Peter Koehn v. Lauri Tobias

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2015 *
Decided February 18, 2015
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-3039
PETER KOEHN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Western Division.
v.
No. 12 cv 50321
LAURI TOBIAS, et al.,
Defendants-Appellees. Philip G. Reinhard,
Judge.
ORDER
Peter Koehn was fired from his tenured position as a school psychologist for
Harvard Community Unit School District 50 in Harvard, Illinois. Koehn’s discharge
came soon after he criticized curriculum changes for students receiving
special-education services, but the Office of Civil Rights for the United States
Department of Education was unable to substantiate Koehn’s claim of retaliation. He
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See Fed. R. App. P.
34(a)(2).
No. 14-3039 Page 2
sued the members of the District 50 school board, the district’s superintendent, and a
school principal under 42 U.S.C. § 1983, claiming that he was discharged without
procedural due process and in retaliation for engaging in protected speech. The district
court granted summary judgment for the District 50 defendants, and Koehn appeals.
(Koehn also sued an employee of the Illinois State Board of Education, but she prevailed
on a motion to dismiss and is not party to this appeal.) Although we uphold the adverse
ruling on Koehn’s claim that his discharge violated the Due Process Clause of the
Fourteenth Amendment, we conclude that a jury reasonably could find from the
evidence of record that Koehn was fired on account of his speech. And since the
defendants have not pursued, for purposes of this appeal, their contention that Koehn’s
speech was not protected by the First Amendment, we vacate the grant of summary
judgment on the retaliation claim and remand for further proceedings.
Because this appeal arises from a dismissal at summary judgment, we review the
evidence in the light most favorable to Koehn, the non-moving party. See Taylor-Novotny
v. Health Alliance Med. Plans, Inc., 772 F.3d 478, 488 (7th Cir. 2014). For the most part the
facts are not in dispute.
District 50 hired Koehn in July 2005. At the time, the school district served more
than 2,000 students attending its high school, junior high, and elementary schools.
Koehn initially served students at the junior high, but by December 2007 his duties had
broadened to include students at all levels. He regularly evaluated students receiving
special education services, and his written job description provided that he would report
to the “District Special Education Coordinator.” The defendants have not identified
anyone who held that title, though defendant Lauri Tobias was the coordinator at one of
the elementary schools until June 2006, two years before she became the District 50
superintendent. The defendants also admitted, in answering Koehn’s complaint, that
Tobias was both superintendent and “Special Education Director” for the school district.
Tenured staff at District 50 were to be evaluated biennially, but Koehn received
only one evaluation, in April 2008. That evaluation was signed by the former principals
of the junior high and one of District 50’s elementary schools. Neither principal is a
defendant, and as far as this record shows, neither principal was designated as Koehn’s
supervisor or was serving as District Special Education Coordinator. The evaluation was
unfavorable and criticized Koehn’s performance during the 2007–2008 school year on
several grounds, including that diagnostic evaluations required for student
Individualized Education Programs were late or inadequate, that he was not following
No. 14-3039 Page 3
his assigned schedule, and that some of his comments to and about staff had been
inappropriate. Nothing was said in that evaluation about the 2006–2007 school year.
Koehn was not evaluated again in April 2010, when a review should have been
scheduled. (At summary judgment the defendants did not offer an explanation, though
defendant Margaret Segersten, the principal at the junior high since July 2009, told an
investigator from the Office of Civil Rights that the 2010 evaluation “fell through the
cracks.”) In July 2010 the school district renewed Koehn’s contract for the 2010–2011
school year, apparently without qualification. That September, after the start of classes,
Koehn discovered that Principal Segersten had ordered cuts in individualized
instruction for some special education students at the junior high. Around September 10,
Segersten called Koehn to a meeting to discuss those cuts. Koehn voiced concern that
Segersten had violated federal and state law by reducing the amount of individualized
instruction. Koehn thought those cuts had been made without adequately involving
parents and the team of professionals responsible for developing Individualized
Education Programs.
Four weeks later, on October 7, Principal Segersten wrote Koehn directing him to
attend an “investigatory meeting” on October 12 to discuss “job performance” and
“conduct” deficiencies. In her letter Segersten accused Koehn of not providing and
documenting special education services. She also accused him of disregarding District 50
policies concerning attendance and Internet usage. Her letter warned that he could face
discipline, including discharge. Koehn replied by e-mail that he would not attend
without his choice of representative. Koehn asserted in his e-mail that Segersten was
trying to bully him into accepting her decisions without exercising independent
professional judgment, and he called the timing of her letter—“about the day after” he
and some parents had discussed the junior high’s “lack of interventions” in math and
reading—an “interesting coincidence.”
Koehn did not attend the October 12 meeting. Two days later Principal Segersten
wrote again rescheduling the session and warning that Koehn could not “dictate” terms
or “set conditions.” Koehn replied on October 15 with a sharply worded e-mail
demanding documentation that Segersten was authorized to discipline, or even
supervise, him. Segersten did not answer this demand. At summary judgment the
defendants did not dispute Koehn’s assertion, citing his job description, that
Superintendent Tobias, not Segersten, would have been his direct supervisor at this time
(a role she would have assumed after becoming superintendent more than two years
before). Nor did the defendants submit any evidence that Segersten’s position as
No. 14-3039 Page 4
principal of the junior high imparted authority to convene an “investigatory meeting”
about Koehn’s performance as a psychologist with district-wide responsibilities.
After receiving Principal Segersten’s second letter, Koehn shared his concerns
about cutting individualized instruction with a “Principal Education Consultant”
employed by the Illinois State Board of Education. Koehn copied Superintendent Tobias
on this communication. Tobias had received a copy of Segersten’s first letter
commanding Koehn to attend an “investigatory meeting,” but at summary judgment the
defendants did not introduce evidence that Tobias knew about or approved in advance
Segersten’s plan for this meeting. On October 18 the superintendent directed Koehn to
meet with Segersten and said his e-mails to Segersten had been vitriolic and
unprofessional.
That meeting occurred on October 20, and Superintendent Tobias also attended.
Eight days later Tobias notified Koehn that she had investigated the reductions in
individualized instruction at the junior high but found no impropriety. Days later, on
November 2, Principal Segersten recommended that the school board issue Koehn a
notice of remedial warning for “unprofessional and insubordinate conduct.” Segersten’s
recommendation prompted Koehn to send an e-mail on November 3 to every District 50
board member and employee accusing her of trying to “besmirch” his professional
reputation and retaliating because he had shared with the Illinois State Board of
Education his “serious allegations about her conduct as it relates to special education
rights of many students and their parents.” The school board approved Segersten’s
recommendation. Koehn was warned to communicate with administrators and staff in a
“professional, respectful and appropriate manner,” to report his absences promptly, and
to modify the way he completed written evaluations of students in special education.
Koehn did not relent about Principal Segersten’s revisions to special education
programming at the junior high, and during November and December 2010 he
continued rallying support to reverse those changes. In mid-November he spoke out at a
meeting attended not only by District 50 special education staff but also the Principal
Education Consultant he had contacted at the Illinois State Board of Education in
October. At work Koehn also reviewed confidential student files and wrote letters and
e-mails to Segersten and the school board.
Later that month Segersten accused Koehn of not properly reporting his absences
and told him not to use work resources to further his effort at overturning her changes.
Then a week later, on December 7, Superintendent Tobias instructed Koehn to attend a
No. 14-3039 Page 5
second investigatory meeting with her and Segersten. That meeting was rescheduled 13
times because, by the defendants’ admission, Koehn was ill and missed almost three
weeks of school. The meeting eventually occurred on January 18, 2011.
Six days later Superintendent Tobias recommended that the school board fire
Koehn. As reasons she cited concerns about Koehn’s observations and written
psychological reports for three special education students and his access of confidential
records for five other special education students. Tobias further asserted that Koehn had
engaged in “inappropriate communications,” including asking questions “designed to
attack Ms. Segersten’s decisions” when the Principal Education Consultant from the
state met with District 50 special education staff in November 2010. Tobias also singled
out an e-mail that Koehn had sent District 50 board members alerting them—in Tobias’s
words—“to a case law update about school officials who disregard constitutional
rights.” Finally, Tobias accused Koehn of failing to appear numerous times for the
meeting ultimately held on January 18, as well as twice using the wrong procedure in
November 2010 to call in sick. Koehn was invited to appear before the board and to
address those charges in a closed session. He declined, thinking that any defense would
be futile. On January 31 the board met and voted to discharge Koehn, giving the same
reasons underlying Tobias’s recommendation. Koehn filed but then withdrew an
administrative appeal.
In granting summary judgment for Superintendent Tobias, Principal Segersten,
and the members of the school board, the district court first concluded that Koehn’s own
actions disproved his claim that he was denied procedural due process in connection
with the loss of his job. The court reasoned that Koehn had been invited to defend
himself at a meeting of the District 50 school board but chose not to do so. On the
First Amendment claim, the district court agreed with Koehn that a jury could find at
least some protected speech on this record, particularly in light of his effort to involve an
employee of the Illinois State Board of Education, who was outside his chain of
command. On this subject the court rejected the defendants’ argument that Koehn had
spoken only as a school psychologist discharging his official duties and never as a
private citizen. But, the court continued, Koehn did not provide enough evidence for a
jury to reasonably conclude that his speech motivated the defendants to fire him. And,
the court added, the defendants provided convincing evidence that they would have
terminated Koehn’s employment for reasons separate from his protected speech.
On appeal Koehn first argues that the district court improperly dismissed his
First Amendment retaliation claim. To avoid summary judgment on his claim for
No. 14-3039 Page 6
retaliation, Koehn had to offer evidence that he suffered a deprivation because of
constitutionally protected speech. See Diadenko v. Folino, 741 F.3d 751, 755 (7th Cir. 2013).
Advocating for special education students was a principal part of Koehn’s job, so the
district court was faced with deciding if Koehn’s evidence would permit finding that he
spoke out, at least in some instances, as a private citizen about a matter of public
concern. See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006) (holding that “when public
employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline”); Davis v. Cook County, 534 F.3d
650, 653 (7th Cir. 2008) (same). The court answered that question affirmatively, and the
defendants, by leaving this conclusion unchallenged on appeal, have abandoned for
purposes of this appeal their contention that Koehn did not engage in protected speech.
See Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d 169, 174 (7th Cir. 1996) (“An
appellee is not required to advance every possible ground for affirmance; and should the
case be remanded it can advance the additional grounds in the district court, provided
they have not been waived in that court.”). Thus our focus here is causation.
Koehn’s initial burden was to offer evidence that his protected activity motivated
the defendants’ decision to fire him. See Diadenko, 741 F.3d at 756. He argues that he
presented a “convincing mosaic” of circumstantial evidence sufficient to satisfy this
burden. See Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 637, 643 (7th Cir. 2013); Pagel v.
TIN Inc., 695 F.3d 622, 631 (7th Cir. 2012). We agree.
Considering the evidence as a whole and drawing all reasonable inferences in
Koehn’s favor, see Hobgood, 731 F.3d at 644, 647, a jury could find that
Superintendent Tobias and Principal Segersten were content to let Koehn’s alleged
deficiencies “fall through the cracks” until he began speaking up about the propriety of
Segersten’s changes to the special education program. No one from District 50
disciplined Koehn or even formally evaluated his performance from April 2008 until
soon after his first allegations of illegality in September 2010. See Diadenko, 741 F.3d at
756 (explaining that adverse actions that “follow ‘close on the heels’ of protected speech
can give rise to an inference of retaliation”); Johnson v. City of Fort Wayne, 91 F.3d 922, 939
(7th Cir. 1996) (concluding that inference of retaliation arose when adverse action
occurred two weeks after protected activity); Shirley v. Chrysler First, Inc., 970 F.2d 39, 43
(5th Cir. 1992) (describing as “surprising” that problems with plaintiff’s performance
“suddenly” surfaced after protected activity).
No. 14-3039 Page 7
Moreover, a jury might reasonably be skeptical about Superintendent Tobias’s
reasons for wanting Koehn fired. See Hobgood, 731 F.3d at 643–44 (explaining that
evidence of pretext can be circumstantial evidence of retaliatory motive). For one thing,
Tobias’s recommendation to the school board only thinly veils her displeasure with
Koehn’s meddling. Chief among her accusations is that Koehn asked “inappropriate”
questions “designed to attack” Principal Segersten’s program cuts during a meeting
with District 50 special education staff and an interested official from the state education
board—a gathering of professionals where the topic of those cuts surely was relevant.
Tobias also insisted that Koehn had no “legitimate educational interest” in reviewing
records of certain special education students, but that accusation is never explained.
What Tobias apparently suspected, and what Koehn appears to concede, is that he
examined some student files while trying to build a case that Segersten’s changes were
detrimental to the affected students. The defendants did not dispute that Koehn’s
position as school psychologist required him to serve these students like all others, and it
seems an odd accusation to call his inquiry illegitimate simply because it might
undermine Segersten’s unilateral changes. Other reasons given by Tobias also ring
hollow. She asserted that Koehn had not offered a “reasonable excuse” justifying
multiple postponements of the “investigatory meeting” held on January 18, 2011, yet the
defendants concede that Koehn was unavailable because of an extended “illness” (which
they deride as “just stress”). Similarly, Tobias cited Koehn for twice using e-mail instead
of a computerized attendance program to report absences from work. And some of her
criticisms of Koehn’s report writing (e.g., not using a child’s “legal” name in the heading,
placing “background information” at the beginning of the report, and not defining
acronyms) seem trivial, especially since Koehn presented evidence that
Principal Segersten had refused his requests for examples of properly completed
psychological reports.
In many cases, evidence that would permit a jury reasonably to find that protected
speech motivated adverse action would not, as Koehn asserts, end the inquiry at
summary judgment. A defendant might introduce evidence of non-pretextual reasons
that would have led to the same adverse action even if the plaintiff had not engaged in
protected speech. See Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 285–87 (1977);
Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012); Diadenko, 741 F.3d at 756. But the
plaintiff must then be given an opportunity to present evidence that the proffered
reasons for the adverse action were pretextual and that the real reason was retaliatory
animus. See Thayer, 705 F.3d at 252. Here Koehn did not need further evidence that the
defendants’ stated reasons for firing him actually were cover for a retaliatory motive.
See Valentino v. Village of South Chicago Heights, 575 F.3d 664, 673 (7th Cir. 2009). The
No. 14-3039 Page 8
timing of District 50’s sudden preoccupation with Koehn’s job performance, many
months after he was due to be evaluated, is “too convenient” to allow summary
judgment on his First Amendment retaliation claim. See id. at 673–74; see also Peele v.
Burch, 722 F.3d 956, 962 (7th Cir. 2013) (“Our role at this stage is to decide if there is a
factual dispute, not which side of the dispute is right.”).
On the other hand, Koehn is on much weaker footing in contesting summary
judgment for the defendants on his claim that he was fired in violation of his Fourteenth
Amendment right to procedural due process. He asserts that the members of the school
board demonstrated they were biased when they accepted Superintendent Tobias’s
recommendation for dismissal in the face of evidence that she and Principal Segersten
were retaliating against him and violating “special education rules.” The defendants
concede that Koehn, as a tenured employee, had a protected property interest in his
position. See Townsend v. Vallas, 256 F.3d 661, 673 (7th Cir. 2001); Gleason v. Board of Educ.
of City of Chicago, 792 F.2d 76, 79 (7th Cir. 1986). The question for us is whether the
undisputed evidence establishes that Koehn received a fair hearing conducted by an
impartial decision-maker. See Head v. Chicago Sch. Reform Bd. of Trs., 225 F.3d 794, 803–04
(7th Cir. 2000).
Adjudicators are presumed to act in an unbiased manner. Id. at 804. To overcome
this presumption, Koehn needed to provide “substantial evidence of actual or potential
bias,” such as evidence that the board members had prejudged his case, had a personal
animus against him, or had a pecuniary interest in the outcome of the proceedings. Id.;
Hostrop v. Bd. of Jr. Coll. Dist. No. 515, 523 F.2d 569, 575–76 (7th Cir. 1975). Koehn has
presented no evidence of this sort.
Koehn also contends, as he did in the district court, that before he was fired he
should have been given all of the materials reviewed by Superintendent Tobias in
concluding that the cuts to individualized instruction were made lawfully. According to
Koehn, these materials would have strengthened his position before the school board.
But Koehn misses the point: He passed over the opportunity to address the school board,
and his failure to take advantage of either the pre-deprivation or post-deprivation
procedures available to him forecloses his challenging those procedures as deficient.
See Leavell v. Illinois Dep't of Natural Resources, 600 F.3d 798, 806 (7th Cir. 2010); Hudson v.
City of Chicago, 374 F.3d 554, 563 (7th Cir. 2004).
We have considered and rejected Koehn’s remaining contentions. Accordingly, we
VACATE the grant of summary judgment on his First Amendment claim and REMAND
No. 14-3039 Page 9
for further proceedings on that claim. In all other respects we AFFIRM the district court’s
judgment.