The Michigan Court of Appeals recently affirmed a trial court’s jury verdict that awarded $400,000 to a teacher for retaliation in violation of the Whistleblower Protection Act (WPA). Davis v Jackson Pub Schs, Case No. 344203 (July 2, 2020).
Pennie Davis was an art teacher and art curriculum chair at Jackson High School (District). Davis confronted a student after she overheard him making threatening statements about her. Davis directed the student to stop and go to the office, but the student refused. The student then swung his closed fist into Davis’s hand. Davis claimed that her attempts to seek school administrator assistance for this incident were unsuccessful, so she reported the assault to the police and obtained a personal protection order (PPO) against the student. The District placed Davis on paid administrative leave while they investigated the incident.
After the District completed the investigation and Davis returned to work, the District implemented a plan to help Davis and the student comply with the PPO. Davis later observed the student unsupervised near her classroom, prompting her to file a motion to modify the PPO. After she filed the motion, District administrators complained to Davis that she handled the matter outside of the District, rather than working with the administration to find a solution. Days after the court filing, the District transferred Davis to a 6th grade art position at an International Baccalaureate middle school. The transfer resulted in Davis losing her position as curriculum chair.
Even though the new position was at an IB-focused school and required specialized instruction, Davis received no training in IB curriculum. Shortly after her arrival, she was told that, despite being rated “highly effective” the year before, her performance was substandard. The District placed Davis on an IDP. At the end of the school year, she received an “ineffective” rating.
Davis sued the District, claiming that the administration retaliated against her in violation of the WPA for reporting the student incident to the police. The jury found in Davis’s favor, awarding almost $400,000 in damages. The District appealed.
A claim of retaliation is established under the WPA if a plaintiff demonstrates that: (1) he or she engaged in an activity protected by the WPA; (2) he or she suffered an adverse employment action (e.g. “was discharged or otherwise discriminated against by the plaintiff’s employer”), and (3) a causal connection exists between the protected activity and the discharge or adverse employment action.
The District argued that because there was not a causal link between the protected activity (i.e., contacting the police) and the adverse employment action, the trial court should have dismissed the case. The Court disagreed, ruling that the transfer was, indeed, retaliation in violation of the WPA.
The Court recognized the proximity of the transfer and evaluation rating to Davis’s decision to contact the police. Davis also presented evidence that the District accused her of fabricating her own injury and having a “beef” against the student. In addition, Davis testified that administrators told her that if she had not gone to the police and instead kept matters within the school, she would not have been transferred. The Court found that this evidence established that school officials were upset that Davis reported an assault to the police and obtained a PPO, and those same school officials were involved in the decision to transfer Davis.
This case serves as a reminder that otherwise lawful activities can result in liability if a school takes those actions in retaliation for an employee’s protected conduct. Schools generally have wide discretion in their placement and evaluation decisions, but they must ensure that those decisions are not punitive or result in an adverse employment action.