     Case: 13-20091       Document: 00512408080         Page: 1     Date Filed: 10/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 16, 2013

                                     No. 13-20091                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



THE ESTATE OF A.R., A MINOR CHILD, DECEASED; TOMASA
RODRIQUEZ, individually and on behalf of the heirs of A.R.,

               Plaintiffs - Appellants

v.

DAVE MUZYKA, Principal of the T.H. Rogers Elementary School,
individually and in his official capacity; CRYSTAL EVANS, Individually and
in her official capacity; HOUSTON INDEPENDENT SCHOOL DISTRICT,

               Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-CV-533


Before JOLLY, SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       The estate of A.R. and her mother, Tomasa Rodriquez, appeal the district
court’s order granting summary judgment to the Houston Independent School
District (“HISD”) on claims under Section 504 of the Rehabilitation Act, 29


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                     No. 13-20091

U.S.C. § 794 (“Section 504"), and Title II of the Americans with Disabilities Act
of 1990, 42 U.S.C. § 12132 (“ADA”).1 We AFFIRM.
                          FACTS AND PROCEEDINGS
      A.R., a nine-year-old deaf child, attended a school for children with
disabilities operated by the HISD. In the summer of 2008, her mother enrolled
her in a voluntary summer enrichment program offered by the school that she
had attended in prior summers. The program included swimming in the school’s
shallow pool. A.R.’s mother signed a written permission form for her daughter
to swim that summer, as she had signed in the previous summers A.R. had
swam there without incident. Tragically, on June 26, 2008, A.R. experienced a
seizure, fell into the water, and drowned. Efforts by teachers and medical
personnel to save her proved unsuccessful.
      A.R.’s estate and her mother sued the HISD, the principal, and a physical
education teacher who was overseeing the children in the pool area under
Section 504 and the ADA. The principal and the teacher moved for summary
judgment, which was granted. The HISD subsequently moved for summary
judgment, which was also granted.
      A.R. appeals only the district court’s dismissal of the claims against the
HISD. A.R. argues that she has raised a genuine dispute of material fact on her
Section 504 and ADA claims that requires reversal of the district court.
Specifically, A.R. argues that she has raised triable issues because 1) HISD
intentionally discriminated against A.R. by refusing to provide services
necessary to give A.R. safe and meaningful access to the summer program and
2) grossly deviated from the standard of care in ignoring and mishandling
information about A.R.’s seizure disorder.



      1
         The district court also granted HISD summary judgment on A.R.’s 42 U.S.C. § 1982
claim. She does not challenge that decision on appeal.

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                                  No. 13-20091

                                 DISCUSSION
      “We review a district court’s grant of summary judgment de novo, applying
the same standard as did the district court.” Stults v. Conoco, Inc., 76 F.3d 651,
654 (5th Cir. 1996). Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004). “We view facts in
the light most favorable to the non-movant and draw all reasonable inferences
in its favor.” Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996).
      Under the ADA, “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. Because Section 504
closely tracks the language of the ADA, we analyze ADA and Section 504 claims
together. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).
      To make a prima facie case of discrimination under the ADA,
      a plaintiff must demonstrate: (1) that he is a qualified individual within
      the meaning of the ADA; (2) that he is being excluded from participation
      in, or being denied benefits of, services, programs, or activities for which
      the public entity is responsible, or is otherwise being discriminated
      against by the public entity; and (3) that such exclusion, denial of benefits,
      or discrimination is by reason of his disability.

Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004). “[I]n
order to receive compensatory damages for violations of the Acts, a plaintiff must
show intentional discrimination.” Delano-Pyle v. Victoria Cnty., 302 F.3d 567,
575 (5th Cir. 2002). “[A] cause of action is stated under § 504 when it is alleged
that a school district has refused to provide reasonable accommodations for the
handicapped plaintiff to receive the full benefits of the school program.” D.A. ex
rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010).




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                                       No. 13-20091

       This court has previously noted that “[f]acts creating an inference of
professional bad faith or gross misjudgment are necessary to substantiate a
cause of action for intentional discrimination under § 504 or ADA against a
school district . . .” Id. at 455. There is some discussion in the district court’s
opinion as to whether this standard only applies to claims under the Individuals
with Disabilities Education Act, 20 U.S.C. § 1400, or to all § 504 and ADA
claims. Certainly, D.A. stands for the proposition that Congress did not intend
§ 504 or ADA claims to create general tort liability for the government. Id.
Furthermore, as the district court ably noted below, under either a bad faith
standard or the standard proposed by A.R. ("deliberate indifference") there is no
genuine issue of material fact. Something more than mere negligence must be
shown.
       A.R. argues that she has raised a material issue of whether the school
district intentionally discriminated against her, contending that discrimination
can be proved without showing different treatment or any active animus on the
part of the school.2 Admittedly, none was present here. The argument instead
is that “A.R.’s safe and meaningful access to the program was interrupted
because of her disability.” A.R. points out many things the school could have
done to make the situation safer for her in the pool area: additional lifeguards,
different types of alarm devices, and so on.
       Even taking all the evidence A.R. presents as true, she at most only
establishes negligence. There is no evidence presented that rises to the level of
“bad faith or gross misjudgment” or “deliberate indifference” by the school
district. There is no evidence of “intentional discrimination” against A.R. in this



       2
        A.R. points to our decision in Bennett-Nelson v. Louisiana Board of Regents to support
the proposition that proof of animus is not required. 431 F.3d 448 (5th Cir. 2005). That
decision, however, concerned “the sole issue... [of] whether Louisiana’s Eleventh Amendment
sovereign immunity” barred claims under the ADA and Section 504. Id. at 450.

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                                  No. 13-20091

school that was established to teach and serve disabled children. There is no
evidence of any exclusion of A.R. from the benefits of services, programs, and
activities at the school. Tragically, A.R.’s death resulted from her inclusion in
the full activities of a summer school program that was not discriminatory under
the case law or the statute, and the district court did not err when it determined
that no genuine issue of material fact existed to present to a jury.
                                CONCLUSION
      For the reasons given above, the district court’s order granting summary
judgment for HISD is AFFIRMED.




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