ARE PUBLIC EMPLOYEES ENTITLED TO UNION REPRESENTATION DURING INVESTIGATORY INTERVIEWS?
Editor’s Note: This case does not involve a school district, but is relevant to school district employees. It discusses whether the Texas Labor Code grants public-sector employees in Texas the right to, upon request, have union representation during an internal investigatory interview.
Case citation: The City of Round Rock v. Rodriguez, __ S.W.3d __, 2013 WL 1365906 (Tex. 2013).
Summary: In July 2008, Round Rock Fire Chief Larry Hodge called fire fighter Jaime Rodriguez into a meeting in Chief Hodge’s office. In the room, Chief Hodge was joined by the assistant fire chief and Rodriguez’s battalion chief. Chief Hodge told Rodriguez that the purpose of the meeting was to conduct an internal interview of Rodriguez regarding a personnel complaint that Chief Hodge had filed against him. Chief Hodge alleged that Rodriguez had misused his sick leave earlier that month to get a physical examination to pursue employment with the Austin Fire Department. The complaint stated, “Since this is an Internal Interview you may not be represented during our meeting; however, if a pre-disciplinary meeting is set following our meeting you would be eligible for representation at that time.” The complaint also prohibited Rodriguez from discussing the complaint with anyone other than Rodriguez’s attorney, including union leadership and other union members.
Before the interview began, Rodriguez asserted the right to union representation, requesting to have a representative from the Round Rock Fire Fighters Association (the Association) present during the interview. Chief Hodge denied Rodriguez’s request and interviewed him without Association representation. In October 2008, Chief Hodge again met with Rodriguez to discuss potential discipline for the conduct alleged in the personnel complaint. Rodriguez did not ask for a union representative at that meeting. Chief Hodge allowed Rodriguez to choose between being discharged and accepting a five-day suspension without the right to appeal. A few days later, Rodriguez executed an agreement that opted for the five-day suspension.
Three months later, Rodriguez and the Association filed a declaratory judgment action, alleging that Chief Hodge and the City of Round Rock violated Rodriguez’s right to union representation under Texas Labor Code § 101.001. Rodriguez and the Association also sought to prohibit Chief Hodge and the City from denying Rodriguez and other fire fighters their right to representation at future investigatory interviews. The trial court denied a motion for summary judgment filed by Chief Hodge and the City, and granted a motion for summary judgment filed by Rodriguez and the Association. In its final judgment, the trial court declared that Rodriguez was denied his right to union representation under the Labor Code, and enjoined Chief Hodge and the City from further denying fire fighters the right to, upon request, be represented by the Association at investigatory interviews they reasonably believe might result in discipline. After the court of appeals affirmed the decision, the City appealed to the Texas Supreme Court.
Ruling: By a 6-3 majority, the Texas Supreme Court reversed the lower court judgment in favor of Rodriguez and held that § 101.001 of the Texas Labor Code does not require union representation during investigatory interviews, as Rodriguez asserted. Section 101.001, captioned “Right to Organize,” provides: “All persons engaged in any kind of labor may associate and form trade unions and other organizations to protect themselves in their personal labor in their respective employment.” The Court observed that, while the statute is broad, the plain language of the statute does not confer the specific right to have a union representative present at an investigatory interview that an employee reasonably believes might result in disciplinary action. On its face, the statute only provides the “right to organize into a trade union or other organization.” According to the Court, by its plain terms, the statute makes it lawful for employees to form labor unions or other organizations, and specifically, those organizations created to protect them in their employment. However, it says nothing about any rights that may attach once such unions are formed.
The Court observed that the right to union representation in an investigatory interview derives from the United States Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251, 95 S.Ct. 959 (1975), the seminal case regarding private-sector employee representation rights. In that case, an employer challenged the National Labor Relations Board’s (NLRB) determination that Section 7 of the National Labor Relations Act (NLRA) granted private-sector employees the right to have a union representative present at an investigatory interview when the employee reasonably believes that the interview could result in disciplinary action. The United States Supreme Court held that the NLRB permissibly construed Section 7 to confer the representation right, noting that the NLRB’s construction may not be required by the statute’s text. Following this decision, Congress extended the representation right to federal public-sector employees. Thus, the right to union representation during investigatory interviews currently applies nationally to all private-sector employees and federal public-sector employees.
The Texas Supreme Court held, however, that in Texas there is no NLRB equivalent. Instead, labor policy and regulation is determined exclusively by the Texas Legislature and the language of its legislative enactments. The Texas Legislature has not enacted legislation to confer the right to union representation on Texas public-sector employees during investigatory interviews. While the Court recognized that there are “good reasons” for Texas public-sector employees to have the same access to union representation in investigatory interviews as private-sector employees and federal public-sector employees, the Legislature must make that policy determination. Here, the plain language of Texas Labor Code § 101.001 does not confer representation rights akin to Weingarten rights on Texas public-sector employees. Thus, the Court reversed the judgment of the court of appeals and rendered judgment in favor of the City of Round Rock.
Things to Remember: Whether an employee is entitled to legal representation in a conference with a supervisor has much to do with who initiated the conference. If the employee initiates the meeting by filing a grievance, then the employee may be represented. But if the employer initiates the meeting to discuss performance issues, or to issue a reprimand, the employee does not have a right to representation. This decision by our state’s highest court clarifies that point of law. At least with regard to this one issue, employees of Texas school districts are disadvantaged compared to their peers in private employment or the federal workforce.
CAN SCHOOL DISTRICTS RECOGNIZE DOMESTIC PARTNERSHIPS TO PROVIDE EMPLOYEE BENEFITS?
Case citation: Tex. Att’y Gen. Op. 1003 (2013).
Summary: The chair of the Texas Senate Education Committee recently asked the Attorney General whether the Texas Constitution prevents local political subdivisions from recognizing domestic partnerships by granting benefits previously only available to married couples. Certain Texas cities, counties, and school districts “offer some form of insurance benefits to domestic partnerships” as part of their employee benefits programs. The Attorney General observed that the domestic partnerships at issue were not created by state law, but instead, were entirely a creation of the political subdivision. Further, the domestic partnership benefits programs in question provide healthcare benefits on a new class of individuals and establish requirements for qualifying as a domestic partner, such as affidavits and supporting documentation.
Ruling: The Attorney General concluded that the Texas Constitution does not necessarily prohibit political subdivisions, such as school districts, from providing employee benefits to domestic partners. Instead, it prohibits them from creating a “legal status” of domestic partnership and recognizing that status by offering public employee benefits based upon it. Article I, section 32 of the Texas Constitution states that marriage consists only of “the union of one man and one woman.” Further, it states that Texas or a “political subdivision” of Texas “may not create or recognize any legal status identical or similar to marriage.” Cities, counties, and school districts are “political subdivisions” subject to this constitutional provision.
The Attorney General stated: “By establishing eligibility criteria and requiring affidavits and other legal documentation to demonstrate applicants’ eligibility to be considered domestic partners, these political subdivisions have purported to create a legal status of domestic partnership that is not otherwise recognized under Texas law. Furthermore, the political subdivisions ‘recognize’ that legal status by providing benefits to individuals who attain that status.” The domestic partnerships criteria established in these programs is also similar to criteria associated with marriage.
Legislative debate over article I, section 32 in the House of Representatives reflected the belief of the author of the provision that it did not address specifically whether a political subdivision may provide employee benefits to the unmarried partner of an employee. In fact, Representative Chisum, who authored the constitutional amendment stated: “[This amendment] does not stop [political subdivisions] from providing health benefits to same-sex partners. It is not intended to do that.” Rather, it prohibits the creation of a legal status similar to marriage. The benefits programs here not only offered benefits to domestic partners, but created a legal status and recognized that status by making it the sole basis on which to provide benefits to domestic partners of employees. Thus, it is the creation of a “legal status similar to marriage” that violates the Texas Constitution.
Things to Remember: This will not be the last word on this issue. The Attorney General noted that the United States Supreme Court has granted certiorari in two cases addressing state and federal laws that define marriage as it is defined in article I, section 32 of the Texas Constitution. Decisions on those cases are expected before the end of the Court’s term in June. Stay tuned.
DID THE SCHOOL FAIL TO ACCOMMODATE THE BUS DRIVER’S RELIGIOUS BELIEFS?
Case citation: Antoine v. First Student, Inc., __ F.3d __, 2013 WL 1457528 (5th Cir. 2013).
Summary: Robert Antoine was a member of the Seventh-day Adventist faith for more than thirty years. Seventh-day Adventists observe the Sabbath from sundown Friday to sundown Saturday, and they emphasize the importance of refraining from secular work during this time. Antoine originally worked for First Student, Inc. as a bus driver for the Orleans Parish area during the 2008-09 school year. During his first period of employment with First Student, Antoine never experienced a conflict with his religious observance of the Sabbath since he always completed his afternoon route on Fridays before sundown.
In June of 2009, Antoine applied to be a bus driver for First Student in the Jefferson Parish School District (JPSD) for the 2009–10 school year. Antoine informed First Student that he was able to work between 5:00 a.m. and 6:00 p.m. during the week, but not on weekends. According to Antoine, he also discussed his religion and the limitations that it imposed on his availability on the Sabbath during the interview. First Student hired Antoine on July 23, 2009. The relationship between First Student and its employees was governed by a Collective Bargaining Agreement (CBA) that First Student entered into with the International Brotherhood of Teamsters, Local 270.
During the relevant time period, Antoine was ranked number 114 out of 115 drivers on First Student’s seniority list. Due to his lack of seniority, Antoine did not receive a route at the beginning of the 2009-10 school year, and thus became a bench driver. An existing route then became available on September 11, 2009, and Antoine received that route, which typically ended at around 5:40 p.m. each day. During part of the school year, the requirements of the new route conflicted with Antoine’s religious beliefs. Once Daylight Savings Time ended on November 1, 2009, sunsets started occurring before Antoine’s shift ended on Fridays. Thus, he was unable to complete his Friday route between November 6, 2009 and January 29, 2010.
Antoine informed First Student that he would not be able to complete his Friday afternoon shifts from November through January. At one point, Antoine was instructed that if he could not complete all three of his routes on Friday afternoons, then he should stay home and not come to work that afternoon. A supervisor also gave Antoine a warning letter for not driving his routes later that afternoon. According to Antoine, the resolution of the November 6 meeting was that First Student would find a replacement driver for Antoine. The CBA, however, specifically prohibited swapping of routes. As a result, First Student claimed that to accommodate Antoine, it sought a “side agreement” or Memorandum of Understanding (MOU) with the local union that would have permitted a voluntary shift swap for Antoine. According to Antoine, First Student did not follow through with the MOU.
In accordance with instructions directing Antoine to stay home Friday afternoons if Antoine could not drive part of his afternoon routes, Antoine did not appear for work on November 6, November 13, November 20, December 4, or December 11, and provided proper notice of his absences. Following the progressive discipline policy set forth in the CBA, First Student first counseled Antoine for absenteeism through written warnings on November 6, November 18, December 1, and December 4. On December 14, First Student suspended Antoine from December 15 to December 18. Finally, First Student terminated Antoine for excessive absenteeism on January 15, 2010.
On January 20, 2010, Antoine filed a charge of employment discrimination against First Student with the Equal Employment Opportunity Commission (EEOC). On August 25, 2010, Antoine received Notice of a Right to Sue from the EEOC. Antoine then filed suit against First Student under Title VII, alleging that First Student had discriminated against him based on his religion. The trial court granted summary judgment to First Student, holding that First Student had satisfied its burden of showing that it had reasonably accommodated Antoine. Accordingly, the magistrate judge did not consider whether any of the alternative accommodations Antoine proposed would have imposed an undue hardship on First Student. Antoine timely appealed to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit reversed the judgment in favor of First Student and returned the case to the trial court for further proceedings. Title VII of the Civil Rights Act of 1964 provides, in relevant part, that “it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … religion.” The Fifth Circuit has held that an employer has the statutory obligation to make reasonable accommodations for the religious observances of its employees, but is not required to incur undue hardship.”
A plaintiff asserting a failure-to-accommodate claim under Title VII must satisfy the following elements of a prima facie case: (1) “that he had a bona fide religious belief that conflicted with an employment requirement”; (2) “that he informed the employer of his belief”; and (3) “that he was discharged for failing to comply with the conflicting employment requirement.” The burden then shifts to the defendant to demonstrate either that it reasonably accommodated the employee, or that it was unable to reasonably accommodate the employee’s needs without undue hardship. Both the Supreme Court and the Fifth Circuit have held that a seniority-based system permitting employees to choose their own shifts, combined with an employer’s offer to approve any voluntary shift swaps that the employee enters into in a workplace where swapping is regular and accepted, constitutes a reasonable accommodation.
Here, the court of appeals concluded that summary judgment was not appropriate and genuine disputes of material fact existed regarding the nature of the purported accommodations in this case. These factual disputes center around: 1) the accommodation to arrange a voluntary shift swap; and 2) the existence of a preliminary agreement by the local union to consider an MOU or other “side agreement” that would have permitted a voluntary shift swap under the CBA in Antoine’s case. As to the first issue, First Student asserts that it was solely Antoine’s responsibility to find a replacement driver, while Antoine asserts that First Student offered to find a substitute driver and then failed to follow through on this offer. As to the second issue, First Student contended that the CBA generally prohibited voluntary shift swaps, but that it intended to circumvent this general prohibition if Antoine first found someone to take his shift. On the other hand, Antoine asserted that First Student never pursued a preliminary agreement from the union to consider any alterations to the CBA in order to accommodate him.
The parties also disputed whether a reasonable accommodation was possible without undue hardship on First Student. Undue hardship exists when an employer is required to bear more than a de minimis cost. Specifically, an undue hardship is present if the proposed accommodation would force changes in the schedules of other employees and alter the employer’s otherwise neutral procedure.
The district court here indicated that it “need not reach the question of whether any accommodation suggested by plaintiff would pose an undue hardship on First Student.” The appeals court disagreed, and held that the CBA provided a procedure for swapping routes that did not require a forced, unilateral reassignment by First Student. That express contractual provision precluded a determination that a shift swap constituted an undue burden because it necessitated a violation of the CBA. While First Student raised other reasons for why accommodating Antoine would have presented an undue hardship for the company, the appeals court deferred those issues to the district court to consider. The appeals court reversed the judgment in favor of First Student, and returned the case to the trial court.
Things to Remember: Claims of religious discrimination are not as common as those involving race or disability, but they do occur, as this case illustrates. The decision provides a good analysis of the “reasonable accommodation” standard required of employers.
COULD THE WOMAN SUE THE INDIVIDUAL ADMINISTRATORS UNDER TITLE VII?
Case citation: Oduze v. Wylie ISD Administrators, 2013 WL 944729 (E.D. Tex. 2013) (unpublished).
Summary: Brenda Oduze filed suit against a number of administrators and the Board of Trustees of Wylie Independent School District, claiming that she had been subjected to employment discrimination and sexual harassment. Oduze, proceeding without the assistance of legal counsel, alleged violations of Title VII of the Civil Rights Act of 1964 and “Civil Rights Act of 1991.” The defendants sought dismissal of the lawsuit, arguing that she had failed to state sufficient facts or a proper legal basis to support a lawsuit against the individual defendants.
Ruling: The trial court dismissed the lawsuit against the individual school district administrators, but provided Oduze an opportunity to amend her lawsuit. The trial court observed that relief under Title VII is only available against an employer, not an individual supervisor or fellow employee. However, Oduze did not name the Wylie ISD as a defendant. The trial court directed her to comply with federal pleading requirements, but Oduze failed to do so.
Oduze’s lawsuit and response to the defendants’ motion to dismiss simply did not state sufficient facts to demonstrate how the named defendants should be held liable. Her charge of discrimination with the Equal Employment Opportunity Commission also only named the Wylie ISD as her employer and did not demonstrate exhaustion of administrative remedies against any of the individual district employees. The trial court explained that the exhaustion requirement serves “the dual purposes of affording the EEOC and the employer an opportunity to settle the dispute through conciliation, and giving the employer some warning as to the conduct about which the employee is aggrieved.” In this case, Oduze had not stated facts that would show how the EEOC’s issuance of a right to sue letter for Wylie ISD would permit any claims against the individuals named as defendants in her suit. The trial court, therefore, dismissed the claims against all of the named individual defendants, but allowed Oduze to amend the lawsuit to name a proper defendant.
DID THE EMPLOYEE PROVIDE SUFFICIENT EVIDENCE OF DISCRIMINATION?
Case citation: Grice v. Alamo Community College District, 2013 WL 1760626 (Tex. App. – San Antonio) (unpublished).
Summary: Vernard Grice was an African American male who worked for the Alamo Community College District (ACCD), beginning in 1996. By mid-2008, Grice was serving as both the Interim Director of Partnerships and Extended Services at St. Philip’s College and as the Interim Dean of Workforce Development and Continuing Education. In his position as the Interim Director, Grice’s responsibilities included interviewing, hiring, and supervising staff. As Interim Dean, Grice held an upper-level management position in which he supervised staff and was expected to provide direction and leadership. Grice became the permanent Director of Partnerships and Extended Services in June 2009, and remained Interim Dean until a permanent Dean was hired in August 2009.
Throughout his career, Grice received training on ACCD’s sexual harassment policy, and supervisors made it clear that sexual relationships with students or staff were inappropriate. In the fall of 2008, the department hired a woman to work as an offsite evening monitor at several offsite locations. During her first three months of work, the woman reported directly to Grice. Within a month, Grice’s relationship with her allegedly became personal and physical. Grice maintained the relationship was always consensual and there was never any express or implied coercion.
In February 2009, ACCD posted proposed new personnel policies which omitted the language “discouraging” consensual relationships. Instead, the policy was replaced by a separate, new policy entitled “Consensual Relationships.” The new policy expressly prohibited romantic or sexual relationships between employees and their subordinates or students “whether or not they result in sexual harassment.” In April 2009, ACCD administration over Grice told staff that if any such relationships existed, they needed to stop before the policy went into effect. Grice testified he ended the relationship because of that warning. The new policies went into effect April 28, 2009.
The woman, however, filed a sexual harassment complaint against Grice in September 2009. ACCD assigned the complaint to a committee for investigation. The investigation concluded that Grice had committed sexual harassment. As a result, Grice was terminated for violating ACCD sexual harassment policy. Grice sued ACCD under the Texas Commission on Human Rights Act, alleging he was fired because of his race and gender. The ACCD sought judgment in its favor prior to trial
Ruling: The trial court concluded that Grice presented insufficient evidence to support his discrimination claims. Under the Texas Commission on Human Rights Act (TCHRA), an employer may not discriminate against an employee based on “race, color, disability, religion, sex, national origin, or age.” In the absence of direct evidence of discrimination, a plaintiff may establish a prima facie case for violation of the Act by showing he was (1) a member of the class protected by the Act, (2) qualified for his employment position, (3) terminated by the employer, and (4) treated less favorably than similarly situated members of the opposing class.
Here, Grice claimed that the stated reason for his termination was false and pretextual because those policies did not come into effect until April of 2009, after his relationship ended. Grice claimed that the female employee was not fired and alleged at least one non-African-American male against whom a claim of sexual harassment was corroborated had not been fired. However, Grice did not argue or provide evidence that he was treated less favorably than similarly situated females. There is no summary judgment evidence concerning how any complaint of sexual harassment against a female employee of ACCD was handled. Thus, the gender discrimination claim was without merit.
With respect to his race discrimination claim, Grice argued that he was treated less favorably than similarly situated non-African-American males. The only examples of unequal treatment involved one Hispanic former staff member who was not fired after a sexual harassment claim was substantiated, and an adjunct faculty member who allegedly had an affair with a student. However, the Hispanic employee did not have any supervisory authority over the complainant, nor did he make any hiring, firing, or promotion decisions or exercise direct authority over any subordinates, as Grice did. The trial court concluded, therefore, that the Hispanic employee was not similarly situated to Grice.
With respect to the adjunct faculty member, the record did not include evidence of the man’s name, race, or ethnicity. In addition, the circumstances surrounding the adjunct faculty member’s nonrenewal were unclear. The trial court held that the incomplete information did not support Grice’s discrimination claim. Grice did not present evidence of any other non-African-Americans, who were found to have committed sexual harassment at ACCD and who kept their jobs. Moreover, the record contained evidence of two other non-African-Americans who lost their jobs with ACCD after being accused of sexual harassment. Because the record did not show that ACCD treated similarly situated non-African-Americans more favorably than was Grice, he failed to raise a genuine issue of material fact on his case of race discrimination. The trial court entered judgment in favor of the ACCD.
Things to Remember: Notice that “similarly situated” involves a detailed analysis of the employment status of the individuals involved. Here, one man was a supervisor; the man he compared himself to was not. Thus they were not “similarly situated” and could not form the basis of a discrimination claim.
DID THE SCHOOL DISTRICT DISCRIMINATE AGAINST THE CUSTODIAN?
Case citation: Martinez v. Katy ISD, 2012 WL 6743549, 2012 WL 6737497 (S.D. Tex.) (unpublished).
Summary: Ana Martinez worked for the Katy Independent School District as a custodian and, in March of 2009, was transferred to Winborn Elementary School. At Winborn, Martinez’s supervisor and two of the five custodians were from El Salvador. Another custodian was African American and the other two were Mexican.
Martinez complained that her supervisor used disparaging comments directed at her based on her Mexican national origin. For example, the supervisor allegedly commented that only Mexicans would drive Chevy Trailblazers and referred to Martinez on several occasions as “the woman in charro boots” when Martinez wore rubber boots to clean the restrooms. Martinez claimed that her supervisor also referred to her as stupid, and on three or four occasions, pushed dirty plates in front of Martinez while she was in the break room. The supervisor also allegedly assigned Martinez the largest and dirtiest areas of the school to clean. Martinez also complained that the woman commented that she had no idea that Mexicans ate vegetables, as opposed to “chili or hot food.”
Meanwhile, the supervisor wrote up Martinez on several occasions for failing to follow her directives, for using foul and abusive language, for refusing to clean areas when directed by a supervisor, and for behaving in a confrontational and aggressive manner.
In October 2009, Martinez visited the Equal Employment Opportunity Commission (EEOC). Martinez did not file a complaint of discrimination at that time, but, acting on the suggestion of an EEOC employee, composed a letter outlining her complaints of discrimination. The EEOC employee mailed a copy of this letter to KISD. At Martinez’s request, the district transferred Martinez to Morton Ranch Junior High.
At Morton Ranch, of the four custodians, two were Salvadorans, one was Nicaraguan and one was Mexican. Martinez’s supervisor was Salvadoran. Martinez allegedly began having problems with her supervisor beginning in December of 2009. She claimed that the supervisor cursed at her and, on one occasion, threw towels at her. Martinez also claimed that the supervisor said that she would like to work with only Central American people. On the other hand, the supervisor noted that, over time, Martinez developed a poor attitude, responded negatively to constructive criticism, used profanity, and refused to complete her assigned work. As a result, Martinez received a formal counseling report.
On March 3, 2010, Martinez filed a complaint of discrimination with the EEOC. The district’s investigation into the complaint did not substantiate Martinez’s allegations. Meanwhile district administrators warned Martinez that her continued refusal to comply with supervisors’ directives and continued use of abusive language would result in termination. At the meeting, Martinez denied any performance shortcomings and reiterated her complaints of discrimination and retaliation. After the meeting concluded, Martinez asked to take the rest of the day off, but her request was denied. Martinez returned to her shift that day but did not return to work thereafter. Martinez was terminated on April 26, 2010, for job abandonment under KISD’s three-day “no show, no call” rule.
Martinez filed suit against the school district alleging discrimination and a hostile work environment based on her national origin under Title VII, and race discrimination under Section 1981 and 42 U.S.C. § 1983. The school district requested judgment in its favor prior to trial.
Ruling: The trial court granted judgment in favor the district on each of Martinez’s claims. Martinez alleged that she was subjected to a hostile work environment based on harassment by her supervisors, being assigned harder work, and name-calling. She alleged that her supervisors did not take her complaints seriously, failed to immediately initiate a transfer upon Martinez’s complaints, and commented that Martinez had a victim mentality. She also alleged that her second supervisor called her insulting names and threw towels at her on one occasion.
In order to show a hostile work environment, Martinez had to demonstrate that her working conditions “affected a term, condition, or privilege of employment.” In addition, the complained-of conduct had to be so “severe and pervasive” that it prevented her from succeeding in the workplace. The trial court determined that Martinez’s allegations failed to meet the “severe or pervasive” standard required. The evidence also failed to show that any mistreatment was based on Martinez’s national origin. The summary judgment record did not support an inference that statements made by her supervisors were so objectively severe or frequent as to raise a fact issue that they unreasonably interfered with Martinez’s work performance. For the same reasons, the court held that Martinez could not prove a claim of constructive discharge (i.e., the working environment was so intolerable that a reasonable person would have felt compelled to resign).
Martinez also complained that she was written up for performance problems while at Morton Ranch from February 2010 until April 2010. The summary judgment evidence showed that Martinez was officially counseled for insubordination and other performance issues on February 25, 2010. Martinez received her annual performance review on March 30, 2010, at which time she was again reminded of certain performance issues. Finally, on April 19, 2010, Martinez’s last working day, she was counseled about continued insubordination. These constituted adverse employment problems actionable under Title VII.
The trial court observed that Martinez could pursue her claims if she was able to show that she was either replaced by a person of non-Mexican national origin or that a similarly situated non-Mexican employee was treated more favorably. However, Martinez failed to do so. Martinez merely claimed that she was treated unfairly, without alleging that similarly situated employees outside of her protected class were treated more favorably. Furthermore, Martinez’s subjective opinion concerning the unfairness of any particular action was insufficient to meet her burden of proof. Thus, Martinez failed to offer sufficient evidence to support her national origin discrimination claim.
The trial court also rejected, Martinez’s retaliation claim. In order to establish a prima facie case of retaliation, Martinez had to show that: (1) she participated in an activity protected by Title VII; (2) her employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the adverse employment action. In this case, the trial court determined that the district offered evidence of legitimate, non-retaliatory reasons for each of its employment decisions. The record showed that Martinez had been insubordinate on a number of occasions, resulting in her reprimands. Martinez provided no factual detail concerning the contention that her work assignments were unreasonable. Taken as a whole, the record simply did not support a claim that the district retaliated against Martinez in violation of Title VII. The trial court, therefore, granted judgment in favor of the district prior to trial.
Things to Remember: The suit by this custodian who was terminated from her at-will position generated a 21-page Recommendation from the Magistrate Judge. At-will employees do have legal recourse, even though they do not have contracts or collective bargaining agreements to protect them.
Reduction In Force
DID THE DISTRICT PROPERLY NONRENEW THE TEACHER BASED ON A REDUCTION IN FORCE?
Case citation: Buchanan v. Houston ISD, Dkt. No. 033-R1-03-2013 (Comm’r Educ. April 19, 2013).
Summary: Hughey Buchanan was a teacher in the Houston Independent School District when the district implemented a reduction in force. Buchanan’s position as a technology teacher was targeted for the reduction in force. The district ultimately voted to nonrenew Buchanan’s contract and Buchanan appealed the board’s decision to the Commissioner of Education. Buchanan argued that his nonrenewal was improper because (1) the board’s nonrenewal hearing was not held within twenty days of the receipt of the recommendation and record; (2) the evidence failed to show that an objective criteria was used to deny Buchanan a transfer; and (3) the evidence was insufficient to show that Buchanan was not qualified for another open position for which he applied.
Ruling: The Commissioner upheld Buchanan’s nonrenewal based on the reduction in force. Texas Education Code § 21.258(a) provides that the board meeting to consider a nonrenewal must be held not later than the 20th day after the date that the president of the board receives the hearing examiner’s recommendation and the record of the hearing. The recommendation of the hearing examiner was issued on August 10, 2012. By letter of August 10, 2012, the recommendation was sent to the board president. That letter was received August 14, 2012. The board hearing was held February 7, 2013.
According to the Commissioner, if the recommendation and record had been received by the board president on August 14, 2012, the board hearing had to be held no later than September 3, 2012. In addition, the board’s decision had to issue no later than September 13, 2012. Here, however, the board did not receive the local record on August 14. Instead, the record was sent just two weeks prior to the February 7 board meeting.
Education Code § 21.257 requires the hearing examiner to issue the recommendation to the board president not later than the 60th day after the Commissioner receives a request for a hearing. This statute does not address when the record should be provided to the board president. The Commissioner concluded that the hearing examiner should provide both the recommendation and the record no later than 60 days after the Commissioner receives the hearing request. According to the Commissioner, a violation of Education Code § 21.257 occurred because the local record was not timely sent to the board president. Nevertheless, the district held the hearing within 20 days of receiving both the recommendation and local record. The 20-day time period began to run when the board president received both the recommendation and the local record. The Commissioner held that the hearing was properly held within the 20-day timeline set out in Education Code § 21.258.
The Commissioner also concluded that the district properly followed its reduction in force policy. According to the Commissioner, a school district that proposes to nonrenew a teacher’s contract based on a reduction in force must consider the teacher for open positions. The teacher must meet the district’s criteria for the open positions and apply. A reduction in force may be held improper if a school district hires someone for an open position who was not affected by the reduction in force, if the nonrenewed teacher also met the requirements of the job. Here, Buchanan failed to show that any open position was filled by someone who was not affected by the reduction in force. Further, Buchanan admitted that the district was considering him for open positions. Because Buchanan failed to prove a procedural violation in the district’s implementation of the reduction in force, the Commissioner upheld his nonrenewal.
DID THE WOMAN SUFFER A RETALIATORY ADVERSE EMPLOYMENT ACTION?
Case citation: Hart v. Dallas County Hospital District, 2013 WL 991249 (N.D. Tex. 2013) (unpublished).
Editor’s Note: This case does not involve a school district but is relevant to school districts. It involves allegations of employment retaliation. The same standards of retaliation apply to employment decisions made by school districts.
Summary: Michele Hart, a white female, was employed as a nurse educator in the psychiatric department of the Dallas County Hospital District d/b/a/ Parkland Health & Hospital System (Parkland). Hart was a full-time nurse employee of the Nurse Education Department at Parkland. Her responsibilities included providing educational support for the Psychiatric Emergency Department (PED). This required her to work on occasion with the PED Unit Manager, Vernell Brown, an African–American male. Hart and Brown worked in different departments, and Brown had no supervisory control or authority over Hart.
On June 16, 2011, Hart reported to her supervisor what appeared to be an unsafe condition in the Psychiatric Emergency “Day Room” at Parkland. She observed that this Day Room was left unsupervised for approximately five minutes. At the supervisor’s direction, the following day Hart submitted a Patient Safety Net (PSN) report of this incident to Parkland’s internal safety controls. Shortly thereafter, Hart experienced what she considered to be threatening and intimidating behavior by Brown and the PED staff. In one incident, Hart encountered Brown, who told her, “I don’t do PSN’s down here. It’s not how I handle things. All I have to say to you is, well, good luck to you.” In another incident in July 2011, Brown approached Hart in an empty hallway and glared at her with his hands balled up in a fist, making Hart think Brown was going to strike her. Brown passed Hart and proceeded through a door she was standing near. Hart was left in the hallway, allegedly shaking and crying, and, when she could not find a supervisor to whom she could report the incident, she left work for the day. On other occasions between Hart’s filing of the PSN and her resignation in September, Brown would allegedly “glare” at Hart when she was alone in the PED, making her feel threatened and intimidated.
Hart lodged several complaints about Brown’s behavior with various individuals at Parkland. After being informed that Brown would either be terminated or transferred by October, 2011, in early September Hart gave Parkland a two-week notice of her resignation. Prior to her resignation, she completed an exit survey complaining of discrimination. On October 5, 2011, Hart filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging race, sex, and age discrimination, as well as retaliation for her filing of a PSN.
Hart filed suit against Parkland, alleging race and gender discrimination and retaliation in violation of Title VII and the Texas Commission on Human Rights Act (“TCHRA”), retaliation in violation of the Texas Whistleblower Act, and violations of the Family Medical Leave Act (“FMLA”), but later dismissed all claims except for retaliation in violation of Title VII and the TCHRA.
Ruling: The trial court granted judgment in favor of Parkland on each of Hart’s retaliation claims. Title VII prohibits retaliation against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter.” A charge of retaliation follows a burden-shifting analysis similar to the one employed in cases of race and gender discrimination. To establish a prima facie case of unlawful retaliation under Title VII, Hart had to demonstrate that (1) she engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between participation in the protected activity and the adverse employment action. “Protected activity” includes both an employee’s opposition to practices made unlawful by Title VII and an employee’s participation in the investigation of practices made unlawful by Title VII.
There was no contention here that Hart participated in any investigation of unlawful employment practices. Rather, Hart argued that her various complaints to supervisors and the Human Resources department about Brown constituted opposition to employment practices made unlawful by Title VII. Parkland responded that nothing in the evidence to which Hart points indicated that her complaints exhibited opposition to practices that were unlawful under Title VII. The trial court agreed with respect to the safety complaint Hart lodged in the PSN. Title VII does not address safety conditions in hospitals. Therefore, Hart’s complaints in the PSN did not constitute “protected activity” for the purpose of her Title VII retaliation claim.
In addition, Hart’s complaints about Brown’s intimidating behavior did not rise to the level of “protected activity” for Title VII purposes. She complained that she feared for her safety and that Brown was physically intimidating. According to the trial court, Title VII does not prohibit generic instances of “intimidation” or “harassment” in the workplace that are not connected to discrimination based on “race, color, religion, sex, or national origin.” Instead, to be covered by Title VII, the intimidation or harassment in question must have some connection to discrimination. Hart’s complaints failed to mention race or gender discrimination. The trial court concluded that Hart’s generic complaints about Brown’s intimidating or harassing behavior also did not constitute “protected activity” for the purpose of her retaliation claim. Because Hart failed to raise a genuine issue of material fact that she engaged in protected activity under Title VII, her retaliation claim failed. The trial court granted judgment in favor of Parkland.
Things to Remember: “Protected activity” is a broad term, but does not encompass every concern or complaint an employee might make. The “protected activity” under Title VII must relate to the issues covered by Title VII—meaning illegal discrimination in the workplace. This case began with a complaint about safety. While that is a critical issue, it is not one governed by Title VII.
DID THE WOMAN RECEIVE NOTICE OF THE TERMINATION HEARING?
Case citation: Humphrey v. Spring ISD, Dkt. No. 034-R2-03-2013 (Comm’r Educ. April 19, 2013).
Summary: Tammy Humphrey filed an appeal with the Commissioner of Education following her termination from the Spring Independent School District. She claimed that the termination was improper because she was not given notice of the hearing before the Independent Hearing Examiner.
Ruling: The Commissioner of Education held that Humphrey did not prove a procedural violation warranting reversal of her termination. The Commissioner observed that if a teacher is denied the opportunity to present her case before an independent hearing examiner, a decision based on the hearing would be arbitrary and capricious. The case would then be remanded to give the petitioner an opportunity to present her case before the independent hearing examiner.
In this case, Humphrey failed to prove that she was not given notice of the termination hearing. The record showed that Humphrey did not attend the termination hearing, but that the hearing examiner offered to reopen the case. Humphrey, however, indicated that she was unavailable on any day before the hearing examiner’s deadline to issue a decision on the termination. The evidence simply did not support Humphrey’s claim of lack of notice.
The Commissioner offered suggestions or “Best Practices” for ensuring that employees receive timely notice of a termination hearing. To ensure that the parties have notice of the hearing date and to ensure that there is proof of this notice, the Commissioner suggested that hearing dates be established during phone conferences with the party representatives and followed up with written notice. The written notice also could request a prompt response by fax or email. The Commissioner also advised calling a party who does not attend the termination hearing. The hearing transcript could also reflect the evidence that a party had notice, what attempts were made to contact the party, and the results of those efforts.