Is it Legal? Courts Allow Counselor to Proceed with State Whistleblower Law Claim

Employee: ‘My Criticism Was Legit, But I Got Fired for It’

October 25, 2017 by: Tom D’Agostino
Just what did she say, and why was she let go? 

A federal court held a probationary Pennsylvania counselor could proceed with some of her claims against school officials whom she accused of recommending her dismissal in retaliation for her criticism of their handling of a social media posting.

The counselor learned that a student made a video in a restroom at a school in her district and posted it on social media. The video depicted two students with disabilities and added a background of vulgar, sexually explicit music. The counselor showed the video to school administrators who notified the posting student’s parent.

After the video was taken down, the counselor claimed school administrators notified staff that parents of special education students should not be notified and the matter should not be reported to Children & Youth Services. She said the school principal and the director of special education made fun of the video.

According to the counselor, the principal, special education director and other administrators knew she disapproved of the way they handled the incident and that they decided “their positions would be safer” if her employment was terminated.

The counselor said that school administrators twice extended her probationary period. She wrote or co-wrote an anonymous letter to the district superintendent and the board of education, discussing the video and the district’s “misuse of special education law to allow the graduation of unqualified students.”

After receiving the latter, the school district investigated. The counselor said administrators told her that some of her evaluations “were so extremely negative” that the district had no choice but to dismiss her. In a state court, she sued the school district and three administrators for violating her constitutional rights to free speech and due process.

The counselor added claims for defamation, conspiracy, retaliation and violation of the Pennsylvania Whistleblower Law. In pretrial activity, the court dismissed the due process claims, observing that the district provided her notice of impending employment action and an opportunity to be heard. But the counselor was granted permission to refile her complaint to assert the denial of a required notice or hearing.

Board Had No Unconstitutional Policies
The court dismissed the counselor’s speech rights claims against the school district, noting that she did not assert the board itself had any official policy or custom leading to injury. But the court allowed her to amend her complaint to assert the existence of such a policy.

On the other hand, the court refused to dismiss a conspiracy claim against the officials, based on the counselor’s argument that she asserted their “negative and false comments” were part of a scheme or common plan against her.

Many courts have held criticism or reprimands are insufficient to advance a First Amendment claim. But in this case, the counselor asserted her poor evaluations were part of a scheme to engineer her dismissal. She learned she would be losing her job only five days after telling the investigator about alleged special education law violations.

Since the time frame in this case was found “unusually suggestive,” the court held the administrators did not have immunity from the counselor’s speech claims. It found she could pursue her actionable claims under the state Whistleblower Law.

Defamation Claims Lack Merit
Although the counselor claimed the administrators defamed her, the court held she did not assert enough facts to go forward with the defamation claims. But she would be allowed to amend her complaint to assert that the administrators defamed her.

In sum, the court dismissed the First Amendment retaliation claims against the school district, but allowed these claims to go forward against the administrators. The counselor could proceed with her state Whistleblower Law claims, but her defamation and due process claims would be dismissed, unless she refiled them to add factual support.

Baker v. Benton Area School Dist., No. 4:16-CV-02311, 2017 WL 3701722 (M.D. Pa. 8/28/17).

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