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School board denied transfer of whistleblower was retaliatory

Type:

Verdict-Defendant

State:

Florida

Venue:

Miami-Dade County

Court:

Miami-Dade County Circuit Court, 11th

Injury Type(s):

mental/psychological-depression; mental/psychological-emotional distress

Case Type:

Employment – Retaliation, Whistleblower; Constitutional Law – Freedom of Speech

Case Name:

Trevor Colestock v School Board of Miami-Dade County,
No. 2014-007877-CA-01

Date:

March 23, 2018

Parties

Plaintiff(s):

Trevor Colestock (Male, 38 Years)

Plaintiff Attorney(s):

Craig J. Freger;
Craig J. Freger, Attorney at Law;
Pembroke Pines,
FL,
for
Trevor Colestock ■ Thomas Elfers;
Law Office of Thomas Elfers;
Miami,
FL,
for
Trevor Colestock

Defendant(s):

School Board of Miami-Dade County

Defense Attorney(s):

Cristina Rivera Correa;
Miami-Dade County School Board Attorney’s Office;
Miami,
FL,
for
School Board of Miami-Dade County ■ Christopher James La Piano;
Miami-Dade County School Board Attorney’s Office;
Miami,
FL,
for
School Board of Miami-Dade County

Defendant Expert(s):

Lawrence Brooks;
Neuropsychology;
Hollywood,
FL called by:
Cristina Rivera Correa, Christopher James La Piano

Facts:

On Oct. 24, 2013, plaintiff Trevor Colestock, 38, a library employee at Miami Norland Senior High School, was involuntarily transferred to another school after he took part in investigating and reporting on teaching-assisted cheating among students. During the 2011-2012 school year, two teachers, Willie Gant and Guy Halligan, had approached Colestock, who was also the union steward at the school, and told him that teachers were assisting test-cheating at Miami Norland. Gant and Halligan said students had told them that a teacher had provided students with answers for standardized tests. That school year, the school’s grade, which is largely based on standardized test scores, was raised from a C to an A. Colestock told Gant and Halligan to report the news to the Miami-Dade Office of the Inspector General, which is the oversight agency for the school district. Colestock also helped the Inspector General during the subsequent investigation. The teacher who was implicated was fired, and another teacher who had participated in the cheating was given a 30-workday suspension. Colestock wrote about the teacher-assisted cheating on several websites. In these articles, he maintained that there was still more cheating at the school which had gone unreported. He reported this alleged additional cheating to the Inspector General’s office. He also claimed in his writings that teachers had received bonuses for helping the students cheat, which would raise the school’s grade. In October 2013, after Colestock‘s Internet writings and work with the investigation, he was involuntarily transferred to Parkway Middle School, where he would have the same library position. However, Parkway Middle School was set to close down, so Colestock was again involuntarily transferred, to the library at Crestview Elementary School, on Dec. 10, 2013. During the events of these months, Colestock was also working as an English Speakers of Other Languages (ESOL) teacher at an adult education center in the school district. His ESOL class was canceled in May 2014. Colestock sued the Miami-Dade County School Board. He alleged retaliation in violation of the Florida Public Whistleblower Act and his First Amendment freedom of speech. Colestock claimed that he was transferred from Miami Norland because of his role in the investigation and the articles he wrote. Colestock‘s counsel argued in the complaint that the district’s collective bargaining agreement allows for involuntarily transfers of staff only when it is in the best interest of the school system. However, it was not in the school’s best interest to transfer Colestock, because it was he who had helped expose the cheating at the school. Counsel acknowledged that students had threatened a walk out to protest Colestock‘s online comments and had also threatened his safety, and several teachers had been upset by his writings. However, his counsel contended that it was the school’s responsibility to control the students and protect Colestock, instead of removing him. At trial, Colestock stated that the school’s administration should have addressed the entire faculty and student body about the threats. The school board denied that the transfer was retaliatory. Counsel admitted that teachers had helped students cheat and that Colestock was a legally protected whistleblower. However, it was noted that Colestock‘s additional allegations were never substantiated, and Colestock had admitted he was not sure if the teachers’ bonuses were given for allowing cheating. According to the defense, Colestock‘s transfer was not done in retaliation but in the best interests of the school system. The district could not determine who was threatening Colestock, so a transfer was the best way to address the issue. It would have been impractical to talk to all the teachers and students at Miami Norland about the threats. Instead, Colestock had been transferred for his own safety and for the safety of the students and staff. The transfer was intended to end the disruption to the students’ learning environment. This was successful, as Colestock admitted the threats against him stopped once he changed schools. Furthermore, the school board noted, years earlier, Colestock had in fact requested voluntary transfers to schools in the same geographic location as Parkway and Crestview. In addition, as far as the district was concerned, Gant and Halligan were the teachers who reported the test cheating and they were not transferred or terminated, and they both testified that they did not suffer retaliation for their participation in the investigation. The cancellation of Colestock‘s ESOL class, according to the defense, was due solely to low enrollment. His contract stated that the class could be terminated if not enough students were enrolled. The ESOL class was an extra-duty assignment, and Colestock was not entitled to that position as part of his full-time job.

Injury:

Colestock sought recovery of lost earnings from his ESOL class, approximately $52,000. He also sought $300,000 for emotional distress from the involuntary transfers. His treating psychologist testified that he had been diagnosed with a mood disorder and later a major depressive disorder. The School board’s counsel disputed that Colestock‘s transfers had negative effects. It was noted that Colestock kept his job title, responsibilities and salary, and his commute was essentially the same, as both Parkway and Crestview were within three miles of Miami Norland. Moreover, there were other ESOL teaching positions available within the district, although Colestock had made no effort for employment at those jobs. A neuropsychologist for the defense stated that Colestock was grossly exaggerating his claims of emotional distress.

Result:

The jury rendered a defense verdict. It found that Colestock‘s transfer from Norland and the removal of his ESOL class were not adverse employment actions.

Trial Information:

Judge:

Jacqueline Hogan Scola

Trial Length:

9
 days

Trial Deliberations:

3
 hours

Jury Vote:

6-0

Jury Composition:

2 male/ 4 female

Post Trial:

Plaintiff’s counsel has filed a motion for judgment notwithstanding the verdict or a new trial. Defense counsel has filed a motion for costs.

Editor’s Comment:

This report is based on information that was provided by defense counsel. Additional information was gleaned from court documents. Plaintiff’s counsel did not respond to the reporter’s phone calls.