December 7, 2021

Volume XI, Number 341

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December 06, 2021

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Employer’s “Stirring Up” Testimony Allows Plaintiff to Pursue Section 504 and ADA Claims

A case out of the Western District of Tennessee provides a useful reminder that employers must exercise caution when responding to reports of potential protected activities. The case, Hicks v. Benton County Board of Education, involved a special education aide who spoke to special education parents about services their students failed to receive. Upon learning this information, the principal instructed the plaintiff to cease talking directly to parents concerning what was going on in the program and to instead follow the district’s chain of command to address program concerns.

Despite this instruction, the aide continued to speak directly to parents regarding concerns about the special education program. The aide claimed that she truthfully responded to parents’ questions about the services rendered to their children in the classroom. The district declined to renew the aide’s contract the following year and the aide pursued retaliation claims under Section 504 and the Americans with Disabilities Act (ADA).

In denying summary judgment, the court focused on the fact that not only could the aide’s conversations with parents about the program qualify as advocacy, but the district’s decision not to renew her employment for the following year could be an adverse action. Most notably, the principal’s deposition testimony stated that the aide was “stirring up” trouble by sharing information he believed to be confidential. The court found that the principal’s testimony suggested he declined to renew her employment because of her advocacy. In the court’s view, “a reasonable jury could conclude that the spectre of not being rehired would dissuade a reasonable person from engaging in the protected activity at issue in this case.” Holding that the aide pleaded viable claims for retaliation under Section 504 and the ADA, the District Court denied the district’s motion for judgment.

In the end, it is possible that the district may convince a jury that the employee’s nonrenewal had nothing to do with a potential protected activity. Hicks makes clear that employers must use caution when responding to questions regarding employment decisions, and that consulting with legal counsel throughout the process is advisable.

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume VII, Number 93
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About this Author

Taylor Hunter, Barnes Thornburg Law Firm, Indianapolis, Labor and Employment Attorney
Staff Attorney

Taylor L. Hunter is a staff attorney and member of the Labor and Employment Law Department in Barnes & Thornburg’s Indianapolis office. Ms. Hunter focuses her practice in the area of education law with an emphasis on employment and student disability matters.

Before joining Barnes & Thornburg as a staff attorney, Ms. Hunter gained experience as an associate with an Indianapolis-based law firm where she assisted in the areas of family law, traffic issues, small claims, criminal law and litigation.

317-231-7755
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