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.

Koehn appealed.

Here is more of the Federal Court Court of Appeals decision:

Koehn’s initial burden was to offer evidence that his protected activity motivated the defendants’ decision to fire him. See Diadenko, 741 F.3d at 756.

He argues that he presented a “convincing mosaic” of circumstantial evidence sufficient to satisfy this burden. See Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 637, 643 (7th Cir. 2013); Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir. 2012).

We agree.

Considering the evidence as a whole and drawing all reasonable inferences in Koehn’s favor, see Hobgood, 731 F.3d at 644, 647, a jury could find that Superintendent Tobias and Principal Segersten were content to let Koehn’s alleged deficiencies “fall through the cracks” until he began speaking up about the propriety of Segersten’s changes to the special education program.

No one from District 50 disciplined Koehn or even formally evaluated his performance from April 2008 until soon after his first allegations of illegality in September 2010. See Diadenko, 741 F.3d at 756 (explaining that adverse actions that “follow ‘close on the heels’ of protected speech can give rise to an inference of retaliation”); Johnson v. City of Fort Wayne, 91 F.3d 922, 939 (7th Cir. 1996) (concluding that inference of retaliation arose when adverse action occurred two weeks after protected activity); Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir. 1992) (describing as “surprising” that problems with plaintiff’s performance “suddenly” surfaced after protected activity).

Moreover, a jury might reasonably be skeptical about Superintendent Tobias’s reasons for wanting Koehn fired. See Hobgood, 731 F.3d at 643–44 (explaining that evidence of pretext can be circumstantial evidence of retaliatory motive).

For one thing, Tobias’s recommendation to the school board only thinly veils her displeasure with Koehn’s meddling.

Chief among her accusations is that Koehn asked “inappropriate” questions “designed to attack” Principal Segersten’s program cuts during a meeting with District 50 special education staff and an interested official from the state education board—a gathering of professionals where the topic of those cuts surely was relevant.

Tobias also insisted that Koehn had no “legitimate educational interest” in reviewing records of certain special education students, but that accusation is never explained.

What Tobias apparently suspected, and what Koehn appears to concede, is that he examined some student files while trying to build a case that Segersten’s changes were detrimental to the affected students.

The defendants did not dispute that Koehn’s position as school psychologist required him to serve these students like all others, and it seems an odd accusation to call his inquiry illegitimate simply because it might undermine Segersten’s unilateral changes.

Other reasons given by Tobias also ring hollow.

She asserted that Koehn had not offered a “reasonable excuse” justifying multiple postponements of the “investigatory meeting” held on January 18, 2011, yet the defendants concede that Koehn was unavailable because of an extended “illness” (which they deride as “just stress”).

Similarly, Tobias cited Koehn for twice using e-mail instead of a computerized attendance program to report absences from work.

And some of her criticisms of Koehn’s report writing (e.g., not using a child’s “legal” name in the heading, placing “background information” at the beginning of the report, and not defining acronyms) seem trivial, especially since Koehn presented evidence that Principal Segersten had refused his requests for examples of properly completed psychological reports.

In many cases, evidence that would permit a jury reasonably to find that protected speech motivated adverse action would not, as Koehn asserts, end the inquiry at summary judgment.

A defendant might introduce evidence of non-pretextual reasons that would have led to the same adverse action even if the plaintiff had not engaged in protected speech. See Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 285–87 (1977); Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012); Diadenko, 741 F.3d at 756.

But the plaintiff must then be given an opportunity to present evidence that the proffered reasons for the adverse action were pretextual and that the real reason was retaliatory animus.

See Thayer, 705 F.3d at 252. Here Koehn did not need further evidence that the defendants’ stated reasons for firing him actually were cover for a retaliatory motive. See Valentino v. Village of South Chicago Heights, 575 F.3d 664, 673 (7th Cir. 2009).

= = = = =
More tomorrow.