Retaliation
DID THE UNIVERSITY RETALIATE AGAINST THE EMPLOYEE FOR HER SEXUAL HARASSMENT COMPLAINT?
Case citation: Ward v. Jackson State University, __Fed. Appx. __, 2015 WL 795826 (5th Cir. 2015) (unpublished).
Summary: In August 2011, Jackson State University hired Dr. Vivian Fuller as its new athletic director. At that time, Ward worked as a secretary in the athletic department. Ward claims that shortly after Fuller arrived at JSU, Fuller began sexually harassing her. Ward further alleges that after she rejected Fuller’s advances, Fuller became hostile toward her. Fuller gave Ward notice of her termination in October 2011.
Ward testified that prior to her termination, she contacted Georgina Felder, an athletic department secretary, about Fuller’s alleged harassment. Ward testified that Felder told her that Felder had contacted Sandra Sellers, the head of human resources, about Ward’s concerns. This testimony is the only evidence in the record that any university official had knowledge of Ward’s sexual harassment complaint before Fuller terminated her employment.
Following her termination, Ward advanced her sexual harassment claim through the proper administrative channels. After the EEOC determined it could not conclude that a Title VII violation had occurred, Ward filed suit in federal district court. Ward alleged that the university and several of its employees violated Title VII of the Civil Rights Act of 1964 by firing her in retaliation for reporting sexual harassment. The district court granted summary judgment to JSU because Ward failed to show JSU knew about Ward’s harassment complaint at the time it terminated her employment. Ward then appealed to the Fifth Circuit Court of Appeals.
Ruling: The court of appeals affirmed the judgment in favor of the university. Under Title VII of the Civil Rights Act, it is unlawful for an employer to retaliate against an employee for filing a sexual harassment report. Initially, a plaintiff must show that (1) she participated in an activity protected under the statute; (2) her employer took an adverse employment action against her; and (3) a causal connection exists between the protected activity and the adverse action. To establish causation, Ward had to at least demonstrate that prior to her termination, Fuller was aware of Ward’s sexual harassment complaint, because “an employer is unaware of an employee’s protected conduct at the time of the adverse employment action, the employer plainly could not have retaliated against the employee based on that conduct.”
The district court excluded as hearsay the only evidence tending to show Fuller knew about Ward’s complaint at the time Fuller terminated Ward’s employment. Ward argued that the district court erred in raising the hearsay issue. But the court observed that to overcome the university’s request for judgment in its favor, Ward had to produce evidence that is “competent and admissible at trial.” According to the appeals court, the trial court had the authority to consider the admissibility of the evidence and properly excluded it as hearsay. Because the inadmissible hearsay evidence was the only evidence tending to show that Fuller knew of Ward’s sexual harassment complaint, she failed to demonstrate the she was fired in retaliation for filing the complaint. Ward failed to establish the causation element of her Title VII retaliation claim, and the Fifth Circuit affirmed the judgment in favor of the university.
Comments: Hearsay is a statement that was not made by the person testifying to prove a fact that is being asserted. There are many exceptions to the hearsay rule, but none applied in this case. The trial court properly excluded the improper hearsay, which was the only substantive evidence offered by the plaintiff.
Criminal Convictions
DID THE UNSUCCESSFUL APPLICANT STATE VALID CONSTITUTIONAL CLAIMS AGAINST THE DISTRICT?
Case citation: Crook v. Galaviz, 2015 WL 502305 (W. D. Tex. 2015) (unpublished).
Summary: On May 23, 2014, James J. Crook, a convicted felon and former attorney, filed an employment discrimination lawsuit against the Canutillo Independent School District, the Superintendent Pedro Galaviz, and the Board. Crook contended that the District defendants’ policy against hiring individuals with felony convictions for classroom teaching positions violates numerous constitutional provisions, including the Equal Protection Clause of the Fourteenth Amendment. Many years prior to submitting his employment application to the district, a jury found Crook guilty of thirteen counts of felony barratry. In the wake of these convictions, the Texas Board of Disciplinary Appeals permanently disbarred him from the practice of law in the State of Texas.
Crook alleged that, in the spring of 2012, he applied for the position of social studies teacher with the district. After not receiving any word for approximately two years, he allegedly was forced to reapply for the same position in the spring of 2014 because the district “willfully erased” his original application from their computer system. Crook claimed that Galaviz then promised to hire him as a high school economics teacher beginning in the fall of 2014. However, he later discovered that Galaviz had no intention of hiring him as an economics teacher, and instead had instructed the administrative staff to ignore the application solely due to his criminal convictions for statutory barratry. In reliance upon these false representations, Crook claims that he ceased interviewing for teaching positions with other school districts, which may have resulted in a loss of income. This case was the second in which Crook challenged the constitutionality of a local school district’s policy not to hire teachers with criminal convictions. The suit contended that he was entitled to relief under numerous provisions of the Constitution, as well as under Texas common law. Defendants filed a motion to dismiss.
Ruling: The trial court dismissed each of Crook’s claims. The Court first analyzed claims brought under 42 U.S.C. § 1983 for alleged violations of his constitutional rights and alleging the unconstitutionality of certain Texas Education Code provisions and the Texas barratry statute. The trial court first dismissed Crook’s claims under Fourteenth Amendment because those same issues had already been litigated and resolved in his previous lawsuit brought against El Paso Independent School District. In both cases, Crook contended that the district’s hiring policy violated his due process and equal protection rights because it did not allow consideration of applicants with felony convictions for classroom teaching positions. Both school districts had identical hiring policies and, applying the doctrine of collateral estoppel, the court held that Crook’s Fourteenth Amendment claims had already been resolved against him in the other lawsuit. Thus, those claims were dismissed.
The trial court also rejected claims that the district’s hiring policy constituted double jeopardy in violation of the Fifth Amendment; the application of the hiring policy amounted to cruel and unusual punishment in violation of the Eighth Amendment; and that the hiring policy amounted to a “bill of attainder.” Only punishment that is considered criminal subjects a person to double jeopardy under the Double Jeopardy Clause. Thus, the failure to obtain a job did not fall within the protections of the Double Jeopardy Clause. Under the Eighth Amendment punishment rises to the level of cruel and unusual only if it involves an “unnecessary and wanton infliction of pain.” The suit simply did not raise allegations for which the Eighth Amendment would apply. For a law to amount to a bill of attainder under the Bill of Attainder Clause, it must be one that “legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Actions brought by the Bill of Attainder Clause challenge laws enacted by state legislatures. The district’s hiring policy did not constitute a “legislative act” and thus cannot constitute a bill of attainder.
The trial court dismissed Crook’s challenge to the Texas barratry statute holding that such a claim could not be brought in the context of an employment discrimination suit. He also failed to state valid claims concerning the constitutionality of Texas Education Code §§
21.058 and 22.0834. Education Code § 21.058 applied to persons already employed with a district, calling for disciplinary action if the district learns of a felony conviction or deferred adjudication. Education Code § 22.0834 applies to a contracting or subcontracting entity, preventing them from allowing an employee convicted of a felony to provide services at a school. The trial court ultimately dismissed each of Crook’s claims stemming from the district’s failure to hire him due to his prior felony convictions.
Comments: Crook creatively challenged the district’s refusal to hire him on many novel grounds. None, however, overcame the District’s prohibition against hiring convicted felons.
Discrimination
DID THE WOMAN’S TERMINATION AMOUNT TO RACE OR AGE DISCRIMINATION?
Case citation: Bedgood v. Texas Education Agency, 2015 WL 739635 (Tex. App. – Austin 2015) (unpublished).
Summary: Hellen Bedgood, an African–American woman born in 1955, began working for the Texas Education Agency in 2003 and was employed as the Assistant Director of the Reading First program in the TEA’s Division of Curriculum in 2010. On March 30, 2010, the Agency sent Bedgood a letter informing her that the federal government had eliminated funding for the Reading First program and that her current position would end on August 31, 2010. The two other TEA employees assigned to positions in the Reading First program, Deborah Forrester and Kathy Stewart, were also notified that their positions would end on August 31, 2010. Bedgood, Forrester, and Stewart each applied for different open positions in the Agency. Bedgood applied for the following positions: Program Specialist VII, Manager III, Program Specialist V, Program Specialist VI, and Manager IV. She was not offered employment in any of the positions for which she applied and, on August 31, 2010, Bedgood’s employment with TEA ended.
Bedgood then sued TEA, alleging causes of action for employment discrimination and retaliation under the Texas Commission on Human Rights Act (TCHRA). Specifically, Bedgood alleged that the Agency engaged in unlawful employment practices when “she was not selected for three different positions once the funding ended for her position” and when she was “discharged” by the Agency. According to Bedgood, both the discharge and TEA’s failure to hire her for the positions for which she applied were due to the fact that she was African–American and over the age of forty. Bedgood also alleged that her termination was in retaliation for her having complained about being subjected to a hostile work environment. Bedgood also alleged that she was excluded from merit pay raises that her non- African-American colleagues received.
The Agency requested pretrial judgment in its favor, arguing that (1) Bedgood failed to make a prima facie case of discrimination because she did not establish that she was treated less favorably than similarly situated employees outside a protected class, (2) the Agency’s hiring decisions were based on objective criteria designed to identify the best qualified candidate and were therefore legitimate, nondiscriminatory, nonretaliatory employment practices, (3) there were legitimate business reasons for the Agency’s failure to give Bedgood merit pay increases, and (4) Bedgood failed to make a prima facie case of retaliation and did not establish a causal connection between her participation in any allegedly protected activity and any employment decision. Bedgood did not file a response to the Agency’s motion. The trial court granted the motion and Bedford appealed.
Ruling: The court of appeals affirmed the judgment in favor of TEA. Bedgood’s discrimination and retaliation claims were based on three of the Agency’s employment decisions: (1) discharging her from her position as Assistant Director of the Reading First program, (2) failing to hire her for any of the open Agency positions she applied for, and (3) failing to give her merit pay raises. It was undisputed that all three of the Agency’s employees whose jobs were related to the Reading First program were informed that their positions would be eliminated as of August 31, 2010 due to lack of federal funding. Thus, to the extent Forrester and Stewart were similarly situated to Bedgood by virtue of the fact that all three of them had job functions related to the Reading First program, neither Forrester nor Stewart was treated more favorably than Bedgood. Each of them was informed that their position would be eliminated and they were all informed that they could apply for open positions within the Agency. Although Bedgood contends that only she was “discharged” because only she was not hired for a different position, the record evidence was undisputed that Bedgood, Forrester, and Stewart all lost their Reading First positions. Because Bedgood did not carry her burden of establishing that, with regard to her discharge as Assistant Director of the Reading First program, she was treated less favorably than similarly situated people outside her protected class, she did not make a prima facie case of discrimination based on that employment decision.
The appeals court next considered Bedgood’s discrimination claims based upon the fact that Forrester and Stewart were hired for different positions and she was not. The appeals court held, however, that neither Forrester nor Stewart was “similarly situated” to Bedgood. Forrester was hired to fill an Administrative Assistant IV position that Bedgood did not apply for despite the fact that she was qualified for that position. Stewart was hired to fill a Manager IV position that Bedgood testified she did not apply for because she was not qualified. Thus, evidence that Forrester and Stewart were hired for different positions that they, and not Bedgood, applied for, did not constitute evidence that, with respect to any specific hiring decision, TEA treated Bedgood less favorably than any similarly situated person outside the protected class. In addition, the Agency presented evidence of its legitimate, non-discriminatory reasons for not hiring Bedgood. The record showed that more qualified candidates applied for the three positions that Bedgood sought. The evidence suggested that the people ultimately hired had more knowledge of the jobs and related hands-on experience that Bedgood did not. Bedgood’s subjective belief that she was more qualified was insufficient to overcome TEA’s evidence.
Bedgood’s retaliation claims failed for similar reasons. The Agency presented evidence of legitimate, nonretaliatory reasons for its employment decisions. In response, Bedgood failed to present evidence that the Agency’s employment decisions would not have been taken but for her having engaged in protected activity. Bedgood did not present sufficient evidence of retaliatory motive for the Agency’s employment decisions to rebut the Agency’s stated legitimate, nonretaliatory reasons for its employment decisions. The appeals court upheld the judgment in favor of TEA.
THE FORMER MATH TEACHER DID NOT ESTABLISH AGE DISCRIMINATION AGAINST THE CHARTER SCHOOL
Case citation: Rosenberg v. KIPP, Inc., __S.W. 3d __, 2015 WL 410454 (Tex. App. – Houston 2015).
Summary: Ann Rosenberg was a math teacher with KIPP, Inc., an open-enrollment charter school. Rosenberg taught advanced placement calculus at KIPP’s Houston High School, until 2010-11, when she requested to teach non-AP calculus. At the start of the 2010-11 school year, KIPP hired a new Head of Schools for High Schools, Paul Castro. After two classroom observations of Rosenberg’s class, Castro decided that Rosenberg would not be invited back to work for KIPP. Rosenberg asked the Human Resources director how to appeal the decision, but was told to speak with Castro. She declined to do so and submitted her letter of resignation. When she learned that her non-AP calculus class was not on the schedule for the following school year, she sent an e-mail to a wide audience that Castro and other administrators considered unprofessional and contrary to KIPP values. KIPP then terminated Rosenberg prior to the end of the school year, which was the effective date of her resignation. Rosenberg filed suit under the Texas Commission on Human Rights Act (TCHRA) against KIPP alleging age discrimination. In response, KIPP filed a plea to the jurisdiction, arguing that Rosenberg could not establish her initial prima facie case of discrimination, which would deprive the court of jurisdiction. The trial court agreed and dismissed Rosenberg’s suit for lack of jurisdiction.
Ruling: The court of appeals affirmed the ruling in favor of KIPP. The necessary elements of Rosenberg’s prima facie age-discrimination case were that she (1) was a member of the protected class (age forty or older—Rosenberg was 64), (2) was qualified for the position, (3) was terminated from employment, and, (4) was replaced by someone outside her protected class, or in the disparate treatment case, that others similarly-situated were treated more favorably. Failure to establish a prima facie case deprives Rosenberg of the presumption of discrimination and deprives the court of jurisdiction.
Rosenberg asserted that her age-discrimination claim was based on the February 2011 decision not to invite her to return for the 2011–2012 academic year, and the May termination was a pretext for the February action. Rosenberg was required to offer proof that age was a motivating factor for the February decision. The evidence shows Rosenberg was over forty and qualified for the position. The evidence also establishes she was not invited to return for the 2011–2012 academic year, and her employment was terminated in May 2011. For purposes of the jurisdictional inquiry, whether Rosenberg established prima facie evidence on the fourth element of her discrimination claim was the focus here.
Rosenberg claimed that KIPP had no basis for not renewing her employment for performance reasons because she had never been disciplined or coached as other first year employees had been, suggesting her non-renewal was due solely to her age. However, other than her own subjective beliefs, Rosenberg simply failed to present any evidence showing that any action taken against her was motivated by age discrimination. Because Rosenberg did not offer proof to support her prima facie age-discrimination claim, there was no waiver of immunity, and the trial court properly granted KIPP’s plea to the jurisdiction and dismissed Rosenberg’s claims.
Compensation
COULD THE DISTRICT’S DATE GRANTS BE BASED UPON TWO YEARS OF PERFORMANCE?
Case citation: Trickey v. Longview ISD, Dkt. No. 057-R8-0511 (Comm’r Educ. Aug. 29, 2013).
Summary: Judith Trickey worked as a teacher for Longview Independent School District between 2008 and 2010. Trickey filed a grievance with the district after she did not receive a grant under the District Awards for Teacher Excellence (DATE). She claimed that the district improperly determined that DATE grants would be based on two years of performance, instead of one. The district’s DATE plan and the Texas Education Agency’s action on the DATE plan were not part of the record of Level I and II grievance. The district denied Trickey’s request to submit the plan and TEA action into the record at Level II. When the district denied Trickey’s grievance, Trickey appealed to the Commissioner of Education.
Ruling: The Commissioner held that the district properly determined that its DATE grants would be based on two years of performance. The District first contended that the Commissioner did not have jurisdiction to consider Trickey’s appeal. Under 19 Tex. Admin. Code § 1073(h)(3), “Annual award amounts should be valued at $3,000 or more, unless otherwise determined by the district planning committee. All eligible educators must have the opportunity to earn minimum awards valued at no less than $1,000 per educator identified under Part I funds. Local decisions regarding award amounts are final and may not be appealed to the commissioner.” According to the Commissioner, this provision of the Texas Administrative Code requires awards to be at least $1,000, and requires awards of at least $3,000 unless a district planning sets a lower amounts. The district’s decision as to award amounts is unappealable. However, the provision does not bar a teacher from filing an appeal claiming that she should have received an award.
DATE was created under chapter 21, subchapter O of the Texas Education Code and allows districts to award additional compensation to teachers and to provide additional resources for teacher induction and mentoring. School districts submit a DATE plan to the TEA for approval. Trickey argued that DATE plans should be based on one year’s performance. She cited Texas Education Code § 21.703, which requires DATE funds to be used each year. In addition, 19 Tex. Admin. Code § 102.1073 provides that DATE is an annual grant program and requires the use of quantifiable measures that are reported in the same way from year-to-year. According to the Commissioner, neither of those provisions requires districts to base the DATE program awards on one year’s performance. Just because the awards are granted annually does not mean that the awards have to be based on one year’s achievement. The Commissioner, therefore, concluded that an annual award to a teacher under DATE can be based on two years of performance.
