Date: 06-19-2002

Case Style: Helen Sue Whitney v. The Board of Education of Grand County and Bill Meador

Case Number: 00-4032

Judge: Ebel

Court: United States Court of Appeals for the Tenth Circuit

Plaintiff's Attorney: Andrew D. Roth of Bredhoff & Kaiser, P.L.L.C., Washington, D.C. (Robert H. Chanin of Bredhoff & Kaiser, P.L.L.C., Washington, D.C., Michael T. McCoy, General Counsel, Utah Education Association, Murray, Utah, and David G. Challed of Challed Law Office, Salt Lake City, Utah, with him on the briefs), for Plaintiff-Appellant.

Defendant's Attorney: Brent A. Burnett, Assistant Attorney General, State of Utah (Jan Graham, Utah Attorney General, Litigation Division, with him on the brief), Salt Lake City, UT, for Defendants-Appellees.

Description: Helen Sue Whitney was fired from her position as a tenured teacher for the Grand County (Utah) School District based on accusations of poor classroom performance and assaulting a student. Whitney, who has been diagnosed as suffering from depression, brought suit alleging that her firing violated, inter alia, the Americans with Disabilities Act (ADA), two state statutes, and state contract law. The defendants in Whitney's suit are the Grand County School District Board of Education ("the School Board") and district superintendent Bill Meador (collectively "the Defendants"). The district court granted the Defendants' motion for summary judgment on all claims, and Whitney appeals. We reverse on the ADA claim as to the School Board and the state statutory claims as to both Defendants, and affirm on the ADA claim as to Meador and the breach of contract claim as to both Defendants.

BACKGROUND

During the 1996-1997 school year, Whitney was a fourth grade teacher in an elementary school in Utah's Grand County School District, near Moab. She had been a teacher in the district for nearly two decades, and she had tenure. Whitney had experienced classroom performance problems in the past: a 1987 letter from a school principal documented parental complaints regarding Whitney's hair pulling, ear twisting, knocking student's heads together, crying, and raising her voice. According to her principal, Whitney had been investigated by state social services sometime in the mid-1980's.

At the start of the school year, several parents asked the school principal to have their children transferred from Whitney's class, expressing concerns about Whitney's yelling at and ridiculing students, crying in the classroom, and similar allegations. Whitney maintains that she was not told of these concerns until a conference in January 1997, and that even then the principal did not specifically identify any problems with Whitney's classroom management. Defendants maintain, and Whitney does not dispute, that the principal discussed the following concerns with Whitney: "understanding and control of emotions, behavior management skills, parent perceptions, student perceptions, oral and written communication skills, and assistance from administrator."

On March 3, 1997, Whitney received a written evaluation from the principal. It stated in part, "While Ms. Whitney still needs to make significant changes to remediate the issues listed above, continued informal assistance rather than formal remediation is recommended at this time." The report reiterated concerns regarding understanding and control of emotions ("use of terms of endearment [such as] 'Honey', 'Dear', and 'Dolly'") and behavior management skills ("using a low threatening growl or a forced smile").

On March 14, a committee of the Utah State Department of Human Services submitted a report to the principal and to Meador, which was based on classroom observation of Whitney. The report described Whitney's manner as "inappropriate," noting severe "mood swings" during which Whitney would suddenly become "angry and verbally abusive."

On March 19, a student in Whitney's class injured her foot on a piece of metal. The student wrote in a time-out book that "You [i.e. Whitney] Hurt My foot." Whitney's affidavit states that she "could have leaned into her" while "directing her to sit down" but that she did not intend to push the student and that Whitney could have lost her balance. The local police investigated but no charges were filed. Whitney was placed on leave pending an investigation by the state Division of Child and Family Services (DCFS).

On April 4, 1997, DCFS issued a preliminary report based on student and parent interviews. The report found that the allegation of physical abuse arising on March 19 was substantiated, and that seven of sixteen other allegations of emotional abuse by Whitney investigated by DCFS were also substantiated. The report "cautioned that Ms. Whitney may be high risk for self destructive behaviors as well, which could include suicide attempts," and that she should be cleared psychiatrically. On April 7, Meador notified Whitney that she was being formally suspended pending the final DCFS report.

Whitney responded on April 14 with a letter in which she stated that her recent problems arose from "either an actual or perceived disability relating to my mental competency." She stated "it is obvious to me, as it may be to you, that I will require a reasonable accommodation. Accordingly, I hereby request a reasonable accommodation . . . ."

The same day, Meador responded with a letter which stated, "It is impossible to respond to your request without obtaining further information." He asked Whitney to provide the following within ten working days:

Please specifically identify the disability which you claim. If there is a diagnosis regarding your "mental competency" by a licensed professional or a DSM IV diagnosis, please send such diagnosis to me. If not, then the School District must request that you submit to a diagnosis by a qualified professional to assess whether you are capable of performing essential job duties. Please identify any specific job duties you believe you are unable to perform as a result of your mental incompetency.

In addition, you must specify the accommodation(s) you are requesting. Your request is too vague to form an idea about what you have requested and what may be reasonable under the circumstances.

On April 18, Whitney responded by letter that she could not provide the information Meador requested, because "nobody has told me what I am doing or not doing that constitutes the basis of my suspension." She thanked Meador for what she characterized as his offer to pay for an evaluation, but suggested that such evaluation could not occur until the district had given her "specific information about my conduct" that led to her suspension.

On April 21, Meador gave Whitney by letter "notice of termination of your employment for cause effective 15 days after the date of this letter." Meador's letter informed her that pending the date of termination she would be placed on leave with pay. The letter stated that Whitney had the "right to a hearing before the Board of Education to appeal this decision to terminate your employment for cause." Failure to request a hearing, the letter stated, would constitute waiver of Whitney's right to appeal.

The April 21 letter explained that "we are not aware of any disability perceived or otherwise. . . . and we are not aware of any possible accommodation." No evaluation was necessary, Meador wrote, because no identified disability had been claimed. The stated grounds for termination were failure to fulfill duties and responsibilities, incompetence or inefficiency, inability to maintain classroom discipline, behavior outside of acceptable community standards, "failure to maintain effective working relationships, or maintain good rapport, with parents, the community, or colleagues," and assault on an employee or student.

Whitney requested a hearing before the School Board, and in preparation of the hearing she was examined by a licensed psychologist, Dr. James A. Ferro, on May 7 and 14. The school board hearing was held June 17. Dr. Ferro testified at length and submitted his written evaluation. He stated that Whitney had become clinically depressed in late 1996, and he diagnosed her as suffering from Major Depressive Disorder, Single Episode, In Partial Remission and Personality Disorder Not Otherwise Specified, with Narcissistic Features. Dr. Ferro concluded in his report, "Since Ms. Whitney's disorder of affect and behavior is remediable by psychotherapeutic intervention and since, at the time of this writing, Ms. Whitney is very motivated to engage in counseling, this examiner considers it very likely that she [will] be able to resume her teaching duties in the Fall of 1997." In testimony before the board, Dr. Ferro stated that "I really believe that she's capable of being able to remediate," and he recommended that she be reevaluated in three months to determine whether she is fit to return to the classroom.

In its written findings and conclusions, the School Board "SUSTAIN[ed] the recommendation of Superintendent Meador to terminate Ms. Whitney's employment for the causes stated in his 21 April 1997 letter to Ms. Whitney." It stated that "[t]he decision to terminate Ms. Whitney's employment is based solely on her conduct and performance related issues." (Id. at 228.)

Whitney filed suit against the School Board and Meador in Utah state court on February 24, 1998. On March 20, 1998, the Defendants removed to federal court in the District of Utah. On December 15, 1998, Whitney filed an amended complaint. She asserted causes of action under the ADA, 42 U.S.C. § 1983 for alleged violations of due process and equal protection, two state statutes ­ the Utah Orderly School Termination Act ("Termination Act"), Utah Code Ann. §§ 53A-8-101 to -107, and the Educator Evaluation Act ("Evaluation Act"), Utah Code Ann. §§ 53A-10-101 to -111 ­ and for breach of contract. Defendants answered on January 21, 1999, and on April 8, 1999 moved for summary judgment on all claims.

On September 27, 1999, the district court granted Defendants' summary judgment motion as to all claims. It later denied Whitney's Rule 59(e) motion to set aside its judgment as to the state law claims. Whitney filed a timely notice of appeal on February 11, 2000, abandoning her due process and equal protection claims and challenging the rejection of her ADA, state statutory, and breach of contract claims.

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The ADA mandates in relevant part that "[n]o covered entity shall discriminate against a qualified individual with a disability." 42 U.S.C. § 12112(a).(1) Discrimination, as defined in the ADA, includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . . ." § 12112(b)(5)(A). Disability, as defined in the ADA, means:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

§ 12102(2). Whitney's only claim is that she suffered from an actual impairment; accordingly, we do not consider the "record of" or "regarded as" prongs.

If a mental limitation is not "known" to the employer, then any failure to accommodate that limitation is not discrimination within the meaning of the ADA. § 12112(b)(5)(A). The district court regarded this provision as dispositive because "[i]t wasn't until after her suspension that Whitney informed Meador that she had a disability." The problem with this conclusion, however, is that Whitney is challenging her termination, not her suspension. It is therefore irrelevant whether the Defendants knew of her limitation at the time of the suspension if they knew of her limitation when she was terminated. In light of Dr. Ferro's testimony, including his diagnosis that Whitney suffered from major depression, it is clear that Whitney's condition was "known" to the School Board at the time it voted to terminate her. We thus are compelled to conclude that the district court's reasoning in dismissing the ADA claim against the School Board was erroneous.

Conversely, this same reasoning dictates that Meador did not violate the ADA by any actions that he took prior to the School Board's termination decision. Indeed, Whitney appears to have conceded any ADA claim she had asserted against Meador. (See Aplt B. at 19 (arguing that it is irrelevant what Meador knew about Whitney's condition)); (Aplt R.B. at 1 (same).) Accordingly, we affirm summary judgment on the ADA claim as to Meador.

* * *

We conclude that the Defendants' argument to support summary judgment is foreclosed by material factual issues in the record. Indeed, reviewing the record, we find that the evidence strongly supports an argument that the School Board, rather than Meador, was responsible for terminating Whitney's employment. Meador's April 21 letter did not purport to terminate Whitney. Instead, it gave her "notice of termination," and specifically stated that Whitney would continue to be paid "[p]ending the date of termination." It also stated that Whitney had the right to appeal Meador's decision. Further, it is clear that the School Board itself viewed Meador's decision as merely a recommendation rather than a final decision. When the board issued its written findings and conclusions, it referred to Meador's action as the "recommendation of Superintendent Meador to terminate Ms. Whitney's employment." At the termination hearing, the administration attorney argued to the board why "it's necessary that we recommend termination to the Board of Education." Finally, the board's use of the present tense is significant in stating that "[t]he decision to terminate Ms. Whitney's employment is based solely on her conduct and performance related issues."

Further support for the conclusion that Whitney was fired by the School Board rather than Meador is to be found in the terms of Whitney's only written contract contained in the record. The contract was signed by the School Board president on behalf of the School Board, and was not signed by Meador. The contract stated that "this contract may be cancelled by the Board at any time . . . for misconduct, poor health, incompetence or insubordination on your part." Finally, we note that the suggestion that superintendents rather than school boards are responsible for firing teachers appears to be quite a novel one under Utah law. With a single exception,(2) published decisions involving wrongful termination suits brought by Utah teachers all have involved a school board as the sole defendant. See Durfey v. Bd. of Educ. of Wayne County Sch. Dist., 604 P.2d 480 (Utah 1979); Pratt v. Bd. of Educ. of Uintah County Sch. Dist., 592 P.2d 628 (Utah 1979); Stringham v. Jordan Sch. Dist., 588 P.2d 698 (Utah 1978); Rowley v. Bd. of Educ. of Duchesne County Sch. Dist., 576 P.2d 865 (Utah 1978); Brown v. Bd. of Educ. of Morgan County Sch. Dist., 560 P.2d 1129 (Utah 1977); Broadbent v. Bd. of Educ. of Cache County Sch. Dist., 910 P.2d 1274 (Utah Ct. App. 1996); cf. Bd. of Educ. of Alpine Sch. Dist. v. Ward, 974 P.2d 824 (Utah 1999) (declaratory judgment action brought by school board regarding termination of teachers).

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Click the case caption above for the full text of the Court's opinion.

Outcome: We REVERSE the district court's grant of summary judgment in favor of the School Board on the ADA claim and we REVERSE the district court's grant of summary judgment in favor of the Defendants on the Evaluation Act and Termination Act claims, and we REMAND for further proceedings. We AFFIRM summary judgment in favor of the Defendants on to the breach of contract claim and in favor of Meador on the ADA claim.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None