In Kirilenko-Ison et al. v. Board of Education of Danville (Kentucky) Independent Schools, a federal appellate court held that two school nurses engaged in protected activity under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) when they advocated on behalf of students with disabilities. In addition, the court ruled that even when there is a substantial gap in time—here it was 11 months—between the protected activity and the adverse employment action, a court still can find that one caused the other if the employer waited until the first meaningful opportunity to retaliate against the employee.
The two school nurses sued the school district, claiming that they were retaliated against for challenging the adequacy of accommodations provided to two different students with diabetes under their respective Section 504 plans. The protected activity began when the nurses filed a complaint with the local child protective services agency after the students’ parents failed to comply with the 504 plan. In addition, the nurses had multiple disagreements with parents regarding necessary accommodations for the students’ disabilities. The school administration did not side with the nurses in the disagreements and allegedly instructed the nurses to simply do whatever the parent wanted, regardless of the detrimental effect it could have on the child. The court noted that previous court cases have found an employee to have engaged in protected activity “by challenging the school’s deficient administration of a free appropriate public education.”
Following a complaint filed against one of the nurses by a student’s mother regarding the accommodations disagreement, one nurse was given a five-day suspension. The other nurse was not suspended, but one year later, her three-year contract was not renewed, and she was not rehired. The school board contended that the retaliation claim should fail because the 11-month gap between the protected activity and the adverse employment action showed that the district did not renew her for other reasons—i.e., that there was no causal connection between the two. However, the court found that there was sufficient evidence of retaliation, regardless of the time gap, because it was the first meaningful opportunity the district had to take an adverse employment action against her.
School districts should be aware that employees’ advocacy on behalf of a child with disabilities has been upheld by courts as a protected activity under the ADA and Section 504. Furthermore, districts should be aware that gaps in time between the occurrence of the protected activity and any adverse employment action does not preclude a finding of causation between the two.
Should you face a similar situation involving the intersection of accommodating students and employees, contact any attorney in our Labor/Personnel or Students/Special Education practice groups for guidance.