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Disability Discrimination: A Cautionary Tale

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Disability Discrimination: A Cautionary Tale. Jim Walsh. Walsh, Anderson, Brown, ... You don't have to have a disability to claim disability discrimination under 504. ... – PowerPoint PPT presentation

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Title: Disability Discrimination: A Cautionary Tale


1
Disability Discrimination A Cautionary Tale
  • Jim Walsh
  • Walsh, Anderson, Brown, Schulze Aldridge, P.C.

2
Houlihan Complains
  • Ms. Houlihan was a school psych, hired in
    October, 2001.
  • Right from the start she informed her supervisors
    of various incidents of the School Districts
    noncompliance with IDEA.
  • September 2002 they promoted her to Special Ed
    Coordinator/School Psych.

3
Two Jobs Are Too Much!
  • Ms. Houlihan felt that her two jobs conflicted
    with each other and asked to be relieved of the
    Coordinators responsibilities.
  • The school agreed. Ms. Houlihan then continued
    to serve as school psych.

4
Gripes, Complaints, Allegations
  • Ms. Houlihan continued to complain of IDEA
    violations.
  • She alleged that she was accused of being
    uncooperative, unfocused and of undermining the
    schools administration.

5
The Principal Takes Action
  • The principal re-wrote Ms. Houlihans job
    description to direct her to make any complaints
    about IDEA directly to the principal or
    assistant. She was no longer to go directly to
    the person she thought was violating the law.

6
Over Your Head
  • Ms. Houlihan spoke to a school board member about
    her concerns.
  • It hit the fan.
  • Ms. Houlihan received her first written reprimand
    after her conversation with the board member.
  • Prior to this, all evaluations of Ms. Houlihan
    were positive.

7
Nonrenewal
  • April 2004 Ms. Houlihan is informed that her
    contract will not be renewed.
  • She suesalleging that this action violates the
    First Amendment and Section 504.
  • The district files a Motion to Dismissclaiming
    that Ms. Houlihan has no cause of action.

8
Houlihans First Amendment Claim
  • The Court dismissed the 1st Amendment claim.
  • Her expressive activities were all part and
    parcel of her job responsibilities. As such,
    they are not protected by the First Amendment.
  • She was not acting as a citizen speaking on
    matters of public concern.

9
Houlihans 504 Case Four Parts
  • 1. That she engaged in protected activity.
  • 2. That the school knew that she had engaged in
    protected activity.
  • 3. That the school took adverse action against
    her either after or contemporaneously with the
    protected activity.
  • 4. That there was a causal connection between
    the protected activity and the adverse action.

10
Protected Activity
  • Reports of violations of IDEA are protected
    activity, even if there is no actual IDEA
    violation. A reasonable, good faith belief is
    all that is required.
  • Advocacy for disabled students is protected
    activity.
  • Ms. Houlihan engaged in protected activity.

11
Knowledge by the School
  • The principal knew of Ms. Houlihans protected
    activities.
  • So did at least one school board member.
  • The school knew.

12
Adverse Action
  • After engaging in protected activity, Ms.
    Houlihan received reprimands, negative
    evaluations and then was nonrenewed.
  • She has suffered adverse action.

13
Causal Connection
  • Temporal proximity is a key factor.
  • The first written reprimand came one week after
    the conversation with the board member.
  • Within five weeks, she received three reprimands
    and/or evaluations and was notified of
    nonrenewal.
  • There is a causal connection.

14
Where it Stands
  • Ms. Houlihan kept her case alive. The Court
    concluded that if she can prove that her
    allegations are true she will have proved a case
    of illegal retaliation in violation of Section
    504.
  • The district will have to either settle this case
    or spend thousands of dollars defending it on the
    merits. Its effort to nip the case in the bud
    failed.

15
Lessons
  • You dont have to have a disability to claim
    disability discrimination under 504.
  • Personnel disputes in the public sector almost
    always turn on the true motivation of the
    employer.
  • This is why contemporaneous documentation of job
    related concerns is so crucial.

16
The Cite
  • Houlihan v. Sussex Technical School District, ___
    F.Supp. 2d ___ (D.C. Del. 2006).
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