They say you always remember the first time you do something. Whether it’s your first concert (the Bangles), the first car you drove (a red Ford Tempo), or the first city you moved to after college (Washington, D.C.), “firsts” have a way of being remembered, even when you can barely remember your Amazon password.
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At the end of September, the U.S. 7th Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin), outlined—for the first time—the test for analyzing disability-based interference claims under the Rehabilitation Act and the Americans with Disabilities Act (ADA).
Failing Grade
“Jess” worked as a full-time special education teacher at Peoria School District No. 150. All the students she taught had various disabilities and behavioral and emotional disorders, and all of them were eligible for special education services under the Individuals with Disabilities Education Act (IDEA). Each student also received an Individualized Education Plan (IEP) and Behavioral Intervention Plans that addressed goals and issues interfering with their learning.
In October 2011, “Kate” became an assistant principal and Jess’ new supervisor. Kate, who had worked for the school district for 18 years and had lots of experience evaluating teachers, observed several deficiencies in Jess’ teaching performance.
On February 1, 2012, she gave Jess an overall performance rating of “unsatisfactory.” Among other things, she noted that Jess struggled with classroom management, was often unprepared and unorganized for IEP meetings in the classroom, and didn’t collect enough data on her students’ performance.
Having None of It
Jess refused to sign Kate’s evaluation, stating that she thought the feedback was unfair. She drafted a document titled “Points for Rebuttal” in which she admitted that some areas of her performance needed improvement. However, she defended her teaching methods and stated that she disagreed with Kate’s harsh criticism. She was placed on a remediation plan and given directions to improve in the noted areas of deficiency.
In 2012, the school district began a voluntary reduction in force. Because of her unsatisfactory rating, Jess was placed in Group 2 on the sequence of honorable dismissals list and was terminated along with 53 other teachers. Her last day of employment was May 31, 2012.
In August 2012, Jess filed a claim against the school district in federal court alleging her unsatisfactory performance rating constituted unlawful disability-based interference under Section 504 of the Rehabilitation Act. The district court entered judgment in favor of the school district without a trial, and Jess appealed that decision to the 7th Circuit.
Sister Act
On appeal, the 7th Circuit noted that Section 504 of the Rehabilitation Act, a “sister statute” to the ADA, prohibits discrimination on the basis of disability by recipients of federal funds, such as school districts. The court stated that employment discrimination claims under Section 504 are governed by the standards set out in the ADA.
Under the ADA’s anti-interference provision, it is unlawful to “coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on the account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA”
The court noted that it hadn’t previously addressed an interference claim under either the ADA or Section 504. Consequently, it looked to a similar anti-interference clause in the Fair Housing Act to establish a legal standard for a disability-based interference claim.
At Last . . .
To establish a Section 504 (or ADA) interference claim, Jess had to demonstrate that (1) she engaged in an activity statutorily protected by the ADA, (2) she was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA-protected rights, (3) the school district coerced, threatened, intimidated, or interfered with an individual on account of her protected activity, and (4) the school district was motivated by an intent to discriminate.
The court said Jess couldn’t establish that she engaged in a statutorily protected activity, such as opposing or complaining about discrimination based on disability. A common example of a protected activity in the school context is when a teacher makes a formal complaint of discrimination or reports a public school’s failure to provide a free, appropriate public education. Jess claimed she engaged in protected activity when she refused to change her teaching methods after Kate gave her a negative performance evaluation.
The court rejected that argument, stating there was no evidence that Jess’ opposition to Kate’s evaluation was an assertion of rights on behalf of her disabled students. For instance, she didn’t mention her students’ rights or include any such claims in her “Points of Rebuttal.” Teaching students who are protected by the ADA didn’t render her teaching protected. Judgment for the school district. Frakes v. Peoria School Dis. No. 150, Case No. 15-3091 (Sept. 26. 2017).
One for the History Books
Jess may not have prevailed on her claim, but she certainly made her mark on the court. Thanks to her, Illinois employers now know the standard for establishing an interference claim under the ADA or Section 504.
This article was written by Kelly Smith-Haley of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. She can be reached at ksmithhaley@fslc.com.