                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0347n.06

                                          No. 17-2001

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                 FILED
    AMBROSE WILBANKS, JR.,               )                                  Jul 13, 2018
                                         )                             DEBORAH S. HUNT, Clerk
         Plaintiff-Appellant,            )
                                         )
    v.                                   )                   ON APPEAL FROM THE
                                         )                   UNITED STATES DISTRICT
    YPSILANTI       COMMUNITY   SCHOOLS; )                   COURT FOR THE EASTERN
    YPSILANTI PUBLIC SCHOOLS BOARD OF )                      DISTRICT OF MICHIGAN
    EDUCATION; BENJAMIN EDMONDSON; )
    AARON ROSE; DONALD E. WOOD,          )
                                         )
         Defendants-Appellees.



BEFORE: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

        HELENE N. WHITE, Circuit Judge. Plaintiff Ambrose Wilbanks, Jr., appeals the

district court’s grant of summary judgment in favor of his former employer, Ypsilanti Community

Schools, on his claims of retaliation under the Americans with Disabilities Act and the

Rehabilitation Act. We AFFIRM.

                                           I.

        Wilbanks was employed as a special-education paraeducator or paraprofessional at various

Ypsilanti schools from 2007 until September 2013, when he became a special-education teacher

at Ypsilanti Community Schools Middle School. PID 223.1 In September 2015, Wilbanks and



1
 Wilbanks was a probationary teacher at the time his employment was terminated. See PID 227-28/
“Probationary Teacher Employment Contract” and PID 301-02/Board Resolution terminating Wilbanks’s
employment as a “probationary teacher.”
No. 17-2001, Wilbanks v. Ypsilanti Community Schools et al.


his colleagues sent a number of emails to supervisors, several carbon copied to the Middle School

Principal, Defendant Aaron Rose, regarding inadequate staffing in the special-education

classrooms, including the absence of a paraprofessional in Wilbanks’s classroom. In mid-

September and early October, Wilbanks was involved in two separate incidents with misbehaving

students during which Wilbanks pushed one against a wall, and grabbed the arm of the second.

The school’s video cameras captured the first incident in full and the second in part. Both students

reported the incidents to Defendant Rose. Wilbanks was placed on paid administrative leave

pending an investigation. After Defendant Donald Wood, who was Human Resources Director

for the school district at the time, conducted an investigation, he recommended to Defendant Board

of Education that Wilbanks’s employment be terminated for unprofessional conduct, specifically,

for physically engaging two students. PID 282-84. The Board voted unanimously to terminate

Wilbanks’s employment in November 2015. PID 301.

       Wilbanks filed a complaint in Washtenaw County Circuit Court, alleging retaliation in

violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and § 504 of

the Rehabilitation Act (RA), 29 U.S.C. § 794, violation of the Michigan Whistleblower’s

Protection Act, wrongful discharge in violation of public policy, defamation, libel and slander, and

intentional infliction of emotional distress. PID 7. Defendants removed the case based on federal

jurisdiction. PID 1. Following discovery, Defendants filed a motion for summary judgment,

asserting that Wilbanks could not establish three of the four prima-facie elements of a retaliation

case under the ADA and RA, nor show that the Board’s legitimate non-discriminatory reason for

terminating his employment was a pretext for retaliation. PID 129-38. The district court granted

Defendants summary judgment. This appeal followed.




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No. 17-2001, Wilbanks v. Ypsilanti Community Schools et al.


                                                 II.

       We review de novo the district court’s grant of summary judgment, viewing the facts and

all reasonable factual inferences in non-movant Wilbanks’s favor. A.C. ex rel. J.C. v. Shelby Cty.

Bd. of Educ., 711 F.3d 687, 696–97 (6th Cir. 2013).

       The ADA provides that “[n]o person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this chapter . . .” 42 U.S.C.

§ 12203(a).

       Section 504(a) of the RA provides:

       No otherwise qualified individual with a disability in the United States . . . 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 financial assistance. . . .

29 U.S.C. § 794(a) (codifying § 504). Section 504 incorporates the anti-retaliation provision of

Title VI of the Civil Rights Act by providing:

       The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of
       1964 . . . shall be available to any person aggrieved by any act or failure to act by
       any recipient of Federal assistance . . . .

29 U.S.C. § 794a(2). Title VI’s anti-retaliation provision, incorporated by section 504, states:

       No recipient or other person shall intimidate, threaten, coerce, or discriminate
       against any individual for the purpose of interfering with any right or privilege
       secured by section 601 of the [Civil Rights] Act or this part, or because he has made
       a complaint, testified, assisted, or participated in any manner in an investigation,
       proceeding, or hearing under this part.

34 C.F.R. § 100.7(e).

       We have explained that:

       [b]oth the ADA and Section 504 prohibit retaliation against any individual
       because of his or her opposing practices made unlawful by the Acts or otherwise
       seeking to enforce rights under the Acts. See, e.g., 42 U.S.C. § 12203 and 28
       C.F.R. 35.134 (ADA); 29 U.S.C. § 794(a) and 29 C.F.R. § 33.13 (Section 504).
       The Acts have a similar scope and aim; for purposes of retaliation analysis, cases

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No. 17-2001, Wilbanks v. Ypsilanti Community Schools et al.


       construing either Act are generally applicable to both. Andrews v. Ohio, 104 F.3d
       803, 807 (6th Cir. 1997); accord Burns v. City of Columbus, 91 F.3d 836, 842 (6th
       Cir. 1996).

A.C. ex rel. J.C., 711 F.3d at 696–97. The anti-retaliation provisions of the ADA and RA grant

standing to non-disabled persons who are retaliated against for attempting to protect the rights of

the disabled. See Barker v. Riverside Cty. Office of Educ., 584 F.3d 821, 822–23 (9th Cir. 2009)

(teacher of disabled students held to have standing to sue her employer, the County Office of

Education, where her complaint alleged that she was retaliated against after she voiced concerns

that employer was not complying with federal and state law in providing educational services to

its disabled students).

       Because Wilbanks relies on circumstantial evidence of retaliation, the McDonnell Douglas

burden-shifting framework applies. Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th

Cir. 2010). To establish a prima facie case of retaliation, Wilbanks must show that (1) he engaged

in protected activity under Section 504 or the ADA; (2) Defendants knew of this protected activity;

(3) Defendants then took a materially adverse employment action against him; and (4) there was a

causal connection between his protected activity and the adverse action. A.C. ex rel. J.C., 711 F.3d

at 697. “The burden of establishing a prima facie case of retaliation is not onerous, but one easily

met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).

       If a prima facie case is established, the defendant must articulate a legitimate non-

retaliatory reason for its adverse employment action, after which the burden shifts back to the

plaintiff to show that the proffered reason was not the true reason, but merely a pretext for

retaliation. See Harris v. Metro. Gov’t of Nashville & Davidson Cty., 594 F.3d 476, 485 (6th Cir.

2010). To demonstrate pretext at the summary judgment stage, Wilbanks must show by a

preponderance of the evidence either 1) that Defendants’ proffered reason for the termination of


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No. 17-2001, Wilbanks v. Ypsilanti Community Schools et al.


his employment had no basis in fact, 2) that the proffered reason was not the true reason, or (3) that

it was insufficient to motivate discharge. See, e.g., Wexler v. White’s Fine Furniture, Inc.,

317 F.3d 564, 576 (6th Cir. 2003); Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084

(6th Cir. 1994), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129

S. Ct. 2343, 174 L. Ed. 2d 119 (2009), as recognized in Geiger v. Tower Auto., 579 F.3d 614, 621

(6th Cir. 2009).

                                                 III.

       We assume that Wilbanks established a prima facie case of retaliation under the ADA and

RA and proceed to pretext. Wilbanks appears to maintain that he presented sufficient evidence of

pretext to survive summary judgment under both the second and third prongs.

The proffered reasons were not the true reason

       Wilbanks presented no evidence that the Board’s termination of his employment was

related to protected activity, namely, his emails voicing concerns regarding his and a fellow

teacher’s classrooms being understaffed and the impact the understaffing had on his students and

their Individual Education Programs. The only connection between the emails and his termination

is temporal proximity; but, standing alone, the temporal proximity between Wilbanks’s emails

(September 2015) and the termination of his employment (November 2015) cannot sustain his

argument given that his physical altercations with students occurred in September and October

2015. Moreover, after several weeks at the beginning of the school year during which Wilbanks

did not have a paraprofessional in his classroom, he was provided with one. Wilbanks’s email

complaints had stopped on September 25, 2015, before the second physical incident occurred (with

DH, on October 4, 2015), and Wilbanks was fired only after this second incident. Under these

circumstances, mere temporal proximity cannot support the necessary causal connection.


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No. 17-2001, Wilbanks v. Ypsilanti Community Schools et al.


       For these reasons, we conclude that Wilbanks presented insufficient evidence that

Defendants’ reason for terminating his employment was not the true reason.

The proffered reason was insufficient to motivate the discharge

       Wilbanks presented no evidence that any other school employee had been involved in two

incidents with students involving physical contact, much less within weeks of each other and after

being told after the first incident that such conduct could not happen again. Principal Rose testified

that he had no knowledge of any staff member being involved in two physical altercations with

students in 2015-16, Rose’s first year as Principal at the Middle School. PID 262.

       The only person Wilbanks advances as similarly situated is Principal Rose.               After

Wilbanks’s employment was terminated in November 2015, Principal Rose was involved in an

incident with a student in April 2016. PID 260. The student, who was supposed to be waiting for

Rose outside Rose’s office, left the area four times, went into instructional areas and disrupted

classes. PID 260. The student threatened Rose, pushed into Rose and swung at Rose, at which

point the student walked away and Rose followed and restrained him. The student ended up with

a mark on his neck. Rose testified that as a result of this incident he was placed on administrative

leave, the incident was recorded in his employment evaluation, and he was ordered to attend anger-

management classes. However, Rose was not required to go before the Board and did not lose his

job. PID 260/Rose dep.

       Even assuming that Wilbanks and Principal Rose were similarly situated although

Wilbanks was a probationary employee, Rose’s single incident is not comparable to Wilbanks’s

two incidents within a period of a few weeks and after being clearly warned that such conduct

could never happen again.




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No. 17-2001, Wilbanks v. Ypsilanti Community Schools et al.


        Finally, Wilbanks’s claim that H.R. Director Wood simply adopted Principal Rose’s view

of the incidents fails given that the videos capture Wilbanks’s physical interactions with DH and

PH, and that Wood’s letter to the Board setting forth the termination charges does, to some extent,

discuss DH’s and PH’s disruptive conduct preceding the physical interactions with Wilbanks.

Wilbanks cites no authority, or school or Board policy, requiring that the Board itself conduct an

“independent” investigation after the H.R. Director, in conjunction with the school Principal and

school’s attorney, conducts such an investigation. Further, Wilbanks’s argument that he acted in

conformity with school policy by, as he describes it, “putting his hand around the wrist of an

aggressive, threatening, impaired child,” is largely contradicted by the policies themselves, see

PID 232-33, 235-36 (YCS Bylaws & Policies on Student Supervision and Welfare, and Bullying

and Other Aggressive Behavior Toward Students), DH’s description of the incident, and the

videos. In addition, Wilbanks’s contention that physical intervention toward students is a daily

occurrence at the Middle School is unsupported by any evidence.

        For the reasons stated, we AFFIRM the district court’s grant of summary judgment to

Defendants.2




2
 Given our disposition, we need not address Wilbanks’s argument that the district court erred by sua sponte
raising procedural due process, deciding sufficient process was accorded him, and then dismissing
Wilbanks’s retaliation claims based on the Board’s having conducted an independent investigation.
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