school staff, technical assistance for programs and processes related to students with disabilities ("SWDs"), responding to parent inquiries and requests for assistance, in-service training, and assisting schools in planning for the least restrictive environment for SWDs. Lorys made some recommendations to Blazquez regarding how the classroom should be run, and indicated to Ruyack that there were ways in which Blazquez could improve her teaching methods.*fn5

In December of 2002, D.R.verbally assaulted Plaintiff by saying he "was going to get" her. This threat was made more tangible by the fact that D.R. often spoke of how his father owned a gun that he threatened to bring to school, and the fact that D.R. had an altercation with another Coonley staff member -- Carlos Santiago -- during the previous month. D.R. did not receive an out-of-school suspension as a result of this event. Plaintiff attempted to file for "assault leave," a break from work responsibilities typically granted to teachers and other school staff following a serious confrontation with a student. However, Ruyack refused to sign this form. Plaintiff then took medical leave, sent an unsigned version of the assault leave form to CPS, and had the Chicago Teachers' Union ("CTU") file a grievance form with CPS based on Ruyack's refusal to sign or take action concering the assault.

Under the terms of the collective bargaining agreement ("CBA"), Plaintiff attempted to have her grievance resolved. Eventually, Plaintiff was granted her assault leave retroactively. Despite this resolution, Plaintiff had a difficult time attaining recompense for her lost wages and health care expenses. Plaintiff returned to work on March 24, 2003, the date agreed upon through mediation. Plaintiff had been required to provide a statement from her physician releasing her to return to work. This letter was eventually filed much later, in August of 2003. Whatever the cause, in the summer of 2003 Blazquez was still listed as having been on leave.

There were several factors alleged by Plaintiff that arguably created a sexually abusive atmosphere at Coonley: Ruyack "pulling Plaintiff up" to dance at a school event in 2001 or 2002; Frazin attempting to kiss Blazquez in 1999 when she gave him a Christmas present; Frazin sitting on other teachers' desks; Ruyack's touching the face of a student several times; Ruyack's touching a mother's blouse near her breast; and Frazin and Ruyack's failure to discipline several boys who verbally and physically abused a female student in 308. In addition, Blazquez claims to have witnessed or been subjected to the following remarks: Ruyack told her "men wear the pants...why don't you just get married?"; Ruyack recounted past sexual "triumphs"; Ruyack referred to female teachers as "bitches"; Ruyack discussed how easy it is to be intimate with women when they are intoxicated; Ruyack referenced the size of women's breasts or butt; and Frazin told a female teacher her daughter was "so fucking beautiful."*fn6*fn7 Plaintiff also mentions additional references to sexually discriminatory acts made by other teachers.

In April of 2003, Blazquez called a phone number at the Board of Education and spoke with Dr. Lourdes Avales. In that conversation, Plaintiff complained that she was experiencing sexual and gender harassment, that the students were misbehaving, and that the principal and vice principal were running a private magazine delivery business out of the school. Add'l Facts ¶ 3-4.*fn8 Plaintiff was redirected to the CPS's Inspector General's ("I.G.") office, which is responsible for investigating allegations of waste, fraud, and mismanagement by CPS employees. Once in contact with the I.G.'s office, Plaintiff reiterated her complaints either directly or by message to Mary Beth, Jim Sullivan, Linda Brown, and Richard Slingerland. The bulk of her complaint, however, was "basically that we had no support because we feel the magazine delivery business took up a lot of time." 4/18/06 Blazquez Dep. at 166-67. On or around May 12, 2003, Plaintiff met with Slingerland and Gilbert Jimenez ("Jimenez") of the I.G.'s office and told them about her suspicions of administrative fraud, the existence of the private magazine business, and the administration's failure to provide Blazquez with $350 of allotted special education money. At that meeting she provided them with what she claimed was documentation to support her accusations, and alleged that other staff could attest to the private magazine business. Slingerland and Jimenez stated to Plaintiff that they would conduct surveillance at the school to see if any of these claims could be substantiated. Plaintiff only told one other Coonley employee about the I.G. investigation.

Greg Forst ("Forst") is an investigator with the I.G.'s office, responsible for investigating allegations of waste, fraud, and mismanagement by CPS employees and vendors. Forst was assigned to investigate Plaintiff's complaints about the Coonley administration. As a matter of policy and practice, the I.G.'s office does not disclose the identity of the complainant to persons implicated by the investigation. It does not appear that there was any communication between the I.G.'s office and Coonley administration during the 2002-2003 academic year, and all on-site investigatory work took place during the 2003-2004 year. Forst's investigation file was turned over to the Law Department for CPS at some point in 2004.

Faced with the possibility of a full investigation into the magazine business, Frazin was given the option to retire and did so. Defendant Frazin's employment with CPS ended on June 30, 2004. A "DO NOT HIRE" notation was placed on his file. Defendant Ruyack's employment at Coonley ended on July 1, 2004.

On May 7, 2003, Blazquez received a letter from Ruyack stating in relevant part:

It has come to the attention of the school administration that on several occasions you have informed your class, parents, as well as other teachers, that you are planning on taking Mr. Ruyack, Mr. Frazin and various students to court. Please be advised that you are to immediately cease making such comments to your class. The administration feels that such comments are inappropriate and are inconsistent with your prescribed duties as a teacher.

Failure to adhere to the above admonition will constitute insubordination and appropriate disciplinary action will be taken.

Ruyack Letter to Blazquez, May 7, 2003. Plaintiff read this letter as she was walking out of school that day, and immediately returned. Frazin put up his hand and indicated that Ruyack was the boss. Blazquez then responded, "No, you both have a boss that is bigger than both of you."*fn9

Plaintiff drafted and delivered a letter to Frazin and Ruyack on May 8, 2003, that contained the following: general complaints of unequal treatment stemming from perceived racial discrimination; an admission and explanation for threatening certain students with going to higher authorities if their behavior continues; a reference to her efforts to go to the state legislature to have laws passed on these issues; a denial that she had spoken to any parents about these concerns; a threat that she would report"inappropriate computer uses by the administration and other? [sic]"; and a declaration that any continued accusations concerning her operation of the classroom would amount to harassment for which she should be able to defend herself with legal representation.

Both Frazin and Ruyack were responsible for ensuring that all students had access to education and that special education students were treated fairly. School principals are generally empowered to make employment decisions regarding school staff. However, they can only effectuate hiring or firing decisions with the approval of the Board's Human Resources ("HR") Department. Assistant principals do not recommend individuals to HR for hiring and firing directly, though their opinions may play a role in a principal's decision making process. Plaintiff received generally positive reviews in her job performance evaluations for available school year reviews. In fact, Frazin had offered to recommend Plaintiff for formal appointment to a teaching position at the start of the 2002-2003 year. Plaintiff completed the 2002-2003 academic school year at Coonley, and her last day of teaching at the school was June 27, 2003. However, she still maintained some presence at the school through the school's graduation.

During the following summer, Frazin and Ruyack discussed whether or not Blazquez was to be invited back for the 2003-2004 school year. At Ruyack's urging, Frazin contacted CPS human resources staff to find out what options were available regarding Plaintiff's continued employment. On July 15, 2003, Loren Claire-McClennan emailed Frazin to inform him that Blazquez had never been formally reinstated following her assault leave in the spring of 2003, and her continued employment was subject to the discretion of the Coonley administration. Ruyack recommended that the Board not reinstate Blazquez at Coonley. Ruyack's stated reasons for this decision are that: she allowed an adult male to enter Coonley and address her class without administration permission*fn10 ; she permitted her children to exit a bus directly onto the street; she violated the Student Records Act by mentioning her students negatively by name in other students' report cards; and mentioned in her class that she planned on suing her students and Coonley administrators. Facts ¶ 97. As a result of this displacement, Plaintiff's medical coverage ceased in July of 2003. There is no requirement under the relevant collective bargaining agreement or the Board's rules that an FTB be provided advance notice, in the summer, of his or her displacement from a particular school. Facts. ¶ 137.

Plaintiff received no written notice that she had been displaced from Coonley during the summer before the 2003-2004 school year. On August 27, 2003, on her way to beginning the fall term, Blazquez discovered from co-workers that she had been displaced from Coonley. On August 28, Blazquez returned to the school, at which point Frazin handed her a copy of a July 15, 2003 email from McClennan to Blazquez that referenced her change in job status. Plaintiff attempted to swipe in at the school on August 29th, pursuant to CTU instructions, but was told by Ruyack that she was trespassing. When she approached Nancy Slavin ("Slavin") of CPS's human resources department, Slavin allegedly attributed Plaintiff's job loss to her "big mouth" and referred to Ruyack as "a nice guy."*fn11 Blazquez applied for and received an FTB position at Perez Elementary School ("Perez"). Though initially it was not a paid position, Plaintiff began her work at Perez on September 8, 2007.

Plaintiff first sought legal remedy at the state level, but on August 1, 2005, Defendants removed the case from the Circuit Court of Cook County to this Court. On December 16, 2005, all state claims were dismissed as more appropriately dealt with in the state courts. On November 14, 2006, this Court granted Defendants' motions to dismiss with respect to all Title IX claims and other claims as to particular parties. Plaintiff's Amended Complaint at this point retains the following eight counts:

Count I: General abrogation of duties, under Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701-96, against Board of Ed, and Frazin and Ruyack in their official capacities Count II: Retaliation, under Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701-96, against Board of Ed, and Frazin and Ruyack in their official capacities Count III: Due process violation, under 42 U.S.C. § 1983, against all defendants Count IV: Equal Protection violation, under 42 U.S.C. § 1983, against Frazin and Ruyack in their individual capacities Count V: Conspiracy, under "Federal law," against all defendants Count VI: First Amendment violation, under 42 U.S.C. § 1983, against all defendants Count VII: Retaliation, under Federal Whistleblowers Protection Act, 31 U.S.C. § 3730(h); Federal False Claims Act, 31 U.S.C. § 3729, against all defendants Count VIII: Sexual harassment, under 42 U.S.C. § 1983, against Ruyack in his individual capacity At least one Coonley student has filed suit against CPS employees regarding the events at issue in this case.

STANDARDS

A party seeking summary judgment has the burden of showing, through "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that there are no genuine issues of material fact that would prevent judgment as a matter of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, courts "must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Allen v. Cedar Real Estate Group, LLP, 236 F.3d 374, 380 (7th Cir. 2001).

Even so, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, she must go beyond the pleadings and support her contentions with proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In order to successfully oppose a motion for summary judgment, the non-movant must do more than raise a "metaphysical doubt" as to the material facts, see Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001) (citation and quotation omitted), and instead must present definite, competent evidence to rebut the motion, see Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001); Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any material dispute of fact exists that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A non-moving party who bears the burden of proof on a specific issue must demonstrate by specific factual allegations that there is a genuine issue of material fact in dispute. McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir. 1989). This evidence provided by the non-movant must be sufficient to enable a reasonable jury to find in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.

Mere allegations in the pleadings, unsupported by record evidence, cannot create an issue of fact defeating summary judgment. Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004). The Seventh Circuit has made it clear that "self-serving affidavits, without any factual support in the record, are insufficient to defeat a motion for summary judgment." Palmer v. Marion County, 327 F.3d 588 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) as stating that "[t]he object of [Rule 56(e) ] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."). However, it is possible to rebut a motion for summary judgment with the allegations of a complaint, but only to the extent that they are based upon the plaintiff's personal experience. See Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (requiring that allegations are admissible at summary judgment under 56(e) so long as they are "based on personal knowledge and [set] forth specific facts showing that there is a genuine issue for trial"). The fact that those statements may be "self-serving" is not a valid grounds for deeming them inadmissible. See id.

ANALYSIS

Exhaustion of Administrative Remedies for Rehabilitation Act Claims In their motions to dismiss, and again at summary judgment, Defendants have argued that all claims brought under the Rehabilitation Act should be dismissed for Plaintiff's failure to exhaust administrative remedies. Specifically, Defendants cite McGuinness v. United States Postal Service, 744 F.2d 1318 (7th Cir. 1984) for the proposition that Blazquez must first have pursued her claim with the Equal Employment Opportunity Commission ("EEOC") in order to bring them before this Court. See Defs.' Dismiss Mot. at 9-10; see also Board Summ. J. Mem. at 13.

Plaintiff's private right of action under the Rehabilitation Act is created and defined by 29 U.S.C. § 794a. However, while Defendants cite to this section, they fail to draw the distinction between employment discrimination actions under section 501 of the Rehabilitation Act, which are dictated by the procedural rights and obligations of Title VII, and section 504, under which actions are to be brought according to Title VI processes. See id. §§ 794(a)(1)-(2). Title VII requires exhaustion, while Title VI does not, therefore because Plaintiff has brought her claim under the federally-funded program requirements of section 504, she need not have exhausted her administrative remedies. See Hewitt v. U.S. Office of Personnel Mgmt., 390 F.Supp.2d 685, 690 (N.D. Ill. 2005) ("Cases, like Hewitt's, based on § 504 (as opposed to § 501) of the Rehabilitation Act may proceed directly to court, free of any requirement to exhaust administrative review. Section 504 of the Rehabilitation Act utilizes the remedies, procedures and rights applicable to Title VI of the Civil Rights Act of 1964, and nothing in the language of Title VI or § 504 requires exhaustion.") (citations omitted); Wagner v. Illinois Dept. of Pub. Aid, 2004 WL 2515836, at *6 (N.D. Ill., Nov. 5, 2004) ("An individual suing an entity other than the federal government under § 504 of the Rehabilitation Act, however, is not required to exhaust administrative remedies.").

There is an argument that could be made that this particular action is closer to an issue of employment discrimination and therefore could properly fall under the jurisdiction of the EEOC, or that some other available administrative remedy should have been pursued. See, e g., Timms on Behalf of Timms v. Metro. School Dist. of Wabash County, 722 F.2d 1310, 1318, n. 5 (requiring exhaustion where disabled student brought suit under section 504, based upon extensive remedies available to students in primary and secondary education). However, while Rehabilitation Act cases involving employment discrimination may fall under the jurisdiction of the EEOC, it is unclear that this case would qualify as such. Defendants have asserted only that Plaintiff failed to bring her claims before the EEOC and the CPS's Internal Audit Unit, without clarifying whether either of those bodies could have heard a claim such as this that is not based upon direct discrimination against an employee for his or her own disability. In any event, this is a close question that has not been sufficiently argued by the Defendants on whom the burden lies. Salas v. Wisconsin Dept. of Corr., 2007 WL 2048945, at *5 (7th Cir., July 18, 2007). Based on the record before this Court, it cannot be said that Plaintiff's failure to pursue other avenues is fatal where the procedural requirements of section 504 do not explicitly demand exhaustion, Hewitt, 390 F.Supp.2d at 690; Wagner, 2004 WL 2515836, at *6, and it is as yet unclear whether other administrative remedies were available to her, see Timms, 722 F.2d at 1318, n. 5.

Rehabilitation Act Violation and Standing

Coonley is obligated under § 796f(b)(1)(D) of the Rehabilitation Act to promote "equal access of individuals with significant disabilities to society and to all services, programs, activities, resources, and facilities, whether public or private and regardless of the source of funding." Plaintiff claims in Count I that Defendants failed to provide her learning disabled students with the "required accommodations, modifications, supports, supplementary aids and services," as is required of a federal funding recipient under Section 504 of the Rehabilitations Act, 29 U.S.C. § 794 ("section 504").*fn12 Am. Compl. ¶ 45. Defendants respond: (1) that Plaintiff lacks standing to bring a claim under the Rehabilitation Act; (2) that even if Blazquez has standing, she has not provided evidence that her students were in fact treated poorly by the administration; and (3) that, even if the students were mistreated, that there is no evidence it was done because of their disabilities.

In order to succeed on a claim under section 504, a plaintiff must establish that: (1) claimants are disabled as defined by the Act; (2) they otherwise qualified for the educational benefits sought; (3) they have been excluded from those benefits solely because of their disability; and (4) the benefits they seek are part of a program or activity receiving federal financial assistance. See Burks, 464 F.3d at 758. However, Plaintiff suffers a more general challenge with respect to her standing under the Rehabilitation Act.

In order to bring a claim before this court, a plaintiff must satisfy the three general requirements of Article III standing: (1) an injury in fact or immediate threat of injury; (2) that is fairly traceable to the conduct of the defendant and; (3) a favorable court decision will likely redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). These requirements ensure that a plaintiff before the court has a personal stake in the outcome that justifies assertion of the court's jurisdiction over his or her claim. Warth v. Seldin, 422 U.S. 490, 498-99 (1975). Generally, a plaintiff cannot bring a suit on behalf of others who are capable of bringing the suit themselves or who have more appropriate representatives to protect their interests. See, e.g., Daniels v. Southfort, 6 F.3d 482, 484 (7th Cir. 1983) (holding that plaintiff could not sue on behalf of his friends for alleged violations of their Fourth Amendment rights); see also Hoyt v. St. Mary's Rehab. Ctr, 711 F.2d 864, 865 (8th Cir. 1983) (holding that "next friend and visitor" did not have standing to sue under § 504 when disabled patient had closer family members to represent her interests and plaintiff was not a "proper proponent" of the patient's interests).

If a plaintiff seeks to bring a claim on behalf of others, there are two general exceptions for standing that will allow him or her to do so - third party or associational standing - but both still require that a plaintiff demonstrate a stake in the outcome of the case. See Singleton v. Wulff, 428 U.S. 106, 112-118 (1976); Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). For third party standing, the plaintiff before the court must have suffered an injury so that they have some stake as well, show a close relationship with the absent party, and prove that there was a hardship preventing the absent party from bringing the case on his own behalf. See Singleton, 428 U.S. at 112-118 (upholding ability of physician to bring claim on behalf of patients regarding government interference in abortions). Associational standing allows a plaintiff organization to bring suit on behalf of its members or represented parties if those individuals would have a right to sue on their own, if the organization's purpose is related to the interests being protected, and if the relief is not of the nature that it requires the individual members to participate in the lawsuit. See Hunt, 432 U.S. at 343.

As long as it does not exceed the scope of Article III standing, Congress may also authorize statutory standing to allow citizens to act as private attorneys general and seek legal remedies for violations on behalf of others. Warth, 422 U.S. at 501. In passing section 504 of the Rehabilitation Act, Congress arguably incorporated such an expansive view of standing for those who wished to assert the rights that it contained. The law contains broad language in its enforcement provisions, authorizing "any person aggrieved" by discrimination against the disabled the right to sue. 29 U.S.C. § 794(a). The Sixth and Second Circuit Courts of Appeals have interpreted this to mean that persons or organizations associated with or providing services to the disabled may also have the right to sue. See MX Group, Inc. v. City of Covington, 293 F.3d 326, 334 (6th Cir. 2002) (stating that Title II regulations also define discrimination so as to include "conduct directed at an entity based on its relationship or association with disabled persons"); see also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997). According to these interpretations, a person or organization injured by discrimination because of their association with the disabled could sue on their own behalf under section 504. See MX Group, 293 F.3d at 335.

However, the individual or organization must still show that they were an intended beneficiary of the statute, by demonstrating how the discrimination against them affected the rights of the disabled by its impact on their relationship or association. See Simpson v. Reynolds, 629 F.2d 1226, 1235 (7th Cir. 1980) ("To be actionable, the discrimination must come in the operation of the program or manifest itself in a handicapped individual's exclusion from the program or a diminution of the benefits he would otherwise receive from the program."). In defining the requisite injury to grant standing, the Seventh Circuit has interpreted "injury" to include the "deflection of [an] agency's time and money" away from its services to the disabled in order to address the effects of such discrimination. See Vill. of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990); see also Access Living of Metro. Chicago v. Chicago Transit Auth., 2001 U.S. Dist. LEXIS 6041, at *12 (N.D. Ill. May 9, 2001).

An important question when analyzing the appropriateness of third party or associational standing is the nature of the relief sought. See Warth, 422 U.S. at 515 (holding that association must seek form of relief that will reasonably be supposed to benefit the members of the organization actually injured). If the relief sought primarily benefits the organization and not the clients or the parties it is representing, then there is no standing to seek redress. Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 280 (7th Cir, 2003) (holding that a for-profit organization operating drug addiction rehabilitation programs did not have standing to sue for discrimination under § 504 when zoning permit was denied to build new facility since relief sought was lost profits). A plaintiff must demonstrate standing separately for each form of relief sought and the remedies must be those which directly benefit the disabled. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167 (2000); see also Discovery House, 319 F.3d at 281. A plaintiff can recover money damages under the ADA or section 504 by showing a statutory violation resulted from "deliberate indifference" to the rights of the disabled secured by those statutes, but the money damages must go to benefit those individuals directly. See Discovery House, 319 F.3d at 281 ("[T]he remedies we may find...must, at the very least, be those which directly benefit the disabled. It would stretch the principle of Bell v. Hood too far to find that Discovery House has standing to recover lost profits under these statutes."); see also K.M. v. Hyde Park Cent. Sch. Dist., 381 F.Supp.2d. 343, 358 (S.D.N.Y. 2005).

Several courts have refused to limit right of action under the Act to the disabled themselves. See, e.g., Discovery House, 319 F.3d 277 (surveying multiple court opinions allowing Rehabilitation Act or ADA actions brought by concerned organizations on behalf of the disabled; denying claim for lost profit as insufficiently related to the interests of the disabled, rather than more directly relevant injunctive or compensatory remedies); Access Living, 2001 WL 492473 ("This court agrees with the majority of courts which have considered this issue and finds that organizations serving the needs of disabled person have standing to bring claims under the ADA if they meet Article III's standing requirements, though they are not themselves individuals with disabilities."); see also Reynolds Metals, 629 F.2d at 1227 (in the case of a handicapped claimant not involved with the federal program in question, holding that "to maintain an action for employment discrimination under Section ...


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