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School counselor who filed child abuse report in retaliation for parents' advocacy to change child's IEP is not eligible for qualified immunity

Where the plaintiffs-parents (the Wenks) alleged that the defendant-high school services director (Schott) filed a child abuse report about the plaintiff-father in retaliation for their advocacy to change their daughter's IEP, the district court did not err by denying Schott qualified immunity on their § 1983 First Amendment retaliation claim. It was uncontested that plaintiffs' advocacy about their daughter's educational plan was protected activity. The court held that Schott's child abuse report was an "adverse action." While Schott argued that "the Wenks must show that the report was materially false," the court concluded that "[t]he truth or lack thereof of a child abuse report is not dispositive to whether the report would chill a person from engaging in protected conduct." As to the causal connection requirement, a child abuse report - "even if it is not materially false and there is evidence in the record that could support a 'reasonable basis' to suspect child abuse - is actionable if the reporter actually made the report 'at least in part' for retaliatory motives." The court concluded that plaintiffs "presented ample evidence that Schott was motivated at least in part by a retaliatory motive" when filing the child abuse report. Even though her "report did contain some true allegations, the facts taken in the light most favorable to the Wenks suggest that she embellished or entirely fabricated other allegations, including those that most clearly suggested sexual abuse." There also were questions regarding how long Schott waited to file her report after receiving the information - "taking the facts in the light most favorable to the Wenks, Schott knew of the undisputed allegations for three weeks before she called" protective services. Thus, Schott failed to demonstrate "that no reasonable juror could fail to find that she would have called . . . absent the Wenks' protected conduct." The court also held that "the Wenks' right to be free from retaliation for exercising their First Amendment rights was clearly established at the time of this case, and that a reasonable official in Schott's position would have understood that filing a child abuse report in bad faith violated the Wenks' rights." However, it declined plaintiffs' request to impose sanctions on Schott related to the appeal. Affirmed.


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