United States District Court, W.D. Wisconsin
MARCELA NICOLE SAUZO VARGAS, by and through MAYRA VARGAS RUIZ, Plaintiff,
MADISON METROPOLITAN SCHOOL DISTRICT, et al., Defendants.
OPINION AND ORDER
Stephen L. Crocker, District Judge.
April 2015, plaintiff Marcela Nicole Sauzo Vargas, a
cognitively disabled student at James Madison Memorial High
School, was sexually assaulted by another student while at
school. Plaintiff, by her mother, Mayra Vargas Ruiz, brings
claims for damages against the Madison Metropolitan School
District and its insurance company (collectively, “the
district”) under Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12132 (“ADA”),
and Title V of the Rehabilitation Act, 29 U.S.C. § 794,
contending that the district discriminated against her
because of her disability when it failed to protect her from
the assault. Defendants have moved for summary
judgment, asserting that plaintiff lacks evidence to
establish key elements of her claims. I agree that plaintiff
has failed to adduce facts from which a jury could find that
the district discriminated against her because of her
disability. Therefore, I am granting defendants' motion.
purposes of deciding the motion for summary judgment, I find
the following facts to be material and undisputed, except as
is a cognitively and mentally disabled adult who resides with
her mother, Mayra Lizeth Vargas Ruiz (“Vargas”).
Plaintiff's ability to understand her world and respond
to it are at a level typical for children three to five years
old. At the time of the incident at issue in this lawsuit,
plaintiff attended James Madison Memorial High School
(Memorial), which is within the Madison Metropolitan School
District. In 2017, Memorial had a student population of more
than 1, 900.
attended Memorial from September 2012 through November 2015
pursuant to an Individualized Education Plan
(“IEP”). Jessika Schultz, a special education
teacher at Memorial, was plaintiff's case manager in
2015. As a case manager, Schultz dealt with the day-to-day
issues of her students and usually acted as the liaison
between the school and her students' parents. Rosemary
Barrientos-Irigoyen is a school social worker at Memorial,
who had frequent contact with plaintiff and Vargas for at
least one year prior to April 2015.
least eighteen months prior to April 20, 2015, plaintiff
often told Barrientos and Schultz that she was interested in
boys, she wanted to kiss boys, and she wanted to have a baby.
Plaintiff's statements concerned Schultz and Barrientos,
who shared their concerns with each other, with
plaintiff's IEP team, and with Vargas. Based on
plaintiff's statements, Schultz and Barrientos discussed
with members of the IEP team the need to keep an eye on
plaintiff in the school setting. Schultz knew that
plaintiff's cognitive deficits made her a vulnerable
to Vargas, sometime in early April 2015, plaintiff came home
from school and told her that “a boy” at school
wanted to have sex with her. Vargas says she called
Barrientos the next day and reported what plaintiff had told
her. Vargas could not identify the boy, nor did she know his
name or his nationality, but she knew that he wore earrings
and that he wore a blue t-shirt, jacket, or sweatshirt.
According to Vargas, Barrientos told her that the school
would pay close attention to plaintiff.
week later, says Vargas, she met with Barrientos and Schultz
in person at school and told them that plaintiff had again
told her that the same student was saying he wanted to have
sex with plaintiff. According to Vargas, Barrientos and
Schultz said “that they were going to be paying
attention to that and looking out after things and more than
anything regarding that kid.” Barrientos and Schultz,
however, both deny having had any conversation with Vargas
before April 20, 2015 about a boy wanting to have sex with
April 20, 2015, plaintiff told one of her teachers that she
had had some form of sexual contact with a male student
between class periods. Although plaintiff did not know who
the boy was, Memorial staff eventually were able to identify
him by reviewing recordings from surveillance cameras. I will
refer to him as Student X to protect his privacy and pursuant
to Wis.Stat. § 118.125. The recordings show Student X,
followed by plaintiff, walking down into a stairwell and
disappearing from view for about six or seven minutes.
X had transferred to Memorial from another district on March
5, 2015. Student X had cognitive disabilities. Student X had
a prior history of engaging in inappropriate sexual conduct
with another student at his previous school. There is no
evidence, however, that anyone at Memorial knew this until
Memorial conducted its investigation after the assault.
reporting the incident to her teacher, plaintiff spoke with
Barrientos and Schultz. Plaintiff's story about the
incident evolved as she spoke. Although plaintiff used the
word “sex” to describe what had happened with the
other student, Schultz was uncertain whether plaintiff knew
what that word actually meant. Regardless, Memorial staff
took her allegation seriously. After speaking with plaintiff,
Schultz and Barrientos, along with assistant principal Pete
Hartman, called Vargas. In addition, Memorial staff contacted
the Madison Police Department, which investigated the alleged
also conducted his own investigation. He reviewed
Memorial's surveillance camera recordings and spoke with
staff members about plaintiff's allegation. From his
investigation, Hartman was not able to determine conclusively
what had happened between Student X and plaintiff in the
stairwell on April 20, 2015.
the incident, plaintiff and Student X both were assigned a
full-time staff member to chaperone them at all times during
the entire school day.
Summary Judgment Standard
judgment is appropriate only if the moving party can
demonstrate “that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a
matter of law.” Federal Rule of Civil Procedure 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the burden of establishing that no
material facts are in genuine dispute; any doubt as to the
existence of a genuine issue must be resolved against the
moving party. Adickes v. S.H. Kress & Co., 398
U.S. 144, 160 (1970). See also Lawrence v. Kenosha
County, 391 F.3d 837, 841 (7th Cir. 2004).
moving party is entitled to judgment as a matter of law where
the non-moving party “has failed to make a sufficient
showing on an essential element of her case with respect to
which she has the burden of proof.” Celotex,
477 U.S. at 323. “[A] complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. “As the ‘put up or shut up'
moment in a lawsuit, summary judgment requires a non-moving
party to respond to the moving party's properly-supported
motion by identifying specific, admissible evidence showing
that there is a genuine dispute of material fact for
trial.” Grant v. Trustees of Indiana
University, 870 F.3d 562, 568 (7th Cir.
Disability Discrimination under the ADA and RA
brings claims against the district under Title V of the
Rehabilitation Act, 29 U.S.C. § 794, and Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12132. The
aim of both statutes is to protect disabled persons from
discrimination in the provision of public services. In
pursuit of this goal, Title II of the ADA requires that
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 . . . of a public entity,
or be subjected to discrimination by any such entity.
42 U.S.C. § 12132 (2003).
Title V, § 504 of the Rehabilitation Act provides that
No 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 ...