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Case citation: Weems v. Lauderdale County School District, 583 Fed.Appx. 371 (5th Cir. 2014) (unpublished), and 2013 WL 5797329 (S.D. Miss. 2013).

Summary: Carol Weems was born on June 7, 1954. Since 1998, she worked as a teacher and school administrator for the Lauderdale County School District in Mississippi. Weems had a bachelor of science in elementary education, a master’s degree in elementary education, a specialist degree in educational leadership, and a Ph.D. in educational administration and supervision with an emphasis in higher-education administration. Until 2009, Weems worked as principal and assistant principal at West Lauderdale Middle and High Schools. Starting with the 2009–2010 school year, Weems moved to the district’s central office. There, Weems worked under Karen Rhodes as Supervisor of Special Services and District Test Coordinator.

Rhodes and Weems did not work well together, and District Superintendent Randy Hodges and Assistant Superintendent Ed Mosley both perceived Weems to have done a poor job as District Test Coordinator. Hodges removed Weems as Test Coordinator for the 2010–2011 school year, and the District placed Weems in a Vocational–Rehabilitation Transition Specialist position that was co-funded by the Mississippi Department of Rehabilitation Services (MDRS). At the end of the 2010–2011 school year, MDRS concluded that it could not work with Weems, and notified the District that it “recommend[ed] a change of staff for the current transition specialist for Lauderdale County Schools.” Hodges followed that recommendation and notified Weems that her contract would not be renewed for the 2011–2012 school year but extended an offer that Weems continue to work as Supervisor of Special Services in a part-time capacity for the 2011–2012 year. Weems accepted the part-time position, and she remained employed as Supervisor of Special Services earning half her former salary. Rhodes continued as Weems’s immediate supervisor.

Weems desired another position, and beginning with the 2010–2011 school year, several became available. The District filled a number of spots without posting the positions. Weems was not selected for any of them. Other positions were advertised, and Weems applied, but she was never selected. Weems filed charges of discrimination with the EEOC on August 15, 2011, May 16, 2012, and November 2, 2012. She filed this lawsuit alleging a claim against the district under the Age Discrimination in Employment Act (ADEA) and a state-law tort claim against Rhodes. Weems contended generally that she was demoted and also passed over for several available positions within the district between 2010 and 2013. According to Weems, the decisions were made on the basis of age or alternatively as the result of the tortious acts of her supervisor Karen Rhodes. The trial court dismissed the lawsuit, finding that Weems had failed to produce sufficient evidence to create a genuine issue of material fact supporting her age discrimination claims. Weems appealed to the United States Court of Appeals for the Fifth Circuit.

Ruling: The Fifth Circuit affirmed the judgment in favor of the district defendants. The ADEA makes it “unlawful for an employer to … discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” To prevail on an ADEA claim, a plaintiff must establish, by direct or circumstantial evidence, “that age was the ‘but-for’ cause of the employer’s adverse action.” Weems first had to show that (1) she was demoted or not promoted; (2) she was qualified for the position at issue; (3) she was within the protected class at the time of the demotion or non-promotion; and (4) she was either (i) not selected in favor of someone outside the protected class, (ii) not selected in favor of someone younger, or (iii) otherwise not selected or demoted because of her age. Upon making this showing, the burden shifts to the district to articulate a legitimate, non-discriminatory reason for demoting or not promoting her. Once the district meets its burden of production, Weems must rebut the employer’s purported explanation, to show that the reason given is merely “pretextual” either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or “unworthy of credence.” Ultimately, Weems must show that age was the “but for” cause of the adverse-employment actions.

With respect to the promotion decisions, the trial court had concluded that the district offered legitimate reasons for its decisions to hire the other candidates, and Weems did not offer evidence of pretext. Of the ten positions Weems sought, she was not qualified for one, two were given to employees that were essentially her age, and five more were given to employees in their mid to late forties. Only two positions were given to candidates who fell outside of the protected class under the ADEA, and Weems provided no evidence that the hiring decisions were because of her age.

With respect to Weems’s demotion, the record showed that, during the 2010–2011 school year, Weems drew half her salary from the district and the other half from MDRS through a contract with the District. However, Weems lost the MDRS portion of her salary when MDRS decided that it could no longer work with her. Weems did not demonstrate that the district discriminated against her with respect to the decisions leading to her part-time status. Thus, this demotion claim failed as a matter of law. The Fifth Circuit stated that Weems failed to point to sufficient evidence to create a fact issue as to whether the district’s legitimate, nondiscriminatory reasons for its employment decisions were false or a pretext for age-based discrimination. Thus, the appeals court affirmed the judgment in favor of the district.



Case citation: Hernandez v. Dallas ISD, 2014 WL 7231929 (N.D. Tex. 2014) (unpublished).

Summary: Gilberto Hernandez was an educator for 17 years, and was employed by the Dallas Independent School District. According to Hernandez, in October of the 2011–2012 school year, he reported his concerns to the Texas Education Agency about the lack of compliance with mandatory instruction of bilingual students by certified bilingual teachers at the elementary school where he worked. He claimed that school principal, John Donnelly denied him an ELMO system and an In–Focus projector that “all Math & Science teachers in 5th grade were getting,” and that he was treated differently because of his age and gender since the “other younger females in the 5th grade level” received the new equipment. According to Hernandez, Assistant Principal Cynthia Garza also discriminated against him by failing to purchase and provide the bilingual textbooks that Hernandez required for his students.

Hernandez also alleged that he made additional complaints on specified dates in 2013 to a number of authorities, including Child Protective Services, the DISD Office of Professional Responsibility (OPR), and the TEA, about non-compliance with DISD policies and other alleged misconduct by individual faculty members. He believed that he was retaliated against by Garza on April 16, 2013, when she conducted his annual evaluative appraisal, giving him failing scores in “3 out of 8” criteria. Hernandez also alleged that retaliation continued into the 2013–2014 school year when he was placed on a “growth plan” and reassigned to teach first grade bilingual and math classes (instead of fifth grade science) without obtaining his consent or providing him with training or materials.

When the district nonrenewed Hernandez’s contract, he filed suit against the district, the principal, and the assistant principal. Proceeding without the assistance of counsel, Hernandez alleged (1) discrimination on the basis of his race and his gender in violation of Title VII of the Civil Rights Act of 1964; (2) discrimination on the basis of his age in violation of the Age Discrimination in Employment Act; (3) unlawful retaliation under the Texas Whistleblower Act; (4) deprivation of his constitutional rights to due process and equal protection; and (5) defamatory libel and slander causing injury to his reputation, fraudulent misrepresentation, and fraud. In response, the defendants sought dismissal of the suit for failure to state a claim, including all of the federal causes of action, his retaliation claim under the Texas Whistleblower Act, and all state law causes of action.

Ruling: The trial court dismissed Hernandez’s suit. First, he claimed he was treated in a discriminatory manner when (1) new digital projectors were given to younger female teachers and not to him, (2) textbooks were given to younger African–American teachers and not to him, and (3) in several instances, he was the only teacher on the receiving end of reprimands or spot observations. The court concluded that, even if those allegations were true, none of them amounted to an adverse employment action for purposes of Title VII. In addition, there was no connection between the nonrenewal of Hernandez’s contract and any of the alleged employment actions. Having failed to allege an adverse employment action, Hernandez did not state a claim for race- or gender-based discrimination based on disparate treatment. Hernandez also failed to allege facts sufficient to raise a claim for discrimination based upon a hostile work environment.

Hernandez also did not allege any facts to show a discriminatory animus based on his age. His allegations that “other younger” teachers received favorable treatment over him were completely unconnected to his contract nonrenewal, which was the only adverse employment action he alleged. Younger teachers receiving equipment that he did not receive could not, as a matter of law, be construed as an adverse employment action. The trial court, therefore, dismissed the age discrimination claim.

The district argued that Hernandez failed to plead sufficient facts to establish municipal liability under Section 1983 for any alleged constitutional violation. According to Hernandez, his rights to due process and equal protection were violated because the district failed to protect him from retaliation and failed to provide him a fair and impartial grievance process. The trial court concluded that Hernandez did not state a claim for a due process or other constitutional violation because his allegations were insufficient to give rise to municipal liability. Although the district’s board of trustees was its final policymaker, Hernandez did not allege facts from which it could be inferred that he was terminated due to the actions of the Board. Hernandez also did not allege that the district’s board damaged him or delegated policymaking authority to any supervisor. Moreover, the issue of municipal liability notwithstanding, Hernandez failed to identify a property interest that he was deprived of by DISD in relation to his due process allegation. Under governing state law, a “teacher does not have a property interest in a contract beyond its term.”

The trial court also dismissed Hernandez’s state law claims for libel, slander, fraud, and fraudulent misrepresentation because the district was immune from liability by sovereign immunity. The Texas Tort Claims Act waives sovereign immunity, but only for suits that allege the negligent operation or use of a motor vehicle. Individual employees of a school district are also immune when acting within their scope of employment. Texas Education Code 21.912(b) states that a “professional school employee is not personally liable for acts done within the scope of employment, and which involve the exercise of judgment or discretion, except in circumstances where disciplining a student, the employee uses excessive force or his negligence results in bodily injury to the student.” Here, Hernandez’s suit did not state facts that would support a waiver of immunity with respect to either the district or the individual school district employees.

Hernandez’s Whistleblower claims also were without merit, because the suit did not state facts sufficient to demonstrate that he reported in good faith a violation of law to an appropriate law enforcement authority. The trial court, however, provided Hernandez with an opportunity to amend the Whistleblower claims. All other claims were dismissed.


Fair Labor Standards Act 


Case citation: Blair v. Houston ISD, 2014 WL 5429383 (S.D. Tex. 2014).

Summary: Wiley Blair, III, began working for the Houston Independent School District as a groundsman at the Delmar Sports Complex in 1995. Blair’s work consisted of cleaning athletic facilities and parking lots and preparing fields and locker rooms for sporting events. His regular work schedule was Monday through Friday from 7:00 a.m. to 3:30 p.m. In addition to Blair’s regular work, he occasionally performed ancillary services for sporting events, including taking tickets, running the clock, and performing security. This ancillary work was performed outside of Blair’s usual 7:00 a.m. to 3:30 p.m. schedule, and he was compensated at a different hourly rate than for his regular services. Blair was not paid overtime when he performed ancillary work in excess of his regular forty-hour workweek.

On September 6, 2013, Blair brought suit under the Fair Labor Standards Act (FLSA) against the district requesting overtime for his ancillary work exceeding forty hours per week. The district requested judgment prior to trial on the basis that the ancillary work fell within the “occasional or sporadic” exemption to the FLSA’s overtime pay requirement.

Ruling: The trial court denied the district’s request for judgment in its favor prior to trial. 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.” However, the overtime requirement of the FLSA has several exemptions.

The exemption claimed by the district, the “occasional or sporadic” exemption, provides: “If an employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency undertakes, on an occasional or sporadic basis and solely at the employee’s option, part-time employment for the public agency which is in a different capacity from any capacity in which the employee is regularly employed with the public agency, the hours such employee was employed in performing the different employment shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section.”

To successfully claim the exemption, the district had to show that (1) Blair was an employee of a public agency, (2) he undertook occasional or sporadic ancillary employment for the district, (3) he performed ancillary employment voluntarily, and (4) his ancillary employment was in a different capacity than his regular employment. The parties are in agreement that the district is a public agency and that Blair’s ancillary work was voluntary. However, they disputed whether Blair’s work was occasional or sporadic and if it was in a different capacity.

Under FLSA regulations, occasional or sporadic is defined as “infrequent, irregular, or occurring in scattered instances.” Work may be occasional or sporadic even if it recurs seasonally. Examples of occasional or sporadic work include “taking of tickets, providing security … [or] officiating.” The record demonstrated that Blair’s ancillary work included taking tickets, providing security, and keeping time or score, which is a form of officiating. Blair’s ancillary work corresponds exactly to the type of work that the regulations suggest is occasional or sporadic.

Of course, it is possible for one to take tickets, provide security, or officiate every day of the year, making such work regular and frequent. Therefore, whether Blair performed his ancillary work infrequently, irregularly, or in scattered instances is paramount. Depending on how one characterizes the time Blair worked in his ancillary role, the frequency of the work can vary drastically. Blair asked the court to calculate the days he worked at his ancillary job on a week-to-week basis. Under Blair’s calculation, he worked 18 of 88 possible weeks, resulting in 20% employment in an ancillary role. In contrast, the district used a day-to-day metric. Under that calculation, Blair worked 33 of 616 possible days, resulting in 5% employment in his ancillary role.

While there is no clear standard to assess the occasional or sporadic nature of employment, the trial court concluded that the district’s reasoning was more appropriate. Blair’s employment record clearly demonstrated that he worked in an ancillary capacity on an irregular daily basis rather than a weekly basis. Furthermore, Blair’s employment record demonstrated he worked in an ancillary capacity mostly in November and December of 2010 and January and February of 2012. Besides these two periods, Blair worked in an ancillary role only seven times. The court, therefore, determined that Blair’s employment as a ticket taker, security guard, or time keeper was sufficiently infrequent, irregular, or scattered to satisfy the occasional and sporadic element of the exemption.

For ancillary employment to qualify as in a different capacity, it must fall outside “the same general occupational category” as the regular employment. FLSA regulations provide two examples. First, “a public park employee primarily engaged in playground maintenance [who] also from time to time cleans an evening recreation center” is within the same capacity of employment. Therefore, even if the public park employee’s ancillary employment is occasional or sporadic, the overtime exemption still would not apply. In contrast, “a bookkeeper for a municipal park agency or a city mail clerk [who] occasionally referees for an adult evening basketball league” is not within the same capacity of employment.

Blair’s regular duties included cleaning athletic facilities and parking lots, as well as preparing fields and locker rooms. His ancillary duties included taking tickets, performing security, and time keeping. In this case, the examples provided by the regulations provide little guidance because Blair’s regular and ancillary duties are more related than a bookkeeper or mail clerk who also referees, but less related than a maintenance man who also cleans. According to the court, because of the FLSA’s broad remedial aims, the exemptions from the FLSA’s coverage are narrowly construed against the employer. The court found a “clear factual dispute” as to the similarity of Blair’s regular work of preparing athletic facilities for sporting events and his ancillary work of helping run the events themselves. Because the district had not demonstrated, as a matter of law, that Blair’s regular work was in a different capacity than his ancillary work, the district’s request for pretrial judgment was denied.

Comments: The court did not grant the FLSA overtime exemption here because of factual disputes, coupled with the fact that FLSA exemptions are “narrowly construed against the employer.” Districts should take note of this ruling and review employment arrangements for those employees who work sporting and other events after hours. If that work is within the same capacity as their regular duties, they may be entitled to overtime pay.




Case citation: Webb v. Round Rock ISD, Fed.Appx. , 2014 WL 6980143 (5th Cir. 2014) (unpublished).

Summary: Crystal Dawn Webb, an African–American woman employed as a night-shift custodian for Round Rock Independent School District, claimed that she was transferred in retaliation for filing an Equal Employment Opportunity Commission (EEOC) complaint of racial discrimination. According to Webb, she was involuntarily transferred to another school within the district that required her to walk sixteen miles to work, thereby jeopardizing her safety during her commute. Proceeding without the assistance of counsel, Webb filed suit against the district under Title VII of the Civil Rights Act of 1964. Webb moved for the appointment of counsel, but the trial court denied her motion, and thereafter dismissed her claim with prejudice for failure to state a claim upon which relief can be granted. Webb appealed, arguing that the trial court erred in dismissing her complaint because she alleged a plausible claim of retaliation and the court abused its discretion in denying her motion to appoint counsel.

Ruling: The Fifth Circuit reversed the trial court’s order of dismissal. Webb’s suit alleged that she complained about the transfer to her supervisor and explained that she was homeless and had to walk the sixteen miles to work at night. RRISD declined to reverse its transfer decision. Webb also alleged that the transfer was causally related to her protected activity—filing the EEOC complaint. The main issue before the court of appeals was whether the transfer amounted to an adverse employment action under Title VII. Webb did not allege any reduction in pay, different hours, or other usual factors relevant in this context, but the Supreme Court has held that a lateral transfer can amount to an adverse employment action without affecting these usual terms of employment.

Webb alleged that her commute was dangerous and inconvenient for her since she had no adequate means of transportation. However, according to the appeals court, it lacked context facts to evaluate whether the transfer was truly adverse (i.e., whether the commute was truly a significant problem for Webb and whether the adversity was sufficiently severe to dissuade a reasonable employee under similar circumstances from taking the protected action). Although the timeline of events arguably supported Webb’s allegation of causation, the court was also lacking context facts regarding why RRISD transferred Webb and whether the district transferred Webb because of her protected action in filing the EEOC complaint. The appeals court, therefore, concluded that Webb sufficiently pled a claim for retaliation, and allowed the case to proceed.

Comments: A unilateral transfer can amount to a retaliatory adverse employment action under Title VII, even if it doesn’t result in a reduction in pay, different hours, or other similar terms of employment. The ultimate inquiry is whether the employment action was sufficiently severe to dissuade a reasonable employee from taking protected action. The parties will have to develop the evidence and facts on these issues.




Case citation: Brewer v. Mexia ISD, Dkt. No. 079-R1-08-2014 (Comm’r Educ. Sept. 18, 2014).

Summary: Ronda Brewer worked for the Mexia Independent School District under a one-year term contract as a teacher in a Behavior Adjustment Class (BAC), a class for special needs students who had severe behavioral problems. During the 2013-14 school year, only two employees were assigned to the BAC and one student was served in the BAC. At the end of the 2013-14 school year, the student’s Admission, Review and Dismissal (ARD) Committee determined that the student no longer needed to be taught in the BAC and placed the student in a regular classroom. After that, on May 19, 2014, the district superintendent recommended a program change to the board of trustees under the district’s reduction in force policy, DFFB(Local). As part of the program change, the Superintendent identified the following employment area subject to a reduction in force: “Inclusion Program within the Special Education Department for [the student] – 2 positions.”

Brewer was provided notice of proposed nonrenewal and told that she could request a hearing within 15 days. The parties mutually agreed to a later date. However, after Brewer retained a new attorney to represent her, she sought another delay of the hearing citing a unexplained conflict. The school board did not agree to postpone the hearing and ultimately voted to nonrenew Brewer’s based on the program change. Brewer appealed the nonrenewal to the Commissioner of Education.

Ruling: The Commissioner upheld Brewer’s nonrenewal. The main issue before the Commissioner was whether the district acted arbitrarily or capriciously when it nonrenewed Brewer’s contract due to a reduction in force in the inclusion program, when there were teachers staffed to an inclusion program for the same student during the next school year. According to the Commissioner, the district’s reduction in force policy had a broad definition of “employment area.” The policy allowed the district to define Brewer’s employment area in many ways. The policy also had a broad definition of a “program change.” Ultimately, the Commissioner concluded that the district acted reasonably when it interpreted as a “program change” a reorganization in which all previous employees were nonrenewed, no new employees were hired, and the job duties were not the same the following school year.

The Commissioner rejected a claim by the teacher that the district violated its reduction in force policy because it did not hire her for other open positions. There was no evidence in the record that Brewer applied for jobs for which she was qualified and was rejected by the district.

Brewer also claimed that the district improperly held the hearing when she asked for a delay of the hearing due to a conflict. The Commissioner determined that the failure to grant the delay was at most a procedural irregularity. The Commissioner cannot overturn a decision on the basis of a procedural irregularity unless the irregularity was likely to have led to an incorrect decision. Brewer did not show that the failure to grant her a continuance of the hearing was likely to cause the board to make an incorrect decision. Thus, the denial of her request to delay the hearing did not warrant reversal of the board’s decision.

Similarly, although the board violated the Texas Open Meetings Act and Texas Education Code § 26.007 by deliberating in closed session, that was deemed a procedural irregularity. The record showed that the board subsequently voted on the reduction in force in open session and so the decision to undertake the reduction in force was not voidable. In addition, there was no evidence to demonstrate that the board’s deliberation in closed session was likely to have led to an incorrect decision. Thus, the decision to nonrenew Brewer’s contract based upon a program change was not arbitrary and capricious. The Commissioner upheld the decision in favor of the district.

Comments: When a procedural irregularity occurs, the Commissioner will overturn a board decision only if the procedural irregularity was likely to have led to an incorrect decision. The teacher did not make that showing here and so the procedural irregularities did not warrant reversal of the nonrenewal.



Case citation: Kellogg v. Sinton ISD, Dkt. No. 077-R1-07-2014 (Comm’r Educ. Aug. 29, 2014).

Summary: Mark Kellogg was a teacher in the Sinton Independent School District. During the 2012-13 school year, Kellogg was repeatedly instructed to discontinue use of instructional downtime and to provide “bell to bell” instruction. Kellogg failed to do so, resulting in students engaging in inappropriate activities, including public displays of affection and, on one occasion, the ingestion of pills. After the board considered Kellogg’s annual evaluation, Kellogg was given an Intervention Plan for Teachers in Need of Assistance due to issues in Domain 4: Management of Student Discipline, Instructional Strategies, Time and Materials. At the end of the school year, the district proposed Kellogg’s nonrenewal. After a hearing, the board voted to nonrenew Kellogg’s contract and Kellogg appealed to the Commissioner of Education. On appeal, Kellogg argued that substantial evidence did not exist to support the nonrenewal, the board did not review his most recent annual appraisal, and that, because he had successfully completed his Intervention Plan, he should not have been subject to nonrenewal.

Ruling: The Commissioner upheld Kellogg’s nonrenewal. The Commissioner held that successful completion of an Intervention Plan, does not automatically offer protections against a proposed nonrenewal. In addition, substantial evidence existed in the record to show that Kellogg had not successfully completed the Intervention Plan. The Intervention Plan called for periodic walk-throughs, which on a least two occasions demonstrated that students were not engaged in instruction.

It the notice for proposed nonrenewal, the district listed thirteen separate reasons under its nonrenewal policy. The main issue before the Commissioner was whether substantial evidence supported at least one pre-established reason for nonrenewal. The Commissioner concluded that substantial evidence supported Kellogg’s nonrenewal on the basis that he failed to provide “bell to bell” instruction and proper supervision of students. The fact that Kellogg had a good employment record with the district, did not protect him from nonrenewal. In addition, although the board only deliberated for twenty minutes, that did not warrant reversal of the nonrenewal decision. Therefore, the Commissioner upheld Kellogg’s nonrenewal.


Teacher Contracts


Case citation: Higareda v. Valley View ISD, Dkt. No. 027-R10-12-2013 (Comm’r Educ. Oct. 7, 2014).

Summary: Ismael Higareda worked as a classroom teacher for the Valley View Independent School District under probationary contracts for the 2010-11 and 2011-12 school years. Higareda resigned at the end of the 2011-12 school year, but was rehired as a classroom teacher at the start of the 2012-13 school year. On January 11, 2013, an employee of the district or a member of the board gave Higareda a probationary contract, which Higareda signed. The board did not approve of or sign the contract. It was undisputed that no valid contract existed between Higareda and the district during the 2012-13 school year, even though Higareda continued to serve as a classroom teacher throughout that school year. It was also undisputed that Higareda was entitled to a term contract, rather than a probationary contract for the 2012-13 school year.

Then, on April 22, 2013, the board of trustees voted to terminate Higareda at the end of the school year as “an employee currently employed under an Education Code Chapter 21 probationary contract.” Higareda filed a grievance, arguing that the board never executed a contract and, therefore, his employment status should have been construed as a term contract. After unsuccessfully grieving the termination, Higareda appealed to the Commissioner of Education. The district argued that Higareda’s grievance was untimely and, therefore, the Commissioner did not have jurisdiction over the appeal.

Ruling: The Commissioner granted Higareda’s appeal, holding that the grievance was filed timely and the district improperly employed Higareda without a contract. Texas public school teachers must be employed under a probationary, continuing, or term contract. A classroom teacher cannot be employed as an at-will employee. The parties agreed that at the time Higareda signed the probationary contract, he was not eligible for a probationary contract. According to the district, he should have known when he signed the contract that it was not valid and should have filed his grievance at that time. Higareda argued, on the other hand, that because the contract was not properly executed by the board of trustees when he signed it, there was no contract for him to grieve. Further, according to Higareda, without a written contract he became a term contract employee by default. Thus, his claims did not arise until the district improperly terminated his term contract.

Before deciding the timeliness of Higareda’s grievance, the Commissioner noted that the district’s grievance policy was not included in the local record. As a result, the local record did not contain substantial evidence to support the district’s conclusion that Higareda had failed to timely exhaust administrative remedies.

Furthermore, according to the Commissioner, even if the grievance policy was a part of the local record, the district’s focus on the contract as the triggering event for the grievance was misplaced. It was undisputed that no contract existed because the board did not approve the contract. The district’s violation of the Education Code stemmed from its failure to employ Higareda under an employment contract, not that it offered him the wrong type of contract. There was no evidence that he knew or should have known before he filed his grievance that the board had failed to approve his contract. For these reasons, the Commissioner concluded that Higareda timely exhausted his administrative remedies at the local level.

The district next argued that no jurisdiction existed over the appeal because there was no valid contract in place. The Commissioner disagreed, holding that Texas Education Code § 7.057(a)(2)(A) provided grounds for jurisdiction because the appeal complained of actions or decisions of the school board that violated the school laws of Texas. Specifically, Texas Education Code § 21.002 requires that a school district employ each classroom teacher under either a probationary, continuing, or term contract. Thus, the Commissioner had jurisdiction to consider whether the district violated Education Code § 21.002 by failing to employ Higareda under a Chapter 21 contract.

Ultimately, the Commissioner concluded that the district had violated the Education Code when its superintendent gave Higareda an unauthorized document labeled “Probationary Contract” and allowed him to sign it, and the board did not approve any valid Chapter 21 contract to employ him as a teacher. The Commissioner ordered the district to reinstate Higareda as if he had had a Chapter 21 contract for the 2012-13 school year, and pay him back pay and benefits.

Comments: The board’s failure to approve the teacher’s contract at the start of the school year cost the district and required the teacher’s reinstatement.



Case citation: Price v. Dallas ISD, Dkt. No. 031-R2-12-2013 (Comm’r Educ. August 5, 2014).

Summary: Sondra Price was employed as a teacher by the Dallas Independent School District, but she did not teach in an academic instructional setting or a career and technology instructional setting. Price did not have a Chapter 21 contract.

When the district declined to give her one, she appealed to the Commissioner of Education, claiming that she was a “classroom teacher” and entitled to a Chapter 21 contract.

Under Texas Education Code § 5.001(2), a “classroom teacher” is an educator who is a district employee who works “not less than an average of four hours each day,” and “teaches in an academic instructional setting or a career and technology instructional setting.” Under 19 Tex. Admin. Code § 153.1022(a) (1)(A), although non-instructional duties do not qualify as teaching, necessary functions related to the educator’s instructional assignment such as instructional planning and transition between instructional periods should be applied to creditable classroom time.

Ruling: The Commissioner held that Price was not a “classroom teacher” as defined by Texas Education Code § 5.001(2) entitled to a term contract. The record showed that Price did not work an average of four hours each day. The record showed that Price worked no more than 19.5 hours per week. She had a scheduled 30-minute lunch period on each of the three days each week that she worked. While Price was required to remain on campus during lunch, that requirement was not closely related to her instructional duties and, therefore, the lunch time did not count toward the average teaching hours per day. Likewise, the time it took Price to submit lesson plans did not count toward her average teaching hours, because her lesson plans could have been submitted during her scheduled hours at school. Because Price did not prove that she worked an average of four hours each day, she did not meet the statutory definition of a “classroom teacher” and was not entitled to a term contract.