Select Page



Case citation:   Smithv. Houston ISD, 2014 WL 4471386 (S.D. Tex. 2014) (unpublished).

Summary:  Scwyana Smith worked for the Houston Independent School District as a General Clerk III in the Procurement Services Department, and was an at-will employee.   In May of 2011, Smith and three others also employed as Clerk III’s were notified of an impending reduction in force (RIF).  District policy provided the General Manager of Procurement Services with the discretion to effectuate the RIF within the department.  In doing so, he interviewed each of the four clerks for two remaining positions.  Each clerk was asked the same four questions during the interview, which was conducted by the General Manager and Smith’s direct supervisor.    Following the interviews, two other clerks were selected for the remaining positions and Smith was terminated.

After an unsuccessful grievance, Smith filed a complaint with the Equal Employment Opportunity Commission (EEOC).  She received a notice of right to sue and filed suit against the district for race, religious, gender and age discrimination, as well as retaliation. The trial court dismissed the gender and age discrimination claims for her failure to exhaust administrative remedies.  The district then sought judgment in its favor on the remaining race, religion, and retaliation causes of action under Title VII and the Texas Commission on Human Rights Act (TCHRA).

Ruling:  The trial court entered judgment in favor of the district on Smith’s race, religion, and retaliation claims.  To assert a race discrimination claim, Smith first had to show that (1) she was within a protected group, (2) she was adversely affected by the employer’s decision, (3) she was qualified to assume another position, and (4) others who were not members of the protected class remained in similar positions.  Smith’s race discrimination failed.   Smith failed to show that there was any open position in her department for which she was qualified to perform.  At her deposition, she was asked whether she had knowledge of any open positions in other departments that were not offered to her. She responded: “I don’t know. I can’t answer your question.” Smith also failed to demonstrate that any individuals outside of her protected class remained in similar positions to the one from which she was terminated. Prior to the RIF, all four employees who held the General Clerk III position were African American and at least two of them were Christian. After the RIF, both of the remaining General Clerk IIIs were African American, and at least one was Christian. Furthermore, in her deposition Smith admitted that she did not know the religious affiliations of others in her department and could not say whether she was treated differently than other similarly-situated employees of a different religion. Thus, Smith failed to establish that other individuals outside of her protected class remained in the General Clerk III position.

With respect to Smith’s retaliation claims, she first had to show that (1) she engaged in an activity that was protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between the protected activity and the adverse employment action.  Smith’s only allegation to support her retaliation claim was that she was laid off “for complaining about having to do higher level duties without the proper compensation and title.” However, complaining generally about one’s job duties is not a protected activity under Title VII, according to the trial court.  In addition, even if Smith could demonstrate that she engaged in a protected activity under Title VII, she could not show a causal connection between her termination and any actual or alleged protected activity since the record clearly shows that Smith was terminated as part of an “equitably-implemented District-wide RIF.” Thus, Smith did not establish a prima facie case for retaliation and her claim was dismissed.  The trial court also dismissed her “disparate impact” claim that the district’s policies negatively impacted all African American females over the age of 40.  The record showed that Smith did not include that claim in her Charge of Discrimination and, thus, she did not exhaust administrative remedies.  The trial court entered judgment in favor of the District on each of Smith’s claims.


SBEC Sanctions


Case citation:  Madden v. State Board for Educator Certification, 2014 WL 2191927 (Tex. App. – Austin 2014) (unpublished).

Summary:   Don Madden was a high school principal in the Cumby Independent School District.   Cumby ISD permitted the use of corporal punishment of students in certain situations, limiting corporal punishment to spanking or paddling that is “reasonable and moderate” and is not administered maliciously or for revenge. The policy further required that before administering corporal punishment, the educator must consider factors such as the student’s size, age, and condition; the type of instrument to be used; the amount of force to be used; and the part of the body to be struck. The policy also incorporated a Texas Penal Code standard on the proper use of force, stating that an educator’s use of force against a student is justified “when and to the degree the teacher or administrator reasonably believes the force is necessary to further the purpose of education or to maintain discipline in a group.”

Madden administered corporal punishment for two separate disciplinary infractions to seventh-grade student J.S., giving him two “swats” on his buttocks with a wooden paddle. J.S. was a slightly built twelve-year old and was wearing gym shorts when the swats were administered. It is undisputed that J.S. had an extensive history of poor behavior at school and had received corporal punishment several times before this incident, including swats from Madden. On this occasion, Madden was preparing to send J.S. to in-school suspension that would be followed by alternative school; however, J.S.’s father called to state his preference that J .S. receive corporal punishment.  After Madden administered the swats, J.S. developed large red marks and bruising on his buttocks. J.S.’s mother took him to the emergency room and documented the progression of the bruising over the course of four days.

The State Board for Educator Certification (SBEC), which is charged with regulating and overseeing all aspects of public-school educators’ standards of conduct, subsequently filed a disciplinary action alleging that Madden violated the Texas Educators’ Code of Ethics and requesting that his Texas Educator Certificate be suspended for one year. The matter proceeded to a contested-case hearing during which a number of witnesses were called before an administrative law judge at the State Office of Administrative Hearings. After the contested-case hearing, the administrative law judge (ALJ) issued a proposal for decision with findings of fact and conclusions of law. The ALJ concluded that Madden violated standards 3.2 and 3.5 of the Texas Educators’ Code of Ethics.

When the Board subsequently issued its final order, it amended one of the ALJ’s findings of fact and two of his conclusions of law as being contrary to the Board’s policy of regulating educator conduct in a manner that protects the safety and welfare of Texas schoolchildren and contrary to the Board’s policy of disciplining educators who violate the Educators’ Code of Ethics. The Board ultimately rejected the ALJ’s determination that Madden could not be sanctioned because he professed a subjectively reasonable belief that his use of force was necessary, deciding instead to issue a “non-inscribed reprimand,” a formal but unpublished censure that does not appear on the educator’s certificate. A non-inscribed reprimand is the least serious sanction the Board can impose.   It does not, according to the Board, affect the validity of the educator’s certificate, and it is accessible to others only by open records request or the educator’s own admission. The Board’s final order issued the non-inscribed reprimand. Madden appealed the Board’s final order to the district court, and the court affirmed the Board’s decision. Madden appealed the district court’s decision.

Ruling:   The appeals court affirmed the unpublished censure of the former principal.  Madden first argued that the Board’s final order failed to provide an adequate explanation for the Board’s amendments to one finding of fact and two conclusions of law in the ALJ’s proposal for decision.  The Texas Government Code authorizes an agency to change findings of fact and conclusions of law in a proposal for decision if the agency determines that the ALJ did not properly apply or interpret applicable law, agency rules, written policies, or prior administrative decisions. When such changes are made, Government Code § 2001.085(e) requires the agency to provide a written statement of the specific reason and legal basis for such changes. Thus, the issue here was whether the amendments that the Board made to the proposal for decision were adequately explained in its final order. The appeals court ultimately concluded that they were.

The appeals court also rejected Madden’s argument that he was entitled to immunity under Education Code § 22.0512 for use of corporal punishment that was justified under Penal Code 9.62.  According to the appeals court, however, the statute does not prohibit a school district from enforcing a policy relating to corporal punishment or bringing a disciplinary proceeding against a professional employee of the district who violates district policy relating to corporal punishment.  Further, whether immunity applies involves inquiry into whether the principal had a “reasonable belief” that the force was necessary.  According to the appeals court, “reasonable belief” involves an objective – not subjective – standard.   The appeals court stated:   “To the extent the ALJ relied on a subjective standard of reasonableness to conclude that Madden’s use of force was justified, the conclusion was legally incorrect.” Thus, the plain language of the disciplinary exemption in Education Code § 22.0512 did not deprive the board of the authority to impose the unpublished censure – its least serious sanction – against Madden.

Comments:  This is an important decision about the standard to be applied when an employee uses force to discipline a student.  The law says that the person using force must “reasonably believe” that the force was necessary.  But does that mean that the employee thinks it reasonable? Or does it mean that an objective observer thinks so?  The court holds that the amount of force used in corporal punishment and other cases must meet the objective test of reasonableness.  The court tells us that a “reasonable belief” is one that “would be held by an ordinary and prudent man in the same circumstances as the actor.”




Case citation:   Olabisiv. Aldine ISD, Dkt. No. 067-R2-06-2014 (Comm’r Educ. July 29, 2014).

Summary:   Juliet Olabisi worked for the Aldine Independent School District when the district proposed her termination for use of force against a student.  After a termination hearing, the certified hearing examiner determined that good cause existed to terminate Olabisi’s contract for her actions in grabbing a student and pulling the student out of line.  According to the hearing examiner, Olabisi’s conduct constituted a failure to model appropriate behavior and a failure to create an atmosphere of mutual respect in violation of board policy and written directives.  Based upon the hearing examiner’s recommendation, the board voted to terminate Olabisi’s contract.  Olabisi appealed to the Commissioner of Education.

Ruling:  The Commissioner upheld the district’s decision to terminate Olabisi’s contract for good cause.  According to the Commissioner, conflicting evidence existed on whether Olabisi grabbed the student’s arm and pulled the student out of line. Olabisi denied that the incident occurred.  Regardless, under the substantial evidence standard of review, a reasonable factfinder could have determined that Olabisi took the action against the student as alleged.

The Commissioner also concluded that the teacher’s actions constituted good cause for termination.  The Commissioner acknowledged that, under Texas Education Code § 22.0512, a school district may not terminate a teacher’s contract for the use of physical force against a student to the extent such use of force is justified under Texas Penal Code § 9.62.  That Penal Code provision states that use of force is justified “when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.” Because there was no evidence to demonstrate that Olabisi had a reasonable belief that the force used was necessary to further a special purpose of the school or maintain discipline in a group, the immunity provided by Education Code § 22.0512 did not apply.

Ultimately, the Commissioner concluded that good cause existed to support Olabisi’s termination. Substantial evidence existed to support the hearing examiner’s conclusion that Olabisi did not model appropriate behavior during the incident and failed to create an atmosphere of mutual respect.  The record showed further that Olabisi had been twice counseled in writing to model appropriate behavior.  On one occasion, she was told not to instruct students to be quiet by putting her finger up to a student’s mouth or cheek. On another occasion, she was instructed not to push a student out of the classroom.  Both write-ups involved inappropriate touching of students.  Olabisi failed to follow those directives.  The Commissioner rejected Olabisi’s allegations that certain administrators were biased against her because no evidence existed to support that claim.   The Commissioner concluded that Olabisi’s actions in grabbing and pulling a student without justification in violation of repeated written directives and board policy constituted good cause for the termination of Olabisi’s contract.

Comments: Under the substantial evidence standard of review, the Commissioner will not overturn a school board’s decision if evidence exists in the record supporting the decision.   That is the case, even if there is conflicting evidence on the issue. Here, the record included evidence to support the board’s decision and the teacher’s disagreement with that evidence was not enough to tip the scales in her favor.




Editor’s Note:  The Legal Digest usually does not report state trial court decisions, but this is an important update of a Commissioner decision first reported in the January 2014 issue, Vazquez v. Los Fresnos ISD, Dkt. No. 062-R1-07-2013 (Comm’r Educ. Aug. 21, 2013).  The trial court reversed the Commissioner’s decision allowing a district to use written statements by students, in lieu of calling them as witnesses at a nonrenewal hearing.

Citation:   Vazquezv. Williams, Travis County 419th  Judicial District, Cause No. D-1-GN-13-003654 (September 3, 2014).

Summary:  Jorge Vazquez was employed as a teacher for the Los Fresnos Independent School District under a term contract for the 2012-13 school year, when complaints were made by students and parents against Vazquez.  The parents and students complained that Vazquez made fun of students’ weight and appearance and otherwise disparaged students.  The complaints led the district to propose Vazquez’s nonrenewal.  Vazquez requested a nonrenewal hearing.  At the hearing, the board admitted into evidence student statements written during the investigation of the parent complaints.  No student testified at the hearing.  Following the hearing, the board voted to nonrenew Vazquez’s term contract and Vazquez appealed.

On appeal, Vazquez argued that the district improperly nonrenewed his contract because substantial evidence did not exist to support the nonrenewal.  Vazquez also argued that the evidence relied upon by the district was improper hearsay that should have been excluded from evidence during the nonrenewal hearing.

The Commissioner upheld the district’s nonrenewal decision. The main issue in the case was whether the student statements should have been admitted into evidence.  If the student statements were properly admitted, the statements would provide substantial evidence to support the nonrenewal based on several pre-established policy reasons. According to the Commissioner, in Texas, the hearsay rule applies in administrative hearings, just as it does in court. Nevertheless, considerable discretion is permitted in administrative hearings in the admission of evidence.  Liberal exceptions to the hearsay rule in the administrative context are set out in Texas Government Code § 2001.081, which allows otherwise inadmissible evidence in administrative proceedings if the evidence is (1) necessary to ascertain facts not reasonably susceptible of proof, (2) not precluded by statute, and (3) of the type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs.  The Commissioner held that the student statements met the standards for admissibility set out in Government Code § 2001.081.  [Vazquez v. Los Fresnos ISD, Dkt. No. 062-R1-07-2013 (Comm’r Educ. Aug. 21, 2013); Texas School Administrators’ Legal Digest, January 2014].   Vazquez appealed by filing suit in state court.

Ruling:  The trial court reversed the Commissioner’s decision, holding that the evidence did not support applying the hearsay exception set out in Government Code § 2001.081.  According to the trial court, all three parts of Government Code § 2001.081 must be met for its exception to apply. According to the trial court, a key purpose of the hearsay exception is to obtain evidence “necessary to ascertain facts not reasonably susceptible of proof.” The trial court found no evidence to establish that the student accounts of what happened were “not otherwise susceptible of proof.”  To the contrary, the court cited deposition testimony of the principal admitting that he did not have any concerns about allowing the students to testify or that the process of testifying might be difficult for the students.

According to the trial court, Texas Education Code 21.207(c) provides a statutory right for a teacher to cross examine adverse witnesses in a nonrenewal hearing. The trial court stated: “Broadly permitting hearsay would render the statutory right essentially meaningless, especially where, as in this case, the only substantial evidence, as found by the Commissioner, is hearsay statements by ‘adverse witnesses’ who do not appear at the hearing to be cross examined.”  According to the trial court, it was improper to limit the evidence to the student witness statements. Because no other evidence had been admitted, substantial evidence did not exist to support the Commissioner’s decision.  The trial court reversed the Commissioner’s decision upholding the nonrenewal of Vazquez’s term contract.

Comments:  The trial court did not want to disturb a teacher’s statutory right to cross examine witnesses in a nonrenewal hearing under Education Code § 21.207.   Key to the decision was evidence suggesting that the students could have testified at the hearing, which was contrary to the Commissioner ’s conclusion that parents generally would be reluctant to allow their children to testify.