THE COUNSELOR PRODUCED NO EVIDENCE TO SUBSTANTIATE RETALIATION CLAIMS
Case citation: Lee-Khanv. Austin ISD, Fed. Appx. , 2014 WL 1797833 (5th Cir. 2014) (unpublished).
Summary: Helen Lee-Khan was a middle school counselor for the Austin Independent School District from 2007 until she was laid off in a district-wide reduction-in-force (RIF) in 2011. After being laid off, Lee-Khan applied for twelve different positions within the district, including several counselor positions (which were consistent with her professional background) and a variety of positions such as assistant principal, security guard, head custodian, manager of media relations, public relations coordinator, band teacher, library media technician, technology help desk, and human resources administrative support.Lee-Khan was granted interviews for some of these positions but ultimately was not hired. Several of the positions were filled with transfers from other schools (rather than new hires) and some with former retirees. At least three counseling positions, though, were filled with persons from out of state who did not have Texas certification. Lee-Khan sued under 42 U.S.C. § 1983, alleging that the district saw to it that no schools in the district would rehire her as retaliation for her exercise of constitutionally-protected speech.
Ruling: The Fifth Circuit affirmed the trial court dismissal of Lee- Khan’s case, agreeing that she had failed to allege enough facts to support a plausible inference of any unconstitutional conduct or policy fairly attributable to the district. Lee–Khan alleged that the district refused to re-hire her in retaliation for protected speech. Specifically, she claimed that in October 2008, she testified in an employment discrimination case against AISD on behalf of a colleague. According to Lee-Khan, in 2009, she “advised the School Administration of several potential testing and scheduling violations,” “raised concerns to the campus administration about issues affecting the Special Education Program,” and “complained about a number of Special Ed students being placed into Pre–AP classes to accommodate glitches in the master schedule.” Then in November 2010, she allegedly “complained about a student being potentially harmed if improperly placed in Special Ed without full-scale testing and timely implementation and monitoring….”
The court of appeals observed that to hold the district liable, Lee-Khan had to demonstrate action attributable to the district through a policy, custom, or practice that led to a constitutional deprivation. Lee–Khan attempted to meet that burden by presenting a theory that the only explanation for her lack of success is an official policy on the district’s part to retaliate against her for engaging in protected speech several years earlier. She stated that the district “pervasively discriminate[s] against individuals who practice their rights of free speech and association to speak out against discriminatory practices within the school district” and that such retaliation betrays the “custom and practice” of the district.
According to the appeals court, however, she did not identify a single other individual who suffered from this alleged “pervasive” policy. She did not allege that her lack of success as to any of the positions she ultimately did not get was a result of speech she engaged in years prior or even that any person making hiring decisions had any idea that she had engaged in them. There was simply no evidence to substantiate her assertions that the district was aware of her speech and took action to ensure that she would not be rehired years later. Thus, the Fifth Circuit upheld the judgment in favor of the district.
Comments: Ms. Lee-Khan lost her case, but you have to give her credit for applying for such a wide variety of positions, from head custodian to assistant principal.
EVIDENCE SUPPORTED THE NURSE’S RETALIATION CLAIMS
Case citation: Hague v. University of Texas Health Science CenterinSanAntonio, __Fed. Appx.__, 2014 WL 1257944 (5th Cir. 2014) (unpublished).
Summary: Monica Hague was a registered nurse for the University of Texas Health Science Center in San Antonio (UTHSC), and worked as a Civilian Training Officer in the Emergency Health Services Department from December 15, 2008, through August 31, 2011. She had a term contract which was renewed twice, each time for an additional one-year period.
During this time, Hague filed two complaints with hospital administration. First, she complained of sexual harassment by her colleague to the interim Associate Dean in September of 2010. She alleged that her colleague, the Department Medical Director, sexually harassed her by reading an explicit magazine article out loud during a department meeting. Hague also alleged that this man gave a co-worker a sexually explicit doll. In October, Hague followed with an official complaint to the person responsible for civil rights compliance issues pertaining to faculty members. After an internal investigation, the colleague was admonished for his behavior.
Second, Hague filed a grievance concerning the head of the Emergency Health Services Department. Hague’s grievance alleged that this doctor treated employees differently and fostered an uninviting work environment. An internal investigation cleared the doctor of Hague’s allegations, but the doctor was instructed to make certain improvements in communications within the department.
Hague filed a formal Equal Employment Opportunity Commission (EEOC) complaint on June 17, 2011. On June 20, 2011, UTHSC provided Hague a letter advising that her contract would not be renewed and her employment with UTHSC would not continue beyond August 31, 2011. UTHSC did not receive notice of Hague’s formal EEOC complaint until June 21, 2011.
Hague received a right-to-sue letter and subsequently filed suit alleging violations of Title VII of the Civil Rights of 1964. She alleged that UTHSC unlawfully retaliated against her, that she was wrongfully discriminated against on account of her gender, and that she was sexually harassed in the workplace. The district court granted a pretrial judgment in favor of UTHSC. Hague appealed to the Fifth Circuit Court of Appeals, arguing that the evidence raised genuine issues of material fact on all of her claims.
Ruling: The Fifth Circuit affirmed, in part, and reversed, in part, the trial court’s judgment in favor of UTHSC. The court of appeals first concluded that Hague had not exhausted administrative remedies on her sex discrimination claim. Hague failed to include a specific sex discrimination claim on her EEOC intake sheet and consequently did not exhaust her administrative remedies on that claim. Although Hague argued that she fulfilled the purpose of the exhaustion requirement because her EEOC charge and her lawsuit put UTHSC on notice of a sex discrimination claim, the details listed on her charge concerned only her allegations of harassment. Hague’s sex discrimination claim not based upon harassment fell outside “the scope of the EEOC investigation” and could not reasonably be expected to grow out of her initial charge of sexual harassment.
Hague’s sexual harassment claims regarding her co-worker were without merit. Hague claimed that a co-worker’s conduct regarding the sexually explicit doll and reading of the internet article amounted to sexual harassment. She argued that the trial court erred in failing to analyze her complaint as a quid pro quo claim, because she alleged harassment by a supervisor resulting in her non-renewal, a “tangible employment action.” The court of appeals disagreed, holding that the sexual harassment claim failed because the employee was not her supervisor and did not have the power to take tangible employment actions against her. Under the quid pro quo standard, “the grant or denial of employment advancement, such as a promotion or raise, depends upon whether an employee acquiesces to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.” Because the co-worker identified by Hague was not a supervisor, she could not establish a quid pro quo claim.
The appeals court observed that the proper standard when harassment involves a co-worker is whether the co-worker’s conduct created a hostile work environment. A hostile work environment claim consists of five elements: (1) membership in a protected group; (2) unwelcome sexual harassment; (3) harassment complained of is based on sex; (4) harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Here, the Fifth Circuit determined that Hague failed to raise an issue of material fact concerning the fourth element—whether the harassment complained of affected a term, condition, or privilege of employment. According to the appeals court, the internet article and the doll incident were not shown to affect a term, condition, or privilege of employment. Thus, the hostile environment claims failed as a matter of law.
The court of appeals, however, returned the case to the trial court on the issue of whether Hague raised a valid retaliation claim. In addition, fact issues existed as to whether UTHSC’s reasons for not renewing Hague’s contract were a pretext for retaliation. For example, during the litigation UTHSC officials cited numerous performance problems by Hague, but acknowledged that they had not provided those reasons at the time of the employment decision. Hague had also pointed out that UTHSC declined to renew the contracts of other female employees who had supported Hague’s complaints during the investigation. One supervisor’s testimony also called into question whether the nonrenewal decision was due to a grievance she had filed against that supervisor. Other evidence rebutted UTHSC’s claims that Hague had committed privacy violations, inaccurately portrayed her job title, failed to attend a conference, and failed to pass a test on new operating procedures. Given the conflicts in the evidence, a genuine issue of fact existed on whether UTHSC’s stated reasons for Hague’s nonrenewal were a pretext for retaliation.
The Fifth Circuit returned the case to the trial court for further proceedings on the retaliation claims.
Comments: This seems to happen fairly often—the sex discrimination case, based on allegations of sexual harassment, fails; but the retaliation claim is still alive. This case is in the early stages and the plaintiff will now bear the burden of producing evidence to support the retaliation claim, but this preliminary decision is yet another illustration of how retaliation claims differ from traditional discrimination claims.
Due Process Rights
THE TEACHER’S RETALIATION CLAIMS WERE WITHOUT MERIT
Case citation: Sinclair v. School Board of Allen Parish, Fed. Appx.__, 2014 WL 1273843 (5th Cir. 2014) (unpublished).
Summary: Charlotte Sinclair was a high school teacher in Louisiana’s Allen Parish. She worked at the school from August 2001, until she took sabbatical leave during the 2007-08 school year. She taught both science and business courses during this period. Following her sabbatical leave, the high school principal assigned Sinclair to teach only science rather than business classes for the 2008-09 school year. Soon after, Sinclair took leave for medical reasons, and never returned to work in any capacity for the School Board
On January 21, 2009, the Sinclairs filed suit in federal court against the School Board, the superintendent, the personnel director, and the high school principal. The suit alleged various state and federal law claims. Among other claims, the Sinclairs alleged that the defendants violated Sinclair’s procedural due process rights under the Fourteenth Amendment by reassigning her to a new position in violation of Louisiana’s sabbatical leave statute. In particular, the Sinclairs contended that the statute entitled her to return to the same teaching assignment following her sabbatical and she was deprived of this right.
Defendants moved for summary judgment on all of the Sinclairs’ claims. The district court denied summary judgment as to Charlotte’s Fourteenth Amendment claim and granted summary judgment on all other claims. The district court conducted a three-day jury trial. During jury instructions, the district court stated to the jury that under Louisiana’s sabbatical leave statute, the term “position” means “classroom teacher.” Sinclair objected to the instruction, arguing that the term “position” means a particular subject to which a classroom teacher is assigned. The jury returned a unanimous verdict in favor of the Defendants. The Sinclairs appealed the jury verdict to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit affirmed the judgment in favor of the district. The issue on appeal was whether the trial court properly instructed the jury concerning the Louisiana statute that the Sinclairs claimed required the district to re-hire her. The statute stated: “Every person on sabbatical leave shall be returned at the beginning of the semester immediately following such leave to the same position at the same school from which such leave was taken, unless otherwise agreed to by him.” The statute did not define the term “position.” The district court instead relied on a state appellate court decision interpreting the term “position” to mean only “that of teacher rather than teacher of any specific subject.” On appeal, the Sinclairs claimed that the legal precedent supporting the trial court’s determination “makes no sense.” However, because the Sinclairs failed to offer any legal authority supporting their contention that Sinclair should have been reinstated to the exact same teaching assignment, the Fifth Circuit upheld the jury verdict.
Comments: This case tells us more about Louisiana law than the U.S. Constitution.
THE PROFESSOR COULD NOT ESTABLISH DISCRIMINATION OR RETALIATION CLAIMS
Case citation: Austenv. Weatherford College, Fed. Appx. , 2014 WL 1509563 (5th Cir. 2014) (unpublished).
Summary: Karen Austen worked for Weatherford College as a professor and Department Chair of Kinesiology in 2007. Immediately at the beginning of the school year, Austen came into conflict with several of her colleagues. The assistant men’s basketball coach alleged in a formal internal complaint that Austen had made improper comments to him regarding his physique, initiated confrontations with him, and often secretly took photographs of him as he was working out. A secretary in the Kinesiology Department filed a police report alleging that Austen had acted inappropriately with her daughter by inviting her to her office, showing her inappropriate photos, and asking to measure her with a measuring tape. The secretary also filed a formal complaint alleging that Austen had belittled her, threatened her, stalked her, and created “an unrelenting hostile work environment on a daily basis.”
The following summer and year, the athletic director reported concerns regarding Austen’s aggressive and confrontational treatment of another departmental secretary. Austen’s supervisor, a dean, shortly thereafter sent an email reprimanding Austen for her failure to follow the college’s purchasing policy. A few days later, a college senior vice president reprimanded Austen for unprofessional behavior, noting that she had stormed out of his office and interrupted an ongoing meeting. The senior vice president also began an investigation into a student’s allegation that Austen had come to her dorm room to ask her to assert a complaint against the departmental secretary. Austen was subsequently reprimanded for making contact with the student after having been ordered not to and allegedly asking the student to make a false report. Austen continued to receive reprimands or complaints for her alleged unwillingness to participate in administration meetings and for other unprofessional behavior. She was eventually demoted as department chair.
Throughout this period, Austen filed her own formal complaints against the individuals with whom she had disputes. Those grievances alleged sex discrimination and sexual harassment among other complaints lodged against the athletic director, the assistant men’s basketball coach, one of the department secretaries, and the administration generally. In December 2008, after her demotion, Austen filed a complaint with the EEOC alleging sex discrimination and retaliation for filing her grievances related to sexual discrimination and harassment. The EEOC dismissed the case.
In 2009, the college, without admitting liability, entered into a settlement with Austen whereby she agreed to release all claims in return for the college’s agreement, among other things, to cease all current investigations and to remove five performance notices and disciplinary warnings from her personnel file. The following year, however, the complaints against Austen continued, from both students and faculty. In May 2010, Austen received notice that the president was recommending nonrenewal of her annual contract based on six incidents of unprofessional behavior that had occurred in the previous semester. The Board of Trustees voted not to renew the contract.
Austen filed a second charge with the EEOC, which was dismissed, then filed suit for violations of Title VII of the Civil Rights Act and the Texas Commission on Human Rights Act (TCHRA), for race and sex discrimination and retaliation. She also raised a First Amendment retaliation claim. The trial court entered judgment in favor of the defendants as to each of her claims.
Ruling: The Fifth Circuit upheld the judgment again Austen, holding that she failed to produce sufficient evidence to support claims for either retaliation or discrimination. To establish a prima facie case of retaliation under either Title VII or the TCHRA, Austen had to establish that she engaged in a protected activity, that she was subjected to an adverse employment action, and that there was a causal link between the two. In this case, the only evidence of a causal link was that the Chairman of the Board of Trustees said that the first EEOC complaint “was part of the overall evidence we looked at.” Austen also presented her own belief that a jury could find the reasons for nonrenewal to be pretextual because she disputed the accounts of the underlying complainants.
According to the appeals court, the main issue was whether the college could legitimately have relied on those reasons in deciding to terminate Austen. The court stated: “In light of the overwhelming number of documented, legitimate reasons for termination, Austen has failed to show either a causal connection or pretext sufficient to defeat summary judgment.”
With respect to the sex and race discrimination claims, Austen had to establish a prima facie case by showing that (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subject to an adverse employment action; and (4) she was replaced by someone outside her protected class or received less favorable treatment than did a similarly situated individual not in the protected class. Austen challenged her nonrenewal and not her demotion, which was covered by the settlement agreement. She provided no evidence that she was replaced by someone outside her protected class, so she failed to make a prima facie case. Further, she offered no competent evidence other than her own assertions that the stated reasons for termination were pretextual. “As with the retaliation claims, given the overwhelming number of documented, legitimate reasons for termination, Austen has not met her burden to prove either a prima facie case or pretext.”
The Fifth Circuit addressed the First Amendment claims and similarly held that, even assuming that Austen’s complaints about alleged sexual harassment and sex discrimination constituted speech on a matter of public concern, she offered no evidence to rebut the legitimate reasons for nonrenewal. As a result, she failed to provide sufficient evidence of a disputed issue as to whether the nonrenewal was motivated by her speech.
Austen also alleged that the college breached the settlement agreement by removing documents about prior incidents for the purpose of using them at the nonrenewal hearing. She argued that the intent of the settlement was that such documents would not be used against her in the future, an intent that the college disputed. Regardless, the challenged documents played a minimal if any role in her subsequent nonrenewal, according to the court of appeals. Six other serious, documented instances of misconduct from the semester after the settlement agreement were the primary reasons for termination. Therefore, Austen could not show any harm even if the settlement agreement had been breached. The Fifth Circuit upheld the judgment in favor of the college.
DID THE DISTRICT FIRE THE TEACHER FOR HER MILITARY SERVICE OBLIGATIONS?
Editor’s Note: This case was previously reported in the March 2014 issue of the Legal Digest. However, the Court withdrew the prior opinion and issued this one in its place. The trial court reached the same decision but it relied on a new Fifth Circuit case for the legal standard applicable in claims brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA). In Bradberry v. Jefferson Cnty., Tex., 732 F.3d 540, 545 (5th Cir. 2013), the Fifth Circuit observed that a plaintiff raising USERRA claims must only show that his or her military service was a “motivating factor” behind the adverse employment action, rather than the “sole motivation for the employer’s action.”
Case citation: Mayeauxv. Houston ISD, 2014 WL 1340083 (S.D. Tex. 2014) (unpublished).
Summary: Ramona Mayeaux worked for the Houston Independent School District as an at-will JROTC teacher. Mayeaux was also an active member of the United States National Guard and, in that capacity, was required to attend military service one weekend every month and military training fifteen days every year. During the 2009-10 school year, the principal at Mayeaux’s school uncovered possible violations by Mayeaux of the district’s fundraising policies. As a result, the principal asked the district’s Office of Inspector General to conduct an investigation into unauthorized fundraising and inaccurate recordkeeping related to fundraising. While the investigation was pending, the principal reassigned Mayeaux.
Following the investigation, the Inspector General issued a report concluding that Mayeaux violated fundraising procedures and left an unexplained shortfall of more than $3,000 for fundraising activities. The report also included significant detail regard Mayeaux’s military absences. Ultimately, the report concluded that “[b]ecause of Ms. Mayeaux’s absences along with the financial problems previously mentioned in this report, Ms. Mayeaux was relieved of her duties. . .” Upon receiving the report, the principal submitted a memo objecting to the investigation based upon Mayeaux’s military absences. The Inspector General then issued a revised report, which still included discussion of Mayeaux’s military absences, but concluded that she was relieved of her duties solely based on her improper fundraising activities. The principal later recommended Mayeaux’s termination.
After her termination, Mayeaux filed suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), claiming that the district terminated her for absences resulting from her military obligations. The district sought judgment in its favor prior to trial.
Ruling: The trial court denied the district’s request for judgment prior to trial. USERRA prohibits employers from denying uniformed service members the benefits of employment on the basis of their membership in the armed services. Employers violate USERRA if an employee’s service or obligation for service in the uniformed services is a “motivating factor in the employer’s [adverse] action, unless the employer can prove that the action would have been taken in the absence of such membership, service . . . or obligation for service.” Courts have held that military service is a motivating factor for an adverse employment action “if the employer relied on, took into account, considered, or conditions its decision on the employee’s military-related absence or obligation.”
The court observed, however, that if Mayeaux could establish that her military service was a “motivating factor” in her termination, the district could still escape liability by showing by a preponderance of the evidence that it would have made the same decision without regard to Mayeaux’s military status. The trial court noted that, in contrast to Title VII discrimination cases in which the burden remains on the plaintiff to show pretext, in USERRA cases the burden is on the employer to show lack of pretext.
The trial court held that, based on the Inspector General reports discussing Mayeaux’s military absences, a jury could find that Mayeaux’s military service obligations were a motivating factor in her termination. While the district had a sufficient basis to conclude that Mayeaux violated fundraising procedures, it was for a jury to decide “whether the problems with Mayeaux’s fundraising activities would have led to her termination even if she were not serving in the military.” The trial court, thus, denied the district’s request for pretrial judgment of the USERRA suit.
Comments: When a school district leaves a paper trail that references what the courts consider “protected activity,” the district is creating a problem for itself. Here, the court is relying on the paper trail left by the Inspector General that referenced the absences of the employee that were due to her military service. Now the district faces the burden of proving that these absences were not a motivating factor in the decision. Lawyers often encourage administrators to “document, document, document.” However, not all documentation helps you out. Sometimes it hurts. The best example we ever heard of along those lines was the memo from the principal to the teacher that read: “We expected better behavior out of a woman of your years.” That one is what the lawyers call a two-fer, providing grounds for both sex and age discrimination claims.
DID THE STATUTORY CHANGE IN NOTICE OF TERMINATION PROVISIONS APPLY TO A PROBATIONARY CONTRACT EXECUTED BEFORE THE CHANGE?
Case citation: Garcesv. La Joya ISD, Dkt. No. 101-R10-0712 (Comm’r Educ. Dec. 19, 2013).
Summary: On April 25, 2011, Sylvia Garces entered into a one-year probationary contract for the 2011-12 school year. When she signed the contract, Texas Education Code § 21.103 required the district to provide her with notice of at least 45 days before the last day of instruction if the district intended not to extend the contract. Meanwhile, while the contract remained in effect, the Texas Legislature amended Texas Education Code § 21.103, changing the notice deadline from 45 days to ten days.
The last day of instruction was May 31, 2012. With less than 45 days’ notice, on April 30, 2012, the board provided Garces with notice that the contract would be terminated at the end of the 2011-12 school year. Garces appealed the district’s decision to terminate her contract, arguing that the district did not comply with Education Code § 21.103, as it existed at the time she signed her contract, because the district did not meet the 45-day deadline. The district, on the other hand, argued that the new ten-day notice provision applied to her termination and, therefore, notice was timely.
Ruling: The Commissioner upheld Garces’s termination, ruling that the notice of contract action was timely under the amended version of Education Code § 21.103. The Commissioner observed that a statutory change to a probationary contract that incorporates state law as it existed or as it may be amended will be enforced “so long as the legislative change does not change the purpose and general effect of the contract.”
In this case, the change in notice from 45 days before the last day of instruction to ten days before the last day of instruction does not change the purpose and general effect of the contract. Under either provision, a teacher has a significant amount of time to find a new teaching position before the first duty day of the new school year. Thus, according to the Commissioner, Garces was only entitled to notice of ten days before the last day of instruction that her probationary contract would not be extended.
Comments: When the legislature changed the timeline from 45 to 10 days, we assumed that a case like this would arise. Here it is!