Special Ed Teacher Advocates for Child with Down Syndrome ...
School District Retaliates
by Pam & Pete Wright
Wrightslaw.com
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Update on Meagan Norris' Case: Opelika School Board to pay $320,000 to special ed teacher to settle a retaliation lawsuit. The case was scheduled for a jury trial in federal court in January 2021. (Associated Press, 12/17/20)
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In December 2018, a special education teacher filed a Section 504 / ADA retaliation lawsuit against her former employer.
On November 18, 2020, the judge issued a decision in her case. What is the next step? The Jury Trial is scheduled for January 11, 2021.
Retaliation is not unusual in many schools. Teachers, parents and other family members often experience retaliation when they advocate for children with special needs. Sometimes, retaliation takes the form of false reports to protective services alleging child abuse. Many contact Wrightslaw, seeking advice.
Meagan Norris is a special education teacher. After she advocated for of one of her students, a child with Down syndrome, the Opelika City Schools Board of Education (OCBOE) retaliated against her. Ms. Norris filed a lawsuit in federal court, alleging that the school district retaliated against her because of her advocacy. The school district disputed her allegation and claimed Ms. Norris was terminated because of "performance-related issues.''
In this case, the student had an IEP that required him to be mainstreamed with regular education students for Physical Education (P.E.) Ms. Norris observed the child's P.E. teachers using a tape barrier to segregate this child from others in his class.
Ms. Norris reported the P.E. teachers' actions to the principal, expecting him to right the wrongs. When she expressed her opposition to what she observed, she said: "This cannot happen. It's segregation. It's hurtful. At the end of the day, forget the legal side of it, it's just mean."
But nothing changed. The P.E. teachers continued to use the tape barrier to segregate her student.
After the father learned that his child was being segregated, he requested a special education due process hearing against OCBOE. The parent's evidence included a video of Ms. Norris and her position about Least Restrictive Environment (LRE) and mainstreaming his child.
While the due process hearing decision was pending, the P.E. teachers told the principal that they observed Ms. Norris drop a special education student after holding him by an arm and a leg.
This time, the principal took action. He "spoke with Norris's two assigned paraprofessionals, Dunn and Allen, neither of whom confirmed the incident reported by the P.E. teachers." He did not discuss the allegations with Ms. Norris. Without telling Ms. Norris, he took action - he reported her for child abuse.
The child's parent prevailed in the due process hearing. The school district did not appeal the decision.
After the due process decision was issued, the superintendent recommended that the OCBOE not renew Ms. Norris' teaching contract for the next year.
Two Alabama trial attorneys, Max Cassady and William "Bo" Johnson III, filed Meagan Norris' lawsuit in federal court. (See "The Story Behind This Story" below.)
In the Complaint, Ms. Norris alleged that the school district retaliated against her in four ways:
(1) she was reported to DHR on a false allegation of child abuse,
(2) she was removed from her classroom,
(3) her efforts to obtain her master's degree were threatened, and
(4) her teaching contract was not renewed.
You can read and download the Complaint in Meagan Norris v. Opelika City Board of Education here:
https://www.wrightslaw.com/law/pleadings/AL.norris.complaint.504ada.pdf
Judge Issues Decision in Special Ed Teacher's Case
On November 18, 2020, U.S. District Court Judge R. Austin Huffaker, Jr. issued a decision in Megan Norris' retaliation case. Before making a decision, Judge Huffaker reviewed extensive deposition transcripts, affidavits and briefs filed by the parties. In the decision, he describes the facts, legal issues, and why he ruled as he did.
Retaliation is a violation of the ADA and Section 504
The Judge wrote that: "Norris contends that she was subjected to retaliatory treatment in violation of the ADA and Section 504 of the Rehabilitation Act after, during her second year of teaching, she advocated for one of her special education students who was wrongfully segregated in violation of the IDEA during the student's physical education class."
"Norris contends that retaliation occurred in four ways:
(1) she was reported to DHR on a false allegation of child abuse,
(2) she was removed from her classroom,
(3) her efforts to obtain her master's degree were threatened, and
(4) her teaching contract was not renewed."
"The OCBOE denies that Norris engaged in any protected conduct and that any retaliation occurred, and it further asserts that there were legitimate . . . reasons for each action."
"To establish a prima facie case of retaliation, Norris must establish that (1) she engaged in statutorily protected expression; (2) there was an adverse action against her; and (3) there is a causal link between the protected expression and the adverse action." (Emphasis added by Wrightslaw, not the Judge.)
Child Abuse Allegations
"While she ultimately was cleared of the child abuse allegations, Norris contends that because she was, in fact, investigated for child abuse, her name is now permanently on DHR's child abuse registry, and future employers '[w]ill know that she was accused of abuse of one of her students.' "
"Here, the Court concludes that . . . the OCBOE's report of Norris for child abuse to DHR constitutes an actionable retaliatory adverse employment action. Because of the investigation that followed the report to DHR, several of Norris's co-workers were interviewed and thereby made aware of the abuse allegations. Norris will be forever stigmatized by the accusation, and her name will be attached to an accusation of child abuse by future prospective employers who make inquiries in the DHR database."
"While 'trivial harms' and 'petty slights' do not constitute adverse employment actions, a report of child abuse to DHR about an educator, even if later proven inaccurate or unsubstantiated, appears to rise above 'trivial harms' and would dissuade a reasonable worker from making or supporting a charge of discrimination."
"At oral argument, however, the OCBOE walked back the assertion that it was obligated to report Norris when it acknowledged that it was under no obligation to report a frivolous complaint of abuse."
Performance Evaluations
"Principal Carpenter and others insisted Norris's performance issues were the basis for the decision to nonrenew her contract, but Norris nonetheless had received favorable written performance evaluations during her two years with the OCBOE."
"These included mostly neutral-to-favorable written evaluations, including favorable evaluations from Special Education Coordinator Landry-Booth and Principal Carpenter."
"In her deposition, Special Education Coordinator Landry-Booth acknowledged that Norris delivered FAPE to each of her students during the entire 2016-2017 and 2017-2018 school years and that she never believed otherwise."
"Nor did Principal Carpenter testify that Norris failed to provide FAPE to each of her students. He also agreed that Special Education Coordinator Landry-Booth's April 20, 2018, written report concluded that Norris was delivering FAPE to each child in her class."
"Furthermore, Norris notes that the only individuals that were not providing FAPE or following the required IEPs were the P.E. teachers who accused Norris of abuse, who the hearing officer found were violating IEPs, and who were not terminated or disciplined in any significant manner."
Protected Activity
The school district argued that "Norris did not engage in protected activity when she complained to Principal Carpenter in November 2017 and thereafter about the impermissible tape barrier; met with the father of C.W. on March 27, 2018 while being videotaped about the tape barrier; and participated in a pre-resolution meeting about the tape barrier on April 13, 2018."
"A person 'engages in statutorily protected activity if [she] has opposed any . . . practice made unlawful by section 504 of the Rehabilitation Act . . . protected conduct also can include testifying, assisting, and participating in any manner in an investigation, proceeding or hearing. It can also include advocacy concerning violations of the IDEA by a school district."
Failure to Exhaust Administrative Remedies
"In its reply in support of summary judgment, the OCBOE argues (for the first time) that Norris did not exhaust her administrative remedies as she must under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. An argument raised for the first time in a reply brief cannot be considered . . . but even if the Court did consider it, the Supreme Court has dispensed with that requirement for suits brought outside the IDEA. E.g., Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 754-755 (2017).
Wrightslaw note: The 2017 Year in Review / Legal Developments and Cases book that includes the decision in Fry and the transcript of Justice Kagan's remarks when the decision was issued, is available in the Wrightslaw Store.
(Fry is also on our website at https://www.wrightslaw.com/law/caselaw/2017/ussupct.fry.napoleon.15-497.pdf )
"If, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required . . . Norris is not seeking relief for denial of C.W.'s FAPE, which was already addressed in the due process hearing requested by the child's family; rather, Norris is suing for retaliation for repeatedly reporting to Principal Carpenter the tape barrier."
You can read the full text of Judge Huffaker's decision here:
https://www.wrightslaw.com/law/caselaw/2020/al.norris.opelika.retaliate.pdf
What is the next step in Meagan Norris' case? The Jury Trial is scheduled for January 11, 2021.
Two Attorneys: The Story Behind This Story
In 2017, Max Cassady, an Alabama trial attorney, attended the week-long Institute of Special Education Advocacy (ISEA) at the William & Mary School of Law in Williamsburg, Virginia.
Max's trial skills and dedication to children with special needs were impressive. In 2018, Max returned to the Institute as a faculty member.
On October 2, 2017, another Alabama trial attorney, William "Bo' Johnson, III, prevailed before the Eleventh Circuit in a Section 504 / ADA case, styled as J.S. v. Houston County Bd. of Ed. It was alleged that school staff physically abused a child with special needs. This case, like Fry, is also in our 2017 "Year in Review" book. We marked it as one of the "Cases of the Year."
The Complaint that Bo filed in federal court is located on our website at https://www.wrightslaw.com/law/pleadings/AL.houston.complaint.jury.pdf.
At that time, we did not know Bo. However, in 2018, when Max was one of our faculty, Bo attended ISEA. Max and Bo developed a strong friendship and began collaborating on special ed cases, including this teacher retaliation case.
Another Teacher Retaliation Case: One Million Dollar Jury Verdict
This Norris v. Opelika City Bd. Ed. retaliation case is strikingly similar to the Pamella Settlegoode v. Portland (OR) Public Schools retaliation case.
Dr. Pamella Settlegoode, an adaptive PE teacher, was retaliated against and fired after she advocated for students with disabilities. Dr. Settlegoode sued Portland Public Schools and her supervisors. On November 16, 2001, a jury found for Dr. Settlegoode on all claims. They awarded her One Million Dollars and ordered another $50,000 in punitive damages against the director of special education and an assistant.
We followed the case closely and Pete was in regular contact with the attorneys as it progressed through the U. S. District Court, the Jury Trial, and the Court of Appeals decision affirming the award.
We wrote about Pamella Settlegoode's retaliation case here:
https://www.wrightslaw.com/info/retaliate.settlegoode.htm
Dr. Settlegoode's Federal Court Complaint is here:
https://www.wrightslaw.com/law/pleadings/or.complaint.settlegoode.pdf
The Jury Instructions are here:
https://www.wrightslaw.com/law/pleadings/or.juryinstructn.settlegoode.pdf
The Ninth Circuit's ruling upholding the jury's award is here:
https://www.wrightslaw.com/law/caselaw/04/9th.settlegoode.portland.htm
CONTACT INFORMATION BELOW
Henry "Max" Lomax Cassady, Jr.
Cassady & Cassady, P.C.
23710 US Highway 98; Suite D
Fairhope, AL 36532
251-578-5252
Email: maxcassady |at| gmail.com
Certified Trial Attorney, National Board of Trial Advocacy (NBTA)
http://www.southalabamalawyers.com
https://www.maxcassady.com
William "Bo" Tipton Johnson, III
Kirby Johnson, PC
One Independence Plaza Drive; Suite 520
Birmingham, AL 35209
205-458-3553
Email: bjohnson |at| kirbyjohnsonlaw.com
https://kirbyjohnsonlaw.com/bios/bo-johnson/
END
Created: 12/2/2020
Revised:
