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 the final part of the Federal Court Court of Appeals decision:

The timing of District 50’s sudden preoccupation with Koehn’s job performance, many months after he was due to be evaluated, is “too convenient” to allow summary judgment on his First Amendment retaliation claim. See id. at 673–74; see also Peele v. Burch, 722 F.3d 956, 962 (7th Cir. 2013) (“Our role at this stage is to decide if there is a factual dispute, not which side of the dispute is right.”).

On the other hand, Koehn is on much weaker footing in contesting summary judgment for the defendants on his claim that he was fired in violation of his Fourteenth Amendment right to procedural due process.

He asserts that the members of the school board demonstrated they were biased when they accepted Superintendent Tobias’s recommendation for dismissal in the face of evidence that she and Principal Segersten were retaliating against him and violating “special education rules.”

The defendants concede that Koehn, as a tenured employee, had a protected property interest in his position. See Townsend v. Vallas, 256 F.3d 661, 673 (7th Cir. 2001); Gleason v. Board of Educ. of City of Chicago, 792 F.2d 76, 79 (7th Cir. 1986).

The question for us is whether the undisputed evidence establishes that Koehn received a fair hearing conducted by an impartial decision-maker. See Head v. Chicago Sch. Reform Bd. of Trs., 225 F.3d 794, 803–04 (7th Cir. 2000).

Adjudicators are presumed to act in an unbiased manner. Id. at 804.

To overcome this presumption, Koehn needed to provide “substantial evidence of actual or potential bias,” such as evidence that the board members had prejudged his case, had a personal animus against him, or had a pecuniary interest in the outcome of the proceedings. Id.; Hostrop v. Bd. of Jr. Coll. Dist. No. 515, 523 F.2d 569, 575–76 (7th Cir. 1975).

Koehn has presented no evidence of this sort.

Koehn also contends, as he did in the district court, that before he was fired he should have been given all of the materials reviewed by Superintendent Tobias in concluding that the cuts to individualized instruction were made lawfully.

According to Koehn, these materials would have strengthened his position before the school board.

But Koehn misses the point: He passed over the opportunity to address the school board, and his failure to take advantage of either the pre-deprivation or post-deprivation procedures available to him forecloses his challenging those procedures as deficient. See Leavell v. Illinois Dep’t of Natural Resources, 600 F.3d 798, 806 (7th Cir. 2010); Hudson v. City of Chicago, 374 F.3d 554, 563 (7th Cir. 2004).

We have considered and rejected Koehn’s remaining contentions.

Accordingly, we VACATE the grant of summary judgment on his First Amendment claim and REMAND for further proceedings on that claim.

In all other respects we AFFIRM the district court’s judgment.