Court upholds RH teacher’s right to trial on retaliation claim

Published 9:40 am Monday, June 13, 2011

CINCINNATI — The U.S. Court of Appeals, Sixth Circuit, has ruled a Rock Hill schoolteacher has a right to have her retaliation claim against a former superintendent heard by a federal jury, but at the same time upheld a lower court’s dismissal of her claims of violation of free speech as well as claims of retaliation alleged by her daughter. A trial date may be scheduled within the next 30 days.

The court ruled Joy McComas does have a right to a trial to assert her claim that, when she tried to advocate for her daughter, who was the victim of school bullying, she herself became the victim of harassment by former superintendent Lloyd Evans.

The appeals court also ruled, however, that much of McComas’ activities in support of her child did not fall under the heading of free speech.

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The court ruled that her daughter, who was a student at Rock Hill, did not suffer violation of her constitutional rights because there were no significant actions against her, such as expulsion, for instance.

This ruling overturns a previous one by U.S. District Judge Susan D’Lott, who dismissed the case in its entirety.

Both sides are claiming victory in the case.

“As to Ms. McComas, they held she had a right to, as a parent, assert a complaint before the board of education without fear that the administration of Mr. (former superintendent Lloyd) Evans would take action against her because of it,” McComas’ attorney, Mike Moore, of Columbus, said.

But Gary Winters, attorney for the insurance company that represented the district, said, “We won 95 percent of the case,” Winters said. “It’s a substantial victory for us.”

The incident began in 2007 when McComas’ daughter and another female student allegedly had a confrontation over romantic notes the other girl had given McComas’ daughter’s boyfriend. The other girl became angry and reportedly brought a knife to school the next day and reportedly told McComas’ daughter she should “watch her back.” The knife was confiscated and the other girl was suspended 10 days. The matter was also referred to juvenile court. However, when the girl was allowed to return to school, McComas expressed concern about it to Evans, principal Steve Lambert and the school board. McComas’ daughter was, according to the lawsuit, so traumatized by the incident she was eventually home schooled the rest of the year.

To gather evidence for the prosecution, which had charged the other girl with a felony for bringing a weapon to school, McComas made a questionnaire which her daughter distributed among Rock Hill students before she began her home schooling. The questionnaire asked, among other things, if anyone had heard the other girl brag about bringing a knife to school. Evans, according to the lawsuit, expressed concern about the questionnaire. In a meeting afterward, Evans said he planned to suspend McComas.

“According to McComas,” the lawsuit said, “Evans assumed an ‘angry, threatening, and intimidating’ demeanor.’” During that meeting, “Evans accused McComas of revealing confidential health information about a student via the questionnaire and said she must have accessed the other girl’s health file.” Evans told McComas that “it was not her job to be the prosecutor,” and reiterated it was his understanding that her daughter had started the trouble.

McComas addressed the board and Evans about her concerns for her daughter and the district’s handling of the knife incident in both in a letter and at a school board meeting.

McComas contended in her lawsuit that school policy prohibited the other girl from taking part in school activities while on suspension, but school officials violated their own policy by allowing the other girl to try out for the marching band field commander position for the next school year.

McComas’ daughter also went to try out for field commander but as she approached the area where the try out was to occur, the other girl and her family “stared at her menacingly” and that “she was intimidated and terrified and started crying,” according to the lawsuit.

McComas’ daughter “absolutely fell apart” during her tryout and failed to make the team. The other girl earned the position of field commander.

After prolonged mental distress over the situation, the McComases eventually transferred their daughter to another school.

During the next school year, Lawrence County Sheriff’s deputies arrested McComas for domestic violence, a matter unrelated to the school incident. According to deposition testimony, Evans indicated to Lambert the district might file an Ohio Department of Education report regarding this incident and provided him with relevant documentation. An outside consultant advised Evans and Lambert to report the incident; the consultant filled out the report himself, and Lambert signed it. A court ultimately acquitted McComas of the domestic violence charge and the ODE took no disciplinary action against her.

In her lawsuit, McComas alleged Evans and the school board had violated her right to free speech by suspending her. She argued what she said during the meeting and in her letter to Evans and the board were protected by the U.S. Constitution, as was her questionnaire. But the appeals court disagreed.

“Neither her speech nor her written statement constitutes constitutionally protected conduct,” the appeals court ruled. “The meeting served as McComas’s suspension hearing, and the speech she delivered concerned her discipline by her employer—a matter of private, not public, concern.”

Also, the court ruled, “McComas asserts that her preparation of the questionnaire constitutes protected activity under both the Free Speech and Petition Clauses of the First Amendment. With respect to McComas’s attempt to ground her argument in her right to free speech, we find that she fails to establish that the questionnaire touched on a matter of public concern.”

As for her claim of retaliation, “We agree with McComas that this evidence supports her argument that a genuine issue of material fact exists regarding whether Evans’s motivation included McComas’s March 2007 letter or address to the Board, both of which the defendants concede constitute protected conduct.”

But the appeals court disagreed that allowing the other girl to participate in field commander tryouts and come back on school grounds amounted to retaliation.

The court also dismissed any claims against the school board and rejected her daughter’s claims that her rights were violated in any way.

McComas remains employed as a teacher in the district.

Winters said he has advised Evans to refer all media inquiries to him.