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California district’s board approves plan to allow attorneys employed by district to provide pro bono legal services to students facing deportation

According to the Los Angeles Times, the Los Angeles Unified School District (LAUSD) Board of Education has approved a plan that will allow LAUSD lawyers to volunteer time on behalf of students facing deportation. An attorney would be allowed to represent only one student at a time and for an estimated one to three hours a week. About ten attorneys have expressed interest so far.

Although only one board member voted against the plan, others expressed concern about the focus on just that one area for legal assistance. LAUSD Superintendent, Ramon C. Cortines, said he also had concerns about singling out deportation as the sole focus of legal help.

LAUSD general counsel David Holmquist said, “I have every expectation that this will work.” He also noted that the L.A. Unified volunteers would work with experts in the field, and that they might call on district staff for some support. The cost, he said, would be negligible especially because students who remained in the school system would enhance district funding.

As of the end of October 2014, there were 4,920 unaccompanied youth with cases pending before local immigration courts. Nearly two-thirds of them are not represented by a lawyer, according to LAUSD. “A legal representation crisis has emerged,” a report by LAUSD staff said. “There are not enough attorneys representing unaccompanied youth in deportation proceedings, and thousands of children who might otherwise qualify for legal residency are being taken out of their schools in the United States and sent back to the violence and persecution they fled.”

District staff cited research finding that 73% of youth with representation were allowed to stay in the United States, compared with 15% who did not have legal assistance.

Source: Los Angeles Times, 2/10/15, By Howard Blume

[Editor’s Note: In February 2013, Legal Clips summarized an article in The Palm Beach Post reporting that the U.S. Department of Justice (DOJ) had finalized a settlement with the Palm Beach County School District (PBCSD) over discipline and enrollment practices. The agreement addresses two complaints alleging discrimination in how PBCSD disciplines students who struggle to speak English, and how it handles registration and enrollment for undocumented immigrants.]

Online petition prompts Indiana state legislator to shelf amendment that would eliminate training and reporting requirements in state’s anti-bullying law

NBC News reports that over 150,000 people signed an online petition calling on the Indiana state legislature to drop Senate Bill 500 (SB 500), which is a new education deregulation bill that would reverse the requirements enacted in the state’s 2014 anti-bullying law. In response, state Sen. Pete Miller said he plans to introduce amendments this week that will leave the existing law intact. 

According to Miller, the proposed changes were drawn up by a law firm on behalf of two dozen school districts and groups who want to get rid of costly mandates. “No schools were saying, ‘We don’t care about bullying,'” he added. “But obviously parents were concerned that was going to be in the final version of the bill. I knew we were going to have a chance to take it out.” 

Seamus Boyce, an attorney for the firm that recommended undoing those measures, said bullying is already covered by federal anti-discrimination laws, making the state requirements time-consuming, confusing and “unnecessary.”

Even though he endorsed the existing law, Miller said he believes it’s imperfect. For instance, he said, when schools began reporting how many bullying incidents they had handled, “some said they had none and some said they had like 400.” “So you have a report, but I’m not sure how valuable it is,” he said, adding that instead of reversing the current law, he may now introduce legislation to fine-tune it.

Source: NBC News, 2/3/15, By Tracy Connor

 [Editor’s Note: Seamus Boyce is a member of NBSA’s Council of School Attorneys (COSA). 

By way of clarifying the purpose of SB 500, on January 29, 2015 Mikel Livingston reported in the Lafayette Journal & Courier that the 307-page bill (SB 500) from Pete Miller would strike out portions of the state’s education laws that Miller and some superintendents believe have become obsolete or redundant by appearing elsewhere in Indiana Code. The bill, which was created at the request of and with the assistance of Indiana superintendents, also would establish an oversight committee to review all reporting requirements by the state for schools. 

West Lafayette Community School Corp. Superintendent Rocky Killion was among superintendents who testified in favor of the bill. “I did a little calculation,” Killion told the committee Wednesday. “If the bill passes in its current form, I could probably reduce two clerical positions and put about $80,000 to $100,000 back into the classroom just because of the number of reports we’re doing.”]

Teacher’s suit claims Indiana district fired him because he is an atheist

The Elkhart Truth reports that Kevin Pack, who formerly taught German at Northridge High School (NHS), has filed suit against Middlebury Community Schools (MCS) in federal court claiming that his employment was terminated based on his atheist views in violation of his First Amendment rights. MCS counters that Pack was fired for insubordination, immorality and incompetence.

MCS Superintendent Jane Allen stated that Pack was not terminated because he is an atheist, but because he “was a poor teacher.” According to the school board’s factual findings from Pack’s hearing, Pack showed students two films the board felt were inappropriate. He also kept a book on his counter that featured nude drawings, foul language and sexual content involving animals.

The findings included complaints from students that Pack used swear words and made an inappropriate Jewish joke during a lesson over the Holocaust. Co-workers expressed concerns about Pack’s ”stability,” saying they felt unsafe working in the same building with him. The board also determined that Pack simply was not teaching the students well enough, which was described in numerous ways in the findings.

Pack’s suit alleges that the actual reason for his termination was retribution for objecting to Principal Gerald Rasler’s proselytizing. According to the suit Rasler’s relationship with Pack started to “sour,” and he began receiving negative evaluations and disciplinary warnings after he complained about Rasler’s proselytizing. When Pack complained to the school corporation’s human resources department, the department investigated and concluded that Rasler had engaged in proselytizing conduct prohibited by law.

The suit contends that Allen, in recommending Pack’s termination to the board, cited an unidentified film Pack showed to his classes that she said was inappropriate for high school students. Pack believed his predecessor had showed the film to his classes, based on materials left for him.
Pack’s attorney, Bill Wilson, said, “The First Amendment protects freedom of religion by prohibiting state actors from proselytizing or pressuring people to conform to any religious beliefs.” He added, “When a teacher objects to conduct not permitted by the First Amendment, he should not lose his job as a result.”

Wilson also cited the Indiana State Teachers Association’s findings which refute many of Allen’s allegations. The teachers union, in its role to advocate for teachers in disciplinary matters, had submitted its findings to the school board in April 2014 as it was considering Allen’s recommendation to fire Pack. The board instead accepted Allen’s findings.

According to Pack, an Indiana Department of Workforce Development Administrative Law Judge (ALJ) awarded him unemployment benefits.  Pack claims the ALJ determined there was no evidence that he had been insubordinate. Allen conceded the ALJ ruled in Pack’s favor, awarding him unemployment benefits, she said, “We don’t know why they ruled that way.”

Source: The Elkhart Truth, 1/23/15, By Jeff Parrott

[Editor’s Note: In the school board’s “Findings of Fact and Conclusions,” the board concluded Pack’s actions constituted immorality, insubordination and neglect of duty justifying termination of his employment contact.]


Delaware asks federal court to dismiss suit over closure of charter school

Attorneys representing the Delaware Department of Education (DDE) have filed a motion in federal court seeking dismissal of a suit brought by a predominantly African American single-sex girls charter school, says an Associated Press (AP) report on NBC10.com. The school, Reach Academy for Girls (RAG), is attempting to block DDE’s decision not to renew its charter.

DDE argues its decision to close RAG does not amount to intentional gender discrimination, especially because another all-girls charter school could open in the future. DDE’s attorneys also contend that the claim of racial discrimination is not allowed as a private right of action under the Civil Rights Act.

In January 2015, the court denied RAG’s motion for a preliminary injunction, saying that the school had failed to show that it was likely to succeed with any of its claims, including claims of racial and gender discrimination.

Source; NBC10.com, 2/4/15, By AP

[Editor’s Note: In February 2014, Legal Clips summarized the district court’s ruling in RAG v. DDE granting a preliminary injunction which allowed RAG to continue operating for another year. DDE had rated the school as “failing” and decided not to renew the school’s charter. The court also ruled that the charter school did not have standing to sue the state, but the individual plaintiffs (students and their parents) did have standing to pursue Title IX and Fourteenth Amendment equal protection claims.] 




California school bars dozens of unvaccinated students after a student contracts measles

According to a Reuters story in the Huffington Post, Palm Desert High School is the second school in California to bar unvaccinated students from school, over concern that a student may have caught measles, since the reported outbreak of the measles at Disneyland. “We are simply responding, being very careful and making sure we’re taking the best care of students and staff,” said Mary Perry, a spokeswoman for the Desert Sands Unified School District, which overseas Palm Desert High. She said that the non-vaccinated students have been ordered to stay home until Feb. 9.

More than 90 people have been diagnosed with measles in California and nearby states since an infected person, likely from out of the country, visited the Disneyland resort in Anaheim between Dec. 15 and Dec. 20. The California health department has said that unvaccinated individuals have been a factor in the outbreak, although some of the infected patients had been vaccinated.

The concern has been especially high in schools, which require students to prove they have been vaccinated in order to enroll. The law does allow parents to opt out due to personal beliefs or medical concerns and in California about 2.7% of students received personal belief exemptions, according to the state.

A California Department of Public Health spokesman said he did not have any information on whether the illness had spread within schools. Data from the agency indicates that school age children account for fewer than 20% of the confirmed cases in California.

School officials at a San Francisco Bay area school district publicly responded to a call from the father of a elementary school student with weakened immunity to close the doors to students at his child’s school if their families opted out of vaccinations because of personal beliefs. Steve Herzog, superintendent of the Reed Union School District where the boy attends school, said that unless someone in the local Marin County contracts measles, he cannot bar entry to children just because they have not been vaccinated.

The student’s father said he fears his immune compromised child would badly suffer from a measles infection, and the boy has not been vaccinated because he is still regaining strength from his battle with leukemia, which is in remission.


Source: Huffington Post, 1/29/15, By Alex Dobuzinskis (Reuters)


[Editor’s Note: In January 2015, Legal Clips summarized a decision by A U.S. Court of Appeals for the Second Circuit three-judge panel in Phillips v. City of New York holding that a New York State law requiring that all children be vaccinated in order to attend public school is constitutional. It also concluded that a state regulation permitting state officials to temporarily exclude students, who are exempted from the vaccination requirement, from school during an outbreak of a vaccine‐preventable disease is constitutional. The panel upheld the lower court’s decision that both the law and regulation passed federal constitutional muster.] 


Coalition seeks to revive equity portion of Kansas school funding suit decided by the state supreme court in 2014

Cjonline.com reports that Schools for Fair Funding, the coalition of school districts that brought the Gannon v. State suit, has filed a motion to reopen the equity issue in Gannon that was decided by the Kansas Supreme Court in 2014. Gannon raised two issues: whether poorer school districts are receiving equitable funding compared with wealthier districts, and whether total state aid to schools is adequate.

In March 2014, the supreme court ordered the state to restore full payments of equalization aid that goes to districts with lower per-pupil local tax revenue. The Kansas legislature complied with a bill that restored those funds, though the bill was contentious because it trimmed funding elsewhere in school budgets and included a number of controversial changes to education policy, including stripping teacher tenure out of state law.

The coalition argues that the Legislature, which is planning cuts in state spending to handle a massive shortfall in tax revenue, is now reneging on restoring the equalization payments. “In response to the Kansas Supreme Court’s March decision, the Kansas Legislature adopted the State’s Senate Substitute for House Bill 2506 (“H.B. 2506”), purportedly restoring approximately $129 million in funding to Kansas schools,” says Schools for Fair Funding. “Now, the State has revealed it is approximately $63 million short of fully funding equalization aid for FY15.”

Responding to Schools for Fair Funding’s motion, state Sen. Ty Masterson, chairman of the senate’s budget committee, said, “Regarding the state’s funding of equalization, the Legislature fully funded equalization last year according to the current definition of equalization.” He added,  “I’m confident that the Legislature will continue to fully fund equalization according to whatever that definition may be now or in the future.”

The legislature didn’t appropriate full equalization payments last fiscal year as calculated by a statutory formula for that aid, but some lawmakers argue that annual appropriations bills passed each year override this, because they constitute more recent legislation. The senate budget committee is considering a bill that would cut about $40 million in equalization aid for the current fiscal year. It would do so by changing the formula for one kind of equalization aid, known as supplemental general or local option budget aid.

Gov. Sam Brownback’s budget proposal would cut state aid for everyday school operating costs by more than $100 million next year. Overall funding would decrease by about $22.6 million.

Source: cjonline.com, 1/29/15, By Celia Llopis-Jepsen

[Editor’s Note: In June 2014, Legal Clips summarized an Associated Press (AP) article in The Kansas City Star reporting that a Shawnee County District Court three-judge panel assigned to review the state’s latest school funding scheme has determined the law complies with a state Supreme Court mandate to boost aid to poor public schools. However, the panel declined the state’s request to dismiss claims questioning the fairness of the state’s school funding formula in a lawsuit filed in 2010 by parents and school districts.

The panel also rejected the school districts’ argument that uncertainty about state finances or future legislative actions raises questions about whether Kansas actually met the earlier Supreme Court mandate. In March 2014, the state supreme court concluded that recession-driven cuts in aid to poor school districts had created unconstitutional gaps in aid between them and wealthier districts and ordered lawmakers to fix that.]



Sua Sponte: NSBA files amicus brief urging the North Carolina Supreme Court to strike down the state’s private school voucher program on constitutional grounds

The National School Boards Association (NSBA) has filed an amicus brief in Richardson v. State of North Carolina urging the North Carolina Supreme Court to hold the state’s voucher program unconstitutional. NSBA contends that the program violates N.C. Const. Arts. I, § 15; V, § 2(1); IX, § 2.

The brief argues that the program fails to pass constitutional muster on two grounds. First, the voucher program’s lack of accountability harms North Carolina taxpayers. Second, the program harms public education in two ways: (1)  it undermines the significant role of public education in America; and (2) the program’s diversion of public dollars away from schools harms North Carolina public schools.

The brief was written by NSBA staff under the direction of NSBA Associate Executive Director and General Counsel Francisco M. Negrón, Jr. 

In NSBA’s press release announcing filing of the brief, North Carolina School Boards Association  Executive Director Dr. Ed Dunlap applauded NSBA’s brief saying, “We are pleased NSBA supports NCSBA’s effort to ensure students receive a sound education in our public schools.” He added, “Using public dollars to fund private schools with no real accountability even when they fail to deliver a sound education to their students is bad public policy.”

NSBA Executive Director Thomas J. Gentzel said, “Voucher programs, including North Carolina’s Opportunity Scholarship Program, rob public schools of the scarce resources available to provide an education to the majority of America’s schoolchildren.”


DOJ reaches tentative agreement with Alabama district on desegregation

According to a report in Education News, culled from a number of news sources, U.S. Department of Justice (DOJ) has reached a tentative agreement with Huntsville City Schools (HCS) in a lengthy legal dispute over the desegregation of the city’s schools. The agreement represents the successful conclusion of mediation between the parties, which was ordered by federal court Judge Madeline Haikala in the summer 2014. The mediation focused on reaching a proper agreement in rezoning the school zone boundary lines.

Commenting on the agreement, HCS Superintendent Dr. Casey Wardynski said:

Since last summer, we have been negotiating with the Department of Justice to ultimately achieve the goal of unitary status. When we entered into mediation, I stated this opportunity would improve our school system for all of our children. My administration, its counsel and the Department of Justice have created an agreement for consideration by the public and the court. This agreement addresses the factors identified by the Supreme Court to become a unitary system. These factors include student assignment, faculty assignment, extracurricular activities, transportation, facilities, and an additional factor of student discipline. This agreement is supported by the U.S. Department of Justice, my administration and board legal counsel.

DOJ Civil Rights Division Attorney General Vanita Gupta also lauded the agreement saying:

A quality education is the key that opens the door to a better future. This agreement aims to ensure that African American students in Huntsville schools can access that quality education on an equal basis. We look forward to working with the district to implement the measures required by this proposed order, if approved, and eventually bring this case to successful resolution after so many years.

After public hearings, the school board is set to approve the proposed consent order during the upcoming federal court hearing in March 2015. If the consent receives the green light from the judge, HCS would have a chance of forming a uniform entity and would be free from the federal desegregation order it’s been under for years.

Source: Education News, 1/30/15, By Sherlyn Summers

[Editor’s Note: In June 2012, Legal Clips summarized an article in the Birmingham News reporting that the Fort Payne City School District (FPCSD) had reached a settlement in a nearly 50-year-old school desegregation lawsuit with the U.S. Department of Justice (DOJ). The claims against FPCSD were part of a statewide school desegregation lawsuit, Lee vs. Macon County Board of Education, filed in 1963. In March 1967, a federal court had ordered Alabama’s then-state superintendent of education to notify a number of school systems, including FPCSD, that they were required to adopt a desegregation plan for all grades commencing with the 1967 school year.

In 2006, DOJ commenced a five-year review of FPCSD’s compliance with its desegregation obligations. Based upon its review, DOJ notified FPCSD that “the Board had satisfied its desegregation obligations in the areas of transportation, extracurricular activities, and facilities, but that the Board has not yet fully satisfied its obligations in the areas of student assignment (including transfers) and faculty and staff.” The parties intend that FPCSD’s compliance with the consent order will “result in the Board fulfilling its obligations in the areas of student assignment and faculty and staff within the next two years.” ]




DOL files whistleblower suit against Idaho district on behalf of former employee

The Idaho Statesman reports that the U.S. Department of Labor (DOL) has filed suit against Idaho Falls School District (IFSD) on behalf of Penny Weymiller who was formerly employed by IFSD as an environmental safety and health engineer. The suit alleges that the school district retaliated against Weymiller after she raised concerns about asbestos removal.

The suit states that Weymiller worked as an environmental safety and health engineer for Idaho Falls School District from August 2007 to June 2011. In March 2011, she notified her supervisor and district superintendent she was concerned that the school’s plan to remove asbestos from boiler pipes at C.E. Gayle Junior High School did not comply with federal regulations.

In May 2014, Weymiller filed a complaint with DOL’s Occupational Safety and Health Administration (OSHA) alleging that she was subject to a hostile work environment in retaliation for notifying IFSD about her concerns with the district’s asbestos removal project. According to the suit, Weymiller was fired a week after filing the OSHA complaint.

OSHA investigated Weymiller’s complaint and determined the school district “discriminated and/or retaliated against Ms. Weymiller.” DOL is seeking a court order directing IFSD to pay Weymiller lost wages and damages, reinstate her to her former position and provide whistle-blower training for district offices and supervisors.

Source: Idaho Statesman, 1/26/15, By Cynthia Sewell

[Editor’s Note: In December 2014, Legal Clips summarized an article in the Detroit Free Press reporting that Theresa Ely, a custodian with Dearborn Heights Schools District No. 7 (DHSD7), had filed suit in federal court against DHSD7. The lawsuit alleges that the school district put the health of students and staff at two schools at risk by falsifying a report and covering up past asbestos contamination.

In February 2011, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in Morey v. Somers Cent. Sch. Dist. holding that a school custodian, who complained to his supervisors about asbestos contamination on a number of occasions, failed to state a valid claim for First Amendment retaliation because his speech was made pursuant to his duties as head custodian. The panel concluded that the fact that he never spoke publicly about his concerns, relying instead exclusively on internal channels, confirmed that he spoke pursuant to his duties.] 



Third Circuit rejects former teacher’s ADEA and Title VII retaliation claims

Daniels v. School Dist. Of Philadelphia, No. 14-1503 (3d Cir. Jan. 20, 2015)

Abstract: A U.S. Court of Appeals for the Third Circuit three-judge panel has ruled that a former teacher failed to state a prima facie case of retaliation under the Age Discrimination in Employment Act (ADEA) and Title VII based on her complaints of race and age discrimination. It concluded that while the teacher had established that she was engaged in protected activity and the school district took adverse employment actions against her, the teacher had failed to establish that there was causal connection between the protected activity and the adverse actions taken against her. The panel also found that the teacher’s retaliation claim failed because she was unable to show that the legitimate reasons proffered by the school district for the adverse actions were a pretext for age or race discrimination.

Facts/Issues: Dorothy Daniels, who is over 6o years old and African-American, was employed by the School District of Philadelphia (SDP) as an elementary and middle school teacher. Her tenure at the first school to which she was assigned was successful and at the end of the year, she received a satisfactory evaluation. However, her position at that school was eliminated due to budgetary cuts and she was forced to participate in the site selection process to find another position within the District. After participating in the site selection process, Daniels elected to teach middle school at Thomas Mifflin Middle School and SDP approved that assignment.

Leslie Mason was the principal at Mifflin. During a parent teacher conference, which was held not to long after Daniels started there, Mason made some comments that Daniels found to be ageist and offensive. Daniels spoke to Mason about those comments and she contended that Mason became antagonistic towards her after she complained about the comments. Mason conducted several classroom observations of Daniels, as is required by SDP procedures, and evaluated her based upon these classroom observations. She gave Daniels a negative evaluation, which Daniels believed to be unwarranted. Mason also took additional actions with regard to Daniels, which caused a strain in her relationship with Daniels.

At the end of the school year, Mason reduced the number of budgeted middle-school teachers for the upcoming year from three to two, an action that required Daniels to go through another forced transfer process. Although SDP’s central office, rather than the local principal, decides which teachers to retain and which to transfer, Mason told two students that she “had written [Daniels] out of the budget and that [Daniels] wouldn’t be returning in September 2010.”

Daniels received late notice of this action and was not able to participate in the site selection process because of the late notice. She wrote a letter to the SDP’s human resources department complaining about comments that Mason had made to her, attributing them to discrimination based upon her age.  Approximately one day later, she met with the Deputy Chief of SDP’s staffing office about a teaching assignment. They did not agree on an assignment that day and SDP subsequently assigned her to Vare Middle School (VMS).

Shortly after Daniels began her new assignment at VMS, she filed a complaint with the Pennsylvania Human Relations Commission (PHRC). She alleged age discrimination based on Mason’s remarks and Mason’s frequent monitoring of Daniels even though younger teachers were not monitored with the same frequency. Daniels also asserted a race discrimination claim based on her forced transfer from TMS and Mason’s failure to give her timely notice of the transfer.

Daniels difficulties continued at VMS. In February 2011, she filed a second PHRC complaint, this time concerning her treatment at VMS. Daniels claimed that SDP retaliated against her because she had filed her October 2010 PHRC complaint. Both the principal and assistant principal at VMS testified at depositions that they had no knowledge of Daniels’s PHRC complaints during the time that they took the adverse actions of which Daniels complained.

During the 2010-11 school year while Daniels was assigned to VMS, she began seeing doctors for anxiety and depression, which she attributed to her hostile treatment at school. Starting in March of 2011, she began a period of medical leave from VMS due to anxiety. After the 2010-11 school year ended, Daniels participated in the site selection process for the upcoming year, which resulted in her assignment to teach literacy at Penrose Elementary School (PES) for the 2011-12 school year.

As with her two previous assignments, Daniels ran into difficulties with the principal at PES. The principal allegedly screamed and in November, told her to either resign or retire, but not to return to her school.  Daniels perceived these to be adverse actions. The principal later testified that she did not know of Daniels’s PHRC complaints when she took actions that Daniels regarded as adverse. In December 2011, Daniels supplemented her February 2011 PHRC complaint with a letter listing grievances against PES’s principal. Daniels took another medical leave beginning December 20, 2011.

Under SDP’s leave policy, if an employee misses ten consecutive workdays due to personal illness, notice is automatically sent to Carol Kenney, SDP’s director of employee health services. When Kenney’s office receives such a notice, it schedules an appointment for the employee with an SDP physician to determine whether the employee has a need for continued leave. An employee who disagrees with the conclusion of the SDP physician can request that another physician, not in SDP’s employ, evaluate her. If the employee makes such a request, SDP selects that physician from a list of physicians on which SDP and the teachers’ union previously had agreed.

SDP’s doctor concluded that Daniels would be fit to return to work on February 1, 2012. Per SDP’s policy, Daniels requested and was examined by a second doctor. That doctor, who is a psychiatrist, concluded, “Ms. Daniels’s symptoms of anxiety and depression arise from her dispute with the Principal and not from a definable psychiatric illness. Her problem is legal and administrative, not psychiatric.” Therefore, he determined that Daniels should have returned to work on February 1, 2012, reasoning that psychiatric treatment would not solve the source of her distress.

On February 21, 2012, Kenney notified Daniels of the second doctor’s conclusion and informed her that if she did not return to work on February 27, 2012, SDP would institute disciplinary proceedings against her. In reliance on the doctor’s determination, Kenney also denied Daniels’ wage continuation benefits. Daniels, however, did not return to work as directed. Rather, based on the opinion of her own physicians, Daniels did not return to work until March 27, 2012. Due to Daniels’s failure to return to work as directed, Kenney, who testified that she did not know at that time of Daniels’s PHRC complaints, recommended that SDP terminate her employment. On May 2, 2012, Daniels received notice that SDP had initiated the proceedings that ultimately led to the termination of her employment.

Daniels filed suit in federal court against SDP and a number of school officials. She claimed age discrimination under the ADEA, race discrimination under Title VII, and retaliation under both the ADEA and Title VII. The defendants made a motion for summary judgment and the court granted the motion in an order entered November 7, 2013, with respect to most of Daniels’s claims, including those of retaliation. The remainder of the case proceeded to trial, at which the jury returned a verdict in defendants’ favor. Daniels filed an appeal, which was limited to the summary judgment with respect to her retaliation claims against SDP alleging violations of the ADEA, Title VII, and the state law claim encompassing age and race discrimination.

Ruling/Rationale: The Third Circuit panel affirmed the lower court’s decision granting the defendants summary judgment on the retaliation claims. Because Daniels’ claims of retaliation under the ADEA and Title VII did not involve direct evidence of retaliation, the panel analyzed the claims using the burden-shifting framework that the Supreme Court established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). It stated that under the McDonnell Douglas framework, a plaintiff asserting a retaliation claim first must establish a prima facie case by showing: “(1) [that she engaged in] protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.”

With regard to the protected activity prong, the panel found that three of the five instances asserted by Daniels satisfied that prong. Specifically, it concluded that her September 2010 letter to SDP administrators claiming that she had been subjected to a hostile work environment because of her age; her October 2010 PHRC complaint and the December 2010 amendment to that complaint, and her February 2011 PHRC complaint satisfied the first prong of McDonnell Douglas.

Addressing the adverse action prong, the panel found four out of the five instances identified by Daniels as adverse actions satisfied the second prong. It concluded that each of the following events qualified as adverse actions under McDonnell Douglas: (1) the designation of her absences on September 8, 13, and 14, 2010, as “unauthorized leave without pay,” even though SDP did not notify her of her assignment to VMS until September 14, and Christy’s related memorandum of December 20, 2010, warning Daniels that additional absences or lateness would lead to more severe disciplinary action; (2) the hostile work environment that Daniels experienced at VMS and PES from September 2010 to December 2011, which caused her mental health injuries; (3) the denial of her wage continuation benefits; and (4) SDP’s eventual termination of her employment.

However, the panel found that Daniels had failed to establish a causal connection between the instances of protected activity and the instances of adverse action. It stated: “In the absence of such a close temporal proximity, we consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action.” It concluded that Daniels had failed to provide evidence that the school administrators responsible for the adverse action knew of her protected conduct at the time they acted. The Panel observed, “Although SDP may have harassed Daniels, she has not linked any of the harassment to the sort of retaliatory animus necessary to obtain relief under the anti-discrimination statutes on which she relies.”

Finally, the panel pointed out that “even assuming Daniels can make such a prima facie showing, SDP has proffered legitimate reasons for these adverse actions, which Daniels has failed to rebut.”  It stressed that Daniels would have had to have offered evidence that the legitimate reason for termination proffered by SDP, i.e., the medical evaluation that Daniels was fit to return to service, was a pretext for age and race discrimination. The panel concluded: “Although SDP may have harassed Daniels, she has not linked any of the harassment to the sort of retaliatory animus necessary to obtain relief under the anti-discrimination statutes on which she relies.”

Daniels v. School Dist. Of Philadelphia, No. 14-1503 (3d Cir. Jan. 20, 2015)

[Editor’s Note: In January 2015, Legal Clips summarized a decision by a U.S. Court of Appeals for the Tenth Circuit three-judge panel in Estate of Carlos Bassatt v. School Dist. No. 1 holding that a Colorado school district’s proffered reason for terminating an individual from his student teaching assignment was not a pretext for discriminating against him on the basis of ethnicity. It concluded that the student teacher’s Title VII retaliation claim failed, as did the retaliation claims under 42 U.S.C. § 1981 and § 1983, because all of the retaliation claims depend on the McDonnell Douglas burden shifting analysis and he failed to present evidence that rebutted the defendant’s claim that his misconduct was the motivating factor for the decision to terminate him.] 







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