WHAT IS REQUIRED TO ESTABLISH RETALIATION UNDER TITLE VII?
Case citation: Brooks v. Houston ISD, 2015 WL 251760 (S.D. Tex. 2015) (unpublished).
Summary: Samantha Brooks was a food server for the Houston Independent School District. In 2011, while Brooks was working at Welch Middle School, the district brought in an area manager named Patrice Dauge to address some problems in the cafeteria. At a staff meeting in December of 2011, Dauge, who is white, allegedly made a statement to the food servers that Brooks believed was racist. All of the food servers, including Brooks, were African-American or Hispanic. Brooks complained to the school district and to the Equal Employment Opportunity Commission (EEOC) regarding Dauge’s statement. She also complained about a story that Dauge told her about his family, which she also believed was racist. Brooks alleged that two weeks after she made her complaints, Dauge told her that he would make her life a “living hell” if she kept fighting him. She also claimed that Dauge said “it was nice knowing you,” after telling her that she was scheduled for a disciplinary meeting.
Brooks had a history of disciplinary problems dating back to 2004, at which time she was fired for being out of uniform, dealing with personal business at work, tardiness, and insubordination. She was later reinstated with a demotion. At the middle school, she had been disciplined several times for similar issues prior to her complaint against Dauge. In February of 2012, a couple of months after her complaint against Dauge, she was issued a reprimand by her supervisor, Inman Ekwere, for coming to work late, using profanity, having a hostile attitude, and using her personal cell phone during work hours. Mark Welch, the General Manager of Operations for HISD’s Food Services Department, made the decision to suspend Brooks for twenty days without pay and transfer her to an elementary school.
Brooks was disciplined at the elementary school for being out of uniform and for using her cell phone at work, as well as for mishandling food. There was no evidence that her supervisors at the elementary school knew about Brooks’s complaints against Dauge. Brooks only worked at the elementary school for a brief period of time before going on extended medical leave. The district could not locate records explaining Brooks’s absence and Brooks did not attend a scheduled conference that was set up to discuss her absences. In August of 2012, Mr. Welch decided to fire Brooks for her unexplained absences. He was aware of Brooks’s complaints against Dauge at the time. Brooks met with the district and explained why she had been on medical leave. The district concluded that it had lost or mishandled documents Brooks had submitted earlier regarding her medical absence and reinstated her with back pay.
In October of 2013, Brooks sued the district alleging race and disability discrimination, hostile work environment, and retaliation under the Americans with Disabilities Act (ADA) and Title VII. The district moved for summary judgment on all of Brooks’s claims and Brooks, in her response, abandoned all of her claims except Title VII retaliation. This claim was based on the statement Dauge allegedly made to Brooks, the write-up she received in February of 2012, and on the notice of termination she received in August of 2012.
Ruling: The court granted judgment in favor of the school district. It is unlawful for an employer to discriminate against employees for opposing an unlawful employment practice or making a charge against the employer under Title VII. To state a retaliation claim, a plaintiff must first show that: (1) he or she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link exists between the protected activity and the adverse employment action. Brooks claimed that the district retaliated against her by writing her up in February of 2012, and did so again by terminating her in August of 2012.
The court held that Dauge’s statements to Brooks did not constitute retaliation. Even if Dauge did make the threats that Brooks claims he made, threats of retaliation that do not significantly alter conditions of employment are generally not enough for a prima facie Title VII case. Brooks did not present any evidence showing that Dauge’s comments to Brooks significantly altered the conditions of her employment. These comments were not adverse employment actions and therefore did not amount to retaliation.
Brooks was able to make a prima facie showing of retaliation based on the February 2012 write-ups. This was because Dauge’s involvement in the process shortly after Brooks’s complaints led the court to infer his involvement in the decision to discipline Brooks. However, Brooks committed the infractions and was disciplined according to the district’s rules, so the district had legitimate, nonretaliatory reasons for the February 2012 disciplinary actions. To survive summary judgment, Brooks was required to raise a factual dispute that was material to deciding whether the write-ups would have occurred but for her protected conduct. She could have done so “by producing circumstantial evidence sufficient to create a fact issue as to whether the employer’s nondiscriminatory reasons are merely pretext for discrimination.” The court found that the summary judgment evidence did not raise a factual dispute material to determining whether the write-ups Brooks received in February 2012 for tardiness and for using her cell phone were a pretext for retaliation. The undisputed summary judgment evidence showed that they were not a pretext because Brooks committed most, if not all, of the actions that she was disciplined for. Brooks was late more often and more severely than other employees who were not written up, and she had been informed and warned about the district’s rules against personal cell phone use several times before the write-up. The court ultimately held that the February 2012 write-ups did not amount to retaliation.
Regarding Brooks’s claim that the August 2012 termination was retaliation, the court found that she was unable to make even a prima facie showing of retaliation. The August 2012 decision to terminate her was rescinded with no loss of pay, and therefore was not an adverse employment action.
Comments: To establish retaliation under Title VII, the employee has to demonstrate that “but for” her protected activity she would not have suffered the adverse employment action. Adverse employment actions are those that significantly alter the conditions of employment. While mere threats generally are not enough to constitute adverse employment actions, the write-ups she alleged were. Ultimately, however, she did not meet her burden to show the requisite connection between her alleged complaints and the disciplinary write-ups.
DID A PROCEDURAL IRREGULARITY WARRANT REVERSAL OF THE NONRENEWAL DECISION?
Case citation: Finlay v. Maypearl ISD, Dkt. No. 074-R1-06-2014 (Comm’r Educ. August 6, 2014).
Summary: Allison Finlay was employed by Maypearl ISD during the 2013-2014 school year. At the end of the school year, the board voted to nonrenew Finlay’s contract, at the recommendation of the superintendent. The recommendation for nonrenewal was based on, among other things, inappropriate behavior at a meeting with the parents of some of her students, inappropriate and insubordinate conduct at a staff meeting, and failure to fulfill all of her classroom duties and responsibilities. The motion that the board approved to propose nonrenewal stated that the board agreed to engage an independent attorney to assist the board in the hearing on the proposed nonrenewal.
Finlay appealed the board’s decision, and the board held a hearing on Finlay’s nonrenewal. The board appointed an attorney as a hearing officer. The board was represented in the hearing by another attorney with the same firm. The board president stated that the board was, by a majority, able to overrule any ruling made by the hearing officer. Finlay appealed the decision to the Commissioner, arguing that the board violated its own order by failing to appoint an independent attorney to conduct the hearing, despite the board’s motion stating that it would. Finlay also argued that there was not substantial evidence to support her nonrenewal for the reasons listed in the notice of proposed nonrenewal.
Ruling: The Commissioner affirmed the school district’s decision to nonrenew Finlay’s contract. The district’s board of trustees did commit a procedural error by appointing an attorney who was not independent to serve as a hearing officer after resolving to appoint an independent attorney. The hearing officer could not be considered an independent attorney, given that he had represented the board both before and after the hearing. Also, he was a partner in the same law firm as the attorney representing the board at the hearing. It is not a violation of procedural due process for separate attorneys from the same firm to act as both the prosecuting attorney representing the board and as the hearing officer, as long as the hearing officer’s decisions are subject to being immediately overruled by the board. However, it was a procedural irregularity in this case because the board itself voted on a motion to appoint an “independent attorney.” Even though this was a procedural irregularity, the Commissioner may not reverse a school board’s decision under Texas Education Code § 21.259 for a procedural irregularity unless it was likely to have led to an erroneous decision of the board. In this case, the Commissioner found that the irregularity was not likely to have led to an erroneous decision by the board, so the decision of the board was affirmed. The Commissioner also found that there was substantial evidence in the record to support nonrenewal of Finlay’s contract for the reasons cited in the notice to Finlay.
Reductions In Force
SHOULD THE DISTRICT HAVE REHIRED THE WOMAN AFTER THE RIF?
Case citation: Patten v. Houston ISD, Dkt. No. 029-R10-01-2013 (Comm’r Educ. Dec. 11, 2014).
Summary: Alice Patten was an elementary level intervention reading teacher for the Houston Independent School District when she was nonrenewed due to a reduction in force. Shortly after the hearing on her proposed nonrenewal, the District activated an emergency permit for an individual to fill a sixth grade teaching position. Although Patten did not apply for the position, she unsuccessfully challenged the hiring of another person to fill the teaching position under an emergency permit. On appeal to the Commissioner, she argued that substantial evidence did not support the decision to hire another person under an emergency permit, when she was qualified for the position.
Ruling: The Commissioner denied Patten’s appeal. Under Chapter 19 of the Texas Administrative Code § 230.71, a superintendent or designee who cannot secure an appropriately certified and qualified individual to fill a vacant position may activate an emergency permit for an individual who does not have one of the appropriate credentials required for the assignment. The superintendent or designee must also (1) document efforts the district took to employ a fully certified individual in the position for which an emergency permit is activated, (2) apply to the Texas Education Agency, (3) verify that a support system is in place for the individual, and (4) verify that the individual has been advised of all rules regarding permits and permit renewal requirements.
The Commissioner concluded that Patten failed to meet her burden of proof to show that she was qualified to fill the vacant position. The position was not for an elementary reading intervention teacher, but for a sixth grade teacher. Thus, the evidence was lacking on whether she was qualified. In addition, the record showed that she did not apply for the position. The Commissioner rejected Patten’s contention that the district should have asked her if she wanted the position. Instead, it would have been sufficient for the district to open a position for a reasonable period of time to allow appropriately certified and qualified teachers to apply. The Commissioner, therefore, dismissed Patten’s appeal.
Comments: The Commissioner relied heavily on the fact that Patten had the burden of proof to show she was qualified and that the District did not properly try to secure an appropriately certified and qualified individual. The record simply did not contain evidence to establish those points. It did not help her case that she did not actually apply for the position.
DID THE DISTRICT IMPROPERLY REASSIGN THE HIGH SCHOOL PRINCIPAL TO ELEMENTARY SCHOOL ASSISTANT PRINCIPAL?
Case citation: Gustafson v. Canutillo ISD, Dkt. No. 113-R10-0812 (Comm’r Educ. August 15, 2014).
Summary: Peggy Gustafson was a principal at Northwest Early College High School from 2008 to 2011. On June 7, 2011, Gustafson was reassigned as assistant principal for the Canutillo Elementary School, where she was employed under a two-year term contract. She earned the same salary of $78,600 as assistant principal during the 2011-12 school year as she did as principal during the 2010- 11 school year. However, the district’s salary schedule indicated that her salary as assistant principal should have been $68,406.84. Gustafson argued that she was improperly reassigned and demoted. She argued that it was improper because she was not reassigned in the same professional capacity, and she was transferred to a position with lesser pay.
Ruling: The Commissioner upheld the district’s reassignment of Gustafson. The Commissioner examined whether the reassignment from principal of a high school to assistant principal of an elementary school was a reassignment to a position that was not in the same professional capacity. The Commissioner has previously interpreted “same professional capacity” to mean that “the district may place a teacher whose employment has been renewed by operation of law in a position different from that to which the teacher was assigned the previous year, as long as the position is one to which the district could have reassigned the teacher had the parties voluntarily entered into a contract for the following year.” According to the Commissioner, the factors to be considered in determining the validity of such a placement include, but are not limited to, “differences in authority, duties, and salary.”
In this case, the Commissioner held that when a principal is reassigned, a school district is not limited to assigning the principal to another principal position. Gustafson had the burden of proof before the school board to show that the reassignment was not in the same professional capacity. However, she made no argument comparing differences in authority, duty, or any other relevant factors that might tend to show that the positions were not in the same professional capacity, other than her argument that there was a reduction in salary. The Commissioner therefore concluded that there was no significant difference in actual authority and responsibilities between the two positions. The remaining question was whether a reduction in pay from $78,600 to $68,406.84 was sufficient to amount to a change in professional capacity. Gustafson failed to present any evidence indicating that a reduction in salary to $68,406.84 amounted to a decrease in the level of professional capacity, noting that it would not be surprising to find some principals in Texas earning less than $68,406.84 per year. Although the reduction in salary was not insignificant, the Commissioner found that it was not enough to indicate a change in professional capacity.
Comments: Again, the case hinges on meeting a certain burden of proof. In this case, the former principal had to present evidence showing the differences in authority, duty, or any other relevant factors. Although the woman’s lower salary did not, in itself, establish a change in professional capacity, it could amount to an actionable adverse employment action under state and federal anti-discrimination and anti-retaliation laws.
DID THE ASSISTANT PRINCIPAL PROPERLY RESCIND HER RESIGNATION?
Case citation: Wilson v. Splendora ISD, Dkt. No. 074-R8-0808 (Comm’r Educ. September 18, 2014).
Summary: Sheri Wilson was employed by Splendora Independent School District as an assistant principal under a term contract for the 2007-08 and 2008-09 school years. On April 22, 2008, Wilson was called to a meeting with two assistant superintendents. In the meeting, an incident regarding Wilson was discussed, and Wilson raised the subject of resignation. There was no threat of termination made to Wilson.
Later that day, Wilson submitted a letter of resignation to one of the assistant superintendents. On the same day, the superintendent wrote “accepted” on the letter, and signed and dated it. Wilson was informed that her resignation was accepted on the morning of April 28, 2008. Wilson then told the school district’s administration that she wished to rescind her resignation. When the district would not allow her to do so, Wilson filed an appeal with the Commissioner of Education. Wilson argued that the resignation was improper because it was the result of duress and false representations, and that she rescinded her resignation before it was accepted.
Ruling: The Commissioner concluded that the district was not required to rescind the resignation. A letter of resignation is an offer to end a contract and in order to be effective requires acceptance and consideration. The offer or resignation may be rescinded prior to acceptance. Although the evidence in the record was conflicting, the Commissioner determined under a substantial evidence standard, that Wilson was informed that the district had accepted her resignation before she told the district that she wanted to rescind her resignation. The resignation could not be rescinded at that point, as the offer was already accepted.
The Commissioner held that substantial evidence did not support a finding of duress or fraudulent inducement. Although the testimony in the record was widely divergent, substantial evidence supported the finding that the resignation was Wilson’s own idea, and the school district did not make any threat prior to Wilson’s offer of resignation. Thus, the elements of duress were not met. The Commissioner held that a decision maker could have determined, based on the record, that no materially false statement was made. Therefore, Wilson was not fraudulently induced into submitting her resignation.
Comments: Once the Superintendent wrote on the resignation letter that it was “accepted,” that essentially ended her employment.
DID THE BOARD IMPROPERLY CHANGE A HEARING EXAMINER’S FINDINGS OF FACTS AND CONCLUSIONS OF LAW?
Case citation: Johnson v. Dallas ISD, Dkt. No. 011-R2-10-2014 (Comm’r Educ. December 3, 2014).
Summary: Roderick Johnson was employed by the Dallas Independent School District under a probationary contract when the District proposed his termination. Johnson requested a hearing before a certified hearing examiner. Following the hearing, the hearing examiner determined that jurisdiction did not exist over the matter because the district had not presented evidence of a term, continuing, or probationary contract. The recommendation was issued on September 12, 2014. On September 14, 2014, a board subcommittee met to consider the hearing examiner’s recommendation. After consultation with an attorney during executive session, the board voted to change the findings of fact and conclusions of law of the hearing examiner. Among the changes were facts that Johnson was an inclusion teacher and coach employed under a probationary contract. The board subcommittee also changed a conclusions of law to state that the hearing examiner had jurisdiction over the matter and that the district had established good cause for the termination of Johnson’s contract. The termination was based on Johnson’s alleged falsification of records. The board subcommittee then voted unanimously to terminate Johnson’s contract.
On September 26, 2014, the district sent Johnson a document titled “Decision,” which included the changed findings of fact and conclusions of law, as well as citations to evidence in the record that supported the changes in the findings of fact. However, the decision did not contain any legal explanation regarding why the board changed the hearing examiner’s recommendation. Johnson appealed, arguing that the board improperly changed the hearing examiner’s findings of fact and conclusions of law in violation of Texas Education Code § 29.259(b). In response, the district argued that the appeal was not timely.
Ruling: The Commissioner dismissed the appeal as untimely, but weighed in on whether the board properly changed the hearing examiner’s recommendation. Education Code § 29.259 requires that, not later than the 10th day after the board meeting in which it considered a hearing examiner’s recommendation, the board must announce a decision. A board may reject a conclusion of law, including a determination of good cause to terminate. The board also may change a finding of fact, only after reviewing the record and determining that substantial evidence does not support the finding of fact. The board must state in writing the reason and legal basis for a change or rejection of a hearing examiner’s recommendation.
On appeal, the district argued that the board made an oral announcement at the board meeting concerning changes to the hearing examiner’s recommendation and regarding its vote to terminate Johnson’s contract. According to the district, that oral announcement triggered Johnson’s 20-day timeline within which to appeal his termination. Johnson, on the other hand, argued that the 20-day timeline to appeal did not begin to run until he received the written “Decision,” and as a result, his appeal was timely.
Texas Education Code § 21.301 requires a petition to be filed “[n]ot later than the 20th day after the date the board of trustees or board subcommittee announces its decision under Section 29.259.” Here, the board subcommittee announced its decision orally on September 18, 2014. The 20-day deadline began to run on that date and expired on October 8, 2014. Johnson did not file his appeal until October 16, 2014. As a result, the appeal was not timely. Because the appeal was not timely, the Commissioner technically did not have jurisdiction to consider whether the Board improperly changed the hearing examiner’s findings of facts and conclusions of law.
Comments: Although he dismissed the appeal, the Commissioner observed that “it appears that the Board violated section 21.259 of the Texas Education Code by failing to vote on and announce a decision that included the reasoning and legal basis for making the changes to the Findings of Fact and Conclusions of Law in the IHE’s Recommendation within 10 days of the meeting where the Board discussed the Recommendation.” Had the appeal been timely, it’s likely that the teacher would have prevailed.
DID THE INDEPENDENT CONTRACTOR STATE VALID CLAIMS ON APPEAL TO THE COMMISSIONER?
Case citation: Ray v. La Joya ISD, Dkt. No. 030-R10-01-2013 (Comm’r Educ. December 11, 2014).
Summary: Partha Ray had a service contract with the La Joya Independent School District to provide tutoring services to students. Under this contract, he was an independent contractor. A dispute arose over whether the district failed to provide him with student information so that he could offer his tutoring services. Ray ultimately filed an appeal with the Commissioner of Education challenging the district’s actions. After being ordered to amend the appeal, Ray alleged that the District violated a written independent contractor contract and Texas Education Code §§ 11.1512 and 11.201(d)(5). The district argued that the Commissioner lacked jurisdiction over the appeal.
Ruling: The Commissioner held that jurisdiction does not exist over alleged breaches of contracts involving independent contractors. Texas Education Code § 7.057 grants the Commissioner jurisdiction over violations of certain written employment contracts and violations of the school laws of Texas. Ray argued that employees and independent contractors should be treated equally. He claimed that the service contract allowed him to compete for $2.66 million in tutoring services, but that the district denied him that opportunity by not providing him with student information. Ray requested monetary damages. According to the Commissioner, Texas Education Code § 7.057 does not provide for jurisdiction over alleged violations of independent contractor contracts.
Texas Education Code § 11.1512 requires that the board and the superintendent work together on particular issues. The superintendent is to ensure implementation of board policies. According to the Commissioner, a violation would occur if the superintendent failed to implement a policy. The Commissioner observed that the district ultimately granted Ray’s request to provide him with student information and he was not entitled to monetary damages, even if he could demonstrate a violation of Education Code § 11.1512.
Texas Education Code § 11.201(d)(5) requires a superintendent to manage the day-to-day operations of the district as its administrative manager. The Commissioner observed that a superintendent who does not implement and monitor the implementation of district policy could violate this statute. Again, Ray failed to state facts supporting such a claim in his appeal to the Commissioner and he was not entitled to monetary relief as he requested. Thus, the Commissioner dismissed Ray’s appeal.