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Title: ìBack Strokingî Swim Coach Goes too Far
Author:
ID: LL159
Issue: SU2-3
Issue Date: 2005-05-01
Edition: School
Type: Article

Body: The speech of a school official who followed the law and reported suspected child abuse is not protected and she therefore cannot claim that she was retaliated against, the Seventh Circuit Court of Appeals ruled last fall.

Mrs. Tierney, dean at an Illinois junior high school, claimed that she was denied promotion in her school district because she reported that a swim coach allegedly gave massages to several girls, including Mrs. Tierneyís daughter, Meryl. The mother and daughter filed a series of complaints and amended complaints against the Quincy School District in federal district court.

The saga began when Mrs. Tierney and several other parents complained to school officials that high school swim coach, Richard Powers allegedly gave massages to several girls on his team during a party at a local swim club. Meryl Tierney, alleged that Powers unhooked her bra, rubbed her back and massaged her legs up to her buttocks.

An assistant school superintendent conducted an investigation and issued a report, the contents of which were not made available to the court of appeals. The school retained Powers as its swimming coach.

The Tierneys later filed a federal lawsuit against the school district, the swim club and Powers, alleging constitutional rights violations. Specifically, Mrs. Tierney claimed that she was denied promotion because of the report. She alleged this happened in three ways:

About a year after the incident, she expressed interest in a newly created position, building assistant, at her school. The job announcement told interested applicants to contact one of two school officials. Ms. Tierney, instead, wrote a letter to the school principal in which she merely inquired about some facets of the job. She did not receive a response because the principal was on vacation at the time. Shortly thereafter, the job went to the only person who actually applied.

Mrs. Tierney subsequently applied for a principalís job at another school in the district that went to another applicant.

She also asked to be considered for any other administrative position in the school district. but the district had a policy against accepting ìblanketî applications and turned down her request.

After several of their claims had been dismissed, the Tierneys hired a new attorney, who filed an amended complaint that alleged, among other things, that the school district was retaliating against Mrs. Tierney by not promoting her. (The district and appellate courts eventually dismissed the Tierneysí complaints and imposed sanctions on the Tierneyís attorney for bringing frivolous claims.)

In its analysis, the court said that, for a public employee to prevail on a First Amendment retaliation claim, the employee must first establish a prima facie case by showing that she engaged in constitutionally protected speech and that the speech was a substantial or motivating factor in the employer's adverse action against her. ìAn employee's speech is constitutionally protected if she speaks on a matter of public concern and her interest in speaking outweighs her employer's interest in providing effective and efficient services,î the court said.

The court went on to say, that if the plaintiff establishes a prima facie case, the defendant ñ in this case the school district ñ must show that it would have treated the plaintiff the same even in the absence of the protected speech. And conversely, the plaintiff must then show that the defendantís proffered reason is merely an excuse for the deprivation.

The court pointed out in this case that, because Mrs. Tiereny was a school district employee and state law required district employees to report suspected child abuse, her speech regarding that topic was not protected. Accordingly she could not be deprived of her First Amendment right free speech rights.

Likewise, the court found that Mrs. Tierney complained only that she was deprived of her rights with respect to the building assistantís job. The court looked to the facts of the situation and found that, even if Mrs. Tierneyís speech was constitutionally protected, she could not have been deprived of a job for which she never actually applied. The court also noted that the building assistant job paid less than her dean position.

Whatís more, the court noted that Powersí actions were not proven, only alleged.

The court added that the school district would be liable for a constitutional violation only if it had an unconstitutional policy or practice in place or if the injury was caused by a person with final policymaking authority. Tierney herself presented evidence that the school board approved the building assistantís hire without ever learning the identities of any unsuccessful candidates for the position. Thus, even if Mrs. Tierney had established retaliation, only the individuals who violated her rights would be liable ñ not the district.

Note: Mrs. Tierney raised other evidentiary issues that were edited out because they were not relevant for this purpose.



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