Federal court won’t dismiss former school bus driver’s retaliation suit

Monday, January 5, 2009

The retaliation lawsuit of a former school bus driver in Stafford, Conn., who alleges she was fired for speaking out against mold in her children’s school, will continue, as a federal judge recently refused to dismiss her claims.

In March 2005, after Patricia Russo became concerned that mold was inside West Stafford School, a teacher reported that Russo handed out an article about mold when she was on her school bus on school property. Russo, two of whose children attended the school, worked as a driver for Laidlaw Education Services.

According to court documents, Russo also contacted the school superintendent, Therese Fishman, Selectman Gordon Frassinelli  Jr. and other town officials about the mold issue. She also spoke at the school board meetings and wrote letters to the editor of a newspaper.

Additionally, Russo allegedly made a disparaging comment on her school bus after she saw a campaign sign for Frassinelli, who was running for reelection. Russo, who campaigned against Frassinelli, also allegedly made disparaging comments about the superintendent and other school officials.

School officials suspended Russo Nov. 2-8, 2005, and then the school board decided to remove her on Nov. 18, two weeks after the election. They suggested she seek a reassignment. Russo refused reassignment and filed a lawsuit, contending she was fired for her public statements about mold and for her active campaigning against the selectman. She sued the school board, Fishman and Frassinelli.

Attorneys for the Stafford School Board and the individual defendants filed a motion for summary judgment and contended that the individual defendants were entitled to qualified immunity. Qualified immunity is a doctrine that provides protection for defendants from penalties for civil rights violations unless they violate clearly established constitutional or statutory rights.

U.S. District Judge for the District of Connecticut Vanessa L. Bryant refused to dismiss Russo’s suit in a Dec. 5, 2008, opinion in Russo v. Stafford Board of Education. Bryant reasoned that “Russo has disovered sufficient evidence to permit a reasonable jury to find that the defendants removed her from her job because of her protected speech,” noting that the “defendants removed her less than two weeks after the election in which she campaigned against Frassinelli.”

Bryant also refused to grant qualified immunity to the individual defendants. “First, Russo has sufficiently demonstrated a violation of her First Amendment right to free speech,” Bryant wrote. “She has set forth sufficient facts to enable a reasonable jury to find that Fishman and Frassinelli, in concert with the board, removed her from her job on account of her protected activity, namely her public statements about mold and her active campaigning against Frassinelli.”

The judge emphasized that Russo made nearly all of her statements “outside of work” and that her “activity was unrelated to her job.” Bryant concluded that “her right to make those statements is clearly established, and a reasonable person would have known of that right.”

Nicole M. Rothgeb, one of the attorneys representing Russo, wrote in a Dec. 23, 2008, e-mail to the First Amendment Center Online that the school defendants had filed on Dec. 19 for a motion of reconsideration of the ruling. Rothgeb characterized the motion as “essentially seeking a second bite at the apple as to issues that were fully briefed and ruled upon in the summary judgment decision” and said her client would oppose the request.

“We believe Ms. Russo's case, and the district court's decision to deny summary judgment and allow a jury to decide the matter, is a step forward in reinforcing the clearly established law,” Rothgeb said. “Employees are, and should be, free to exercise their First Amendment right to speak out on important matters without fear of retaliation, especially where, as is the case here, the plaintiff is a private employee, was only acting in her capacity as a concerned parent and citizen, and where there is no dispute that the plaintiff's speech was constitutionally protected.”

The school district’s attorneys did not respond to requests for comment.

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