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Case citation:  Griffin v. Kennard ISD,      Fed.Appx.      , 2014 WL 1890997 (5th Cir. 2014).

Summary:  Nadean Griffin and Jerry Smotherman were African American and worked for the Kennard Independent School District as custodians.  In addition to their fulltime custodial duties, Griffin and Smotherman previously performed bus-driving duties for the district for which they received supplemental income. For the majority of their employment, they drove a morning bus route prior to the start of the school day, performed most of their custodial work during the school day, drove an afternoon bus route after the school day, and then returned to school to complete their custodial work for that day.

In 2011, in response to statewide budget cuts, the district took various cost-cutting measures, including discharging six contract employees. The school board also authorized superintendent David Baxter to eliminate one of the five custodial positions. Baxter informed the board that he planned instead to (1) modify the custodial schedules in accordance with a consultant’s prior recommendation that most custodial work be performed after the school day, and (2) consolidate or reassign bus routes. Baxter thus changed the schedules of Griffin and Smotherman so that they would perform their custodial duties from 1:00 p.m. to 10:00 p.m. and relieved them of their bus-driving duties, effective for the 2011-12 school year. Griffin’s route was combined with an existing route driven by an employee who worked as a full-time bus driver. Smotherman’s route was reassigned to an employee who worked as a teacher and substitute bus driver. Baxter also reassigned a route that had been driven by a white, female teacher, Jennifer Currie, to a male bus mechanic and head of transportation as part of his regularly scheduled eight-hour shift. In implementing these changes, the district did not hire any new employees. Griffin and Smotherman filed suit alleging that it eliminated their bus driving positions on the basis of their race in violation of Title VII and 42 U.S.C. § 1983.  The trial court, however, entered judgment in favor of the district and Griffin and Smotherman appealed.

Ruling:   The Fifth Circuit upheld the judgment in favor of the school district.  To establish claims of race discrimination under Title VII, Griffin and Smotherman first had to establish a prima facie case of discrimination by demonstrating that they were replaced by someone outside their protected class or were treated less favorably, under nearly identical circumstances, than other similarly-situated employees outside their protected class, among other things.   Griffin and Smotherman simply failed to do so in this case.

According to the Fifth Circuit, Griffin and Smotherman did not offer evidence that they were “replaced” by someone outside of their protected class.   The Fifth Circuit has previously held that an employee “has not been ‘replaced’ … when his former duties are distributed among other co-workers.”  The record showed that Kennard ISD did not hire anyone to replace them. It instead distributed their bus-driving duties to other employees by combining Griffin’s route with another employee’s route and reassigning Smotherman’s route to another employee.

In addition, while Griffin and Smotherman also argued that they were treated less favorably because white bus drivers were allowed to retain their bus driving duties, they failed to point to “similarly-situated” employees who were treated more favorably under “nearly identical circumstances,” such as custodian-bus drivers or other bus drivers whose work schedule required them to work primarily after the school day.  Further, the undisputed evidence showed that a white, female teacher also was not allowed to retain her bus driving duties for the 2011-12 school year. Like Griffin and Smotherman, her bus-driving duties were reassigned to a coworker.  Thus, Griffin and Smotherman failed to substantiate their race discrimination claims, and the Fifth Circuit affirmed the judgment against them.




Editor’s Note:  This case does not involve a school district but is relevant to educators.  The case involves two employees’ claims under the Fair Labor Standards Act, which applies equally to school district employees.

Case citation:  Johnson v. Heckmann Water Resources (CVR), Inc.,       F.3d      , 2014 WL 3408250 (5th Cir. 2014).

Summary: Kevin Johnson and Brad Smith worked for Complete Vacuum and Rental (CVR), which later became Heckmann Water Resources (HWR). They were classified as non-exempt employees under the Fair Labor Standards Act (FLSA) and were paid hourly wages. They worked twelve-hour shifts for seven consecutive days beginning every other Thursday. Smith’s shift began at 6:00 a.m., and Johnson’s at 6:00 p.m. HWR/CVR paid its employees bi-weekly and used a Monday through Sunday “workweek” to calculate overtime under the FLSA.  Based on their hours, HWR/ CVR paid Johnson for four hours of overtime per pay period, and Smith eight hours.  Johnson and Smith sued HWR/CVR, seeking unpaid overtime compensation under the FLSA.   The trial court granted a pretrial judgment in favor of HWR/CVR, and the employees appealed to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit affirmed the judgment in favor of the employer, finding no violation of the FLSA.  The FLSA provides that “no employer shall employ any of his employees … for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”  An employee bringing an action for unpaid overtime compensation must first demonstrate by a preponderance of the evidence: (1) that there existed an employer-employee relationship during the unpaid overtime periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA’s overtime wage requirements; and (4) the amount of overtime compensation due.  Once the employee establishes a prima facie case, the burden then shifts to the employer to “come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence.”

The issue on appeal was whether HWR/CVR violated the FLSA’s overtime wage requirements by using a Monday through Sunday “workweek” to calculate overtime compensation. Johnson and Smith contended that their workweek under the FLSA should reflect their actual, seven consecutive day, Thursday through Wednesday work schedule. Yet, they did not cite any authority requiring employers to establish a workweek in this manner.

The FLSA does not define the term “workweek.” The Department of Labor (DOL) regulations state: “An employee’s workweek is a fixed and regularly recurring period of 168 hours—seven consecutive 24–hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. . . .”  According to the Fifth Circuit, nothing in the regulation itself requires HWR/CVR to use the workweek proposed by Johnson and Smith.  They argued that a Monday through Sunday workweek violates the FLSA because they have “always” worked Thursday through Wednesday and different workweeks may be established for “different employees or groups of employees.” However, that part of the regulation uses the term “may” and, thus, is clearly permissive rather than mandatory. The regulation does not require an employer to establish different workweeks for different employees.

Under the FLSA, an employer has the right to establish a workweek.  An employer is not required to begin the workweek on any given day, and an employee’s workweek need not coincide with the calendar week but may begin on any day and at any hour of the day. The mere fact that an established workweek does not maximize an employee’s overtime compensation does not, standing alone, violate the FLSA.  Rather, the FLSA requires only that a workweek be “a fixed and regularly recurring period of 168 hours—seven consecutive 24–hour periods.”  HWR/CVR complied with that requirement, notwithstanding the fact that the employees’ actual work schedule spanned two workweeks, thereby reducing their potential overtime compensation.

Comments:  The working man gets stiffed by this decision. These guys worked 84 hours in one week!  You would think that this would amount to 44 hours of overtime pay.   But because of the way the work week was divided by the employer, they got far less. Apparently Smith worked 36 hours in one “week” (Monday to Wednesday) and then 48 hours in the next “week” (Thursday to Sunday). No matter how you slice it, he worked 84 hours in seven days.  But he earns eight hours of overtime pay rather than 44.   Hmmm.



Case citation:  Richter v. Dallas ISD, Dkt. No. 078-R10-0611 (Comm’r Educ. May 12, 2014); Cabelles v. Dallas ISD, Dkt. No. 074-R10-0611 (Comm’r Educ. May 12, 2014); Nelle v. Dallas ISD, Dkt. No. 072-R10-0611 (Comm’r Educ. May 12, 2014); Barcenilla v. Dallas ISD, Dkt. No. 073-R10-0611 (Comm’r Educ. May 12, 2014); Chandra v. Dallas ISD, Dkt. No. 076-R10-0611 (Comm’r Educ. May 12, 2014); Grijaldo v. Dallas ISD, Dkt. No. 075-R10-0611 (Comm’r Educ. May 12, 2014); Labro v. Dallas ISD, Dkt. No. 077-R10-0611 (Comm’r Educ. May 12, 2014).

Summary:  Eireen Caballes, Dorothy Barcenilla, Bernardita Chandra, Ricardo Grijaldo, Isabelita Labro, and Zoe Nelle worked for the Dallas Independent School District as teachers.  Prior to working for the district, each of the teachers taught in private schools and colleges in the Philippines.  The school district initially based their pay, in part, on their years of teaching in the Philippines.  However, in January of 2010, they were given notice that, beginning September 21, 2010, their pay would no longer be based on their years of teaching in private school and colleges in the Philippines. The district’s compensation guidelines provided that creditable years of experience shall be determined in accordance with Texas Education Agency policies and regulations. The teachers filed grievances concerning the level of compensation following the January 2010 notice, arguing that their pay would not be based on their prior years of experience.  After the district denied the grievances, each of the teachers filed separate appeals with the Commissioner of Education.

Ruling: The Commissioner granted each of the teachers’ appeals, holding that the district should have considered their prior years teaching at private schools and colleges in the Philippines when calculating their salaries. The district compensated teachers based on teaching experience.  The state required Minimum Salary Schedule for Certain Professional Staff under Texas Education Code § 21.402 is based on years of experience.  Under 19 Tex. Admin. Code § 153.1021(h)(13), years of teaching experience in foreign private schools and colleges will be recognized if the entities are accredited by the relevant foreign government.  The main issue was whether the Philippine government accredited the private schools and colleges at which the teachers taught.

Looking to the ordinary meaning of the work “accredit,” the Commissioner concluded that the private schools and colleges were accredited for the purposes of § 153.1021(h)(13).  Specifically, under its dictionary definition, “accredit” means (1) to give official authorization to or approval of; (2) to provide with credentials; (3) to recognize or vouch for as conforming with a standard; and (4) to recognize (an educational institution) as maintaining standards that qualify the graduates for admission to higher or more specialized institutions or professional practice.

In this case, when the Philippine Department of Education or the Philippine Commission of Higher Education determines that a private school or college is “duly recognized/accredited,” that private school or college has been accredited as that term is used under § 153.1021(h)(13).  Because all of the private schools and colleges at which the teachers worked in the Philippines were accredited by the Philippine government, the teachers were entitled to that teaching experience as creditable service for the purposes of determining their salaries.  The Commissioner, therefore, granted each of the teachers’ appeals.


Case citation:  Jasso v. Southside ISD, Dkt. No. 041-R2-02-2014 (Comm’r Educ. March 28, 2014).

Summary:   Dr. Juan A. Jasso was the superintendent of the Southside Independent School District when the district proposed the termination of his contract. A hearing was held before a hearing examiner, who ultimately recommended Jasso’s termination based on his failure to maintain a positive and professional relationship with the board of trustees by making disparaging comments at a May 28, 2013 school board meeting, in a televised interview, and to the school district’s counsel.  The statements related to a person chosen to serve as a graduation speaker and accusations that the board had not acted ethically in the matter.  After the board adopted the recommendation and terminated Jasso, he appealed to the Commissioner of Education.  On appeal, Jasso argued that good cause did not exist to end his contract.  He challenged the use of evidence concerning statements he made to the school board that were not included in the board minutes. Jasso claimed that his statements were privileged because they were made during a board meeting and that the statements could not support his termination because they did not constitute actionable defamation.  He argued further that there was no substantial evidence that he acted unprofessionally.

Ruling:  The Commissioner held that good cause existed to terminate Jasso’s contract.  Jasso argued that evidence concerning what statements were made by him to the board should have been limited to what was contained in the board minutes.  The Commissioner observed that board minutes establish what actions or votes occurred, but they do not authoritatively establish all of what was said at the meeting.  Thus, it was proper to consider evidence outside of the board minutes of what Jasso may have said during the May 28, 2013 school board meeting.

Jasso next argued that statements he made at the board meeting were privileged by law.  According to the Commissioner, while Jasso may have a “quasi-judicial” privilege related to recommendations that he makes to the board, he still had a duty to maintain a good working relationship with the school board. For a superintendent, a failure to maintain a positive and professional relationship with a school board constitutes good cause for termination. Thus, the district could “terminate a superintendent’s contract for speaking in such a way as to severely damage the working relationship with the board.”

Jasso claimed that, since his statements concerning the board’s ethics in handling the selection of a graduation speaker were true, they could not form the basis of his termination.  He claimed that since he had the authority over graduation, the board’s actions in selecting the graduation speaker violated board ethics policy. The Commissioner disagreed and stated:  “assuming solely for the purposes of argument that the superintendent had been delegated total authority over graduation speakers, Petitioner’s comments are belligerent.”   Further, the statements did not have to rise to the level of defamation to be sufficient to support a determination of good cause.   The Commissioner held that remediation was not necessary in this case because Jasso’s conduct constituted good cause for termination.   Thus, the Commissioner upheld the district’s decision to terminate the superintendent’s contract.

Comments:  “Superintendents are often placed in difficult positions,” says the Commissioner in this decision.  “Elections can and do change the composition of school boards.   It is not easy to work with a divided school board.   Nonetheless, a superintendent needs to work toward a positive and professional working relationship.”  Here, the Commissioner concluded that the superintendent made statements that “destroyed the possibility of trust.”  Thus, there was good cause to terminate his contract. Both superintendents and school board members should read this entire decision.

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