Author: Justin S. Gilbert

Categories
Labor and Employment

The Fight against Hostile Work Environments Continues

An amendment to the Tennessee Healthy Workplace Act was signed on April 23, 2019 by Governor Bill Lee. The amendment to the law extends “protection” from some claims to all employers within the state. Any employer in Tennessee that decides to adopt its own anti-bullying policy will be immune from being sued for negligent or intentional infliction of mental anguish that is caused by any abusive action taken by employees.

When the original law was passed in 2014, it only dealt with state and local government agencies. The designation employer in the law is now extended to all private employers in Tennessee.

What is covered under the act?

The act purports to protect employees from abusive conduct that could occur in the workplace. The abusive conduct specifically banned by the act includes the following:

  • Physical conduct of a threatening nature
  • Verbal or non-verbal threats
  • Humiliation
  • Intimidation
  • Sabotaging the performance of an employee

What the law does not do

Unfortunately, by simply putting forth a piece of paper, it seems Tennessee has granted immunity from being suit.  In simple terms, the law has no enforcement under the law. That’s right—an employer is immune from a private legal claim if it merely has the policy in place.  Thus, in the long run, one might argue the law does more damage than it does good.

However, the amended law does not protect companies against claims of discrimination based on sex, race, religion, disability or other classifications protected under federal or Tennessee statute, either. Those rights already exist and should not be confused.

Employees protected in Tennessee workplaces

Employees are already protected from a host of incidents that can occur in a workplace because of retaliation, discrimination, and hostile actions. Tennessee employees are protected from any and all of the following:

  • An employer cannot make assumptions or stereotypes to determine an employee’s career path
  • An employer cannot undermine or sabotage an employee’s performance or authority to work because of any protected characteristics
  • Employees are protected from any unwanted or unwelcome touching or any activity that can be labeled as near-touching
  • Employees are protected from jokes or slurs that demean their race, religion, age, or disability
  • Employees are protected from being exposed to inappropriate or explicit videos, images, calendars, posters, emails and other media

The state of Tennessee defines a hostile work environment as any environment where an employee is subjected to pervasive conduct or comments about their religion, age, sex, disability, pregnancy, ethnicity, veteran’s status or any other protected category. Sexual harassment and retaliation for whistleblowing are also considered causes of hostile work environments in Tennessee.

The changes to the Tennessee Healthy Workplace Act are not necessarily protective. On its face, the policy and publication is a good thing. But dig a little deeper and an abused employee will have no legal recourse apart from existing laws.  If you are working in a hostile environment, a Tennessee employment lawyer may be able to help. Call the Gilbert Firm at 888-996-9731, or fill out our contact form, and schedule your consultation with Justin Gilbert or Jonathan Bobbitt. The firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

Categories
Education

Coffee County Schools Agrees to Settlement for Student with Special Needs

A young girl with significant motor and intellectual disabilities was represented by Justin Gilbert of Gilbert McWherter Scott & Bobbitt. After missing a substantial amount of school, the student filed a legal action about the denial of a Free Appropriate Public Education (FAPE) under the Individuals with Disabilities Education Act. The parties worked cooperatively to reach a settlement, as reported in the local paper.

“We were pleased to work this one out with the school system early on. The child has substantial and permanent challenges arising from a tragic automobile accident as an infant, requiring constant nursing. But despite those obstacles, she is entitled to an education and is now on the right track,” said Justin Gilbert, who handled the case.

We invite you to read the story here.

Categories
Discrimination

The Integration Project for Children with Intellectual Disabilities

The Integration Project for Children with Intellectual DisabilitiesBeginning in 2013, Mr. Gilbert’s law firm, Gilbert McWherter Scott Bobbitt PLC, embarked upon what would become a civil rights project of integrating children with intellectual disabilities into regular public school classrooms. Too often, they found, these children were educated in separate classrooms, with only other children with disabilities.

Mr. Gilbert examined the research, including international studies where children with intellectual disabilities were offered a choice: an opportunity to be educated with their non-disabled peers or, if the families wanted, in classrooms designed solely for children with disabilities. The results of these longitudinal studies showed greater advances for the children who were integrated with nondisabled peers. They had higher skill sets, better speech, improved behavior because of their non-disabled peer models, and were more than a grade-level ahead.

Taking this research into the United States through Tennessee, Mr. Gilbert realized that the educational funding system from the state incentivized the creation of separate classes. Put simply, the funding system financially rewards school systems for the creation of separate classrooms rather than integrated ones. Thus, Mr. Gilbert’s law firm set out to change the funding system while working on cases of segregation of children with Down syndrome.

LH v. Hamilton County

The Integration Project for Children with Intellectual DisabilitiesThe first case, LH v. Hamilton County, involved a second grade student with Down syndrome who was ably performing in the regular education classroom. However, in third grade, state standardized testing scores came into effect, and the school attempted to remove LH to an entirely separate school, in a different zone, for only children with disabilities.

Mr. Gilbert hired some of the best experts, both internationally and in the United States. This included the founder of Down Syndrome Education International, Dr. Sue Buckley of the United Kingdom. A five-year legal fight for LH led to multiple reported decisions, culminating in a decision by the Sixth Circuit Court of Appeals in favor of LH. L.H. v. Hamilton Cty. Dep_t of Educ._ 900 F.3d 779

Thus, LH established the rules for integration, including how students with intellectual disabilities are entitled to modified work, differentiated instruction, an aide as needed, and they do not have to meet the same grade level standard as students without intellectual disabilities.

LH became the law governing Tennessee, Ohio, Michigan, and Kentucky. It resulted in damages and tuition reimbursement to the family of over $200,000, plus legal fees and expenses of $350,000.

JA v. Smith County

After LH, Mr. Gilbert continued his work with very young children with intellectual disabilities. In a federal case in Nashville District Court, he established that it is discriminatory for a school system to put its resources into a special education classroom intended mostly for students with disabilities, to the detriment of the regular education classroom. J.A. v. Smith Cty. Sch. Dist._ 2018 U.S. Dist. LEXIS 21

In JA, Mr. Gilbert successfully argued the school system propagated a myth that children with intellectual disabilities should be taught separately. He explained how children with disabilities are entitled to supports in regular education such as speech and language supports, along with behavioral supports, before a school system can consider removing a child from the regular education classroom. To receive an “appropriate” education, the supports must be delivered first.

A.A. v. Walled Lake

The Integration Project for Children with Intellectual DisabilitiesRecently, Mr. Gilbert took the non-segregation fight to Michigan where he was asked to assist the Michigan Protection and Advocacy (MPAS) in a case just outside of Detroit. A.A. v. Walled Lake Consol. Schs_ 2017 U.S. Dist. LEXIS

After four trips to Detroit, a three-year litigation culminated with a federal trial in 2019. On the first day of trial, the parties were able to settle with a three-year plan that involves mandatory district training on inclusive practices, plus payment of a private school from kindergarten through eighth grade, along with $250,000 in fees and costs.

As a result of these cases, Mr. Gilbert has begun working with the National Down Syndrome Society (NDSS) and other organizations to formulate a guidance for parents, teachers, and school systems concerning the proper legal analysis for integration of children with intellectual disabilities.

The Integration Project for Children with Intellectual DisabilitiesIt is the hope that these cases, and the guidance, will ensure that children with intellectual disabilities can be taught with their nondisabled peers to the maximum extent appropriate, the vision of the Individuals with Disabilities Education Act (IDEA).

Related Content

Integration of Children with Developmental Disabilities in Social Activities

Integration of Children with Disabilities into School Community

Benefits of Integration of Students With Disabilities

The Impact of Inclusion on Students With and Without Disabilities and Their Educators

Teacher Perceptions of Mainstreaming/Inclusion, 1958–1995: A Research Synthesis

Including Students With Developmental Disabilities in General Education Classrooms: Educational Benefits

The Perspectives of Students With and Without Disabilities on Inclusive Schools

If your child has been isolated or removed from a classroom because he or she has an intellectual disability, you have options to explore. Please contact Justin Gilbert at 888.966.9731, or fill out this contact form, and reserve a consultation time at one of our office locations. The Gilbert Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, and advocates for clients across Tennessee and the Southeast.

 

Categories
Education

DeVos Sued Over Delay of Special Education Rule

DeVos Sued Over Delay of Special Education Rule In a federal lawsuit filed July 12, an advocacy group is accusing the U.S. Department of Education of skirting its responsibilities to students with disabilities by delaying special education legislation that was supposed to go into effect July 2018.

The Council of Parent Attorneys and Advocates (COPAA) alleges the agency is avoiding its obligations under the Individuals with Disabilities Education Act (IDEA) to ensure that all students with disabilities receive the appropriate services, regardless of their racial background. They filed their suit after the Education Department issued a ruling last week delaying regulations that address the issue of “significant disproportionality.” The delay is set for two years.

IDEA requires that states identify school districts that have high rates of students from particular racial or ethnic groups who have disabilities and who are placed in restrictive or discipline-heavy settings. COPAA’s complaint points out the Education Department’s own research, which shows that minority children—most frequently black males—are over-identified as having special needs, which gives schools a “seemingly neutral justification to place them in a separate ‘special education’ classroom away from their white peers.”

However, states have always used different methods to evaluate their districts, and few districts were ever formally identified. Near the end of the Obama administration, a national standard for identification was established and set to take effect July 1, 2018.

According to a statement from the Education Department on July 3, the delay was issued “in order to thoroughly review the … regulations and ensure that they effectively address the issue of significant disproportionality and best serve children with disabilities.” States are allowed, however, to implement the new standard if they wish, and they are still obligated under IDEA to assess their districts for significant disproportionality.

COPAA’s lawsuit argues that DeVos and the Education Department didn’t offer a reasoned explanation for the delay, and failed to consider the costs to parents and students, or offer any alternatives to the delay. They also allege that the federal agency didn’t provide any “meaningful participation” on the subject, as its public comment period only asked for comments on the delay and not the issue itself.

This lawsuit is filed in U.S. District Court for the District of Columbia, and names DeVos and Assistant Secretary for Special Education and Rehabilitative Services Johnny Collett as well as the department itself. It seeks to have a judge invalidate the Department of Education’s delay and reinstate the July 1 start date for the rule.

The Gilbert Firm is experienced in all aspects of special education law. All students have the right to a fair education. If you feel your child is being denied theirs, please contact our Tennessee special education lawyers. We want to help. Call Justin Gilbert at 888.996.9731, or fill out our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

Categories
FMLA

If I Win an FMLA Case Against My Employer, What Damages May I Recover?

If I Win an FMLA Case Against My Employer, What Damages May I Recover?If your employer has interfered with your right take leave according to the provisions of the Family Medical Leave Act (FMLA) or if the employer has retaliated against you for taking FMLA, you may sue your employer to collect monetary damages and force their compliance with the law. There are various damages you may recover if your FMLA case is successful.

What does the FMLA provide?

Employers with a minimum of 50 employees with a 75-mile radius of the worksite are required under the FMLA to provide eligible employees with a maximum of 12 weeks of unpaid (or in some cases paid) leave under specific circumstances. These include, but are not limited to:

  • For the Employee’s own serious medical conditions;
  • For the Employee’s family members’ serious medical conditions;
  • To handle certain situations that occur when a child, spouse, or parent is on active military duty; and
  • To bond with a newborn baby or newly adopted child.

In order to qualify for leave under the FMLA, you must have worked for your employer for at least 12 months, must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave and, again, work for an employer who employs 50 or more employees within a 75-mile radius of the worksite.

As an employee in need of FMLA protection, you must also give notice to your employer that you need leave for a qualifying reason that may otherwise qualify you for FMLA coverage.

If you qualify for leave under the FMLA and/or in fact take leave under the FMLA, you are afforded certain protections from adverse employment actions that the employer may take against you. If such an action is taken, you may have a case against your employer. Just some of the examples of those adverse actions are:

  • Refusing your rightful and qualifying request for leave;
  • Failure to provide you with notice of your eligibility for FMLA leave;
  • Refusing to allow you to return to your previous position at the end of your leave;
  • Interfering with your leave request in some other way; and
  • Taking a retaliatory action against you for your leave request or actual leave.

Monetary damages available

If your FMLA case is successful, you will be entitled to recover monetary damages based on specific losses and injuries incurred on account of your employer’s actions. You may be eligible to receive lost wages (including back pay and potential front pay), reinstatement, liquidated damages (depending on the nature of the employer’s actions) and attorneys’ fees and expenses.

If your employer has taken what you believe to be an adverse action against you because of your request for, or taking of, Family Medical Leave Act (FMLA), our team at the Gilbert Firm provide you with the legal advocacy you need to have your rights restored. With offices in Chattanooga, Memphis, Nashville, Knoxville, and Jackson, we are ready to fight for your right to recover the damages your owed. To set up a free case review with an experienced employment lawyer like Jonathan Bobbitt, call us today at 888.996.9731, or complete our contact form.

 

Categories
Discrimination Education

Groundbreaking Decision Will Benefit Children with Epilepsy in Tennessee

Groundbreaking Decision Will Benefit Children with Epilepsy in Tennessee The Gilbert Firm always fights to protect children whose rights have been violated. We recently assisted with a case involving Tennessee children with epilepsy, which resulted in a groundbreaking new decision in Knoxville. In SP v. Knox County, the court found that a school may not segregate and bus children with epilepsy, who have a prescription for Diastat, to a non-zoned school as a matter of convenience. Doing so violates the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990 (ADA), and Tennessee state law. Additionally, the court found that the state of Tennessee’s own department of education may be held liable for not correcting Knox County’s discrimination.

The decision has far-reaching and helpful consequences for not only children with epilepsy, but also for children with diabetes, and for children utilizing many other medications.

“Unlawful segregation comes in many forms. We’re proud to strike another blow against discrimination for kids across the state.” Said Justin Gilbert, who handled the case.

The plaintiffs in this case had children – both with epilepsy – who were enrolled in different Knox County elementary schools. Under the Health Services Seizure Disorder Protocol of the Knox County Board of Education (KCBE), only a nurse can administer Diastat, the medication they were both prescribed. In 2008, the protocol said “Students with protocol, which requires Diastat rectal medication or oxygen administration, will attend a school (transferred if necessary) where there is a full-time on-site nurse.” In 2016, the words “transferred if necessary” were removed.

KCBE failed to tell the parents of M.P., one of the students, of the Diastat protocol until after their IEP meeting in 2016 was concluded. The KCBE told the parents of the other student, E.E., in 20015 that their IEP meeting had to take place at another elementary school, and that is was considered protocol to transfer students automatically. M.P. parents took daughter off of Diastat, so she could stay in her home school.

Neither set of parents were informed that they could request having a full-time nurse transferred to their children’s home schools. In fact, E.E.’s parents were told specifically that they could not have a nurse transferred to their child’s school.

The Plaintiff’s complaint also alleges “that the Tennessee Department of Education (TDOE) knew KCBE had an illegal policy to transfer students with epilepsy to non-zoned schools and permitted it to continue.”

The Gilbert Firm has a reputation for success in complex special education claims. Justin Gilbert and our team of Tennessee education attorneys can represent you in an IDEA case, 504 case or ADA case in due process and federal courts. If you believe that your child is being wrongfully deprived of the free and appropriate education to which he or she is entitled, please call 888-996-9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

 

Categories
Discrimination

Justin Gilbert of the Gilbert Firm Files Case against Bledsoe County Schools for Racial Discrimination Practices

Justin Gilbert of the Gilbert Firm Files Case against Bledsoe County Schools for Racial Discrimination PracticesAll students in the U.S. are entitled to a free public education. It does not matter what race, religion, ethnicity, sex, or background a child has; his or her right to public education is protected under various state and federal laws. When a child has been denied her right to this education because of systemic and illegal racial discrimination, the family has recourse through the laws to uphold their child’s rights.

Under Title VI of the Civil Rights Act of 1964, no program that receives federal funding may engage in discrimination because of race, ethnicity, or color. That is why Justin Gilbert of the Gilbert Firm has filed a lawsuit in Chattanooga’s U.S. District Court against Bledsoe County Schools and its director, Jennifer Terry, on behalf of a student who was subjected to harsher punishments, we believe, because of her race.

An excessively harsh punishment

On January 24, 2018, our client – who is biracial, referred to from here on as T.A. – was in the Bledsoe County High School (BVHS) cafeteria. Another student called T.A. the “n” word. T.A. struck the student who used the slur. She was suspended for three days for fighting, which is the school’s policy.

But the next day, T.A.’s mother, M.A., received a letter from Jennifer Terry, stating the student’s “suspension actually would be much longer: 365 calendar days. As a result… the student likely would fail her junior year and have to wait an entire 12 months to repeat it.” Our clients appealed this decision, but it was upheld by the Superintendent. Ms. Terry, per our complaint, “claimed this grossly excessive suspension was ‘in accordance with Tennessee State Law,’ as if her hands were somehow tied and she lacked discretion to consider the overarching circumstances of racism. Tennessee State Law does not require such an action, divorced from context and without any discretion.”

A violation of our client’s rights

The suspension of a full calendar year is excessive in any circumstances. It is more so when you consider the following:

  • The school had been informed numerous times that T.A., on a weekly basis, was subjected to racist comments and remarks. The school claimed to have put this information in a “file,” but that file has not been produced. There is no proof that such a file even exists.
  • The brother of the student who called T.A. the “n” word had received a “brief suspension” for calling T.A. the very same epithet.
  • The parents of the student accused of using the racist slur also referred to T.A. and her brother as the “n” word while they were in the school. (They were there because parents must be informed when a fight happens in school.)
  • Those same parents, while M.A. was speaking to school officials, went onto Facebook, where they not only sought to find out where M.A. was, but also posted a picture of a noose. That noose was hanging in their own front yard.
  • BCHS officials specifically warned M.A. about the “racism within the family.”

It is our belief that the “overly harsh, punitive suspension/expulsion of T.A. for a full calendar year amounted to retaliation against T.A. for complaining about, reporting, and opposing racial discrimination and harassment, in violation of Title VI,” per our complaint. That is why we have demanded a jury trial, so that we can hold BCS and Ms. Terry accountable for their failure to put an end to the systemic racism our clients endured, and for failing to protect our client and her rights under the law. As Justin Gilbert told the Chattanooga Times Free Press, “the overly harsh suspension has caused the student to suffer ‘emotional distress, humiliation, and deprivation of her right to participate in regular public education free from racial harassment.’”

This is not unique to Bledsoe County

What happened to T.A. is abhorrent, but it is hardly an isolated incident. The Huffington Post reports:

  • “Black students and students with disabilities routinely receive harsher punishments at school than their peers.
  • The latest figures show that a growing number of black students are disproportionately subject to school-based arrests and referrals to police.
  • Black students are also disproportionately suspended and expelled.”

At the Gilbert Firm, we stand up for Tennessee students who have been denied access to their education, and whose rights have been violated by school districts, administrators, teachers and other students. If you have been a victim of racial discrimination, or have in some way had your right to a free public education denied, we want to help. To work with Justin Gilbert and the members of his team, please call 888-996-9731, or fill out our contact form.

Categories
Special Education Law

Special Education Students Disproportionately Disciplined in Bristol Schools

Special Education Students Disproportionately Disciplined in Bristol SchoolsAccording to a recent article in the Bristol Herald Courier, disciplinary events are declining in local schools. However, after sifting through data found through the Freedom of Information Act, researchers found that when discipline does occur, special education students are affected more than other students.

Stats for Bristol, Virginia Public Schools

Comparing data from the same periods in the 2016-2017 and 2017-2018 school years, incidents leading to out-of-school suspensions at BVPS dropped by 19 percent. Digging a little deeper, however, data shows that although special ed students make up only 15 percent of the student body, they made up 31 percent of out-of-school suspensions. (Incidents for small groups of students—fewer than 10—were not included in order to protect their identities.)

Stats for Bristol, Tennessee City Schools

At BTCS, data collected also left out incidents for small groups of students. Incidents leading to out-of-school suspensions dropped by 10 percent. However, researchers found an 18 percent difference between the rate of suspensions of special education students and the general population of students.

At-a-glance breakdown

Here are the details from each school system.

BVPS: Percentage of special-ed students disciplined vs. general population

  • Special-education: 30 vs. 15

BTCS: Percentage of special-ed students disciplined vs. general population

  • Avoca Elementary: 61 vs. 14
  • Holston View Elementary: 58 vs. 20
  • Fairmount Elementary: 35 vs. 21
  • Vance Middle: 26 vs. 15
  • Anderson Elementary: 26 vs. 30
  • Tennessee High School: 20 vs. 12

Director of human resources at BTCS Jennifer Padilla pointed out that the numbers are based on incidents and not individual students, so a single student could represent several incidents.

The issue of special education students being disciplined at a rate higher than their student peers is a national problem, one known as the “discipline gap.” Intervention programs may be key to behavioral issues instead of immediate punishment. Positive behavioral interventions and support (PBIS) is a model being successfully used in some schools, where children are taught appropriate behavior and consequences for inappropriate behavior.

Appropriate behavior and rule-following is rewarded with kudos from a teacher, or small rewards like a lunch with the principal. At Fairmount Elementary, administrators have seen some success with a behavioral intervention program. After adopting this program, they saw a 20 percent decline in their discipline rate year-over-year.

Your child should never be unfairly disciplined because of their special needs. This is a violation of their rights and we are here to stand up for your child and your family.

At the Gilbert Firm, we advocate on behalf of Tennessee students whose rights have been violated. To learn more about our services, or to work with an experienced Tennessee special education attorney like Justin Gilbert, we invite you to call 888.996.9731, or to fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

 

 

 

Categories
Education

Can You Discuss the Firm’s Work in Educational Law?

We became involved in education law as a natural extension of our work in employment law. The Americans With Disabilities Act applies to both employment and education, so we now represent children with all sorts of disabilities, from speech disorders to brain disorders to you name it – any kind of condition that requires some special services. Those cases are particularly rewarding because it’s nice to see children succeed, and parents who come to us in the education world are particularly grateful for our assistance.

The Gilbert Firm is proud to stand up for students. To speak with a skilled Tennessee special education attorney like Justin Gilbert, please call 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, for your convenience.

Categories
Special Education Law

What Is the Focus of Your Practice?

My practice at the Gilbert Firm is mostly focused on employment and education, and there’s some natural overlap with laws like the Americans With Disabilities Act, which applies to both areas; so I represent individuals in all matters of employment, whether it’s a harassment claim, a wrongful termination claim, or maybe a benefits dispute.

In the education field, I represent teachers, professors. I represent educators. I also represent children, including preschool children who may need services for their disabilities.

At the Gilbert Firm, we protect clients whose rights have been violated. Whether you are an employee, a student, or a parent, we are prepared to handle your claim with dignity and dedication. To learn more about our services, or to speak with a skilled Tennessee special education attorney like Justin Gilbert, please call the Gilbert Firm at 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, for your convenience.