This particular blog entry deals with three different topics all contained within the same case. The case is Powell v. Valdosta City School District, 2014 U.S. Dist. LEXIS 157158 (M.D. GA November 6, 2014). As is my usual, I have divided the blog entries into categories: facts, issues, holdings, court’s reasoning, and takeaways. The reader is free to focus on any or all of the sections.
In this particular case, the facts are relatively straightforward. In essence, the plaintiff was a special education teacher and reported abuse and neglect of several students. She was retaliated against for doing so and continued to make those reports for which she suffered further retaliation. Eventually, her contract was not renewed and she brought retaliation claim alleging violation of title II of the ADA, § 504 the Rehabilitation Act, and violation of the Georgia Whistleblower Act. As part of her suit, she sought to bring in expert testimony to explain that the school did not engage in proper practices with respect to evaluating her prior to the nonrenewal of her contract. Also, at no time prior to the nonrenewal determination, did the superintendent conduct his own investigation regarding whether the contract should be not renewed.
1. Does the plaintiff have a suit under title II of the ADA rather than title I of the ADA?
2. Is the expert testimony something that can come in under Daubert?
3. Can the school district be liable for the retaliation as a result of applying the cats paw theory?
1. Plaintiff does have a title II suit.
1. Since the plaintiff alleged that she suffered retaliation for demanding that equal access to public services be afforded to her students with disabilities (that is, she reported suspected abuse and neglect to protect their welfare), the plaintiff’s claim falls under title II of the ADA. This statement has two important ramifications. First, in the 11th Circuit, individual defendants may be liable for retaliation. Second, a person bringing a title II of the ADA suit is not required to exhaust administrative remedies before filing suit.
I find this very interesting. In essence, what this means is that whether a title I or title II suit is the proper title to sue under depends upon the subject and not upon the context. That is, this particular plaintiff was an employee and was retaliated against because of actions she took while an employee. However, the subject matter of the suit involved title II matters. Therefore, if this case holds up, an employee working for a public entity that is retaliated against may be able to forgo a title I suit and proceed under title II instead depending upon the subject matter of the suit. It is going to be very interesting to see whether this kind of reasoning holds up on appeal, assuming case is appealed, or is adopted by other courts.
2. The superintendent had the ultimate authority for deciding whether to submit plaintiff’s name for approval by the Board of Education, which was a precondition for renewing her contract. The records showed that the superintendent did nothing to verify the information provided to him by the administrators at the elementary school. He never undertook an observation of the plaintiff in the classroom nor did he speak with her about her reports of child abuse or her interaction with administrators. Since the superintendent did not independently investigate and confirm the criticisms of the plaintiff, the nonrenewal decision was tainted by the people who recommended the nonrenewal action and therefore, the jury could reasonably conclude that the superintendent was nothing more than a cats paw (the cats paw theory comes from title VII cases where an employer can be held liable for retaliation even where the ultimate decision-maker had no retaliatory motives if the decision-maker was only following the biased recommendation without independently investigating the complaint against the employee).
3. The expert testimony comes in because the expert satisfied the standards of Daubert v. Merrell Dow Pharmaceuticals Inc.
Under that case, whether expert testimony can come in depends upon: 1) whether the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2) the testimony is based upon sufficient facts or data; 3) the testimony is the product of reliable principles and methods; and 4) the expert has reliably applied the principles and methods to the facts of the case. In particular:
A. The expert would have testified: 1) the distinct demands of special education dictated how plaintiff taught her students, who varied in their abilities and ages; 2) the elementary school administrators did not properly administer observations of the plaintiff because they were not familiar with the students IEP or challenges created by their particular needs. That is, a special education teacher needs to be evaluated in terms of the progress of her students with respect to their IEP’s and the plaintiff’s students demonstrated progress; 3) the needs improvement ratings assigned to the plaintiff were based upon expectation for how a class with nondisabled students functioned, rather than a special education class like the plaintiff’s; 4) plaintiff seemed to understand her job duties and the needs of her students, that they made progress under her teaching, and that she was a strong advocate for the needs of her students.
B. The expert was qualified to offer the opinions. In particular, she had an undergraduate, Masters, and doctorate degrees in education. She also for over 20 years had served as a private educational consultant providing training and evaluation to teachers and administrators on various topics including differentiated instruction, instructional modification for general classroom teachers, special education, teaching and learning strategy, special education transition services, and IEP development. She also taught courses in special education at multiple universities and spent 10 years as a consultant for the Georgia Department of Education in areas such as policy development and implementation, state and federal regulation, monitoring, and creation of training manuals. Finally, she was responsible for developing the IEP resource guide for the Georgia Department of Education and had published and given presentations on teacher assessment, teacher training, and special education.
C. The court found her opinion to be reliable as they were based upon internal inconsistencies in how the elementary school administrators assessed the teacher’s strength and weaknesses, testimony of what was actually occurring in the classroom during the observations, testimony from the administrators, and documents in the record.
D. With respect to scientific method, expert testimony may be reliable if it is based upon education, experience, or training. If an expert witness primarily basis her opinions on experience, then she must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, how the experience is reliably applied to the facts. This portion of the Daubert standard is satisfied because her opinions were similar in content, approach and scope with opinions or training or consulting that she would give to school districts or in instruction when teaching classes or workshops.
E. The testimony would assist the jury in trying the facts of the case. While it is true that the ultimate question is whether retaliation occurred, that does not mean it is irrelevant as to how the evaluation tools were implemented, how the defendant may have ignored the clear guidelines of the school district’s evaluation policy and whether plaintiff’s students showed progress in their IEP’s. That kind of testimony would not establish that retaliation occurred, but would go a ways towards showing that the defendants created incompetence to cover their retaliation. Further, the particular topics do not come within the average layperson’s knowledge. Finally, the concern that the jury might be misled into thinking that plaintiff has proven a case simply by convincing the jury that her conclusions are true does not win out because the jury’s own common sense and clear instruction from the court should dispel that threat.
1. In the 11th circuit, an individual can be liable for retaliation. While it is perfectly true, that there are numerous cases out there saying that an individual cannot be held liable for violations of title I or title II of the ADA, that is not the same as saying that an individual cannot be held liable for retaliation. It is also true, as we have discussed here, that a person may not be able to get legal remedies with respect to a retaliation claim arising under the ADA, but that is not the same thing, as the 11th Circuit notes, as to who the remedies apply to.
2. Whenever an ultimate decision-maker gets ready to take adverse action, it is important to have the facts independently confirmed before doing so unless you want to run the risk of cats paw liability.
3. This case is a very interesting use of a compliance expert in an ADA matter. Considering how complicated the ADA is, I have always been surprised at to why it doesn’t happen more often (full disclosure: I have served in the past as a compliance expert witness and or consulting ADA compliance expert in ADA cases). In this particular case, the expert wasn’t testifying as to whether the retaliation occurred, but rather was testifying as to whether the incompetence was created by the employer. It is a subtle but significant difference. Also, the scientific part of Daubert can be circumvented if the expert opinion is based upon their experience stemming from their considerable body of work. Finally, this court puts a fair amount of stock in the common sense of the jury and in the benefits of clear instructions from the court with respect to any confusion that may arise from the subtle distinction mentioned above. In short, this case is rather innovative in the way it used expert testimony, and it wouldn’t surprise me to see more of this in the future. Such use of experts would most certainly increase the cost of litigating ADA matters, but one wonders if it would not also make for better accuracy with respect to resolution of ADA matters.