Duvall v. Putnam City Sch. Dist. No. 1, No. 11-6250 (10th Cir. Aug. 5, 2013)
Abstract: A majority of a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) has ruled that a former special education teacher who resigned after being reassigned to a regular education classroom failed to state a valid claim for retaliation under the Rehabilitation Act (Section 504) or the Free Speech Clause of the First Amendment. It concluded that the letter of admonishment received from an assistant principal was not an “adverse action,” but her reassignment from a special education to regular education classroom did qualify as an “adverse action” because it involved a reduction in pay. The panel determined, however, that even though the teacher had established a prima facie case of Section 504 retaliation, she could not meet her burden of showing that the legitimate reason proffered by the school district for the reassignment was pretextual.
In regards to the First Amendment retaliation claim, the panel concluded that her speech to supervisors and others in the school district was made in the course of her official duties and, therefore, not protected by the First Amendment. However, it concluded that her communications with the state board of education were protected because it was speech made to individuals outside the chain of command and went beyond the scope of her official duties. Nonetheless, the panel found that the claim failed because the teacher failed to show that the speech was a substantially motivating factor in the school district’s decision to reassign her.
Facts/Issues: Louise Duvall was employed by Putnam City School District No. 1 (PCSD) as a special education teacher at Tulakes Elementary School (TES). She became concerned when PCSD began moving toward a “full inclusion” model for providing special education services. Duvall sent several e-mails to her superiors and also met with Glen Kastner, PCSD’s Executive Director of Special Services, on several occasions to discuss her concerns.
In addition to voicing her concerns to administrators, Duvall submitted letters of dissent relating to most of the IEPs with which she was involved during the 2007–2008 school year, and went to state agencies seeking information about “services for children.” However, she conceded that she did not specifically tell any school district officials that she was seeking information from those agencies.
In October 2007, Duvall received a letter of admonishment from TES Assistant Principal Marjorie Iven. PCSD asserted that the letter was written to Duvall “because of the manner in which she had conducted one specific IEP meeting and presented her Letter of Dissent.” Duvall admitted that the reason for the admonishment was that she “presented information at an IEP that supposedly offended the classroom teacher that was there.”
After Duvall requested a transfer, TES Principal Lee Roland responded by offering her a choice between two regular education positions for the following school year. Duvall informed him that she did not want to lose the extra 5% she made as a special education teacher. In May 2008, Roland informed Duvall that she was being assigned “to [f]irst grade for the 2008–2009 school year.”
According to Roland, “It was evident that [Ms.] Duvall did not agree with [the] District’s transition to a more inclusive model of serving special education students and that she was discontented in her current position as a special education teacher.” He added that he “believed that [Ms.] Duvall was unhappy in her current position as a special education teacher” and that “she would be happier and more comfortable in” first grade.
On April 16, 2009, Duvall filed a formal grievance stating that she felt “as though [she] ha[d] been treated differently from other faculty members.” On April 22, 2009, Ms. Duvall submitted her resignation. Shortly after, she filed suit against PCSD, Roland, and Iven in state court alleging PCSD’s adverse employment actions violated her rights under Section 504 and the First Amendment.
The defendants removed the suit to federal district court in Oklahoma. The court granted summary judgment on both of her retaliation claims.
Ruling/Rationale: A two-judge majority of the panel affirmed the lower court’s ruling. The third judge joined with the majority as to dismissal of Duvall’s Section 504 claim against Iven, but dissented from the rest of the majority’s opinion.
Addressing the Section 504 claim, the majority stated that under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Duvall can establish a prima facie claim of retaliation under Section 504 by showing that: “(1) she engaged in protected activity; (2) she suffered a materially adverse action by [Defendants] either after or contemporaneous with her protected activity; and (3) a causal connection [exists] between the protected activity and the adverse action.” If a prima facie case is established, the defendants have the burden of producing evidence of a legitimate, nonretaliatory reason for the adverse action. The burden then shifts back to Duvall to show the proffered reason is pretextual.
In regards to the materially adverse action prong of the test, the majority agreed with the district court that the letter of admonishment did not constitute an adverse action because: (1) Duvall admitted that the letter was issued because of the manner in which she presented the dissent, not the content of it; and (2) the letter did not “affect her employment or alter her workplace conditions.” The majority stated: “Moreover, it is clear that the letter of admonishment was triggered by the manner in which Ms. Duvall conducted her advocacy as opposed to the content of her advocacy activity.”
However, the majority found that Duvall’s reassignment to a first grade classroom was sufficient to make the necessary showing of an adverse action because it involved a loss of pay. As to the causal connection prong, the majority concluded Duvall’s reassignment was “relatively close in time to at least some of [her] dissenting letters or similar objections.” It, therefore, held that Duvall had therefore established a sufficient causal connection between her protected activity and her reassignment to make out a prima facie case of retaliation under Section 504 against Mr. Roland and PCSD.
Under the burden shifting mechanism, the majority found the defendants had produced a legitimate reason for the transfer, i.e., “because [Roland] believed she would be happier and more comfortable in [a first grade] position and that such a move would greatly benefit her, her students, and the school.” Like the district court, the majority determined that Duvall had failed to meet her burden of showing the reason proffered by the defendants was pretextual.
The majority concluded that “the school had multiple legitimate reasons for transferring Ms. Duvall – only one of which was Ms. Duvall’s unhappiness – and there is no evidence to support Ms. Duvall’s contention that Mr. Roland did not genuinely believe the school and students would be better served by transferring Ms. Duvall to a first grade position.” As a result, it held that Duvall had failed to make a claim under Section 504 based on Roland’s decision to reassign her to a first grade classroom.
The majority next turned to the First Amendment retaliation claim. It applied the five-part Garcetti/Pickering analysis (based on Pickering v. Board of Education, 391 U.S. 563 (1968), Connick v. Myers, 461 U.S. 138 (1983), and Garcetti v. Ceballos, 547 U.S. 410 (2006)). That test requires the employee to show that:
(1) the speech was made pursuant to an employee’s official duties; (2) the speech was on a matter of public concern; (3) the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests; (4) the protected speech was a motivating factor in the adverse employment action; and (5) the defendant would have reached the same employment decision in the absence of the protected conduct.
In regard to the first prong, the majority agreed with the district court’s conclusion that “Duvall’s speech to her supervisors and other individuals within the District was undertaken in the course of her official duties.” It found that Duvall had “failed to satisfy the first prong of the Garcetti/Pickering test with regard to any communications she made to her supervisors or to parents of children in the District.” On the other hand, the majority concluded that Duvall had “arguably satisfied the first prong of the Garcetti/Pickering test with regard to her communications to the State Board of Education, as these communications were to individuals outside her chain of command and went beyond the scope of her official job duties.”
Nonetheless, the majority stated: “That being said, we agree with the district court’s conclusion that “[e]ven if [Ms. Duvall’s] First Amendment claim survived the first three steps of the Garcetti/Pickering analysis, it would nonetheless fail at the fourth step because of lack of evidence of causation.” Specifically, it found that Duvall had “failed to produce any evidence establishing that Defendants were aware of her alleged communication of her views regarding the District’s full inclusion model to the State Department of Education,” and thus, “could not have been a motivating factor in any adverse employment action, ….””
In regards to the Section 504 claim, the third judge parted ways with “the majority’s determination that Ms. Duvall has failed to come forward with evidence sufficient to create a material dispute on the question of whether the District’s proffered reasons for its decision to reassign her were pretextual.” In the dissenting judge’s opinion, Duvall had presented credible evidence that what would have made her “happy” was for “Defendants to have rectified the sources of her complaints – and not, as the District and Mr. Roland argue, for Defendants to involuntarily reassign her to a position with lower compensation and outside her field of professional concentration.”
The dissent stated:
In my view, for the district court to determine, solely on the papers before it and without a searching trial by jury, that it was reasonable and plausible for the District and Mr. Roland to “honestly believe” that Ms. Duvall sought such a result, was error. I would reverse the entry of judgment in favor of the District and Mr. Roland on Ms. Duvall’s retaliation claim under the Act.
As to the First Amendment claim, the dissent disagreed with “the majority’s determination that Ms. Duvall has failed to produce any evidence that Defendants were aware of her communications with the Department regarding her views on the subject of the District’s new ‘full inclusion’ teaching model.” It argued that “there is at least a genuine issue of material fact in regards to whether Ms. Duvall communicated her views on the full inclusion model to the Department, as well as whether such communications and their content were known to Defendants before they took their adverse employment action against Plaintiff. “
Duvall v. Putnam City Sch. Dist. No. 1, No. 11-6250 (10th Cir. Aug. 5, 2013)
[Editor's Note: In September 2012, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) in Ross v. Litchtenfeld holding that a former school district employee failed to state a valid First Amendment retaliation claim based on exercising her free speech rights because was she speaking pursuant to her official duties. The panel concluded that the employee’s reporting of financial irregularities to the district superintendent and school board was pursuant to her official duties as a payroll clerk. The panel pointed out that the record was clear that reporting pay irregularities to a supervisor was one of her job duties. It also noted that she acquired all of the information she reported to the superintendent in the normal course of her work duties.]