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Teacher cannot claim associational bias

Federal judge declines to extend state ruling

A year after a U.S. District Court judge ruled that a law firm associate could not pursue an associational discrimination claim against his employer, a second member of the federal bench has reached the same conclusion in a suit brought by a special education coordinator against New Bedford Vocational Technical School in Massachusetts.

The special ed coordinator, who claimed she was fired in retaliation for working and advocating on behalf of disabled students, argued that the Massachusetts Supreme Judicial Court’s Flagg v. AliMed decision, issued this year, holds that associational bias against handicapped individuals is prohibited under G.L.c. 151B, §4(16).

But Judge F. Dennis Saylor IV, citing the summary judgment decision issued last year by his colleague Nathaniel M. Gorton in Ayanna v. Dechert, disagreed, finding that a ruling in the plaintiff’s favor would extend the scope of state discrimination laws too far.

“[A]ny person working with any handicapped person in any capacity would have a potential §4(16) claim,” Saylor wrote. “Employers might well find it difficult to terminate individuals over legitimate disagreements about policy toward the handicapped. If such a sweeping change is desirable — which is certainly open to debate — it should come from the legislature, not the courts.”

The 12-page decision is Perez v. Greater New Bedford Vocational Technical School District.

‘Simple as that’

Paul H. Merry, counsel to the plaintiff, said the Legislature expressly stated in Chapter 151B that its terms are meant to be construed broadly. The Boston lawyer said the SJC has recognized the right of plaintiffs who are not members of a protected class to bring claims if they can show they were victims of discrimination based on an affiliation with someone in a protected class.

Merry said five of the eight counts in his complaint were not dismissed and that he has the option of asking Saylor to reconsider his ruling at a later date.

“I’m hoping that when the appellate courts look at this, they’ll bear in mind the underlying purpose of the discrimination statute, which is to ensure people of all backgrounds, including disabled students and employees, have full opportunities to enjoy the benefits of full participation,” he said. “To achieve that goal, it strikes me that a broader, rather than a narrower, view of the associational discrimination theory is called for.”

Merry said his client, an outspoken advocate on behalf of her special needs students, drew resentment from school administrators and was fired as a result of her efforts to ensure the students were treated fairly.

“The broader idea that underlies the associational discrimination theory is that people should not be penalized because of relationships they have with someone in a protected class,” he said. “That was the approach that we were hoping to have recognized and, unfortunately, did not do so in the case.”

Matthew R. Tobin of Murphy, Lamere & Murphy in Braintree, Mass., who represented the defendant school district, said the SJC clearly held in Flagg that its holding was limited to cases involving direct family members. The MCAD has recognized associational discrimination claims but has similarly limited its scope to cases involving familial relationships, he said.

“What they haven’t wanted to do is create essentially a new cause of action for folks who do not have a disability or are perceived as having a disability,” Tobin said. “Allowing them to do so would open the door for a direct claim of discrimination, and I don’t think that’s a fair reading of Chapter 151B.”

John Pagliaro of the New England Legal Foundation filed an amicus brief in Flagg opposing the application of associational standing under Chapter 151B. His organization took the same position in another case before the Appeals Court in 2011.

“The argument we made was that if you look at the plain language of the statute and examined it 10 ways to Sunday, there is no way to conclude that the Legislature intended to include this associational standing concept,” he said. “Grammatically, to this day, having read the SJC’s decision in Flagg, I don’t see how you can construe the statute in such a way that the plaintiff can be a different person than the person with the disability.”

If the Legislature wanted people other than the disabled party to be able to bring a claim, it would have amended Chapter 151B, Pagliaro said.

“Maybe the statute could be improved, and we have no objections to it being improved, but the Legislature has to do it,” he said. “Look, I’m a reasonable person, and I can see where society might want to have this kind of an extension on standing, but if it doesn’t say it in the statute, it doesn’t say it. It’s as simple as that.”

Rebecca G. Pontikes, who represented the plaintiff associate in the suit brought against Dechert, said Pagliaro and Saylor are misreading Flagg. The SJC clearly stated that its ruling applied only to familial relationships because it had no reason to address any other alleged associations in that case, she said.

“It’s worth noting that Flagg cited two 6th Circuit rulings, which held that friendship or an association with co-workers can give rise to a claim,” she said. “I don’t think it’s accurate to read Flagg in a way that says non-familial relationships can never give to rise to an associational discrimination claim.”

Don’t come back

Plaintiff Deborah Perez was hired in 2008 by defendant Greater New Bedford Vocational Technical School District as director of special education.

Shortly after starting, she said, she discovered the school was not in compliance with state and federal laws concerning special needs students. She also claimed the school bought equipment for use by the general student body with money intended for disabled students.

In an effort to help her students, Perez recruited providers of services to the disabled community and obtained a $300,000 federal grant. She contended that she did so despite a lack of support from the school district.

According to her complaint, she received a negative performance evaluation for the 2008-2009 academic year, even though the concerns cited in her review had not been brought to her attention earlier in the year.

The district rehired her for the 2009-2010 academic year, but brought in an outside consultant to evaluate the special ed department. The consultant completed a review and concluded that the department was on the right track and that Perez had done an outstanding job.

In December 2009, the district asked Perez to amend a grant request that would allow the school to hire an information technology technician to assist school-wide computer needs, rather than ones with adaptive technology for disabled students.

Perez alleged that when she refused to modify her request, the district amended the grant application on its own and faulted Perez for being uncooperative.

In February 2010, the superintendent notified her that the school principal did not intend to renew her contract for the next school year. Three months later, the district told her it intended to dismiss her and placed her on administrative leave through the end of the school year.

Perez presented her objections to the superintendent, but he declined to reverse the decision. She alleged that she was replaced by an uncertified person who did not have the same record of achievement with regard to advocacy for students with special needs.

After first bringing a complaint before the MCAD, she filed suit in U.S. District Court.

Raising a red flag

In dismissing three of the plaintiff’s eight counts, Saylor said the SJC’s reasoning in Flagg did not cover the associational discrimination alleged by the plaintiff in Perez; rather, the SJC stated clearly that it was not examining more attenuated associations.

Saylor said Justice Margot G. Botsford, writing for the court in Flagg, noted that the SJC’s analysis was limited to claims involving immediate family members. The plaintiff in Flagg was married to a disabled woman.

In Perez, Saylor wrote, “Plaintiff alleges she was fired because she advocated for the interests of disabled children in her role as special-education coordinator. There are no allegations, however, that she was subject to the same prejudice, stereotypes, or unfounded fear that accompanies discrimination against the handicapped.”

Saylor said the plaintiff also had not alleged her association with any specific disabled child resulted in adverse employment action.

“Unlike the husband in Flagg,” he said, “there are no allegations that plaintiff was not rehired because she was regarded as having a mental or physical impairment by proxy.”

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