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.

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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.

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The Cite

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