Employment Protection of School Psychologists: A Cautionary Case
Zirkel, Perry A., National Association of School Psychologists. Communique
This article addresses legal issues arising from a district's decision not to renew the employment contract of a 61-year-old school psychologist after 9 years of service. The case focuses on the issues of age discrimination and whistleblowing, although it raises other questions of current relevance to school psychologists, such as the implementation of RTI under IDEA and the relationship of professional ethics and legal responsibilities. The first section of the article summarizes the facts of the case within the limitations of the pretrial process. The second section uses a question/answer approach to stimulate and supply the legal and, to a secondary extent, ethical analysis.
CHRONOLOGY OF THE CASE
In January 2003, the school district in Manatee County, Florida, hired Valentino Castro on an annual contract basis as a school psychologist. His duties included consultation and school-based psychological services to schools within the district. He was 52 years old.
In March 2003, Patricia Bernhart, Supervisor of Student Services, provided him with his annual evaluation. The overall rating was satisfactory, but the evaluation included a warning regarding Castro's clinical language and communication style.
In April 2004, Bernhart discussed with Castro complaints she had received from several schools concerning his evaluation reports and jargon-filled comments. In November 2004, she conveyed to him a complaint from a parent that he had inappropriately rendered a medical diagnosis.
In March 2005, he received another annual evaluation that was satisfactory overall but with a specific directive to make his written reports more "user friendly" for school staff and parents by explaining clinical language, terms, and concepts.
In June 2006, Bernhart informed the human resources director that she was considering recommending nonrenewal of Castro's contract. Soon thereafter, she met with Castro to discuss various concerns with his job performance. She focused on two specific incidents at separate elementary schools, emphasizing that as a district-wide bilingual evaluator he needed to communicate more effectively with staff members and maintain credibility with other school psychologists.
In May 2007, he received another annual evaluation that included concerns, this time focusing on female staff members who had made efforts to avoid Castro due to his "unwelcome attention."
In March 2008, Bernhart gave him another annual evaluation, notifying him of the need to improve his communication skills and gender sensitivity. In May 2008, based on a complaint from a local neuropsychologist, she instructed Castro to refrain from labeling any of his reports as neuropsychological evaluations.
In January 2009, Castro received a written reprimand from Bernhart based on the complaint from one of the elementary principals that he had made an inappropriate and unprofessional comment to a student teacher. Reminding Castro of the previous complaints from staff, parents, and private practitioners regarding the style and contents of his communications, Bernhart warned Castro that recurrence of such behavior would result in further discipline.
In March2009, Castro receivedhis first unsatisfactory annual evaluation. The areas of unsatisfactory performance were interpersonal communication, staff consultation, and home/school/community collaboration.
During the 2009-2010 school year, based on Florida's choice under the Individuals with Disabilities Education Act (IDEA) and its more general reforms under NCLB, the state education department provided training for the district to implement its problem-solving response to intervention (PS/RTI) model.
In September 2010, Castro received a satisfactory annual evaluation, although it warned him about condescending comments to personnel and parents. Also in the fall of 2010, the school district faced a severe budget crisis that, compounded with loss of federal funding, required the Student Services department to eliminate 2. …