Teacher Loses Retaliation Claim

​A high school teacher for the Ann Arbor Public Schools (AAPS) who had been placed on administrative leave and required to undergo a mental examination could not establish retaliation, the U.S. District Court for the Eastern District of Michigan ruled.

In 2013, the plaintiff was placed on an administrative paid leave of absence pending an investigation of allegations of verbal abuse of students. AAPS instructed her to appear for a psychological examination to determine whether she was mentally fit for the professional duties associated with teaching at the high school level. Shortly thereafter, in January 2014, the plaintiff filed her first lawsuit against AAPS and the deputy school superintendent, asserting claims under the Fourth Amendment and Michigan's Persons with Disabilities Civil Rights Act (PWDCRA).

The plaintiff sought an order to prohibit the defendants from requiring her to submit to the psychological examination. After conducting an extensive evidentiary hearing and considering the testimony of several witnesses, including the plaintiff, the court denied the plaintiff's request for injunctive relief. It found that AAPS showed a long history of issues with the plaintiff over the years and a long history of parent complaints and student difficulties that gave AAPS a reasonable basis to require a psychological examination. The court subsequently dismissed the lawsuit at summary judgment.

The psychological examination was eventually conducted in October 2015. The plaintiff learned of the results in the spring of 2016. The results revealed that there was no psychological basis to keep the plaintiff from teaching. However, the defendants did not allow the plaintiff to return to her teaching job. Instead, they sent the plaintiff a letter giving her two weeks to inform them of whether she intended to request an additional examination at her own expense or to accept the finding.

That notice stated that the plaintiff would be reinstated as an employee after two weeks, but that AAPS would place her on administrative leave and proceed with a tenure action and possible termination of employment. The defendants ultimately decided not to pursue a tenure action or to seek termination.

The plaintiff filed another lawsuit in October 2017, claiming that the defendants retaliated against her for filing her first lawsuit in violation of the PWDCRA, the Americans with Disabilities Act and the First Amendment. She claimed that the defendants' retaliatory acts included:

• Placing her on administrative leave and threatening disciplinary action that AAPS never intended to pursue.
• Refusing to return her to her teaching job.
• Delaying the report of her psychological examination.
• Denying the plaintiff access to records of her continuing education to prevent her from renewing her teaching certificate.
• Refusing to provide her with professional development courses.
• Refusing to verify the professional development hours she completed.

The defendants moved for summary judgment, denying all of the adverse actions claimed by the plaintiff and asserting that the plaintiff's administrative leave was justified by her long history of ineffective performance and inappropriate behavior. The plaintiff did not file a timely opposition to the defendants' motion for summary judgment.

The court found that the plaintiff could not prove retaliation because the earliest of the alleged adverse actions occurred 22 months after the plaintiff filed her first lawsuit. Because the defendants did not initiate the plaintiff's administrative leave after her first lawsuit, but only continued the administrative leave, it could not serve as an adverse action to support a retaliation claim. In fact, the defendants argued that several other adverse actions never took place, such as a delay in the report of her psychological examination.

The court also found that the defendants had articulated legitimate, nondiscriminatory reasons for their actions. Thus, the court granted the defendants' motion for summary judgment and dismissed the plaintiff's claims.

Down v. Ann Arbor Public Schools, E.D. Mich., No. 17-13456 (Oct. 13, 2020).

Professional Pointer: Retaliation claims have become extremely common and often difficult for employers to defend. However, not every negative decision constitutes an adverse action, and a lack of closeness in time between an adverse action and protected conduct can refute a retaliation claim.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.