24 September 2020

Sixth Circuit Rules in Favor of Nurses Establishing Retaliation Claim Under the ADA

The United States Court of Appeals for the Sixth Circuit delivered an opinion earlier this month in a case concerning the Americans with Disabilities Act (ADA), Kirilenko-Ison, et al. v. Bd of Ed. Danville Indep. Sch., No. 19-5767, 2020 WL 5269818 (6th Cir. Sept. 4, 2020).    The case involved two nurses, Bauder-Smith and Kirilenko-Ison, who were employed by Danville Independent Schools.  Both nurses complained that the District retaliated against them for advocating for the rights of two disabled students.  One of the nurses, Bauder-Smith, was hired according to a grant and held a three- year contract, in which the District did not renew.  The other, Kirilenko-Ison, was suspended without pay following an investigation and then later voluntarily resigned from her position.  The nurses disagreed with the parents regarding each student’s care and refused to deviate from medical instructions.  The District insisted the nurses adhere to the parents’ wishes even if it was contrary to the student’s medical needs.  The nurses claimed they were not able to do their jobs as requested by the District without causing harm to the two disabled students.  Bauder-Smith’s contract with the District was not renewed, and Kirilenko-Ison voluntarily resigned after she was suspended without pay.

The court analyzed the retaliation claims under a standard four-part test.  The court determined that (1) both nurses engaged in protected activity under the ADA and Section 504, (2) the District knew of the protected activity, (3) the District took adverse action against the nurses, and (4) there was a causal connection between the adverse action and the nurses’ protected activity.

As for the first and second prong, the Court recognized that advocating for members of a protected class is itself a protected activity for purposes of retaliation claims.  Both nurses had disagreed with the District’s policies of following the parent’s wishes at all costs, and instead advocated in support of the students’ best interests.  Similarly, both students were disabled within the meaning of the ADA and Section 504.  Thus, the Court concluded that advocating for the disabled student’s rights was protected activity and the District knew of the advocacy.

As to the latter two prongs, Kirilenko-Ison was subjected to a five-day suspension without pay because of her advocacy on behalf of a disabled student, which was an adverse action.  As to Bauder-Smith, the District did not take action until after her grant expired.  At the end of her contract, the District offered Bauder-Smith only a few hours of work per week, and then refused to hire her for a full‑time position that was made available.  The Court determined that this was the first meaningful opportunity to retaliate against her, and those actions were connected to her earlier disagreement with the District several months prior.

The Court ultimately held that both nurses had established a basic retaliation claim and as such, the District was not entitled to summary judgement.  The case serves as a cautionary tale for employers that are considering disciplining insubordinate employees who have arguably advocated on behalf of individuals belonging to a protected class.