GAE Legal Wins
GAE Files Free Speech Retaliation Lawsuit
The Georgia Association of Educators (GAE) has filed a lawsuit in federal district court on behalf of GAE member Jeff Corkill against Gwinnett County Schools for violating Mr. Corkill’s rights of free speech and association.
During the summer of 2019, when school was out of session, Mr. Corkill participated in an organized protest of the detention and mistreatment of immigrants in the United States organized by a Jewish activist, and political group, Never Again Now. Mr. Corkill, along with other protesters, was arrested during the peaceful protest for disorderly conduct. Though the charges were dismissed, a photograph of him at the rally eventually made its way to Mr. Corkill’s high school principal. From that point forward, Mr. Corkill’s teacher evaluations went downhill in stark contrast to his exemplary record. In addition, his principal specifically referenced Mr. Corkill’s participation in the summer protests: “This conduct is contrary to our community school standards and jeopardizes the charter and reputation of our school, community, and profession. These actions are contrary to the expectations of professionalism…”
"The First Amendment does not exclude teachers, nor allows the evaluation process to be used to chill educators' civil rights. All public school employees have the right to protest and speak out on matters of public concern without fear of this kind of retaliation," said Mike McGonigle, GAE General Counsel/Legal Services Director.
GAE Joins “Controversial Issues” Lawsuit
A lawsuit was filed against Cobb County Schools on behalf of GAE, Katie Rinderle, and Tonya Grimmke, a current Cobb County educator. You may recall that Ms. Rinderle was fired in August 2023 for reading the book My Shadow is Purple, to her fifth-grade class. The complaint describes how the district’s policies on “controversial issues” have been used to unlawfully discipline educators for mentioning LGBTQ+ and gender-nonconforming people and their experiences in the classroom. The lawsuit seeks an injunction blocking the enforcement of the district’s censorship policies, as well as damages and additional relief for Rinderle, including her reinstatement. Click here to read the suit.
Federal Appeals Court Protects GAE Members from Retaliation for Recruiting Members
The 11th Circuit Court of Appeals wrote: “in the context of advocacy by members of the Georgia Association of Educators…that the First Amendment protects the right of public employees to associate, speak, and petition freely ... and the Government may not retaliate against individuals or associations for their exercise of First Amendment rights by imposing sanctions for the expression of particular views it opposes." Dora Elizabeth “Liz” Cook v. Gwinnett Schools 414 F.3d 1313 (11th Circuit 2005).
Federal District Court Protects APS Employee From Job Retaliation For Advocating On Behalf Of Members
Ms. Linda W. Smith, past president of the Atlanta Association of Educators, had appeared before the Atlanta Board of Education many times advocating about education issues of public concern. The Court’s ruling says that Ms. Smith showed sufficient disputed facts of retaliation and that she was denied the right to rescind her resignation to go to a jury trial. The Court’s decision makes it clear that employees who are association officers and GAE members will be protected against job retaliation. Linda Wolfe Smith v. The Atlanta Independent School District Civil Action No. 1:06-CV-1032-JOF.
GAE Wins Liquidated Damages
DeKalb Schools agreed to pay $160,000 to a court-administered account to reimburse each educator that had $750 deducted from their final paycheck in 2014 as “liquidated damages.” The district agreed to a moratorium on liquidated damages in their teacher contracts for the 2017-2018 school year. The district also agreed to reimburse $50,000 in attorney fees expended by GAE on behalf of association members Ms. Chayka Bettis and Ms. Leslie Hein.
GAE Member Reported Possible Child Abuse, Protected From Retalliation
of her severely disabled non-verbal and medically fragile students to her principal at Valdosta High School. Rasheeda Swain was an outstanding teacher with a perfect record of performance until she reported suspected child abuse. Ms. Swain had not acquired “tenure” with the school district, so the district non-renewed her employment, hoping she would go away quietly. Then Ms. Swain called GAE legal services for assistance. We’re glad she did. When pre-litigation attempts to negotiate a settlement didn’t get anywhere, we filed a lawsuit in federal court. After the discovery phase was completed, the parties went into mediation. The terms of the settlement are enormous: the school district agreed to pay an amount that compensates Ms. Swain; GAE received back all attorney fees/costs it expended in the case: $60,122.15. The district agreed to verify Ms. Swain’s employment for the 2011-2012 school year so she will not lose a year of pay in her new school district. Significantly for educator rights, the Order of Dismissal by Judge Hugh Lawson vacates Ms. Swain’s non-renewal and purging of her personnel record. Legal requirements to vacate a previous legal action are set very high and are granted in exceptional cases. We believe it’s unprecedented in Georgia for a judge to enter an Order vacating a non-renewal.
Child Abuse Retaliation – Who You Gonna Call?!
Ms. ShaDawn Powell began teaching special needs at Mason Elementary, Valdosta City Schools in 2009-2010 with all satisfactory evaluations. In October 2011, she reported what she believed to be possible child neglect (private areas unclean and bleeding, insect bites, fleas). In response, the principal directed Ms. Powell to stop making reports of suspected child abuse or neglect to the school counselor and report all cases directly to him. On January 12, 2012, Ms. Powell made another report of child neglect to the school nurse (a student with fleas in her hair and emitting strong animal smells; and another child with a protruding abdomen, yellowish-brown coloration of the skin, and watery stools). In February 2012, Ms. Powell received five more needs improvements. Ms. Powell continued to make reports of suspected child neglect over the next month. In March 2012, Ms. Powell was recommended for non-renewal. Although Ms. Powell did not have “tenure” due process rights under Georgia’s Fair Dismissal Act, she contacted GAE legal services. We’re glad she did. A federal Court denied the school district’s motion for summary judgment and found there are issues of fact for a jury to decide if the school district retaliated against Ms. Powell for reporting suspected child neglect. This is a significant example of GAE standing behind its members that comply with mandatory child abuse reporting laws and who advocate on behalf of special needs children. ShaDawn Powell v. Valdosta City Schools (Civil Action No.: 7-13-CV-53)
RIF Victory in DeKalb County After Lawsuit Filed Against Superintendent
As a "tenured" Georgia educator was recommended for non-renewal for the 2012-2013 school year due to a reduction in force. The GAE member and graduation coach had due process protections under the Fair Dismissal Act O.C.G.A. § 20-2-940, which provided her with the opportunity to be heard and to present evidence in a non-renewal hearing in front of a tribunal. In preparation for the defense, GAE’s network attorney requested school district records under the Georgia Open Records Act, including text messages contained in the Superintendent’s DeKalb County School District-issued cellular phone.
After waiting 50 days for the Superintendent’s text messages, a lawsuit was filed in December 2012 for violations of the Open Records Act. The lawsuit caused the school board to hire two well-known attorneys: Mike Bowers, the former Georgia attorney general, and Robert Wilson, the former DeKalb district attorney. The duo was also instrumental in producing a 2011 report for the governor’s office that accused Atlanta Public Schools of widespread test cheating. In January 2013, the member was rehired. An important lesson for educators with due process even in reduction in force cases: don’t resign!
GAE Member Wins Two Legal Cases
“I can't say enough about how grateful I am to GAE legal services for providing me representation during one of the most difficult times in my life. In 2023, I was placed on administrative leave for an incident that had nothing to do with my job.”
GAE member Philania Patton Dumas was attacked at her home on a weeknight by a troubled family member. Four adult witnesses would testify that Ms. Dumas was not the aggressor and acted solely in her self-defense. However, Fayette County law enforcement wrongfully arrested Ms. Dumas for an alleged felony violation under the Family Violence Act. Ms. Dumas retained a private criminal defense attorney to handle the mess. Even though the situation deeply traumatized her, Ms. Dumas immediately reported the arrest to the school administration under school district policy. And out of an abundance of caution, Ms. Dumas reported the arrest to the Professional Standards Commission. At that juncture, DeKalb Schools sent Ms. Dumas home on paid leave pending an “investigation.” An ethical, exemplary educator with twenty-five years of experience, including seven years of excellent service to the school district, the district returned the favor by recommending the termination of Ms. Dumas’ employment. That is when GAE’s network attorney stepped in and persuaded the district to reverse its rash decision to terminate Ms. Dumas’ employment. GAE’s attorney argued that the arrest was a private family matter that had nothing to do with her role as a professional educator. Relatedly, Ms. Dumas' criminal defense attorney convinced the Fayette County district attorney to drop all charges. With the charges dropped, the school district returned Ms. Dumas to work. Finally, the PSC determined there was no probable cause that Ms. Dumas violated the code of ethics.
“GAE will have your back should you ever need them. I've tried MACE & PAGE, and neither was worth the money. I'd recommend GAE to every educator in Georgia because it's worth every penny!”
PSC Win as Claims Against Member Proven False
The Commission alleged that GAE and Glynn County member Alicia Andrews physically abused and behaved unprofessionally with students. After a hearing before an Administrative Law Judge, the court found Ms. Andrews was a “compassionate educator who cared for her students. The overwhelming weight of the evidence demonstrated that [Ms. Andrews] was a beloved and respected educator.”
Accordingly, all of the charges were dismissed. “I am so thankful that GAE heard my cry for help because, during this dark stage in my life, no one was listening. No one heard my voice but GAE legal services and my awesome GAE network attorney.”
Click here https://online.flippingbook.com/ view/860648829/ to read the decision.
Chemistry Teacher Not Liable For Student Injuries
The Georgia Court of Appeals ruled that a DeKalb chemistry teacher was not personally liable for a student’s severe burns to his face, neck, arms, and back. The student sued, seeking compensation for his injuries. The Appeals Court ruled the teacher was immune from personal liability for discretionary actions taken within the scope of her official duties, and done without willfulness, or malice. Blowe v. Roberts A23A1470, A23A1471 (March 7, 2024). Click to read the decision. Learn more about public schools and immunity https://tinyurl.com/2u4cjkae.
PSC Win!
The Commission alleged that GAE and Glynn County member Alicia Andrews (pictured above) physically abused and behaved unprofessionally with students. After a hearing before an Administrative Law Judge, the court found Ms. Andrews was a “compassionate educator who cared for her students. The overwhelming weight of the evidence demonstrated that [Ms. Andrews] was a beloved and respected educator.” Accordingly, all of the charges were dismissed. “I am so thankful that GAE heard my cry for help because, during this dark stage in my life, no one was listening. No one heard my voice but GAE legal services and my awesome GAE network attorney.”
Click here https://online.flippingbook.com/view/860648829/ to read the decision.
GAE Wins State Board Reversal For Muscogee County Member Jamal Harris
GAE beat nearly insurmountable odds by convincing the State Board of Education that Muscogee County Schools did not have any evidence to impose a one-day suspension and a letter of reprimand. Under Georgia’s strict standard of appellate review, the State Board must affirm the local decision if there is “any evidence” to support the school district’s decision. To understand just how harsh the “any evidence” rule is, consider that the school district could lose nine out of ten charges; the State Board would be required to affirm the local board’s decision based on at least some evidence of the remaining charge. Congratulations to GAE network attorney Julie Oinonen. You can read the decision at https://gae.org/sites/gae/files/2023-07/harris-reversal.pdf.
Charlton County Racial Discrimination Case
As reported in the Spring 2023 issue of the KNOW magazine, Chief Judge Dwayne H. Gillis found Charlton County Schools in willful contempt of the Court’s Order and awarded GAE $11,935.00 for the school system’s bad faith actions causing unnecessary trouble and expenses—Dr. Sherilonda Green v. Charlton County School District, case number 2022-SU-CV-01112.
However, Charlton County Schools continues to withhold evidence in an effort to cover up their systemic race discrimination and blatantly discriminatory hiring practices against Dr. Sherilonda Green. On June 28, 2023, GAE’s network attorney filed a motion for Charlton County’s Electronically Stored Information (ESI) expert to provide the cell phones of school officials as he was directed to do initially in February 2022! You can read the Motion at https://gae.org/sites/gae/files/2023-07/green-vs.-charlton-cnty.pdf.
Fair Dismissal Act Litigation
Rebecca Barnes, GAE v. Bobby Bearden, Richard Woods, et al. This case was initially filed in 2018 on behalf of GAE member Rebecca Barnes against Fannin County Schools and the State School Superintendent. Although Ms. Barnes worked as a classroom teacher for eighteen years, the school district claimed it “waived” her Fair Dismissal due process rights when the district converted to a charter school system. The district terminated Ms. Barnes without affording her due process notice and a hearing before the local board of education. You can read the complaint at https://gae.org/sites/gae/files/2023-07/barnes-codmplaint.pf.
With assistance from the NEA Office of General Counsel, we have succeeded at challenging Fannin County’s authority to “waive” vested tenure rights. The case is currently on appeal to the Georgia Supreme Court after Fulton County Superior Court Judge Belinda Edwards ruled in GAE’s favor holding that retroactive elimination of tenure rights for educators whose rights had vested before the charter conversion violated the Georgia Constitution. Judge Edwards held that “There is no question that in 2015 [the school district] sought to waive the FDA rights of those who had earned them before its conversion into a charter school system…Consequently, [GAE] has shown that the waiver provision of the Charter Systems Act of 2007 has been applied retroactively.” Both the State of Georgia and Fannin County School District appealed the decision to the Georgia Supreme Court. A decision is expected in late 2023 or early 2024. You can read GAE’s appellate brief at https://gae.org/sites/gae/files/2023-07/barnes-supct-2023-brief.pdf.
GAE Challenges Divisive Concepts Law
GAE announces plans to file a federal lawsuit challenging House Bill 1084, Georgia’s classroom censorship law. Gov. Brian Kemp campaigned and delivered a promise to keep “woke politics” out of public schools by signing HB 1084, a/k/a the Protect Students First Act, the notoriously vague “divisive concepts” law, in Forsyth County, the notoriously racist “sundown town” past https://shorturl.at/huDMN.
The law prohibits teaching nine so-called “divisive concepts” involving perceived criticisms of the United States’ history with racism. Teachers, students, and advocates argue that the law censors Georgia educators and limits the ability of students to receive a complete and accurate education. You can read more about the law here https://online.flippingbook. com/view/453199931/.
“Efforts to expand our multicultural democracy through public education are being met with frantic efforts in Georgia to censor educators, ban books, and desperate measures to suppress teaching the truth about slavery and systemic racism,” said GAE General Counsel Mike McGonigle. “GAE is Georgia’s oldest professional educator organization. Its founders were formerly enslaved people who established the Georgia Teachers and Educators Association between 1876-1878. After Black Americans fought their way to liberation, they built schools and taught Black schoolchildren how to read and write, something they knew would expand their freedom. The ‘divisive concepts’ law attempts to erase this history and their voices.”
Judge Finds Charlton County School System Guilty Of Willful Contempt, Awards GAE Attorney Fees
The saga for racial reconciliation and justice continues in south Georgia. GAE member Dr. Sherilonda Green is an accomplished African American educator who has devoted her entire life and most of her professional career to Charlton County Schools. Yet, she has been subjected to racism and discrimination. Charlton County Schools has never had an African American female Principal or African American Superintendent in over 100 years of its existence. When she applied for the superintendent’s position and did not receive an interview, she knew something was wrong. Dr. Green contacted GAE legal services, and we’re glad she did! On February 1, 2021, GAE filed suit under the racial discrimination surrounding the hiring of the superintendent. When the district failed to comply and hid its long history of subjecting Black educators, like Dr. Green, to unlawful discrimination, GAE filed another action.
When asked during a court hearing if he thought the absence of a Black principal in 136 years was appropriate, the school board chairman replied, “I think it’s just the fact that that’s the way it is,” adding he wasn’t sure if it was appropriate or not. The chairman also didn’t think it was problematic that the district had not hired a Black principal in 136 years. If that’s the case, one might well ask, how did we get here?
Federal Court Sanctions School Board, Awards GAE a Whopping $25,137.25!
On November 16, 2022, Senior Federal District Court Judge Hugh Lawson ordered the Brooks County School District to pay $18,710.00 in attorney’s fees and $6,472.25 in costs associated with filing a motion for sanctions. Judge Lawson entered an Order finding that “Defense counsel has without question unreasonably complicated discovery in this case without justification. Although Plaintiff was able to cure some of the roadblocks created by Defense counsel, the additional time and energy spent filing and arguing this motion and the delay of litigation caused by Defense counsel.” In November 2020, GAE filed a lawsuit on behalf of GAE member Kristy Hilton alleging discrimination based on her pregnancy and her need for frequent medical leave.
During a routine deposition of the school system’s human resources director, Defense counsel directed his client not to answer questions relevant to the lawsuit and engaged in other conduct that cumulatively impeded the fair examination of the human resources director. The Court found that the
school board’s lawyer was intentionally obstreperous based on improper interjections and instructions to the witness, his failure to provide discoverable information, and his failure to adequately prepare the human resources director for her deposition. Members such as Ms. Hilton do not pay extra dues or out-of-pocket expenses. These are included as a
benefit of membership. The fees and costs awarded in this case are reimbursed to GAE and placed into the member defense fund to assist other members.
GAE Files Breach of Settlement Agreement Lawsuit
Before getting to the breach of settlement lawsuit, let’s review how we got to this point. Fifty-nine year-old Dr. Lana Foster grew up as a young black girl in a segregated school system in Echols County and would later serve over thirty-four years working as one of the sole Black educators within the system. Unfortunately, despite intervention by the
U.S. Department of Justice’s Office of Civil Rights to compel desegregation and nondiscriminatory hiring practices by the Echols County School District, in 2018, Dr. Foster remained the only Black-certified teacher in the School District. She filed a complaint detailing historical and continuing racial discrimination that led to the nonrenewal of her contract, culminating when the school system filed a charge against her teaching certificate with the Professional Standards Commission. See Foster v. Echols County School District, et al., U.S. District Court for the Middle District of Georgia, Civil Action No. 7:20-CV-00087.
That history included the time Dr. Foster’s husband ran for election to the Echols County Board of Education when she and her husband received a death threat with a makeshift grave built for them with a headstone stating: “Here lies the bodies of James and Lana Foster” topped with a watermelon and a black face. In November 2020, GAE and the EEOC settled Dr. Foster’s race discrimination lawsuit. A critical component of the settlement required Echols County Schools to implement a policy to address its racially discriminatory hiring practices by recruiting and hiring African American educators. However, Echols County Schools has yet to do anything to meet its legal obligations.
On December 8, 2022, GAE filed suit in the federal district court, Valdosta Division, alleging a breach of the settlement agreement. There are three Counts:
1. Beach of Settlement Agreement
2. Violation of the Civil Rights Act of 1866
• All persons born in the United States were entitled to be citizens without regard to race, color, or previous condition of slavery or involuntary servitude.
• As citizens, they have the right to enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property.
3. Breach of Good Faith and Fair Dealing
On December 22, 2022, GAE’s network attorney sent a formal request to the US Justice Department to intervene in the lawsuit to seek enforcement of the EEOC settlement agreement.
Non-Conforming Contract Offer Has Big Implications
The Georgia Court of Appeals agreed with GAE’s interpretation of statutory mandates that govern educator contracts.
The ruling potentially upends decades of standard policy and practice regarding how school districts offer employment contracts to the state’s educators—John Tibbetts v. Worth County Schools, A22A1542 (March 14, 2023). When Worth County Schools told GAE member John Tibbetts that he did not have a contract for the 2019-2020 school year, he called GAE legal services. We’re glad he did! GAE prevailed in this case, and the Court’s analysis of educator contracts will impact school districts’ business as usual when contracts are offered to educators. The Court dug deep into the nuts and bolts of the law governing educator contracts, with insightful analysis of how contracts are offered, what is offered, and when school districts offer employment for the next school year. Specifically, the Court made several major findings:
1) The contract offer did not conform to the statutory mandates that (a) the contract “shall not contain blanks” and (b) it must state the “amount of compensation for the ensuing school year.” However, the contract as offered to Mr. Tibbetts contained a blank where the social security number was supposed to be. In addition, the “amount of compensation” referred to the current year’s salary schedule in contrast to the salary schedule for the “ensuing school year” as required by statute §20-2-211(b). Therefore,the Court found the offer was “non-conforming.” That is tantamount to declaring the offer null and void.
2) Because the contract offer was nonconforming (as if an offer was never made), the Court reasoned that the school district was then required, according to the statute, to provide Mr. Tibbetts with a written notice of non-renewal before the May 15 deadline which
they had not done. Because the required notice of nonrenewal was not provided by May 15, the contract was automatically renewed by operation of law. §20-2-211(b).
The Court rejected the school district’s argument that because Mr. Tibbetts did not accept the offer within the time frame prescribed by the district, he did not have a contract for the next school year. To the contrary, due to the nonconforming offer of employment, the school district was required to provide Mr. Tibbetts a written notice of nonrenewal by May 15, which it failed to do. There are several important takeaways from the case.
First, due to teacher shortages, school districts tender educator contracts earlier and earlier, seeking to lock in their personnel needs for the next school year. This makes things difficult for employees seeking career advancement opportunities. There are better ways to address teacher shortages and retain your teachers, such as higher pay and abolishing harmful waivers. Second, contracts are offered (e.g., February) well before the local board of education has adopted next year’s salary schedule on a take-it or leave-it basis,
no less. The Court’s decision places school districts in a difficult bind: how will an offer for next school year conform to the statute when the board has not voted to adopt next year’s salary schedule.
The case is under appeal to the Georgia Supreme Court, so stay tuned.
