DID THE FORMER EMPLOYEE STATE VALID DISCRIMINATION CLAIMS?
Case citation: KIPP, Inc. v. Whitehead, S.W.3d , 2014 WL 3926562 (Tex. App. – Houston [1st Dist.] 2014).
Summary: Kimberly Whitehead worked as an administrative learning specialist for KIPP, Inc. an open-enrollment charter school. In the summer of 2010, KIPP hired Daphane Carter, who was African American, as the new “School Leader,” or principal. In August of 2010, Whitehead, while pregnant, suffered a serious illness requiring her hospitalization and absence from work under the Family Medical Leave Act (FMLA). Carter in turn assigned Whitehead’s duties to Andrea Dozier, who was also African American, while Whitehead was out on FMLA leave. When she asked for her job duties to be reassigned to her, Whitehead allegedly “was told that would not happen because [she] was about to go on maternity leave,” but she “was assured that upon returning from pregnancy leave, her old job duties would be given back to her.”
On November 2, 2010, Whitehead went on maternity leave, and she delivered her baby the following day. When she returned to work on December 3, 2010, she allegedly asked for her old job back but was told that her job had been given to someone else. Subsequently, after Whitehead refused to resign, her supervisor reportedly became hostile toward her. Whitehead filed a complaint with the Human Resources Director, asserting “FMLA discrimination, a hostile work environment, and race discrimination.” Shortly thereafter, her supervisor called her into a meeting with the Human Resources Director, and she handed her a letter terminating her employment.
Whitehead then filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and the Texas Commission on Human Rights (TCHR), alleging retaliation and discrimination based on race and sex. Whitehead later filed suit. In response, KIPP filed a motion for summary judgment and plea to the jurisdiction, asserting sovereign immunity. In its plea, KIPP argued that the trial court did not have subject matter jurisdiction and should dismiss the suit because Whitehead “cannot prove essential elements of her claims.” KIPP asserted that Whitehead lacked standing to assert a pregnancy-discrimination claim as she was not a member of a protected class, did not suffer an adverse employment action in connection with her race, could not establish a causal connection between her human-resources complaint and the termination of employment, could not demonstrate that KIPP’s stated rationale for terminating her employment was based on a pretext, and lacked evidence to support the essential elements of her claims. The trial court denied both motions and KIPP took an immediate, pretrial appeal.
Ruling: The court of appeals upheld the trial court’s decision to deny the charter school’s plea to the jurisdiction. Under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent. Governmental immunity from suit deprives a trial court of subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. As an open-enrollment charter school, KIPP was able to assert governmental immunity from suit.
The Texas Legislature has provided a limited waiver of sovereign and governmental immunity for employment discrimination and retaliation claims falling within Chapter 21 of the Texas Labor Code. To establish waiver, a plaintiff must plead the elements of her statutory cause of action, (i.e., the basic facts that make up a prima facie case), so that a court can determine whether she has sufficiently alleged a violation under Chapter 21. To establish a prima facie case of discrimination, the employee must show that she: (1) is a member of a protected class; (2) was qualified for her position; (3) suffered an adverse employment action; and (4) was replaced by someone outside of her protected class or others similarly situated were treated more favorably
Whitehead brings her claims against KIPP for employment discrimination, based on sex and race, under Chapter 21. Chapter 21 prohibits employers from discriminating against employees “on the basis of pregnancy, childbirth, or a related medical condition.” Women who were pregnant at, or very near the time of, an adverse employment action are members of the protected class, as are women who were on maternity leave, or who had recently returned to work at the time of the adverse action. KIPP argued that Whitehead was not pregnant at the time of her termination and, therefore, she could not establish a discrimination claim. The appeals court disagreed. Her evidence that she returned to work from maternity leave on December 3, 2010, and KIPP terminated her employment less than three months later was sufficient to create a fact issue as to her membership in the protected class. And the existence of this fact issue precluded the granting of KIPPS’s plea to the jurisdiction.
With respect to the race discrimination claim, Whitehead had to show that she: (1) was a member of a protected class; (2) was qualified for her position; (3) suffered an adverse employment action; and (4) was replaced by someone outside of her protected class. KIPP argued that dismissal was warranted because Whitehead was not replaced by someone outside of the protected class. The evidence created a fact issue on this point. Evidence suggested that KIPP replaced her with an African American when it terminated her. Whitehead is Caucasian. Even though a Hispanic employee may have ultimately taken her position later, that employee also was outside of Whitehead’s protected class. Thus, Whitehead was able to establish a prima facie case of race discrimination and the trial court properly denied KIPP’s plea to the jurisdiction.
Comments: Cases alleging discrimination based on race or pregnancy are often filed in federal court under federal law. If that had been the case, KIPP would not have had a “sovereign immunity” claim because creatures of the state, like charter schools, are not immune from claims under federal law. However, this case was filed in state court, citing state law. Thus, KIPP took a shot at getting it dismissed due to its governmental status. Charter schools do have governmental immunity, but that did not immunize the school from potential liability in this case.
DID THE DISTRICT PROPERLY CONDUCT THE TEACHER’S APPRAISAL AND TINA?
Case citation: Meyer v. Brenham ISD, Dkt. No. 064-R10-07-2013 (Comm’r Educ. May 23, 2014).
Summary: Eva Meyer was employed as an elementary school teacher by the Brenham Independent School District during the 2012-13 school year. Some students created a petition that Meyer should not be their teacher. On Friday, November 30, 2012, another teacher confiscated the petition and brought it to the attention of the principal, who also happened to be her appraiser on that day. When the principal interviewed some of the students, the students stated that Meyer yelled and screamed in class. The following Monday, the principal met with Meyer about the students’ claims and Meyer denied the accusations. Meyer asked for a copy of the petition, but the principal refused because he had promised the students confidentiality and because he was concerned about how Meyer would react toward the students. A few days later, however, Meyer received a copy of the petition. The principal met with Meyer to discuss a Teacher in Need of Assistance Plan (TINA). Meyer filed a grievance challenging the TINA. When the grievance was denied, she appealed to the Commissioner of Education.
Ruling: The Commissioner denied Meyer’s appeal. On appeal, Meyer argued that the petition was not timely shared with her. Under 19 Tex. Admin. Code § 150.1003(f), any documentation that will influence the teacher’s summative annual appraisal report must be shared in writing with the teacher within ten working days of the appraiser’s knowledge of the occurrence. In this case, the principal became aware of the student petition on Friday, November 30, 2012. The tenth day after learning of the petition was December 14, 2012. It was unclear exactly when a copy of the petition was provided to Meyer, but records showed that she received it within a “few days” after the December 3, 2012 meeting between Meyer and the principal. There was substantial evidence in the record that the petition had been provided to Meyer within the ten-day deadline.
Meyer also challenged the Teacher in Need of Assistance Plan because she claimed it was based on an improper appraisal and because the plan was not developed in consultation with her. The Commissioner already determined that the appraisal was proper because the petition had been timely shared with Meyer. Under 19 Tex. Admin. Code § 150.1004(b), a TINA is to made in consultation with the teacher. The record showed that Meyer met with her principal to discuss the improvement plan, among other things. At the end of the meeting, the principal asked if she had anything else to discuss. While Meyer discussed other issues, she did not discuss the improvement plan. According to the Commissioner, when a teacher is given an opportunity to raise any issues that the teacher has with a growth plan, then the plan was has been developed “in consultation with the teacher.” The Commissioner upheld the appraisal and the improvement plan.
Comments: The principal redacted the student names before sharing the petition with the teacher.
DID THE DISTRICT BREACH THE TEACHER’S CONTRACT WHEN IT REDUCED HIS SALARY?
Case citation: Munoz v. Valley View ISD, Dkt. No. 002-R10-09-2013 (Comm’r Educ. May 15, 2014).
Summary: In August of 2011, the Valley View Independent School District adopted a budget for the 2011-12 school year, which included only a line item for the total amount to be expended on salaries. The budget for salaries was the same as the previous school year and, therefore, it did not allow for an annual raise for employees. During the 2011-12 school year, the district paid all returning employees the same amount that it had paid them the year before, despite the fact that the returning employees had another year of experience than they had during the previous school year. However, newly hired teachers were paid for their years of experience. Thus, the district paid newly hired teachers more than returning teachers with the same level of experience during the 2011-12 school year.
Sergio Munoz began working for the district in August of 2012, as a certified teacher under a one-year probationary contract, which stated that he would be compensated according to the compensation plan adopted by the board. At the time, Munoz had seven years of teaching experience. A salary schedule given to Munoz when he signed the contract indicated that a teacher with seven years of experience would be paid $44,368. Munoz was paid at that rate between September 2012 and March 2013. On April 10, 2013, however, the district informed Munoz that it had overpaid him and that it would be reducing his salary, as well as deducting the overpayments. Munoz filed a grievance complaining that the salary reduction was improper, but the district denied the grievance. Munoz appealed to the Commissioner of Education.
Ruling: The Commissioner granted Munoz’s appeal. According to the Commissioner, a school district cannot reduce compensation when teachers can no longer unilaterally resign from their contracts. Under Texas Education Code § 21.105, a probationary teacher can unilaterally resign without penalty no later than 45 days before the first day of instruction. Here, the district reduced Munoz’s compensation seven months into a ten-month contract. Because the salary reduction occurred when Munoz could no longer unilaterally resign, the district breached the contract.
According to the district, the contract was not breached because it stated that Munoz would be paid “according to the compensation plan adopted by the Board.” The Commissioner found that language in the contract to be ambiguous and the district had not adopted a specific compensation plan, but only adopted a single-line total salary budget. The Commissioner concluded that the salary reduction breached Munoz’s contract.
Comments: When a teacher new to the district is paid more than a returning teacher with the same experience, it is predictable that there will be trouble. Here, to make things equal, the district unilaterally cut Mr. Munoz’s salary. Among the arguments made by the district to justify this action was the assertion that “the salary paid Petitioner was a mistake due to consistent incompetency in its human relations and accounting staff that was completely unknown to the Board.” The Commissioner did not accept that argument.
CAN A TEACHER CONTRACT REQUIRE RESIGNATION AT THE END OF THE YEAR?
Case citation: Helkey v. Judson ISD, Dkt. No. 024-R10-1011 (Comm’r Educ. May 12, 2014).
Summary: Judson Independent School District employed Christopher Helkey as an assistant principal for the 2010-11 school year. Due to financial pressures, the district instituted a reorganization that included offering Helkey a teaching position, which he accepted. The district later secured a grant able to fund an assistant principal position for one year. Helkey then was offered a contract as an assistant principal conditioned on his agreement to resign from all employment with the district at the end of the but the district did not sign it. Helkey continued to work as a teacher and filed a grievance contesting the district’s actions offering him a one-year contract that required him to resign. The board denied his request for an open grievance hearing, but the vote to deny the grievance was taken in open session. Helkey appealed to the Commissioner arguing that the contract violated the Education Code and the refusal to grant him an open grievance hearing violated the Texas Open Meetings Act.
Ruling: The Commissioner denied Helkey’s appeal. According to the Commissioner, although a contract requiring resignation at the end of the term violates the Texas Education Code, Helkey’s contract was never executed by the board. The Commissioner observed that school districts are required to employ classroom teachers, principals, librarians, nurses, and counselors under probationary, term, or continuing contracts. Further each of those types of contracts may only end under certain circumstances and by following prescribed procedures set out in Chapter 21 of the Texas Education Code. A contract that requires resignation violates the Education Code and would be void. In this case, the board never signed Helkey’s assistant principal contract. Because no assistant principal contract existed between Helkey and the district, no violation of a written employment contract occurred.
Under the Texas Open Meetings Act, a vote can only be declared void if the vote itself was conducted in violation of the Texas Open Meetings Act. Here, Helkey requested that his grievance hearing be held in open session, but the district denied the request. The board, nevertheless, held the vote in open session. The Commissioner observed that, even assuming the board violated the Open Meetings Act, if a vote is taken after the violation and the vote itself did not violate the Act, then the vote is not void. Here, the vote did not violate the Open Meetings Act and, therefore, no violation occurred. The Commissioner denied Helkey’s appeal.
Comments: The school cannot offer a Chapter 21 employee a contract that requires a resignation at the end of the year, or at any particular time. The Commissioner noted that if such contracts were legal, “a district could choose to only offer teacher contracts that provide fewer rights than a probationary contract.” As to the TOMA complaint, the Commissioner does not tell us if it was OK for the board to deny Mr. Helkey’s request or an open grievance hearing. Instead, the Commissioner holds that the only thing that mattered was that the vote was taken in open session.
DID THE DISTRICT OFFER VALID TEACHING CONTRACTS?
Case citation: MissionConsolidatedClassroomTeachers Association v. Mission CISD, Dkt. No. 096-R10-0711 (Comm’r Educ. May 15, 2014).
Summary: The Mission Consolidated Classroom Teachers Association filed an appeal with the Commissioner challenging the term contracts offered to teachers in the Mission Consolidated Independent School District. The teachers association argued that the contracts violated the Texas Education Code because they were too indefinite and because they contained improper provisions concerning accrual of leave. According to the teachers association, the term contract was not sufficiently clear as to the number of days to be worked.
Ruling: The Commissioner held that the term contracts offered by the district did not violate the Texas Education Code. According to the Commissioner, not all employment contracts are required to specify the number of days that are required to be worked. For example, because teachers are exempt employees under the Fair Labor Standards Act, their pay is not necessarily conditioned upon how many hours they work in a day or a week. The Texas Education Code provides a minimum number of months and days a teacher must work, but does not set a maximum. The document at issue allows the district to require teachers to work for a minimum of 187 day, under Texas Education Code § 21.401(b). The Commissioner declined to resolve the number of days the contract at issue actually required teachers to work, but concluded that it was not impermissibly indefinite. The contract was sufficiently definite about the work to be performed so that it constituted a valid contract.
The teachers association also argued that the contract was unclear as to compensation because it allowed the district to reduce compensation during the school year. The Commissioner disagreed. The terms of the contract were sufficiently definite about compensation. Nevertheless, if the district did, in fact, reduce the teachers’ salaries, they could challenge that action at that time.
The Commissioner next considered whether the contract violated Texas Education Code § 22.003(a) because it would require state leave to be earned by accrual. According to the Commissioner, the contract did not reference leave mandated under Education Code § 22.003(a). School districts are authorized to grant leave in addition to the required minimum under Education Code § 22.003(a). Such additional leave may be earned through accrual. Thus, the leave provisions in the contract did not violate Education Code § 22.003(a). Finding no error in the term contracts offered to the teachers, the Commissioner denied the appeal.
Comments: The contract said that “the employee shall be employed for 10 calendar months….beginning on the first day of required inservice and ending 10 calendar months later.” As the Commissioner noted, schools must employ teachers for a minimum of 187 days, but there is no maximum. Thus: “It is theoretically possible that a school district and a teacher could sign a teaching contract wherein the teacher was required to work every day for ten months.”
TEACHER WAS ENTITLED TO GRIEVANCE HEARING OVER ALLEGED RESIGNATION
Case citation: Garzav. United ISD, Dkt. No. 016-R10-10-2012 (Comm’r Educ. May 12, 2014).
Summary: Enrique Garza worked for United Independent School District when he received notice of proposed nonrenewal of his contract. The district invoked the new nonrenewal procedure set out in Texas Education Code § 21.207(b-1), which involves the selection of an attorney to preside over a nonrenewal hearing. After Garza requested a hearing, however, he went to the Human Resources department to cash out his Teacher Retirement System (TRS) contributions. The district understood that Garza also wished to resign at the end of the school year. However, Garza later indicated that he did not intend to resign. The district sought to dismiss the nonrenewal proceedings, arguing that the hearing examiner lacked jurisdiction because Garza had resigned. Garza disputed this and the hearing convened as scheduled.
At the nonrenewal hearing, Garza moved to recuse the attorney appointed to serve as the hearing examiner. The attorney recused himself and no decision was reached on whether Garza had, in fact, resigned. Garza was allowed to address the school board and requested that the Board allow him to withdraw the resignation. He argued further that he did not submit a resignation and his contract could not be nonrenewed because the district missed its deadlines concerning the proposed nonrenewal. The board ultimately voted to deny Garza’s request to rescind the resignation and found that the proposed nonrenewal was moot. Garza then filed a grievance, arguing that he had not resigned. The district responded, however, that it would not hear the grievance and that Garza would have to appeal the board’s prior decisions to the Commissioner of Education, which he did.
Ruling: The Commissioner returned the case to the school board to conduct a grievance hearing concerning whether Garza resigned. The district argued that the appeal was not timely because Garza did not file it within 45 days of the board’s July 19, 2012 notice that it had voted not to rescind his resignation. Under 19 Texas Administrative Code § 157.1049(a), a petition for review must be filed with the Commissioner within 45 days of when the board’s decision was first communicated to the petitioner. Garza argued that the 45 days did not start running until September 7, 2012, when the district notified him that it would not hear his grievance. The Commissioner concluded that the district should have heard Garza’s grievance on whether he had resigned. Garza’s timeline for appealing the board’s actions began to run on September 7, 2012, when the board notified him that it would not hear his grievance. Thus, the appeal was filed timely.
According to the Commissioner, the district should have held a hearing on Garza’s grievance. According to the Commissioner, the district had “good cause” not to hold a grievance due to confusion caused by the nonrenewal procedure and the hearing examiner’s decision to recuse himself prior to the nonrenewal hearing. Thus, Garza does not prevail on the merits of his grievance. Instead, the Commissioner returned the case to the district for a proper grievance hearing on the issue of whether Garza resigned.
Comments: The Commissioner uses the word “confusion” numerous times in this opinion, ultimately concluding that “Confusion caused by both parties led to a situation wherein the school board reasonably, but incorrectly, believed that it had disposed of the issue of whether Petitioner had submitted a resignation.” So it goes on.
DID THE DISTRICT PROPERLY ACCEPT THE PRINCIPAL’S MID-YEAR RESIGNATION?
Case citation: Harris v. Fort Bend ISD, Dkt. No. 028-R8-1011 (Comm’r Educ. May 12, 2014).
Summary: Lisa Harris worked as a principal for the Fort Bend Independent School District under a probationary contract. Harris submitted a resignation form indicating her intent to resign effective April 30, 2011. However, on April 18, 2011, Harris hand-delivered a letter to the district’s superintendent stating her intent to rescind the resignation. Meanwhile, on April 19, 2011, the district mailed a letter from the director of staffing stating that the resignation had been accepted by the human resources department. The letter was dated April 15, 2011. The letter, therefore, ended her employment with the district. Harris then appealed the district’s actions to the Commissioner of Education, arguing that it improperly terminated her probationary contract after she had withdrawn her resignation.
Ruling: The Commissioner granted Harris’s appeal, holding that the resignation had not been properly accepted by the district. According to the Commissioner, a resignation effective at the end of the school year does not require acceptance by the board. Instead, if it is filed within 45 days before the first day of instruction of the following school year, it is automatically effective. However, a resignation during the school year must be accepted by the school board or an individual who has been delegated by a school board the authority to accept resignations. One who is delegated that responsibility may not sub-delegate the authority to accept resignations.
In this case, the superintendent had been delegated by the board the authority to accept resignations. However, a different administrator signed Harris’s resignation form, indicating acceptance of the resignation. The Commissioner held that, because Harris’s resignation was not accepted by a person authorized to accept resignations, the resignation never became effective. The resignation also did not become effective because it was withdrawn before proper acceptance occurred and it did not meet the requirements of a resignation, as defined by Harris’s contract. According to the Commissioner, the resignation during the school year operated as an amendment to Harris’s existing probationary contract. Harris’s contract specifically stated that no amendments would be binding unless reduced to writing and signed by both parties. The resignation had not been properly signed by the board. Instead, it was signed by two other employees acknowledging receipt of the form. There was no administration signature on the form indicating that the resignation was properly accepted by the district. The Commissioner, therefore, granted Harris’s appeal, concluding that the resignation never became effective. Harris was entitled to back pay and reinstatement to a position within the same professional capacity.
Comments: There are some good legal nuggets in this decision pertaining to resignations. The big news is that superintendents cannot “subdelegate” the authority to accept resignations. Only the board can delegate this authority, so if the board wants the HR Director to have this authority, the board should say so in a resolution, or adoption of policy. Second, the Commissioner treats a mid-year resignation as a modification of the contract, which must be done as per the terms of the contract. And of course, we are again reminded that mid-year resignations can be withdrawn if that is done prior to acceptance.
Teacher Paperwork Reduction Act
COULD THE DISTRICT REQUIRE EXTRA PAPERWORK AS PART OF THE TEACHER’S INTERVENTION PLAN?
Case citation: Ortiz v. Plano ISD, Dkt. No. 014-R10-10-2012 (Comm’r Educ. May 23, 2014).
Summary: Sylvia Ortiz, a teacher in the Plano Independent School District, was placed on an intervention plan that required her to write a summary of what she learned from two rapport building exercises and a reflection on how students responded to the activities. Ortiz filed a grievance challenging the requirement to produce the paperwork, arguing that it violated Texas Education Code § 11.164, known as the Paperwork Reduction Act.
Under Education Code § 11.164, a board of trustees shall limit redundant requests for information and the number and length of written reports that a classroom teacher is required to prepare. The law limits the types of written information that can be required by a teacher to ten categories set out in Education Code § 11.164. One of those categories is “(10) any information specifically required by law, rule, or regulation.” When the district denied Ortiz’s grievance, Ortiz appealed. She also filed several other related grievances, challenging the handling of the original grievance at Level I and Level II.
Ruling: The Commissioner granted the appeal with respect to the requirement to produce extra paperwork as part of Ortiz’s intervention plan, but held that he did not have jurisdiction over the other related grievances. The district argued that the additional paperwork was “required by law” as part of Ortiz’s intervention plan, citing Education Code § 11.164(a)(10). However, the Commissioner observed that Ortiz’s intervention plan was not “required,” but was instead discretionary. Texas Administrative Code, chapter 19, § 150.1004(f) states that an intervention plan may be developed at any time at the discretion of an appraiser when the appraiser has documentation that would potentially produce an evaluation rating of below expectations or unsatisfactory. Because Ortiz’s intervention plan was discretionary, it was not “required by law,” and therefore, did not fall within the permissible categories of documentation under Education Code § 11.164. The Commissioner granted Ortiz’s appeal on that basis, but dismissed the appeal with respect to the other related grievances because Ortiz did not establish the Commissioner’s jurisdiction over those grievances.
Comments: Regular readers may have noted that “Ortiz v. Plano ISD” is a frequent entry. Here, Ms. Ortiz scores some points in a brouhaha that drew amicus briefs from TASB and ATPE. The message to principals is that a teacher cannot be required to produce paperwork in conjunction with a “discretionary” intervention plan.