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Home > Topics > Retaliation > 9th Circuit Upholds Jury Award of One Million to Fired Special Ed Teacher by Peter Wright & Pamela Wright |
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Court of Appeals for the Ninth Circuit Upholds Jury Award of 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. 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
Inaccessible
Schools 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 Retaliation 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! The
Lawsuit The
Complaint (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
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 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 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. Plaintiff's
Case 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 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 Jury
Instructions The
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 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 Good records are essential to effective advocacy. When you advocate for a child, you use logs, calendars, journals, and letters to create paper trails. Documents that support your position help you resolve disputes early. These two articles about documents and paper trails will help you get started: Letter-Writing 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.
From
Emotions to Advocacy You learn about the purposes of letters and 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. 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.
If you are a parent or teacher and are having problems with the school, you need to read these chapters about letter writing! Learn more about Wrightslaw: From Emotions to Advocacy, 2nd Edition, read reviews, and download the table of contents, Introduction, and a sample chapter. Section 504 Section 504 is a civil rights statute that prohibits discrimination and retaliation. Section 504 is not a statute that provides an individualized educational program with specialized instruction, modifications and supports that is designed to provide educational benefit to a child with special needs. 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, 2nd Edition and Wrightslaw:
From Emotions to Advocacy, 2nd Edition. Do
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