|San Diego Education Report
|Settlegood v. Portland
Public Schools, 371 F. 3d
503 (9. th. Cir. 2004),
7.2 Legal Status of
Professional Employees in
More recently, in
Settlegood v. Portland
Public Schools, 371 F. 3d
thCir. 2004), cert. denied,
125 S.Ct. 478 (2004), the
United States Court of
Appeals for the Ninth Circuit
upheld a jury’s
determination that a local
school district had violated
a special education teacher’
s First Amendment
rights. The teacher had
openly expressed concerns
regarding a lack of
suitable equipment for
children with educational
disabilities, and was
retaliated against for having
For a case in which a
former high school principal
claims that she was
demoted in retaliation for
“speaking out,” see
Cavazos v. Edgwood I.S.D.,
2005 U.S. Dist. LEXIS
15800 (W.D. Tex. 2005).
Ninth Circuit Federal Court upholds Pamela
Settlegood $1 million verdict; she was fired for
asking that the law be followed for her students
2004 FEDERAL APPELLATE COURT CASES INVOLVING FIRST
AMENDMENT PROTECTIONS OF GOVERNMENTAL EMPLOYEES
Settlegoode v. Portland Public Schools
371 F.3d 503 (9th Cir. 2004)
A teacher sued her school district and supervisors alleging, inter
alia, her contract was not renewed in retaliation for exercising her
First Amendment right to free speech. Settlegood was an Adapted
Physical Education teacher working for the Portland Public Schools. She was
an itinerant teacher and was exposed to multiple schools in the district on a
daily basis. Plaintiff became concerned about the treatment of disabled
students in the schools and problems with the physical plant and resource
deficiencies at several schools. She attempted to speak with her supervisor
who dismissed her concerns. Extensive oral and written communication
ensued between Settlegood and several supervisors. Eventually, the school
board decided not to renew her contract citing poor performance reviews,
including poor reviews of her IEP reports.
The court followed the three part test set forth in Keyser v. Sacramento
Unified Sch. Dist., 265 F.3d 741 (9th Cir. 2001) to determine whether
Settlegood was fired in retaliation for exercising her First Amendment rights.
The first of the three parts asks whether the plaintiff’s conduct was
constitutionally protected. Here, the court found that under the Pickering test
her whistle blowing speech was a matter of public concern. The court stated
that not only were her free speech rights implicated but the content of her
speech was of paramount concern to the parents of disabled children.
“Teachers,” the court stated, “are uniquely situated to know whether
students are receiving the type of attention and education that they
deserve.” It cited to the Pickering case, itself, for the proposition that courts
have long recognized, “the importance of allowing teachers to speak out on
school matters.” The court repeatedly stated that it could find no instance in
which the plaintiff’s speech was harmful to the school, the district, or the
children. It stated that the fact Settlegood went to her supervisors with the
complaint, rather than the press, is an important factor to consider in a
Pickering balancing test. Essentially, her speech was of public concern, it
was protected, and it was helpful, rather than harmful, to the employer.
The second prong of the Keyser test is the requirement that the plaintiff
show her speech was a substantial or motivating factor in her punishment.
Here, the court cited to the fact that the plaintiff’s evaluations went from
positive to poor once she began to complain about the problems she
perceived within the schools. This was noticeably so regarding the
evaluation of her ability to write IEPs. The court said that the writing of IEPs
is a dynamic and collaborative process. None of her IEPs was specifically
criticized by anyone who actually read them. Importantly, the court discussed
the fact that if the reports did have problems it would have been incumbent
upon her supervisors to adjust and review the reports. They did not do so.
Finally, under Keyser even if the plaintiff proves the second prong the
employer can still escape liability by showing that it would have taken the
same action in the absence of the protected conduct. The court stated that
this is a very high burden to meet. Proof that the IEPs were not adequate is
only proof that the employer could have terminated her, not that it would
have. Defendants were not able to offer any evidence that other teachers
had been terminated for drafting inadequate IEPs. The court found that the
defendants were not able to meet their burden of showing the plaintiff’s
contract would not have been renewed.
Steven B. Rynecki
von Briesen & Roper, s.c.
411 E. Wisconsin Avenue, Suite 700
Milwaukee, Wisconsin 53202
National Legal Director
American Federation of Teachers
555 New Jersey Avenue, N.W.
Washington, DC 20001
Lisa Salkovitz Kohn
Arbitrator and Mediator
1350 East 49th Street
Chicago, IL 60615
Suit Over Medical Records Subpoena Goof Revived
By RYAN BORCHERS
Courthouse News Service
July 05, 2016
PASADENA, Calif. (CN) — The Ninth Circuit revived claims on Tuesday by a woman
whose medical records were used against her because Los Angeles County
prosecutors told the Kaiser hospital she was dead.
Detrice Garmon had wanted to give alibi witness testimony in her son's murder trial
but ran into a complication with state-court procedure because she was scheduled
to have a brain tumor removed.
Though Garmon authorized Kaiser Permanente to provide the prosecution with
medical records related to her tumor, the lead prosecutor instead subpoenaed all of
Garmon's medical records from Kaiser.
In a declaration support the subpoena application, Los Angeles County Deputy
District Attorney Michele Hanisee misrepresented that Garmon was the murder
victim in her son's trial.
Relying on her full medical records, the state undermined Garmon's witness
testimony. Her son was convicted of murder.
Garmon soon filed a federal complaint pro se against Kaiser, the county, Hanisee
and Steve Cooley, who had been the district attorney of Los Angeles at the time.
Though the court dismissed Garmon's entire complaint, she scored a reversal today
from the Ninth Circuit.
The three-judge appellate panel said Hanisee does have absolute immunity for
issuing the subpoena but that her accompanying declaration is another matter.
Writing for the panel by designation from Oakland, Senior U.S. District Judge
Claudia Wilken cited precedent from a 1997 decision by the U.S. Supreme Court,
Kalina v. Fletcher.
"Like the prosecutor in Kalina, Hanisee's declaration states particular facts under
penalty of perjury, making her more akin to a witness than a prosecutor in this
function," Wilken wrote. "Thus, following Kalina, Hanisee is not entitled to absolute
immunity for her declaration in support of the subpoena."
After finding that the same is true of former DA Cooley, the court said Garmon also
deserves a chance to cure the errors in her claims against the county with an
Wilken noted that pro se litigants are not held to the same stringent standards as
those represented by counsel, and that Garmon's complaint could be construed to
include a theory of municipal liability against LA County.
The ruling concludes with Wilken also reviving Garmon's state-law claims against
the LA defendants and against the medical group.
"Kaiser does not dispute that supplemental jurisdiction is appropriate if any federal
claim against county defendants survives," Wilken wrote. "Because we reverse the
dismissal of certain federal claims against county defendants, we reverse the district
court's dismissal of claims against Kaiser."
Garmon had filed her suit pro se but was represented in the appeal by Brian Morris
with Duane Morris in San Diego.
LA had been represented by principal deputy county counsel Millicent Rolon.
Kaiser was represented by David Pruett, an attorney with Carroll, Kelly, Trotter,
Franzen, McKenna & Peabody, of Long Beach.
None of the attorneys returned emails Friday seeking comment.
Ninth Circuit Federal Court of Appeals
Cases and Links
|News, information and ideas about our
education system, courts and health care
by Maura Larkins