                               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.


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