Heyl Royster


Heyl Royster


Recent Developments In The Courts

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School That Discharged School Counselor For Publishing Book Giving Adult Relationship Advice Was Not Liable For First Amendment Retaliation

The plaintiff in Craig v. Rich Township High School District, No. 13-1398, 2013 WL 6235856 (7th Cir. Dec. 3, 2013) was a guidance counselor for the defendant school district, as well as the coach for the school's basketball teams. While employed, the plaintiff self-published a book entitled "It's Her Fault," which purported to give relationship advice to women. The book suggested that women acted on emotion, as opposed to emotion plus intellect. It also had passages that: (1) informed women of the effectiveness of using sex appeal; (2) encouraged women to engage in promiscuity prior to marriage; (3) argued that women must submit to their male partners; (4) did a comparative analysis of the female genitalia of different races. Id. at *1-2. The book also referred to the plaintiff's employment in the school district as well as the fact that his job provided for significant interactions with female students.

When school board members learned of the book, the plaintiff's employment was terminated. He then filed a lawsuit claiming retaliation for exercising rights under the First Amendment. The trial court dismissed the lawsuit, finding the book was not entitled to protection because it was not a matter of public concern.

On appeal, the Seventh Circuit affirmed on different grounds. It first held that the book was a matter of public concern because it addressed a matter in which the public might be interested. Id. at *3-4. It then noted that even if the speech was a matter of public concern, there would still be no retaliation if the employee's interest is outweighed by the interest of the governmental employer in promoting effective and efficient public service. Id. at *5.

Utilizing this balancing test, the Court found the school's interest in "protecting the integrity [of its counseling services] dwarfed" the plaintiff's interest in publishing the book. In reaching this conclusion, the court noted that the school did not have to show the publication had an actual impact before it could take action; it could instead act upon reasonable predictions of disruption. The Court thus found that it was reasonable for the school district to conclude the book would interfere with the learning environment and that female students would be apprehensive about asking the plaintiff for help. Id. at *7-8.

Court Holds Teacher Can Sue For Retaliation For Opposing Disability Discrimination Against Students

Retaliation cases are typically filed when an employee suffers a materially adverse employment action because she complained about discriminatory treatment directed at herself, or another co-worker. In MacFarlan v. Board of Education School Distr. 65, 904 F.Supp.2d 852 (N.D. Ill. 2012), the plaintiff teacher sued under the Rehabilitation Act, claiming she was retaliated against for opposing disability discrimination against her students.

The district court recognized that the viability of such claim was an issue of first impression in the Seventh Circuit. It nonetheless declined to dismiss the plaintiff's claim, finding it was similar to a third-party retaliation claim based on sex discrimination, which has been recognized.

As A Matter Of First Impression, The Seventh Circuit Holds Title II Under The ADA Does Not Cover Disability Discrimination In Public Employment

Title I of the American's With Disabilities Act ("ADA") specifically prohibits employment discrimination on the basis of disability and it requires aggrieved employees to exhaust administrative remedies before filing a lawsuit. Title II, in contrast, provides that state and local governments may not exclude disabled persons from participation in, or the benefits of governmental services, programs or activities. A party suing under Title II is not required to exhaust administrative remedies.

Governmental employees suing for employment discrimination, particularly those that have failed to timely file a discrimination charge with the EEOC, have attempted to sue under Title II of the ADA in order to avoid the exhaustion requirements. That is precisely what occurred in Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013), wherein the Court addressed the issue of whether Title II applies to governmental employment discrimination claims.

The Seventh Circuit first recognized there was a split among the other Courts of Appeals on this issue; two circuits have held Title I is the exclusive remedy for governmental employment discrimination claims while one circuit has held such claims can also be pursued under Title II. The Court also recognized that while federal regulations expressly state Title II does apply to such claims, that regulation was contrary to the language of Title II which unambiguously does not extend to employment discrimination claims.

Pursuant to the Court's holding, disability-based employment discrimination claims must proceed under Title I of the ADA and employees asserting such a claim must exhaust administrative remedies before filing a lawsuit.

Central District Of Illinois Holds That Statute Of Limitation For A FMLA Claim Runs When Employer Improperly Identifies FMLA Leave As Unauthorized And Not When Employee Is Subsequently Terminated Under A Progressive Discipline Policy For Accumulating Excessive Unauthorized Absences

The Family and Medical Leave Act prohibits an employer from interfering with an eligible employee's rights to take leave permitted under that Act. A lawsuit must be filed not later than two years "after the date of the last event constituting the alleged violation for which the action is brought."

The issue raised in Barrett v. Illinois Department of Corrections, No. 12-CV-2024, 2013 WL 3874078 (C.D. Ill. July 26, 2013) is whether the two year statute of limitations runs from the date the employee is discharged for excessive absences under progressive discipline policy, or from prior dates when the employer classified the leave as unauthorized. In Barrett, the employer's attendance policy provided that employees would be suspended upon receiving the eleventh unauthorized absence and may be discharged after the twelfth unauthorized absence. The employee in Barrett had one unauthorized absence in the years 2003, 2005-2009; four unauthorized absences in 2004; and two unauthorized absences in 2010. Following the last absence, the plaintiff was suspended and then discharged.

Plaintiff sued under FMLA on January 27, 2012. She claimed that three of her absences which occurred in 2003, 2004 and 2005 constituted protected leave and therefore should not have been counted as unauthorized. But for the employer's incorrect classification, she would not have been discharged. Defendant countered, arguing plaintiff failed to challenge the classification within two years. Plaintiff, in turn, argued the statute of limitations should run from the date of the discharge, and not from the date the leave was misclassified as unauthorized.

The district court held the statute of limitations is triggered for each disciplinary event – i.e. each time the employee received an unauthorized absence. In reaching this conclusion, the court reasoned that: (1) the text of FMLA and case law compelled that interpretation; (2) the continuing violation theory did not apply; and (3) the denial or misclassification of an unauthorized absence constitutes prejudice, thus affording a plaintiff standing to sue at the time the misclassification occurs.