We've seen it many times: the underlying discrimination claim is dismissed but the retaliation case growing out of the meritless claim is good enough for trial. The cover-up is worse than the crime.
The case is Ragusa v. Malverne Union Free School District, a summary order decided on June 21. Ragusa was a disabled math teacher, but she does not satisfy the Americans With Disabilities Act's strict definition of "disabled." While she underwent surgery to remove a benign brain tumor, a hearing aid allows her to hear properly. While she is unable to blink her left eye, causing her to suffer painful infections and requiring frequent eye-drops, she was able to use medication that eliminated the need for the eye drops. Her walking and speaking impairments are not deemed serious enough to qualify as ADA disabilities, either. She did not suffer the substantial limitation of a major life activity, a requirement under the statute, and so management was not required to honor her request for a reasonable accommodation. (Under the amended ADA, her hearing and vision problems may in fact qualify as protected disabilities despite the corrective measures, but this case is decided under the old ADA).
However, she presents enough evidence for trial on the retaliation claim. Ragusa was fired shortly after her lawyer contacted the school district about the alleged discrimination. But any inference of retaliation is rebutted by evidence that Ragusa's poor performance was documented 25 times in detailed classroom observations.
While the termination claim is dismissed for good, she can proceed on a different retaliation claim alleging that the school district jerked her around in subjecting her to more difficult employment conditions. After she requested an accommodation for her disability, the school rejected that request and instead placed her in a separate building across the street, requiring her to teach students outside her certification, including special education students who needed close supervision. In the context of Ragusa's right to ask for a reasonable accommodation, even if she did not have a protected ADA disability, "the added challenge of the sixth-grade assignment" was enough to dissuade a reasonable employee from asserting her rights. The dissuasion argument grows out of the Supreme Court's recent case holding that management's response to protected activity constitutes an "adverse employment action" if it would make employees think twice about that engaging in that activity in the future. See, Burlington Northern v. White, 548 U.S. 53 (2006).
In a different context, the classroom transfer might not qualify as an "adverse employment action." But in this retaliation case, the jury may find that it does. This is why retaliation cases often go to trial even if the plaintiff did not in fact engage in protected activity. So long as she asserted her rights in good faith, the employer cannot under the civil rights laws retaliate like this. So, while Ragusa's damages claim falls out of the picture, her less lucrative retaliation claim arising from the classroom assignment goes to trial. If she wins, she gets some damages, just not all of them. And, as they say, something is better than nothing.