Portage County Legal News

Court upholds decision favoring parents in dispute with school administrator

ANNIE YAMSON
Special to the Legal News
Published: April 29, 2015

A panel of three judges in the federal 6th U.S. Circuit Court of Appeals recently ruled that the United States District Court for the Southern District of Ohio properly denied qualified immunity to a school official who was sued for allegedly filing a child abuse report in retaliation for a parent’s advocacy to change his daughter’s educational plan.

The plaintiffs, Peter Wenk and his wife Robin, sued Nancy Schott, the director of pupil services in the Grandview Heights City School District.

The Wenks have a daughter, identified as M.W. in court documents, who is “cognitively disabled” with “major communication deficits and social skills deficits” and an IQ below 70.

Because of her disabilities, M.W., required special education services in the form of an Individualized Education Program, or IEP, at the Grandview Heights high school.

Case summary states that, during the 2009-2010 school year, Christine Sidon and Karla Hayes co-taught M.W. in a social skills class.

Hayes was responsible for documenting observations about M.W.’s behavior and Sidon was responsible for making calls home to parents.

According to the court of appeals, Hayes documented that, on Oct. 14, 2009, during a discussion on female hygiene and menstruation, M.W. raised her hand and told the instructors that “her dad puts tampons in her and it really hurts her.”

Hayes also recorded that M.W. said that “her whole family hangs around the house naked sometimes” that her “private parts are sticky and itchy” and that “her dad put cream on her vagina.”

M.W. was also alleged to have said that “dad takes off his clothes when he gets in the shower” with her and Hayes wrote that she observed Peter Wenk kiss his daughter on the lips.

In the 2011-12 school year, Schott became the director of pupil services and met with the Wenks for the first time on Sept. 2, 2011.

Wenk advocated for the district to organize a “special ed prom” with students from a nearby school district because he felt that M.W. had inadequate social opportunities.

In a deposition, Schott testified that Wenk was “very aggressive and very demanding.”

Wenk next met with Schott and the school principal, Dawn Sayre, on Oct. 9, 2011 to discuss amendments that the Wenks proposed to M.W.’s IEP.

“Wenk and Sayre ended up arguing,” case summary states.

Wenk claimed that Sayre got upset when he asked to discuss “inclusion” and “social opportunities within the school.”

Sayre testified that her reaction was due to the fact that the topics were “beyond the scope of the meeting.”

Following that meeting, Schott participated in two e-mail exchanges about Wenk in which she wrote, “I am hopeful that we have laid the groundwork for future meetings that will help eliminate his long-time assumption that ‘what he wants; he gets.’”

In another email, Schott suggested that Wenk was forcing the school to “spoon feed him information.”

Wenk proceeded to contact the Ohio Department of Education to discuss his concerns about M.W.’s inadequate socialization.

A consultant for the Educational Service Center of Central Ohio subsequently contacted Schott and indicated that he had received a call from Wenk and offered his assistance in addressing the issues that Wenk brought to his attention.

Schott declined the offer.

The facts of the case state that Hayes and Sidon approached Schott in the fall of 2011 to discuss the concerns they had about Wenk’s treatment of M.W.

“Schott did not take written notes of their conversation and she did not independently investigate the allegations,” according to the court’s summary.

On Nov. 18, 2011, Schott called Franklin County Children Services and made several, serious allegations of child sexual abuse against Wenk.

According to the information that Schott relayed to an intake worker, she indicated that there were “concerns that dad had been observed to kiss M.W. open-mouthed at school,” that M.W. “came to school with a swollen stomach, morning sickness, nausea and presented symptoms like she was pregnant” and that M.W. had come to school wearing a hospital bracelet.

Schott reported that the symptoms of the alleged pregnancy “disappeared” after M.W.’s hospital visit.

She also reported M.W.’s comments that her dad inserted tampons for her, that he showered naked with her and that he put cream on her.

Schott included many comments about Wenk’s physical appearance and his demeanor in her report to FCCS.

She called Wenk “unkempt” and described him as “creepy.”

Schott stated that he made staff members’ “skin crawl” and said they were “fearful of meeting him.”

In one statement, Schott said that Wenk was “verbally aggressive (and) bullies other staff.”

According to FCCS, she stated, “As aggressive as dad is at school and with staff, I cant imagine him acting any different at home.”

Schott claimed that all of the information that she relayed to FCCS came from Hayes and Sidon.

Hayes and Sidon disputed that claim.

The only allegations that were completely uncontested were M.W.’s statements about the tampons, that her dad put cream on her vagina and that her dad showered with her.

Wenk quickly became the subject of a police investigation and he stopped making demands on Schott and the school district.

However, on Jan. 5, 2012, FCCS found that the child abuse allegations against Wenk were unsubstantiated. The police also dropped their investigation into Wenk.

On June 4, 2012, the Wenks filed a complaint alleging First Amendment retaliation against Schott, Sidon, Hayes and the superintendent of the school district.

The district court denied Schott summary judgment on the basis of qualified immunity and Schott appealed to the 6th Circuit court.

Schott argued that the Wenks never proved that her report to the FCCS was materially false or that it was an adverse action to the Wenks’ advocacy on behalf of their daughter’s education plan.

The court of appeals disagreed.

“We analyze First Amendment retaliation claims under a burden-shifting framework,” Judge Karen Nelson Moore wrote on behalf of the three-judge appellate panel.

Moore noted that the Wenks were required to make a prima facie case that included three elements: That Wenk engaged in constitutionally protected speech or conduct, that an adverse action was taken against him that would deter an ordinary person from continuing to engage in that conduct, and that there is a “casual connection” between the first two elements.

Schott did not dispute that the Wenks’ advocacy on behalf of their child constituted protected speech so the court of appeals moved on to the last two elements.

It first found that Schott’s child abuse report did, in fact, constitute an adverse action.

“We have held twice that reports of child abuse ‘would deter a person of ordinary firmness from continuing to engage’ in protected conduct under the First Amendment and therefore, such reports can constitute adverse action,” Moore wrote.

The reviewing court held that a report of child abuse had “powerfully dissuasive consequences.”

“Having a government official appear at their door armed not only with the power to take their child away but also with allegations that they are abusing that child,” Moore wrote, “would lead reasonable parents to refrain from engaging in protected activity.”

The court of appeals further held that the Wenks established a connection between their actions and Schott’s subsequent report.

Moore noted that Schott contacted the FCCS three weeks after she learned that Peter had contacted the Ohio Department of Education.

She also pointed out that Schott’s emails indicated that she “harbored animus” against Peter.

“Although Schott’s report did contain some true allegations, the facts taken in a light most favorable to the Wenks suggest that she embellished or entirely fabricated other allegations, including those that most clearly suggested sexual abuse,” Moore wrote, also noting the “irrelevant” physical descriptions of Wenk that Schott included.

Moore pointed out that Wenk is a nurse and has a daughter with significant disabilities.

The Wenks, according to the court of appeals, provided adequate explanations for the allegations in the child abuse report that were undisputed.

The court of appeals concluded that a reasonable jury could conclude that Schott filed the child abuse report in bad faith and it affirmed the district court’s decision to deny her qualified immunity.

Judges Julia Gibbons and Richard Griffin concurred.

The case is cited Peter Wenk, et al. v. Edward O’Reilly, et al., Case no. 14-3334.

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