Getting to first base on a retaliation claim.

Do you remember baseball?  It’s a game that was commonly played in the United States by children, school-based teams, and even highly skilled professional athletes.  The game involves scoring “runs” by advancing around three “bases” and thus coming “home.”   Sound familiar? 

I hope so, because I like to use baseball to illustrate how a “retaliation” suit works. To get to “first base” on a retaliation claim the plaintiff has to produce evidence of engaging in a “protected activity.”  The plaintiff advances to “second base” with evidence of the “adverse action” that the school district imposed.  Most plaintiffs in retaliation cases make it to “second base.”  However, it is much harder for them to get around “third base” and come “home” because that requires proof of causation—e.g., “they punished me with an adverse action because I engaged in protected activity.” 

A case involving a preschooler in Tennessee outlines four ways in which the parent got to first base. 

*The parent informed the principal and the teacher that she believed that her son’s IEP was not being implemented and he was not being well supervised.  The court said that “Advocacy by a parent about their child’s education is protected activity.” 

*The parent accused the school of punishing her child because of his disability.  The court noted that “Opposing disability discrimination is also a protected activity.”

*The parent asked the school to lighten up on the punishment of her son because his actions were caused by his disability.  The court characterized this as a request for a “reasonable accommodation,” another form of “protected activity.”

*Finally, the parent told the school she would seek legal advice.  This was “protected activity” because “Federal law allows for advocates and representatives to be part of a student’s educational plan meetings.”

The “adverse action” in this case was a report by the teacher of suspected child abuse.  The court refused to dismiss the case, noting that a reasonable jury could conclude that the report was done in retaliation for the parent’s exercise of protected activity.  Of course school officials are required to report suspected child abuse, but as this case illustrates, that report can be characterized as an act of retaliation.  The facts in this case are not yet established, and the court only held that the parent’s claim was plausible. 

As you can see from these alleged facts, it’s not hard to get to first base with a retaliation claim. 

The case is B.H. v. Obion County Board of Education, decided by the federal court for the Western District of Tennessee on December 10, 2019.  We found it at 75 IDELR 218.


Tomorrow: one for the Dawg’s Sheesh-O-Meter.