Labor & Employment Law Daily ADA, Rehab Act claims of school nurses who advocated on behalf of diabetic students revived
Thursday, September 10, 2020

ADA, Rehab Act claims of school nurses who advocated on behalf of diabetic students revived

By Kathleen Kapusta, J.D.

The nurses argued that the school board’s decisions to suspend one and not rehire the other were in retaliation for their advocacy on behalf of the students in violation of the ADA, the Rehab Act, and state law.

Reversing summary judgment against the federal and state law claims of two school nurses who alleged their school board employer retaliated against them for advocating on behalf of two diabetic students, the Sixth Circuit, contrary to the court below, found one demonstrated a causal connection between her protected activity and the board’s failure to rehire her while the other, who had been suspended, sufficiently established a fact issue as to pretext. The court, however, affirmed summary judgment against their state-law whistleblower act retaliation claims as well a failure-to-accommodate claim (Kirilenko-Ison v. Board of Education of Danville Independent Schools, September 4, 2020, Clay, E.).

D.M. Beginning in the 2015-2016 school year, the nurses—a full-time RN and a part-time nurse hired under a three-year grant—advocated on behalf of D.M., a diabetic middle school student. Although they helped develop an accommodation plan for the student pursuant to the Section 504 of the Rehab Act, they claimed they were unable to adequately care for her health because her mother neglected her diabetic needs. Not only did they receive little or no support after telling the school board about their concern, the superintendent allegedly told them not to file a complaint. The student’s mother ultimately asked that they not be allowed to provide care for her daughter.

C.J. During the 2016-2017 school year, the nurses assisted with the care of C.J., an elementary school student recently been diagnosed with diabetes. They once again clashed with the student’s mother and at one point were reprimanded by the school principal, who purportedly told them “we’re going to do what the parent wants” regardless of the effect on their nursing licenses. After the mother complained, one of the nurses was suspended for five days without pay, allegedly because her conduct placed the student’s rights to a free appropriate public education in jeopardy.

Resignation and failure to hire. Following her suspension, the nurse took FMLA leave for the remainder of the school year. Although she also asked for accommodations for her various disabilities, she later resigned when the board asked her to sign medical release forms for her medical records. As for the part-time nurse, when her three-year contract ended in June 2017, she was offered a position that would entail “only a few hours of work.” She applied in November 2017 for a full-time opening but was not hired.

Lawsuit. Both nurses subsequently sued, asserting retaliation claims under the ADA, the Rehab Act, and state law. The full-time nurse also asserted a failure-to-accommodate claim. Granting summary judgment in favor of the board, the district court found that while the nurses engaged in protected activity under the relevant statutes, the part-time nurse failed to show a causal connection between that activity and the board’s failure to rehire her and the full-time nurse failed to establish a fact issue regarding pretext.

Protected activity. On appeal, the Sixth Circuit first rejected the board’s contention that the nurses did not engage in protected activity under the ADA, the Rehab Act, or state law because it did not discriminate against the students. Rather, the court found the nurses were clearly disagreeing with the board about the accommodations that should have been provided to the students under their Rehab Act Section 504 plans. When D.M.’s mother refused to cooperate with the plan, the superintendent purportedly refused to help the nurses and advised them not to complain.

Further, when they voiced their concerns about C.J., they were told they had to follow the parent’s orders even if, in their view, this was contrary to the child’s best interests and health. “Overall, said the court, “the picture that Plaintiffs paint is one in which they were not able to do their jobs as requested by the School Board without causing harm to the two disabled students.” Thus they advocated against the board’s policies with regard to the Section 504 plans and in support of the students’ interests.

Causation. As to the district court’s finding that the part-time teacher failed to establish causation between her protected activity and the board’s refusal to rehire her in November 2017, while the board pointed to the 11-month gap between the two, the court pointed out that fall 2017 was the first meaningful opportunity the board had to retaliate. The teacher had been hired pursuant to a three-year grant that expired in July 2017. One month later, the board offered her a substitute nursing job that entailed only a few hours of work. Hoping for full-time employment, she turned that down and in November 2017, she applied for an open full-time nursing position. Because this was the first opportunity the board had to refuse to rehire her after the termination of her contract, the court found it supported an inference of causation based on temporal proximity.

Further, even if this temporal proximity alone was not enough to demonstrate causation, there was evidence suggesting the nurse’s supervisor told her that she might lose her job as a result of her advocacy for C.J. and the resignation letter from a third school nurse also suggested that the nurses were being threatened by the board at the time of their advocacy for the students. Taken together, this was sufficient to create a fact issue as to causation.

Pretext. Turning to the grant of summary judgment against the full-time nurse’s claims, although much of the analysis mirrored its analysis with regard to the part-time nurse’s claims, the appeals court analyzed this claim separately because the district court’s resolution of it rested on a different ground—the lower court found she demonstrated her prima facie case but failed to establish a fact issue with regard to pretext.

And here, said the court, the nurse pointed to numerous pieces of evidence that would allow a juror to find the board suspended her in retaliation for her advocacy on behalf of the students rather than, as it claimed, because her conduct placed C.J’s rights to a free appropriate public education in jeopardy. She alleged the board staff directly threatened both nurses for their advocacy on behalf of the students, screamed at them, and told them to do what the parent wanted despite the nurse’s protests that this could jeopardize the student’s health and their nursing licenses.

In addition, she pointed out that during her long tenure with the board, she had never been disciplined prior to her advocacy for the students and she was suspended after she started that advocacy. While the board pointed to the detailed complaint from C.J.’s mother, a report finding that the nurse’s actions endangered C.J.’s access to a free and appropriate public education, and the superintendent’s conclusion that the nurse did not behave professionally when disagreeing with C.J.’s mother, the court noted that by “simply reasserting the supposed legitimacy of its proffered justification, the School Board does nothing to undermine [the nurse’s] concrete evidence of retaliatory motive.”

Failure to accommodate. The nurse, however, could not convince the court to revive her failure-to-accommodate claim. She conceded that she did not provide the board with any documentation about her disability during the interactive process and admitted that the board neither approved nor denied her accommodation requests following her meeting with the superintendent. Instead, she applied for disability benefits and voluntarily resigned. These facts, said the court, defeated her accommodations claim and entitled the board to summary judgment.

Kentucky Whistleblower Act claims. Finally, the court affirmed summary judgment against the nurses’ retaliation claims under the Kentucky Whistleblower Act based on their reporting D.M.’s mother to the Cabinet for Families and Children. Because the nurses failed to allege that they reported any violation of law by the board—their employer—to a state agency, this claim failed under current Kentucky law.

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