             United States Court of Appeals
                        For the First Circuit


No. 08-2283

                     ISRAEL SEPÚLVEDA-VILLARINI,

                        Plaintiff, Appellant,

                                  v.

           DEPARTMENT OF EDUCATION OF PUERTO RICO, ET AL.,

                        Defendants, Appellees.


No. 09-1801

                      MARTA VELÁZQUEZ-TORRUELLA,

                        Plaintiff, Appellant,

                                  v.

                  ALEXIS OLIVERAS-SANTIAGO, ET AL.,

                        Defendants, Appellees.


            APPEALS FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

            [Hon. Jaime Pieras, Jr., U.S. District Judge]


                                Before

                          Lynch, Chief Judge,
         Souter, Associate Justice,* and Selya, Circuit Judge.




     *
          The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     Mauricio Hernandez Arroyo, with whom Law Offices of Mauricio
Hernandez Arroyo was on brief, for appellants.
     Susana I. Peñagaricano-Brown, Assistant Solicitor General,
with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia
Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-
Anadón, Deputy Solicitor General, were on brief, for appellees.



                        December 10, 2010
              SOUTER, Associate Justice.           The issue in each of these

consolidated cases is the sufficiency of the complaint to state a

claim for failure to accommodate an employee’s disability as

required by Title I of the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12111-12117, and § 504 of the Rehabilitation Act, 29

U.S.C. § 794. The district court dismissed each under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim.                           We

vacate and remand.

              It takes nimble footwork to reach that exact issue.                  The

appellants in these suits, Israel Sepúlveda-Villarini (Sepúlveda)

and   Marta    Velázquez-Torruella        (Velázquez),      are       public    school

teachers in Ponce, Puerto Rico.           The appellees are the Puerto Rico

Department of Education; its Secretary, Rafael Aragunde-Torres

(Aragunde); and the school director (and appellants’ supervisor),

Alexis Oliveras-Santiago (Oliveras).                Aragunde is sued in his

official capacity; Oliveras is sued in his personal capacity.

              The   appellants’    claims      and    the    district          court’s

resolution of them are largely similar, but differ somewhat in the

details.       Sepúlveda     alleged   that   he    suffered      a    stroke    while

teaching and required heart by-pass surgery.                 The nature of his

continuing impairment is unclear, but he claims that his doctor

ordered him to apply for accommodations upon his return to work.

The   provision     of   a   reasonable      accommodation     to      a   qualified

individual with a disability is required by 42 U.S.C. § 12112.                    See


                                       -3-
also § 12102(2) (definition of disability); § 12111(8) & (9)

(definitions       of    qualified      individual    with    a   disability       and

reasonable accommodation).             For five school years the school made

accommodations for            Sepúlveda, providing him a classroom on the

first floor, a reduced class size of 15 pupils most years, and (at

least for some years) a rest period.1             Things changed in the 2007-

08 year, after the Secretary had issued instructions to keep class

size at a minimum of 20.             Allegedly as a consequence, the school

director enlarged Sepúlveda’s class to 30, but provided a neophyte

teacher to share the duties.

               Sepúlveda      claims    that    the   new    arrangement      is    an

unreasonable       refusal      to   accommodate,     resulting     in   emotional

consequences with physical symptoms requiring treatment, and he

seeks       monetary    and   equitable   relief.      His   citation    to    legal

authority is vague, but the district court understood him to raise

claims of unlawful discrimination under Title I of the ADA, 42

U.S.C. §§ 12111-12117 (prohibiting discrimination on the basis of

disability by employers); Title II of the ADA, 42 U.S.C. §§ 12131-

12165 (same, by government entities); § 504 of the Rehabilitation

Act, 29 U.S.C. § 794 (same, by recipients of public funding) and

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et



        1
       The state of the complaint is such that the details of
factual allegations are often difficult to make out.     For the
purposes of this appeal, the key accommodation appears to be the
reduced class size.

                                          -4-
seq. (prohibiting employment discrimination on the basis of sex,

race, religion, national origin). The district court dismissed all

claims      of   personal     liability    against     the   school    director,

Oliveras,2 and all Title VII claims.             It dismissed the ADA Title I

claim for failure to allege how the smaller class size would allow

Sepúlveda to go on teaching and the Rehabilitation Act claim for

the same reason.       The court cited its ruling in a prior case to

hold that Title II of the ADA did not reach employment-based claims

(and in the alternative rejected the Title II claim on the same

grounds invoked for Title I).             With all federal claims gone, the

court also dismissed without prejudice claims brought under the

Puerto Rico Civil Code, for which supplemental jurisdiction was

sought.

              Velázquez      alleges   that     she   suffers   from   a   throat

condition known as aphonia, with symptoms including excessive

coughing and shortness of breath, which was allegedly aggravated by

dust and debris stemming from construction at the school some years

ago.       Also on doctor’s orders, she sought accommodations for her

disability       and   for    four3    school     years   was   provided     with

accommodations virtually identical to Sepúlveda’s, although her


       2
       The district court read the complaint to assert claims under
the ADA and Title VII against Oliveras in his official and personal
capacities. The complaint, however, states that Oliveras “is sued
in his individual capacity under Puerto Rico law.”
       3
       Velázquez was denied accommodations the first year she
requested them.

                                        -5-
maximum class size was generally 20 rather than 15.       When the

Secretary’s instructions were circulated, her class size, too, was

increased (“up to thirty (30) students,” without a team teacher),

and she, too, alleges that ensuing emotional and physical stress

required treatment.   She seeks equitable relief and damages, in

pleadings the district court read to raise the same claims it found

Sepúlveda did.   Here, again, the Court dismissed the personal

liability claims, all claims under Title VII, and the Title II

claim on the ground that the title does not refer to employment

discrimination (this time providing no alternative basis).   Here,

though, the court addressed the appellees’ sovereign immunity

defense, which it had not reached in Sepúlveda’s case.   The court

sustained the defense, dismissing the Title I claim against the

Department in toto and against the Secretary insofar as Velázquez

sought monetary damages. That left the Title I claim for equitable

relief against the Secretary, on the theory of Ex Parte Young, 209

U.S. 123 (1908), which the court dismissed for the same reason

given in the other case, a failure to allege in the pleadings how

the 20 pupil size accommodation requested would enable her to teach

but the larger class size would not. The Rehabilitation Act claim,

as before, went the way of that under Title I, and supplemental

jurisdiction over actions under the Civil Code was again declined

without prejudice.




                               -6-
          The briefs for the appealing plaintiffs primarily address

the district court’s failure to apply properly the standard of

review under Rule 12(b)(6), and do not take issue with any of its

conclusions of statutory interpretation or immunity from suit.        We

thus infer that all claims of error are waived, except as to the

sufficiency of allegations as stating claims that the Department

and its Secretary are responsible under Title I or § 504 of the

Rehabilitation Act for failures to make reasonable accommodations

for disabilities. While it is true that both appellants’ briefs do

refer to their “Title II pleadings,” they go no further than

paraphrasing the statutory text and neglect to address the district

court’s   ruling   that    Title   II    does   not   cover   employment

discrimination.     Such   passing   and   conclusory   references   are

inadequate to press an issue on appeal.

          The statement of a claim of actionable failure to make

reasonable employment accommodation for disability under either

Title I of the ADA or §504 of the Rehabilitation Act must allege a

disability covered by the statute, the ability of the plaintiff to

do a job with or without accommodation as the case may be, and the

refusal of the employer, despite knowledge of the disability, to

accommodate the disability by reasonably varying the standard

conditions of employment.    Enica v. Principi, 544 F.3d 328, 338 &




                                   -7-
n.11 (1st Cir. 2008).    The district court found the allegations

deficient with respect to the third element.4

          “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a

short and plain statement of the claim showing that the pleader is

entitled to relief,’ in order to ‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.”    Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R.

Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)).    The

make-or-break standard, as the district court recognized, is that

the combined allegations, taken as true, must state a plausible,

not a merely conceivable, case for relief.   Ashcroft v. Iqbal, 129

S.Ct. 1937, 1950-51 (2009) (citing Twombly, 550 U.S. at 570); see

also Twombly, 550 U.S. at 555 (“Factual allegations must be enough

to raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even

if doubtful in fact).” (footnote and citations omitted)). “A claim

has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.   The plausibility

standard is not akin to a `probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted

unlawfully.”   Id. at 1949 (citations omitted).


     4
       This dispositive focus on the third element was apparently
a sua sponte choice of the district court; neither motion to
dismiss mentioned it.

                                -8-
           We think that the district court demanded more than

plausibility.   Each set of pleadings includes two significant sets

of allegations.   First, for a period of four or five school years

the school administration provided the reduced class size in

response to the respective plaintiff’s request, supported by some

sort of medical certification attesting to its legitimacy. In each

complaint, those years of requested accommodation are put forward

as establishing, in effect, a base-line of adequacy under the

statute in response to an implicit acknowledgment that a statutory

disability required the provisions that were made.5

           Second, each set of pleadings describes changed facts

beginning in the 2007-08 year, in which instructions from the

defendant Secretary resulted in raising the class size to 30 (with

a young team teacher to share the load with Sepúlveda).             Each

complaint alleges that the plaintiff’s emotional and physical

health   subsequently   deteriorated   to   the   point   of   requiring

treatment, and each concludes that assigning 30 pupils was less

than reasonable accommodation under the statute.      To be sure, this

sequence of alleged facts does not describe a causal connection in

terms of the exact psychological or physiological mechanism by

which each plaintiff’s capacity continues to be overwhelmed.        But



     5
       The precise location of the base-line is difficult to pin
down as the number of students in each appellant’s class varied
somewhat during the good years (from 15 to 20 for Sepúlveda; from
“a maximum of 20” to “a minimum of 20” for Velázquez).

                                 -9-
reading the allegations with the required favor to the plaintiff

means accepting the changes in class size as the only variable,

from which one would infer that there probably is some causal

connection between the work of a doubled class size and the

physical and emotional deterioration of the disabled teacher.

After all, for years the school authorities themselves apparently

thought the small classes were the reasonable and appropriate size;

it does not seem remarkable that a teacher would be worn down by

doubling the size, even with a young helper, who will need to be

supervised.6

           We therefore see the trial judge’s call for allegations

explaining “how” class size was significant and the change in size

was actionable as a call for pleading the details of medical

evidence   in   order   to   bolster   the   likelihood   that   a   causal

connection will prove out as fact.           It may even be read as an

expression of skepticism that medical evidence would support the

causal claim that increased class size damaged health. But Twombly



     6
       In fact, Velázquez specifically alleges that “[t]his failure
to accommodate her has aggravated her physical disability condition
by the increase[d] use of her voice with the larger amount of
students causing her pain, mental anguish, having to go . . . for
treatment and continued absences from her job.” Construed in the
light most favorable to her, this allegation seems to provide the
explanation the district court was looking for: “why a difference
of ten students would impact Plaintiff’s ability to perform her job
functions.”    The counterintuitive placement of this allegation
(about “[t]his failure to accommodate”) at the end of a paragraph
otherwise describing only a year in which Velázquez received full
accommodation may explain why the district court missed it.

                                  -10-
cautioned against thinking of plausibility as a standard of likely

success on the merits; the standard is plausibility assuming the

pleaded facts to be true and read in a plaintiff’s favor.             See

Twombly, 550 U.S. at 556 (“Asking for plausible grounds to infer an

agreement does not impose a probability requirement at the pleading

stage; it simply calls for enough fact to raise a reasonable

expectation    that   discovery   will   reveal   evidence   of   illegal

[conduct].”)

          None of this is to deny the wisdom of the old maxim that

after the fact does not necessarily mean caused by the fact, but

its teaching here is not that the inference of causation is

implausible (taking the facts as true), but that it is possible

that other, undisclosed facts may explain the sequence better.

Such a possibility does not negate plausibility, however; it is

simply a reminder that plausibility of allegations may not be

matched by adequacy of evidence.         A plausible but inconclusive

inference from pleaded facts will survive a motion to dismiss, and

the fair inferences from the facts pleaded in these cases point to

the essential difference between each of them and the circumstances

in Twombly, for example, in which the same actionable conduct

alleged on the defendant’s part had been held in some prior cases

to be lawful behavior.    See Twombly, 550 U.S. at 553-54, 564-69.

          We therefore vacate the portion of the order in each case

that found the complaint inadequate to state a Title I violation,


                                  -11-
and inadequate to state a Rehabilitation Act claim for the same

reason.   We likewise vacate the order relating to the Commonwealth

law claims, which were dismissed for want of any surviving federal

claim.    Costs are taxed against the Department of Education of

Puerto Rico.

           So ordered.




                                -12-
