Without using an attorney, former Harvard school psychologist Peter Koehn won reversal of the dismissal of a suit concerning his termination by Harvard Unit School District 50.
Then-Superintendent Lauri Tobias is listed as the lead defendant. Judges William Bauer, John Daniel Tinder and David Hamilton rendered the decision.
At the Federal Circuit Court level, the school district was granted a summary judgment in its favor.
Here is more of the Federal Court Court of Appeals decision:
As reasons she cited [to fire Koehn were] concerns about Koehn’s observations and written psychological reports for three special education students and his access of confidential records for five other special education students.
Tobias further asserted that Koehn had engaged in “inappropriate communications,” including asking questions “designed to attack Ms. Segersten’s decisions” when the Principal Education Consultant from the state met with District 50 special education staff in November 2010.
Tobias also singled out an e-mail that Koehn had sent District 50 board members alerting them—in Tobias’s words—“to a case law update about school officials who disregard constitutional rights.”
Finally, Tobias accused Koehn of failing to appear numerous times for the meeting ultimately held on January 18, as well as twice using the wrong procedure in November 2010 to call in sick.
Koehn was invited to appear before the board and to address those charges in a closed session.
He declined, thinking that any defense would be futile.
On January 31 the board met and voted to discharge Koehn, giving the same reasons underlying Tobias’s recommendation.
Koehn filed but then withdrew an administrative appeal.
In granting summary judgment for Superintendent Tobias, Principal Segersten, and the members of the school board, the district court first concluded that Koehn’s own actions disproved his claim that he was denied procedural due process in connection with the loss of his job.
The court reasoned that Koehn had been invited to defend himself at a meeting of the District 50 school board but chose not to do so.
On the First Amendment claim, the district court agreed with Koehn that a jury could find at least some protected speech on this record, particularly in light of his effort to involve an employee of the Illinois State Board of Education, who was outside his chain of command.
On this subject the court rejected the defendants’ argument that Koehn had spoken only as a school psychologist discharging his official duties and never as a private citizen.
But, the court continued, Koehn did not provide enough evidence for a jury to reasonably conclude that his speech motivated the defendants to fire him.
And, the court added, the defendants provided convincing evidence that they would have terminated Koehn’s employment for reasons separate from his protected speech.
On appeal Koehn first argues that the district court improperly dismissed his First Amendment retaliation claim.
To avoid summary judgment on his claim for retaliation, Koehn had to offer evidence that he suffered a deprivation because of constitutionally protected speech. See Diadenko v. Folino, 741 F.3d 751, 755 (7th Cir. 2013).
Advocating for special education students was a principal part of Koehn’s job, so the district court was faced with deciding if Koehn’s evidence would permit finding that he spoke out, at least in some instances, as a private citizen about a matter of public concern. See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006) (holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline”); Davis v. Cook County, 534 F.3d 650, 653 (7th Cir. 2008) (same).
The court answered that question affirmatively, and the defendants, by leaving this conclusion unchallenged on appeal, have abandoned for purposes of this appeal their contention that Koehn did not engage in protected speech. See Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d 169, 174 (7th Cir. 1996) (“An appellee is not required to advance every possible ground for affirmance; and should the case be remanded it can advance the additional grounds in the district court, provided they have not been waived in that court.”).
Thus our focus here is causation.
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