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(Note: 1/31/02 - Case dismissed, appeal is likely.) Jury Awards One Million to Fired Special Ed Teacher On occasion, the United States Supreme Court issues a landmark decision that interprets the law and changes the legal landscape. On occasion, we hear about a jury trial that we remember for years. We
will remember the trial of Pamella Settlegoode v. Portland Public
Schools and her two supervisors, just as we remember trials of
O. J. Simpson, Timothy McVeigh, Karen Silkwood, and the Bush/Gore
Florida State Court recount litigation. While
these are not published appellate decisions, we view them from different
perspectives and have strong emotional reactions to them. In
January 2001, we alerted newsletter subscribers to a decision by the
Eighth Circuit in Fales
v. Garst, the case in which three special education teachers
sued a building principal. On November 16, 2001, that door swung open with a one million dollar award. The Story In September 1998, Pamella Settlegoode accepted a job as special education teacher with the Portland Oregon Public School District. Because she had a doctorate in education, her students called her Dr. S. Inequities Soon
after she began work as an adaptive PE teacher, Dr. S. was
struck by inequities in access and services. Her students were not
allowed to participate in activities that were freely available to
non-disabled students. Many of these denials of access were in clear
violation of law.
Dr. S found that in some schools, adaptive PE was simply modified weight training. During the trial, Dr. S. testified about how she taught one student who was born without arms to play tennis. Under Dr., S's tutelage, the child learned to use straps to hold her racket. The jury learned that Dr. S's supervisor terminated tennis instruction for her students, over the objections of the building principal and this child's parent. Inaccessible Schools Dr. S. testified that the high school was not accessible for people in wheelchairs - no accessible sidewalks, no elevators, no ramps. Children who used wheelchairs and children with hearing and visual impairments had to use the street and student parking lot. Dr. S explained that she feared a reckless teenage driver would hit one of her students. The high school did not have ramps or an elevator for the students and staff who used wheelchairs. The wrestling coach was superb coach. He wanted his students to learn about independence and the value of hard work and perseverance. The high school did not have ramps or elevators for students or staff. When the coach had to move from one floor to the next, his students had to carry him up the stairs, deposit him on the floor, and retrieve his chair. It is difficult to teach students about independence when their teacher must depend on students to carry him between floors of the school building. Dr. S. complained that the district altered IEPs and failed to provide services listed in IEPs, violations of the Individuals with Disabilities Act. How did her supervisor deal with these issues? Her supervisor directed her to discontinue her practice of communicating through letters! Although she met with a member of the school board, the problems did not improve. Retaliation Dr. S. contacted Robert Crebo, special education director, to express her concerns about discrimination and retaliation. How did Crebo respond? He directed her to discontinue letter writing! After she contacted Crebo, the district renewed its retaliation against her. Her supervisor took away responsibilities. She was directed not to write letters. She was ordered not to volunteer for a reading program during her lunch hour. She was excluded from IEP meetings for her students. Classes were cancelled. Dr. S. wrote to Superintendent Ben Canada about retaliation and ongoing problems with discrimination against students with disabilities. Canada admitted that he read one page of her letter, saw the claim of retaliation, and forwarded her letter to those individuals who were retaliating against Dr. S.! Dr. S. was repeatedly directed to stop writing letters. Why? Unlike spoken words, letters are powerful evidence. Attorneys know that spoken words and verbal admissions often have little value in litigation. Eighteen months after she began work as an adaptive PE teacher, Dr. S was fired. As a new teacher, she was on probationary status. She sent out fifty job applications, did not have a single offer. She was blackballed. The Lawsuit Dr. S. is married to William Goode, an experienced federal court litigator who specializes in civil rights litigation. Mr. Goode prepared and filed the lawsuit against Portland Public Schools, Multnomah School District No. 1, Susan Winthrop, Robert Crebo, and Larry Whitson. (Note: Midway through the trial, Mr. Whitson was dropped as a defendant.) The Complaint The
Complaint filed in the U. S. District Court alleged violations
of Section 504 of the Rehabilitation Act, violation of the First Amendment
of the Constitution, (as a 1983 action), violation of the Oregon Whistle
Blowers Act, Defamation of Character, and a violation of the Equal
Pay Act. (Note: for tactical and strategic reasons, the latter two claims were eventually dropped.) Key portions of the Complaint alleged that: 11. PPS intentionally did not provide Dr. Settlegoode and her students adequate scheduling, equipment, facilities, or other support, to properly teach, consult, coach, or supervise the instruction of disabled students or locations assigned to her. PPS intentionally assigned to Dr. Settlegoode students located at several different school locations in a manner such that she could not reasonably provide appropriate instruction to disabled students in a non-discriminatory manner. Although assigned to a campus of PCC, Winthrop advised Dr. Settlegoode not to provide any services to disabled students at PCC. 12. Dr. Settlegoode reported incidents and situations in which her disabled students were subjected to discrimination; not provided free and appropriate education including after-school activities that was equal or equivalent to services provided to non-disabled students; inadequate facilities or services; hazardous facilities; improper employee conduct, including falsified reports or lack of required reports; mismanagement of funds; and other violations of laws ("deficiencies"). She made reports of these deficiencies at various times to her supervisors including Winthrop and Crebo, and PPS through its superintendent, Dr. Ben Canada. 13. In response to Dr. Settlegoode's reports, Defendant PPS, intentionally retaliated against her. Until six weeks before the trial, Mr. Goode handled pretrial discovery depositions and pleadings. New Attorneys: Kafoury & McDougal Before
the trial, Bill Goode and Dr. S. retained Greg Kafoury and Mark McDougal
to handle the trial.
During the trial, Mr. Goode did not sit at counsel table nor did he examine witnesses. An earlier pre-trial Motion in Limine resulted in a Court Order that the neither party could tell the jurors that Mr. Goode represented his wife in the earlier stages of the case. Pre-Trial Order Both parties, through their counsel, filed a "Proposed Pre-Trial Order" with the Court. During meetings with the Judge, this document is revised. Eventually, the Court issues a Pre-Trial Order.The purpose of the Pre-Trial Order is to narrow down the issues of fact and law. When
you read the Draft
Pre-Trial Order, you will have a clearer understanding of
the factual and legal issues in this case. The Trial Greg Kafoury and Mark McDougal filed approximately 150 exhibits. During the trial, they relied on approximately eight exhibits. Key
exhibits included two letters written by Dr. S, an internal school
memorandum, and the front of Dr. S's school personnel file, on which
Defendant Winthrop wrote in large letters, "Home of the Idealist."
For tactical reasons, the plaintiffs did not request that witnesses be excluded during the trial. All witnesses could hear testimony of other witnesses. The Plaintiff The
first two witnesses for Dr. S. were educational aides who testified
about factual incidents that established elements of the case. The next witness to testify for Dr. S. was a special ed teacher and former "Best Teacher of the Year." She testified about Dr. S's teaching techniques and manner of working with her children. She testified that Dr. S was the best teacher she had ever observed. Next, two educational aides testified about more specific factual incidents. A vice principal testified about her favorable classroom observation of Dr. S, her rapport with her students, and teaching methodology. An economist testified about Dr. S's loss of earnings from the termination and subsequent blacklisting and inability to secure new employment. A vocational expert testified about Dr. S's futile job search attempts and the career impact of the Portland termination. Dr. S. was the last witness during the first phase of the case. In one of her letters, Dr. S wrote that what she saw happening in the school district was like what happened in the Wizard of Oz. She testified that defendant Winthrop operated a "Stalinist" regime. She testified about supervisory staff altering and backdating IEPs. She explained the allegations in her letters, the steps she took, and the retaliation perpetrated on her. Two themes of the case were that Dr. S's file was the "Home of the Idealist" and the Wizard of Oz. The "Idealist" simply wanted the district to follow the law. She not want to be in a position of being forced to violate the law. Dr. S. testified on direct exam for two and a half hours. She was cross-examined for nearly eight hours. The Defense When the school district put on their case, they offered 750 exhibits. The theme of their case was that Dr. S. wrote poorly drafted IEPs. Defendant Winthrop slogged through 30 IEPs, describing what was wrong with them. On cross, she admitted that while they were purportedly poor, the district did not bother to redraft the IEP documents. According to the district's "internal memorandum," it was unlikely that Dr. S's termination was due to IEPs. The school witnesses had already listened to testimony from witnesses on behalf of Dr. S. Their subsequent testimony corroborated the earlier testimony in support of Dr. S. This was a tactic and it worked. Rebuttal After the defendants rested, the plaintiff offered more testimony in rebuttal. The parent of the armless tennis player and her former school principal (now retired) testified about the disparate treatment received by children with disabilities. According to Mr. Goode, as the tennis story unfolded, "there was not a dry eye in the gallery." Jury Instructions After rebuttal testimony ended and both parties rested, the attorneys presented the Court with proposed jury instructions. This led to extensive discussion about what should and should not be in the instructions. Eventually, with the apparent agreement of both parties, the Judge wrote a 15-page narrative jury instruction that told the story and provided the law. Note: We are trying to secure a copy of this unique jury instruction to post on the website. The Verdict The Jury began deliberating on Thursday afternoon at 2:45 p.m. until 6 p.m. They resumed deliberations on Friday, November 16, 2001 at 8:00 a.m. At 2:00 p.m., the unanimous jury announced their verdict. Dr. S. was awarded ONE MILLION DOLLARS. Defendant Winthrop and Defendant Crebo were each ordered to pay $50,000.00. The Future After the trial, jury foreman Neil Moeller told newspaper reporter Clifton Chestnut of the Portland Oregonian: "The big issue was the handicapped kids and the schools not being able to accommodate the situations for teaching handicapped kids. That's what the Rehabilitation Act is all about. We wanted to send a statement back that they were not invincible." Given the finding of retaliation and the nature of insurance exclusion clauses, it is unknown what portion of the award, if any, will be covered by insurance for each of the three defendants. It is not known if they have insurance for this type of claim, i.e., retaliation. On Saturday, November 17, after the Friday jury verdict, Pete Wright talked to Greg Kafoury and Bill Goode. On Sunday, November 18, Pete interviewed Bill Goode and Dr. S. for nearly three hours. Dr. S. told Pete that this has been the "most heart-wrenching and hellish experience of my life," but that my children "want to learn PE, they love it, they want to be athletes, they want to learn, they are teachable, and that was not the problem." She said the problem is the system that views children with disabilities as second-class citizens. The District Court has the power to reduce the verdict. If the District Court does not reduce the verdict, the Defendants may appeal to the U. S. Court of Appeals for the Ninth Circuit. If they appeal, they face stiff odds since the Ninth Circuit has affirmed 94% of jury verdicts. Attorney's fees for the school district are estimated to be close to a half million dollars. Plaintiff's attorneys fees based on time are estimated at around $250,000 - $300,000. Discovery deposition costs and expert witness fees for Dr. S are approximately $20,000. Lessons from This Case "If it was not written down, it was not said. If it was not written down, it did not happen." Pete Wright (From Emotions to Advocacy, page 201) Dr. S. wrote letters to document her concerns. Her supervisors directed her to stop writing letters. She did not stop. Change
the facts. Assume Dr. S. was fired and filed a lawsuit. Assume she testified
about these incidents but did not have letters to substantiate her claims.
Honing
Your Letter Writing Skills
Chapter 23 is "How to Write Good Evidence Letters". You learn about the purposes of letters and how to use the letters purpose to guide you. You learn strategies you can use to ensure that your letters accomplish their purposes. We provide advice about how to write business letters, letter-writing tips, and sample letters that you can adapt to your circumstances. Chapter 24 is "Writing the 'Letter to the Stranger''. You learn about two approaches to letter writing - the Blame Approach and the Story-Telling Approach. You learn about the Sympathy Factor, persuasion, and why you must not write angry letters to the school. Appendix I, "Sample Letters to the School," includes sixteen sample letters from two parents. These letters teach you how to use letters to tell your side of the story and to:
If you are a parent or a teacher and you are having problems with the school, you need to read these chapters about letter writing. Learn more about From Emotions to Advocacy, read reviews, and download the table of contents, index, and a sample chapter. Understanding Section 504 Many
parents and educators do not understand Section 504 of the Rehabilitation
Act. If a child has a disability that adversely affects educational performance, the child should be eligible for special education services under the Individuals with Disabilities Education Act. These issues are discussed thoroughly in Wrightslaw: Special Education Law and Wrightslaw: From Emotions to Advocacy. Contact Information Dr.
S. can be reached at psettlegoode@msn.com
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