ADVERSE EMPLOYMENT ACTIONS AND PUBLIC SCHOOL ...

action because Herbert suffered a “materially adverse change” to her job status. Furthermore,
Dixon’s statements and comments regarding Herbert’s pregnancy were clearly disapproving and
her disciplinary measures became frequent following Herbert’s disclosure of her pregnancy.
Herbert was replaced by another woman who was not pregnant. To the court, this did establish
grounds for a genuine discrimination claim.
Second, the city did proffer valid reasons for Herbert’s demotion noting the documented
discipline history. However, once the burden to discredit shifted to Herbert, the court reasoned
that there remained doubt that the defendant’s reasons were pre-textual. On each count, Herbert
was able to show weakness in the defendant’s argument and cast doubt on the defendant’s
demotion reasons. Herbert presented evidence that her argument with a parent was unfounded
and the parent who complained was a functioning illiterate. Herbert also showed that she did not
fail to follow directions by allowing a suspended employee on school grounds. The suspended
employee signed in and out of the school within 11 minutes and was there to check her niece out
of school. Moreover, Herbert provided testimony from the two community members involved in
the altercation that Herbert did not stop stating that she was not present for the majority of the
argument that took place out of her view. The court reasoned that a rational jury could see these
discrepancies as evidence that the defendant’s proffered reasons for demotion were falsehoods.
Third, the court found that Dixon had no idea that Herbert had reported her alleged
embezzlement until after the employment action occurred. Therefore, there was no rational basis
for whistleblower violations by the defendants.
Disposition: The court granted summary judgment to defendants on the whistleblower
claims but denied the motion on all other counts.
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