Abstract
This article summarizes the facts and rulings of a recent representative federal appeals court decision concerning the legal claims of two school nurses who lost their positions after advocating on behalf of students with diabetes. Their primary claim was the anti-retaliation protection under the pair of federal laws prohibiting disability discrimination—Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. The second of the two nurses additionally asserted protection under this pair of laws based on her own asserted disabilities. The discussion reveals the sometimes significant difference between legal requirements, as determined by appellate courts, and professional norms, as perceived by practitioners and professors in school nursing.
School nurses provide holistic care considering physical, emotional, and social impacts on students’ health and learning. Other school personnel, including teachers and administrators, the medical community, and the parents are the primary spokes that converge at this pivotal hub. The professional actions or conditions of the school nurse occasionally, although not as often as administrators and special education personnel, end up in court. In such cases, the nurse may be a witness, a defendant, or in the case that follows, the “plaintiff,” meaning the party who initiates the lawsuit.
The primary focus of this particular case is Section 504 of the Rehabilitation Act and its fraternal twin, the Americans with Disabilities Act (ADA). Unusually, this case presents two distinct disability issues applicable to school nurses—advocacy for students with disabilities and accommodations for school nurses with disabilities. Because the first of these two Section 504/ADA issues concerns alleged retaliation, the ethical obligations of school nurses are at least implicitly at play. More specifically, these obligations include being “student advocates” and, more specifically, taking “appropriate action” in response to conduct that jeopardize the best interest of each student (NASN, 2016).
The facts reported here in chronological order are based on the published decisions of the federal district and appeals courts for the case. They represent the courts’ selection of what they regarded as necessary for their decision-making, although they do not answer questions that may well be of significance for the readers of Policy, Politics & Nursing Practice, reflecting the difference between legal and professional perspectives. Similarly, the summary of the courts’ decisions for the two issues in this case shows the courts’ focus and reliance on the express provisions and judicial precedents for these disability discrimination laws, as contrasted with the professional assessment of the underlying actions of these individual school nurses. Finally, because these “facts” are based on allegations in the lawsuit and sworn statements in the pretrial process, they only represent the courts’ determination of the outer boundaries for what the jury could reasonably determine if the case reached a trial.
The Case
In 2016–17, school nurse one (SN1) and school nurse 2 (SN2) were school nurses in a relatively small rural school district in Kentucky. SN1 was full-time, with responsibilities that extended to being the district's health services coordinator and the Medicaid billing coordinator. SN2 was part-time, having been hired with another part-time nurse two years earlier as part of a three-year grant for physical and health education.
During the prior school year, both SN1 and SN2 assisted in the preparation of a 504 plan for MS, a middle school student with type 1 diabetes. While monitoring the 2016–17 school implementation of the 504 plan, they regarded MS's mother as failing to meet MS's diabetic needs both at home and in providing supplies that were necessary for her care at school. They considered filing a child neglect complaint with the applicable state agency, but when they consulted with the superintendent, he directed them not to do so. At the end of the school year, MS's mother asked the Administration to no longer allow them to provide nursing services to her child. Based on their concern for MS's well-being, SN1 and SN2 then filed a complaint of suspected neglect with the state agency. In response, MS's mother submitted a complaint to the superintendent, who initiated an internal investigation. He did not take further action at that time. The school board renewed SN1's yearly contract, and SN2 proceeded ahead to the final year of her three-year contract.
At the start of the following school year, SN1 and SN2 attended a meeting to develop the 504 plan for ES, an elementary school student newly diagnosed with type 1 diabetes in accordance with his physician's Diabetes Medical Management Plan (DMMP). Although adjusted several times subsequently, the DMMP permitted ES to have breakfast at school and did not restrict his transportation via the school bus. Soon thereafter, however, the two nurses had various disagreements with ES's mother about the 504 plan's implementation, primarily focused on two issues. First, ES usually arrived at school without having eaten breakfast, which was contrary to their advice for his mother to provide it at home before sending him to school. More specifically, they had previously asserted to his mother that, within the broad permissible scope of the DMMP, a four-hour period was needed to avoid the risk of “insulin stacking,” which causes low blood sugar. When they repeated their recommendation for her to provide him with breakfast at home to allow for this block of time before lunch, she continued to insist that he have breakfast at school. Second, they requested that ES not ride the school bus when his glucose levels were low so as to avoid the risk of a hypoglycemic episode, but his mother also refused to agree to any such restriction based on his glucose level.
In mid-October, SN1 and SN2 participated at a second 504 meeting to try to resolve the lack of agreement with ES's mother. They explained that if they failed to follow the recommended four-hour period their state licenses could be in jeopardy. However, in response to their hypothetical question about the possibility of ES falling unconscious from a hypoglycemic episode, his mother abruptly left the meeting. At that point, the principal orally reprimanded SN1 and SN2, allegedly stating in a raised voice words to this effect: “I don’t care about your nursing license … we’re going to do what our parents want.” Soon thereafter, the parent sent a detailed complaint to the school board accusing SN1 of unprofessional and illegal conduct. As a result, the superintendent took SN1 off ES's case.
In November, a third 504 meeting, to which neither SN1 nor SN2 was invited, resulted in a revised plan for ES that accorded with his parent's wishes. At about that time, the third, part-time nurse resigned. In her resignation letter to the school board, she explained that she could not abide by administrators’ pressuring nurses to overstep their standard of care and the limits of doctor's orders to satisfy a parent's personal “vendetta.”
In December, SN2 emailed her central office supervisor to notify him of her refusal to continue to serve ES because his mother was not regularly “cover[ing] his carbs” and checking his blood sugars. She specified: “I will service lunch today and I'm done unless the doctor's orders are followed to the letter, meaning breakfast at home for proper timing of insulin.” Her supervisor's reply to her warned that she might lose her job for her continued activities on behalf of ES.
At about that time, as part of his continuing investigation, the superintendent interviewed SN2's full-time colleague, SN1, who arranged for an attorney to accompany her at the meeting. The superintendent followed up on February 7 with a memo that summarized the findings of the investigation and that he shared with SN1. The memo's conclusions included that SN1's conduct had jeopardized ES's right to a free appropriate public education (FAPE) and had violated the 2015 New Code of Ethics for Nurses and an advisory opinion of the Kentucky Board of Nurses on the role of nurses in implementing patient care orders. As a result, SN1 received a five-day suspension without pay.
From the end of her suspension to the end of the school year, SN1 was on leave under the Federal Medical Leave Act based on diagnoses of autonomic nervous system dysfunction, lupus, Parkinsonism, POTS, polyneuropathy, and adjustment disorder with mixed emotion. In May 2017, she submitted a formal accommodations request to the district in preparation for her upcoming return to work. The requested accommodations included “Time off work to treat condition,” “Frequent or longer breaks if necessary,” “Dress code: Compression pants can be worn,” and “Work reassignment to decrease stress, work load.”
In July, after receiving a proposed contract for 2017–18, SN1 met with the superintendent to discuss her accommodations request. However, the interactive process, which Section 504 and the ADA requires for employment cases, broke down when the superintendent demanded more specific information verifying her disability diagnoses. The contract that he offered her for the coming school year allegedly contained a clause conditioning her reemployment on signing an alleged blanket release for all her medical records. The superintendent indicated that if she did not sign the release, she would be terminated.
In August, after failing to sign the release, SN1 applied for disability benefits and resigned from her position. During the same month, the district did not renew SN2's contract, offering her instead a substitute nursing position for a few hours per week. She declined because she was seeking full-time work at that point.
In November, the district posted an opening for a full-time nursing position. SN2 applied, but the district hired someone else without even giving her the opportunity for an interview.
Subsequently, SN1 and SN2 filed a joint suit in federal court against the school district, claiming that the superintendent's actions were in retaliation for (a) their advocacy on behalf of two students with disabilities in violation of Section 504 and the ADA, and (b) their reporting suspected child neglect to the applicable state agency, thus violating the state's whistleblower law. Additionally, SN1 claimed that the district failed to accommodate her disability and left her no choice but resign, i.e., constructively discharged her, in violation of Section 504 and the ADA.
The court granted the district's motion for a summary judgment, which ended the nurses’ lawsuit during the pretrial proceedings. More specifically upon conclusion of the “discovery process,” which includes sworn depositions, the defendant district requested a decision in its favor without a trial. Following established judicial procedure for such pretrial motions, the judge interpreted the allegations in the light most favorable to the plaintiff-nurses, because that interpretation provides the best facts for them that a jury could reasonably find if the case were to reach the trial stage. In granting the defendant's motion, the court concluded that the applicable law was in the district's favor even if the case were to go to a trial, with the jury accepting the plaintiff school nurses’ allegations as facts. In response to the judge's decision, they filed an appeal with the U.S. Circuit Court of Appeals for the Sixth Circuit, which encompasses the four states from Michigan down to Tennessee.
The Appeals Court Rulings
Section 504/ADA Retaliation
The Sixth Circuit Court of Appeals reversed the lower court's rejection, without a trial, of the Section 504/ADA retaliation claim of both SN1 and SN2 (Kirilenko-Ison v. Board of Education of Danville Independent Schools, 2020). First, the Sixth Circuit summarized the flowchart-like successive steps for such retaliation claims:
Is the conduct protected activity under Section 504/ADA, i.e., advocacy of an individual who meets the these laws’ definition of disability? If yes, did the district defendant(s) know of the conduct and take an adverse employment action against the plaintiff(s)? If yes, was there a causal connection between the protected activity and the adverse action?; If yes, did the defendant(s) prove a legitimate nondiscriminatory reason for the adverse action? If yes, did the plaintiff(s) prove that the real reason was retaliation, i.e., that the alleged reason was merely a pretext for discrimination?
Next, the Sixth Circuit reversed the lower court's conclusion that SN2 failed at step “c” (causal connection) and that SN1 failed at step “e” (pretext), ruling instead that both nurses had provided a sufficient showing for a trial to determine the actual facts at these disputed parts of the applicable analysis.
For SN2, the Sixth Circuit reasoned that the temporal proximity factor for the causal connection was not in her favor in light of the 11-month interval between her email to her supervisor and the district's refusal to re-hire her. However, the court reasoned, jurors could reasonably infer that (1) the school board purposely waited for this opportunity to retaliate against her, and (2) both her supervisor's email reply and the third nurse's resignation letter further implied a causal connection. The court did not reach whether SN2 had provided a sufficient showing to proceed to trial for the steps “d” and “e,” because these remaining steps were not at issue in SN2's part of the appeal.
For SN1, the Sixth Circuit concluded that although the school district's stated FAPE- and ethics-based reasons were, on their face, legitimate and nondiscriminatory, a jury could reasonably conclude that these reasons were merely pretexts for discrimination. The bases for this conclusion, the court explained, were (a) the suspiciously proximate timing, (b) the administrators’ direct pressures and threats, and (c) her lengthy and clean previous record in the district. Warning both sides, in sending this issue back to the lower court for further proceedings, the Sixth Circuit observed that “a jury could find that the School Board's reasons were legitimate and that they were its true reasons for suspending [SN1]” but alternatively there was sufficient evidence to reach the opposite conclusion (p. 668).
State Whistleblower Law
In contrast, the Sixth Circuit affirmed the lower court's pretrial rejection of this alternate claim. The court agreed with the lower court that Kentucky's whistleblower law applies to retaliation for reporting the employer's violations of law, whereas the plaintiffs here were reporting the suspected violations of a third party—MS's mother. The fatal flaw, the Sixth Circuit explained, was that SN1 and SN2 “do not allege that they reported any violation of law by the School Board (i.e., their employer) to a state agency” (p. 669), which is a requirement in this state's law.
Section 504/ADA Failure to Accommodate
The Sixth Circuit also affirmed the pretrial denial of her failure-to-accommodate claim under Section 504 and the ADA. Pointing to the requisite analysis for such a claim, the court pointed out that, regardless of any alleged blanket waiver, SN1 failed to provide medical documentation and this failure violated her good faith obligation to participate in the required interactive process. As a result, SN1 precluded the school district from determining under this pair of federal laws not only whether she met the definition of disability but also whether the requested accommodations were reasonable. Ultimately, the purpose of the interactive process that is required in Section 504 and ADA employment cases is to determine whether she was qualified to perform the essential duties of the position with, if not without, reasonable accommodations. By voluntarily withdrawing from the required process and retiring from her position, she did not provide a sufficient basis for a jury to conclude that the district refused reasonable accommodations and that it constructively discharged her.
As a result, the only part of survived after the appeal was both nurses’ Section 504/ADA retaliation claim. The Sixth Circuit sent that claim back to the lower court for further proceedings, while affirming the lower court's rulings for the other two claims in favor of the defendant district.
Discussion
This case moves beyond the identification and accommodations that students under Section 504 (Zirkel et al., 2012) to two other issues relevant to school nurses under this federal law and its sister statute, the ADA: (a) revisiting the issue of advocacy on behalf of these students (Zirkel, 2018) and (b) illustrating the identification and accommodations of nurses who claim coverage under these Acts.
Before discussing this recent federal appeals court decision, a few threshold caveats are warranted. First, because this officially published decision, as most others under Section 504 and the ADA, was based on a pretrial motion, the “facts” are merely allegations that the court assesses to determine whether they are sufficient for a proceeding to trial. Thus, the preponderant truth of the matter, within the courts’ rules of evidence, is beyond the confines of this appellate court's published opinion. Second, the outcomes of these appellate cases vary depending on the specific contours of the alleged facts, the judicial precedents in the jurisdiction, and the individual parties, attorneys, and judges in the case. Third, the litigation process is ponderous as well as costly, with some rulings being inconclusive. For example, the Sixth Circuit's ruling on the plaintiff-nurses’ Section 504/ADA retaliation claim left the issue for further proceedings at the lower court level. The ultimate disposition of this case, whether via withdrawal, settlement, or decision, is not within the official court reports, which focus on legal principles, not story endings.
With these prefatory caveats in mind, let us examine the practical implications of the two primary issues in this case—advocacy by and disabilities of school nurses. In doing so, it is predictable that readers who are professionals specialized in school nursing will be disappointed in or at least wondering about the limited scope and depth of both the reported facts and the decisional analysis. Yet, these limitations are representatively illustrative of the significant difference between legal and professional lenses.
Nurse Advocacy
This recent Sixth Circuit decision reinforces a difficult legal lesson identified in the discussion of an earlier Fifth Circuit decision that was based on the alternative advocacy claim of First Amendment expression: “What school nurses may perceive as not only ethically appropriate but also legally protected may not square with applicable standards for protection under federal and state law” (Zirkel, 2018, p. 290). Here, for example, readers in the profession may focus on whether MS's mother was acting in the best interest of her daughter's physical well-being and whether ES's DMMP and the school nurses’ asserted need for a four-hour break aligned with established medical standards for students with diabetes. Similarly, readers may have questions about (a) these school nurses’ duty to report suspected child neglect, their ultimate choice to do so, and what the agency's determination was; (b) the assessment of their actions in relation to the standards of practice for denial of care, (c) the accuracy of their comments about losing their licenses, and (d) the sufficiency of their problem solving during the preparation and implementation of these students’ 504 plans. Yet, the court did not address these issues, focusing instead on the multi-step process that judicial precedents had formulated for Section 504/ADA retaliation. Note too that the district was the party that put forward the code of ethics for nurses and the court did not find it at all necessary to determine which party the provisions of that document or any other arguably applicable ethical code supported.
The dilemma for the school nurse in such cases of advocacy is that sometimes ethical principles and legal requirements are not the same and choosing the higher ground may or may not have costly consequences for the school nurse. Sometimes taking the higher path of the school nurse's professional norms and skills may have the proactive effect of solving the problem short of litigation, thus harmonizing ethics with law. For example, in this case, one wonders whether SN1 and SN2 may have used their professional interpersonal skills to build closer collaboration with the administration and with the two parents. One suspects that effective problem-solving may have resulted in a mutually satisfactory resolution that comported rather than compromised the safety of each of these two children with diabetes. Similarly, the nuances of accepted medical practices of care applicable to MS and ES are not clear. In a pair of older cases that still appear to be good law, the Eighth Circuit ruled that the refusal of school nurses to administer physician-prescribed dosages of medication that were well beyond accepted standards did not violate either Section 504/ADA or the Fourteenth Amendment (e.g., DeBord v. Board of Education of Ferguson-Florissant School District, 1997). However, in that case, such actions require careful consultation with medical and legal specialists and documented reasonable communications with the parents, all tailored to the specific circumstances of the individual child.
However, once in court, the outcome will be based on legal rather than professional nuances. Interestingly, the court's whistleblower ruling did not address SN1's and SN2's failure as mandated reporters to contact the applicable state agency directly and immediately upon reasonable suspicion, rather than subject the report to delay by the school administration. The reason is that this issue was not before the court and not necessary for resolution of that claim.
Moreover, although only ancillary to the Section 504/ADA focus of this article, the court's ruling for state whistleblower claim was specific to the Kentucky law. The scope and provisions of state whistleblower laws vary, thus cautioning against over-generalization of the ruling in this case.
In this particular case, the surviving claim was only for Section 504/ADA advocacy. For this claim, SN1 has better odds than SN2 for a favorable ultimate decision or settlement based on the ruling that she had provided sufficient foundation to proceed ahead on all of the applicable steps under Section 504 and the ADA. However, the limiting “buts” include that (a) they both lost before trial on the alternative of the state whistleblower act, just as the plaintiff nurse in the previously visited Fifth Circuit case suffered defeat prior to trial under various alternative grounds, including the First Amendment; (b) this case arose in 2015–16 and 2016–17, but this decision was not until mid-2020 and is not the end of the story, meaning years of emotional and economic costs to the two ex-school nurses and, although likely not felt as acutely, to their former employer; and (c) all we know is the applicable legal analysis, not the much fuller and final version of the story. The case went back to the lower court level, where it may result in further court proceedings or settlement, with neither one necessarily available on the public record.
Nurse Disabilities
For employees, including school nurses, eligibility under both Section 504 and the ADA starts with the same three essential elements that apply to students: (a) a physical or mental impairment that limits (b) a major life activity (c) to a substantial extent compared to most people. In the case of SN1, despite her multiple and complex alleged diagnoses, we do not have sufficient information whether she met these three criteria. However, for employees—unlike students—Section 504 and the ADA present an added and often difficult fourth prerequisite of being capable of performing the essential duties of the position with, if not without, reasonable accommodations. Even if SN1 meets the three definitional standards for disability status, it is not at all clear whether her requested accommodations are reasonable and, if so, whether she is able to perform the essential duties of her particular position satisfactorily with them.
Overall Lesson
The bottom line in examining such legal issues is to think twice. First, consider the case from a professional perspective, including the ethical norms that apply nationally and in your state.
Second, before engaging in action that may make a proverbial “federal case” of the matter, consider the applicable legal standards, which may or may not converge with the ethical precepts. If litigation may appear to be a viable option after careful consideration of these legal standards and any available assistance from knowledgeable colleagues and professional organizations, consultation with specialized legal counsel in your jurisdiction is advisable.
Finally, if these two successive steps point in different directions, make an informed decision that is a matter of risk management, professional responsibility, and individual choice. Such issues are not necessarily easy to resolve, but at least engaging in a systematic and relevant thought process will guide your course of action.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.
Author Biography
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