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Court of Appeals for the Ninth Circuit Upholds Jury Award of
One Million to Fired Special Ed Teacher
by Peter Wright, Esq. & Pamela Wright, MA, MSW

Dr. Pamella Settlegoode, an adaptive PE teacher, was retaliated against and fired because she advocated for students with disabilities. She sued the Portland Public Schools and her supervisors. On November 16, 2001, a jury found for Dr. Settlegoode on all claims. The jury awarded her 1 million dollars and an additional $50,000 in punitive damages against the director of special education and an assistant.

A few months later, a magistrate judge overturned the jury award. Pamella Settlegoode appealed.

On March 5, 2004, the U. S. Court of Appeals for the Ninth Circuit published a decision that reinstated the jury award in Pamella Settlegoode's case. This decision will open doors for other teachers who feel trapped in oppressive work environments. With support from advocacy litigation agencies, teachers will use this case as a roadmap.

Pamella Settlegoode's 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.

For example:

Inaccessible Schools

Dr. S. testified that most of the high schools she was assigned to were 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 students and staff who used wheelchairs. The wrestling coach was superb coach. He is a paraplegic and in a wheelchair. 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 a teacher must depend on his students to carry him through the school building.

Altered IEPs

Dr. S. complained that district personnel altered IEPs and failed to provide required services 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.

Retaliation

Dr. S. wrote a 10 page letter to Robert Crebo, special education director, to express her concerns about discrimination and retaliation about:

"[s]ystematic discrimination, mal-administration, access, pedagogy, curriculum, equity and parity," and "greatly compromised" federal law. She described her negative experiences in several schools in the district, comparing the treatment of disabled students to that of black students before the Civil Rights Movement. "In sum," she wrote, "these sketches offer a portraiture of a form of education that is ... all too familiar in this country. It wasn't all that long ago when Black African Americans took a back seat on the American School bus (though in Portland, there's still lots of 'Separate, but equal' to go around)."

How did Crebo respond? He sent her letter to the supervisor who had retaliated against her and ordered her to stop writing letters. 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. Her classes were cancelled.

During the trial, Dr. S. testified about teaching a 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 this student, over the objections of the building principal and this child's parent.

Dr. S. wrote a 15-page letter 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 the same individuals who were retaliating against her.

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.

Fired!

Eighteen months after she began work as an adaptive PE teacher, Dr. S was fired. She sent out fifty job applications, but 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.
URL: https://www.wrightslaw.com/law/pleadings/or.complaint.settlegoode.pdf

(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

Bill Goode and Dr. S. retained Greg Kafoury and Mark McDougal to handle the actual trial. The well-known Kafoury-McDougal firm is no stranger to million dollar verdicts. On August 25, 2000, Williamette Week Newsletter reported that:

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.
URL: https://www.wrightslaw.com/law/pleadings/or.pretrial.settlegoode.pdf

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."

The front page of the personnel file with these words was printed on poster board and used as an exhibit in the trial.

For tactical reasons, the plaintiffs did not request that witnesses be excluded during the trial. All witnesses could hear testimony of other witnesses.

Plaintiff's Case

The first two witnesses for Dr. S. were educational aides who testified about factual incidents that established elements of the case. Two adaptive physical education teachers testified on behalf of Dr. S. These four witnesses were employees of the school district when they testified.

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.

Defendant's Case

When the school district put on their case, they offered 240 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 16-page narrative Jury Instruction that told the story and provided the law. The Jury Instruction is located at the following URL. https://www.wrightslaw.com/law/pleadings/or.juryinstructn.settlegoode.pdf

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.

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."

Special ed attorney, Gary Mayerson, said this case will "send shock waves" through the special education community.

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 retaliation.

On Saturday, November 17, 2001, 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.

Attorney's fees for the school district after the jury trial were estimated to be close to a half million dollars.

Magistrate Sets Verdict Aside

The U. S. District Court Magistrate Judge set the award aside, held that Winthrop and Crebo were entitled to immunity and that Settlegoode's counsel engaged in misconduct, and awarded a new trial.

Settlegoode appealed to the U. S. Court of Appeals for the Ninth Circuit.

The United States Court of Appeals for the Ninth Circuit

On April 5, 2004, the Ninth Circuit issued a detailed decision, which reversed the Magistrate Judge and reinstated the Jury Verdict and praised the conduct of counsel for Pamella Settlegoode.

The Court discussed the importance of Settlegoode's freedom of speech and criticized the Magistrate Judge, explaining that:

"We cannot see how the jury’s finding could possibly be deemed “seriously erroneous.” There was a strong interest in allowing Settlegoode to express herself. Not only were Settlegoode’s core First Amendment rights implicated, but her speech may have had important effects for the disabled students in the district and their parents. Teachers are uniquely situated to know whether students are receiving the type of attention and education that they deserve and, in this case, are federally entitled to. We have long recognized “the importance of allowing teachers to speak out on school matters,” Connick v. Myers, 461 U.S. 138, 162 (1983), because “ ‘[t]eachers are, as a class, the members of a community most likely to have informed and definite opinions’ “ on such matters, id. (quoting Pickering, 391 U.S. at 572). This is particularly so with respect to disabled children, who may not be able to communicate effectively that they lack appropriate facilities. Teachers may therefore be the only guardians of these children’s rights and interests during the school day. (Emphasis added by Wrightslaw) Whether or not Settlegoode’s assertions were accurate, or were communicated in the best manner possible, it is clear that the subject matter of her expression was of public importance."

In a footnote, the Court discussed the conduct of Settlegoode counsel.

"The magistrate judge also disapproved of another portion of Kafoury’s closing argument, which also urged the jury to “send a message” to the district. Kafoury argued: And the question is whether you want to use this opportunity not just to do justice in this case, which sorely needs some justice, but whether you want to use this opportunity to give some power, some breathing room to those who want to make things better, to those who want to be advocates for kids, or whether you want to strengthen the dead hand of this bureaucracy whose face you’ve seen. Settlegoode, No. CV-00-313-ST, at 52-53. For the reasons explained in text, we believe this statement was proper."

Kafoury asked the jury to not just do justice, but "send a message." Give "some breathing room to those (special educators) who want to make things better, to those who want to be advocates for kids . . . "

A message was sent - a very costly message to Portland City Schools and to school education administrators Credo and Winthrop.

Dr. Settlegoode's actions and the published decision by a U. S. Court of Appeals will have a ripple effect that will spread for years.  Link to decision: https://www.wrightslaw.com/law/caselaw/04/9th.settlegoode.portland.htm

To Pamella, her husband, and her attorneys: We thank you for your efforts on behalf of our children and the special educators in the trenches who advocate for our children, putting their jobs on the line in the process.

Lessons from This Case