With the World Series just around the corner, let me remind you of the baseball analogy the Dawg has used to explain how a plaintiff pursues a claim of illegal retaliation.  First, the plaintiff has to establish that they engaged in “protected activity,” such as advocating for my child with a disability. If the plaintiff does that, the plaintiff is on first base.

Then there has to be an “adverse action.”  If the plaintiff was an employee of the school, the adverse action is likely to be a firing or demotion.  If the plaintiff is the parent of a student, the adverse action might be a report of suspected child abuse.  If that happened, the plaintiff is on second base.

Most plaintiffs get to second base.  It’s not that hard. But getting around third base and coming home to score is the hard part. The plaintiff has to prove causation.  In other words, they treated me badly because of my protected activity. I spoke truth to power and The Man smacked me down. 

The plaintiff in J.P. v. Belton School District 124, got to second base, but no further.  There were six reports of child abuse and none of them were sustained by the investigators.  That sounds promising for our plaintiff, but the district did a good job of marshaling the facts to support its position. Four of the six reports were made by school officials who did not know who the plaintiff was, or that she had filed for due process against the district.  How can you retaliate for someone doing something that you did not even know that they did? 

The other two reports were made five months after the due process hearing was requested, a length of time that the court said was too long to indicate causation based on “temporal proximity” alone. There would have to be something more.  There wasn’t. Nothing in the reports was false. There were indications of possible abuse or neglect.   The fact that none of the complaints resulted in a finding of abuse or neglect was not relevant, given the fact that the reports were based on reasonable suspicion, and state law and public policy required such reports to be made.

It’s good to see a court recognize the fact that the law requires educators to make these reports based on a reasonable suspicion of abuse or neglect.  But I expect cases like this to continue. So keep your documentation to support the reason you reported abuse or neglect.  The case was decided by the federal court for the Western District of Missouri on August 13, 2021, and can be found on Special Ed Connection at 79 IDELR 92.

DAWG BONE: PROTECTED ACTIVITY + ADVERSE ACTION + CAUSATION = RETALIATION CLAIM.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: a nonrenewal case from the Commissioner…