Speech Therapist Gets 2nd Wind in Retaliation Case

(CN) - A Maine speech therapist who warned parents that a county children's agency was not complying with state regulations can pursue retaliation claims, the 1st Circuit ruled.

Ellen Decotiis, a state-contracted speech-and-language therapist, says she alerted the parents that Child Development Services in Cumberland County, Maine, was not complying with a new law.

Unified Rule 101, as adopted by the Maine Unified Special Education Regulation in May 2008, limited the amount of early intervention services available for disabled or delayed children between the ages of 3 and 5 years old, unless they were deemed eligible.

In defining such eligibility for the Cumberland office, that site's director, Lori Whittemore, said extended services would be provided only to severely disabled children. Children receiving just one service, such as speech therapy, would not qualify. Whittemore also said the organization did not trust and would not consider Decotiis' service recommendations.

After two advocacy groups in Maine advised Decotiis that CDS-Cumberland did not appear to be in compliance with state and federal law, Decotiis encouraged parents to contact their local advocates.

By the following spring, CDS-Cumberland informed Decotiis that it would not renew her contract.

Decotiis sued the department, Whittemore and the agency's statewide director, Debra Hannigan, for declaratory and injunctive relief.

A federal judge dismissed Decotiis's case last January without a hearing, finding that the therapist's actions were not protected under the First Amendment and Whittemore, as an individual, was entitled to qualified immunity.

On appeal, the Boston-based 1st Circuit revived Decotiis' lawsuit, but affirmed that Whittemore has immunity.

"Government employees undoubtedly walk a tight rope when it comes to speaking out on issues that touch upon their fields of work and expertise," the decision states. But Decotiis' complaint satisfies each necessary element to prove that her speech is protected, U.S. District Judge William Smith, sitting by designation from the District of Rhode Island, wrote for the three-judge panel.

Smith found that Decotiis easily satisfied the first prong: that she spoke as a citizen on a matter of public concern.

Decotiis also survived a balance test because her interest to speak out against the agency's practice outweighs the agency's interest in handling its employees. In measuring the final test, the judges found that Decotiis' speech was the likely motivating factor in Cumberland's decision not to renew her contract.

While Decotiis can sue the county office and Hannigan, the state director, the court found it would be redundant to hold Whittemore accountable as the county office director.

"We therefore hold that regardless of whether Whittemore did in fact violate Plaintiff's First Amendment rights, which is yet to be determined, a reasonable person in Whittemore's position could have believed that she was not violating Decotiis's constitutional rights by not renewing her contract," Smith wrote. "As such, qualified immunity is available to Whittemore in her individual capacity."

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