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Case citation:  Dubea v. School Board of Avoyelles Parish, __ Fed. Appx. __, 2013 WL 5977134 (5th Cir. 2013).

Summary:  Rebecca Dubea worked for the School Board of Avoyelles Parish in Louisiana for about twenty years, until she retired in 1999.  In 2008, Dubea returned to teaching and was granted two separate one-semester contracts covering the 2008-09 school year.  She was certified in Family and Consumer Science.  The second contract expired in May of 2009.  In June of 2009, Dubea sought reimbursement for the retirement contributions she had made during the 2008-09 school year.  The school board, at that time, confirmed that Dubea was no longer employed with the district as of May 22, 2009.

Meanwhile, the district hired two other Family and Consumer Science teachers for the 2009-10 school year, one of whom was a recent college graduate in her twenties.  Dubea did not formally apply for those positions.  Instead, she claimed that the high school principal asked her if she wanted the position and asked her to attend training.  The principal denied offering her the position or inviting her to training.  No recommendation was made to hire Dubea as a Family and Consumer Science teacher for that school year.  Dubea met with the superintendent to discuss the hiring decisions and the superintendent later offered her a position teaching seventh grade English and tenth grade Algebra.  Dubea declined those teaching assignments, believing she was not qualified.  Dubea later filed suit alleging that the board’s failure to hire her for the 2009-10 school year amounted to age discrimination in violation of the Age Discrimination in Employment Act (ADEA).  The trial court granted judgment in favor of the school board, and Dubea appealed to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit upheld the judgment in favor of the school board.  The appeals court observed that to establish an ADEA claim, a plaintiff “must prove by a preponderance of the evidence . . . that age was the ‘but-for’ cause of the challenged employer decision.”  In other words, the evidence must show that the employment action would not have occurred but for Dubea’s age.  Here, the school board maintained that it did not hire Dubea for the Family and Consumer Science positions for the 2009-10 school year because she did not secure a recommendation from a principal for the position, as required by board policy.  Dubea did not challenge the validity of that policy.  The appeals court held that, “In the absence of any evidence that the Board received a recommendation to hire her, Dubea cannot show that, but for her age, the Board would have hired her.”  Dubea was never considered by the board, and therefore, the board could not have actively denied her the teaching position.

Dubea claimed that the district had a transfer policy that resulted in age discrimination.  Under that policy, the board gave preference to certified teachers first.  The board then considered appointing personnel classified under a Temporary Authority to Teach, before it would consider retired teachers.  The superintendent also testified that the purpose of the transfer policy was, in part, to retain younger teachers for “longevity purposes.”  Dubea claimed that she was denied the position based on this policy and the superintendent’s directive to try to fill positions with nonretired/rehired teachers.  However, there was no evidence to show that the twenty-year-old teacher was hired by the board under the transfer policy or pursuant to the superintendent’s directive.  Because Dubea failed to show that age was the “but-for” cause of the board’s failure to hire her, the appeals court affirmed the judgment in favor of the board.


Case citation:  Garcia v. Garland ISD, 2013 WL 5299264 (N.D. Tex. 2013) (unpublished).

Summary:  Maria Garcia, who was Hispanic, worked for the Garland Independent School District as a cook.  Garcia alleged that throughout her tenure at Lakeview High School her co-workers and supervisors engaged in name-calling, teasing, assigning a harder work load, and prohibiting her use of Spanish. Garcia filed suit under Title VII of the Civil Rights Act of 1964, claiming disparate treatment, a hostile work environment, and retaliation based on her national origin.  The school district requested judgment prior to trial on each of Garcia’s claims.

Ruling:  The trial court denied the district’s request for pretrial judgment, holding that genuine issues of material fact existed to support Garcia’s discrimination and retaliation claims.  Garcia’s hostile environment claim stemmed from her allegations of harassment by several co-workers and her supervisor and the supervisor’s alleged prohibition against speaking Spanish in the cafeteria.  Garcia claimed that co-workers laughed at her Spanish accent and mispronunciation of English words, and called her names when she became upset or complained about the harassment.  Although name-calling in itself does not amount to Title VII discrimination, it was relevant to her claims, according to the court.  Garcia also alleged that she was physically confronted and forced by co-workers to say certain English words for their amusement.  She claimed further that Hispanic workers were required to do more work than non-Hispanic workers.  The district ultimately placed Garcia on leave and terminated her after she refused to sign an employee absence form.  According to the trial court, viewing the evidence in the light most favorable to Garcia, the evidence was sufficient to raise discrimination claims.

The district argued that the evidence did not show that the alleged discrimination affected a term, condition, or privilege of employment or that the district took adverse action against Garcia.  The district also claimed that the alleged mistreatment was not sufficiently severe or pervasive that it created a hostile work environment.  The trial court rejected those claims.  Garcia testified that the harassment occurred almost daily and caused her anxiety and fear.  According to the trial court, the evidence raised genuine issues of material fact on whether the harassment was so severe and pervasive that it created a hostile work environment.

The district also argued that it took prompt, remedial action with regard to the harassment complaints.  The district showed that it investigated the matter and offered to transfer Garcia to another campus.  The trial court, however, concluded that there was “no evidence that Defendant took additional steps after the cursory investigation to remedy the situation about which Plaintiff complained.”  According to the trial court, genuine issues of material fact existed on whether the district took prompt, remedial action to address Garcia’s complaints and whether it was reasonable for Garcia to reject the transfer.

The trial court also allowed Garcia to proceed on her disparate treatment and retaliation claims.  The evidence was sufficient to support each element of her claims.  Specifically, she provided evidence that (1) that she was a member of a protected class, (2) she was qualified for her position, (3) she was subjected to an adverse employment action, and (4) she was treated differently from others similarly situated or replaced by someone outside of her protected class.  Garcia presented evidence that she left the district after her supervisor gave her an ultimatum to either follow her directions or clock out.  Garcia claimed that when she complained about her supervisor, she was told not to return to work.  Evidence also supported her contention that she was replaced by an African American.  Having found sufficient evidence to raise genuine issues of material fact on each of Garcia’s claims, the trial court denied the district’s request for judgment in its favor prior to trial.

Things to Remember:  There is much discussion in this opinion about “English only” rules in the workplace.  For more on this, see our Web Exclusive interview with Meredith Walker, an attorney with the Walsh Anderson Law Firm. The Web Exclusive can be found at


Case citation:  Griffin v. Kennard ISD, 2013 WL 5718873 (E.D. Tex. 2013) (unpublished).

Summary:  Nadean Griffin and Jerry Smotherman both worked as custodians and bus drivers for the Kennard Independent School District, when the district implemented a reduction in force and reorganization to reduce costs and make the custodial department run more efficiently.  As a result, the district changed the shift that Griffin and Smotherman worked to the evening shift and notified them that their services as bus drivers were no longer needed.  The district later opened two bus driving positions.  However, Griffin and Smotherman did not apply and the positions were awarded to an African American male, and a Caucasian male, respectively.  Griffin and Smotherman are both African American.

Griffin and Smotherman filed suit against the district, claiming that their reassignment and dismissal of bus driving duties amounted to discrimination.  Griffin claimed race and gender discrimination, and Smotherman claimed race discrimination.  The district sought pretrial judgment in its favor, arguing that Griffin and Smotherman could not produce enough evidence to support their claims.

Ruling:  The trial court granted judgment in favor of the district on each of the discrimination claims.  To establish a prima facie case of discrimination, Griffin and Smotherman had to show that (1) they belonged to a protected class, (2) they were qualified for their positions, (3) they suffered adverse employment action, and (4) either they were replaced by a person outside of their protected class, or that other similarly situated persons were treated more favorably.  When a plaintiff establishes a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for its employment decisions.  The employee must then show that the employer’s stated reason was false, and a mere pretext for discrimination.

In this case, it was undisputed that Griffin and Smotherman belonged to a protected class and were qualified for their positions.  The district argued, however, that Plaintiffs’ reassignment from the day shift to the afternoon/night shift and loss of their bus driving duties did not constitute adverse employment actions.  The court agreed that, generally, a change in shifts does not constitute an adverse employment action.  Further, the fact that they lost opportunities for overtime also did not constitute an adverse employment action.  The trial court, however, held that the allegation that they lost their bus driving duties was sufficient to establish that they suffered adverse employment actions, even though the district argued that those were supplemental duties subject to reassignment at any time.

The trial court ultimately determined that “there is little to no evidence” that Griffin and Smotherman were replaced in their bus driving duties by a person outside of their protected class or that other persons similarly situated were treated more favorably.  At the time that Griffin and Smotherman lost their bus routes, no person outside of their protected class replaced them.  Instead, their routes were consolidated under or retained with individuals already employed as bus drivers.  The fact that the district later posted two positions and hired other individuals was not relevant because neither Griffin nor Smotherman applied or showed any interest in those positions.  Although Griffin complained that others did not lose their bus routes, the trial court observed that those individuals were not “similarly situated.”  The record showed that Griffin and Smotherman were custodians, but those who retained their bus routes were teachers with a completely different work schedule.

In addition, the district properly articulated legitimate nondiscriminatory reasons for the challenged employment decisions.  According to the district, the schedule change and reduction in bus routes was due to financial concerns and a desire to have the custodian department run more efficiently.  In response, Griffin and Smotherman failed to produce evidence that those reasons were false or a pretext for discrimination.  Thus, the trial court granted judgment in favor of the district on each of the discrimination claims.



Case citation:  McAllen Federation of Teachers, Local 6329 v. McAllen ISD, Dkt. No. 042-R10-0310 (Comm’r Educ. September 26, 2013).

Summary:  On August 24, 2009, the McAllen Independent School District Board of Trustees voted to approve a $1,000 increase in salary category one, which included teachers, librarians, counselors, nurses, and speech pathologists for the 2009-10 school year.  Although one board member expressed concern that some employees were left out of the salary increase, the vote was unanimous.  On August 28, 2009, the board voted to adopt the 2009-10 Minimum Hiring Schedule, which accurately reflected the compensation the board established for new hires and continuing teachers and librarians.

On September 11, 2009, the McAllen Federation of Teachers, Local 6329, filed a grievance complaining that the district’s salary schedule violated Texas Education Code § 21.402(c-1 and 2).  The district denied this and argued that the McAllen Federation of Teachers did not timely file its grievance.  The Commissioner held that the grievance was timely and that the district may not have properly compensated some employees in compliance with Education Code § 21.402(c-1 and 2).  [See, McAllen Federation of Teachers, Local 6329 v. McAllen ISD, Dkt. No. 042-R10-0310 (Comm’r Educ. July 2, 2012); Texas School Administrators’ Legal Digest, Nov./Dec. 2012].  The district appealed the Commissioner’s decision in state district court and the trial court returned the case to the Agency with instructions to the Commissioner to consider additional evidence.

Ruling:   After considering additional evidence, the Commissioner did not change his decisions that the grievance was timely and that the district may not have properly compensated its employees.  The McAllen Federation of Teachers demonstrated that it had members who did not receive the salary required to be paid under the Education Code for the 2009-10 and 2010-11 school years.

Under the district’s grievance policy, a grievance is to be filed within 10 days of the time the grievant knew or should have known of the event giving rise to the complaint.  According to the Commissioner, the teachers “did not know or should not have known until at least August 28, 2009 that [the district’s] decision as to their compensation for the 2009-2010 school year potentially violated Texas Education Code section 21.402(c-1 and 2) in the manner Petitioner alleges in its grievance.”  Thus, the grievance dated September 11, 2009, was filed timely.

The Commissioner observed that Texas Education Code
§ 21.402(c-1 and 2) was designed to give teachers, full-time speech pathologists, full-time librarians, full-time counselors, and full-time nurses raises for the 2009-11 school years.  The statute provided a raise of $80 per month or a larger raise based on a calculation involving social security contributions and weighted average daily attendance.  Further, it gave specified employees a raise of a one-step increase for the 2009-10 school year and another step increase for the 2010-11 school year, over what they would have received under the 2008-09 salary schedule.  According to the Commissioner, some members of the McAllen Federation of Teachers may not have receive all of the compensation they were entitled to under § 21.402(c-1 and 2).  Thus, in order to ensure that all of its members were properly compensated, the district was ordered to calculate the minimum salary required to be paid to each member as set out in the Commissioner’s decision.  Those who were not properly compensated were awarded full compensation under § 21.402(c-1 and 2).  The Commissioner granted the appeal.



Citation:  Vazquez v. Los Fresnos ISD, Dkt. No. 062-R1-07-2013 (Comm’r Educ. Aug. 21, 2013).

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

On appeal, Vazquez argued that the district improperly nonrenewed his contract because it was based in part on the fact that complaints were made and there was not substantial evidence to support the substance of the complaints.  Vazquez also argued that the evidence relied upon by the district was improper hearsay that should have been excluded from evidence during the nonrenewal hearing.

Ruling:  The Commissioner upheld the district’s nonrenewal decision.  The Commissioner first determined, however, that the mere fact that parents and students complained about Vazquez’s conduct could not support the nonrenewal.  The fact that a complaint is received is not by itself sufficient grounds to nonrenew a teaching contract.

The main issue in the case was whether the student statements should have been admitted into evidence.  If the student statements were properly admitted, the statements would provide substantial evidence to support the nonrenewal based on several pre-established policy reasons.  According to the Commissioner, in Texas, the hearsay rule applies in administrative hearings, just as it does in court.  Nevertheless, considerable discretion is permitted in administrative hearings in the admission of evidence.  Liberal exceptions to the hearsay rule in the administrative context are set out in Texas Government Code § 2001.081, which allows otherwise inadmissible evidence in administrative proceedings if the evidence is (1) necessary to ascertain facts not reasonably susceptible of proof, (2) not precluded by statute, and (3) of the type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs.

In this case, the Commissioner held that the student statements met the standards for admissibility set out in Government Code § 2001.081.  When a school board hears a nonrenewal, it does not have subpoena power.  The Commissioner stated:  “The lack of subpoena power means that what occurred in a classroom when only a teacher and students were present is not reasonably susceptible to proof using the hearsay exceptions as applied by courts.”  In addition, no statute precludes admission of the student statements.  Finally, the statements were of the “type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs.”  The statements were made during the principal’s investigation into complaints that Vazquez made inappropriate comments to students and were sufficiently reliable.  Because all of the requirements for admission under Government Code § 2001.081 were met, the Commissioner held that the student statements provided substantial evidence to support the district’s nonrenewal of Vazquez’s term contract.

Things to Remember:  With nonrenewal season just around the corner, this is an important and illuminating decision regarding how the rules of evidence apply in a nonrenewal hearing. The students’ statements were of the type that a reasonable and prudent person would commonly rely on.  In so holding, the Commissioner noted that the principal who took the statements asked open-ended questions, not leading the students to say anything in particular.



Citation:  De los Santos v. San Diego ISD, Dkt. No. 065-R1-07-2013 (Comm’r Educ. September 4, 2013).

Summary:  Humberto De los Santos was employed by the San Diego Independent School District as the Director of Operations/Transportation and Special Program Director.  The superintendent recommended a program change that impacted De los Santos’s position and the board approved the program change.  The district ultimately voted to institute a reduction in force based on a program change.  De los Santos was nonrenewed, as a result, and he appealed the decision to the Commissioner of Education.

Ruling:  The Commissioner affirmed the board’s decision to nonrenew De los Santos.  Under the district’s nonrenewal policies, a reduction in force may take place when the superintendent recommends and the board approves a program change.  A program change constitutes sufficient reason for the nonrenewal of a contract.  Here, the superintendent recommended a program change that concerned De los Santos.

De los Santos argued that the nonrenewal was improper because the superintendent did not recommend an employment area or recommend which employees would be affected.  The parties disputed what was required by district policy to implement a reduction in force based on a program change.  The policy stated that, “A reduction in force may take place when the Superintendent recommends and the Board approves a program change.  A determination of a program change constitutes sufficient reason for nonrenewal.”  De los Santos argued that the Superintendent was required to recommend a specific employment area and identify the employees affected.  The Commissioner disagreed and held that the superintendent properly proposed a program change that was adopted by the board.  This was sufficient reason to support the nonrenewal.

Things to Remember:  The Commissioner places great emphasis on the passage of S.B. 1 in 1995 which substantially affected the law pertaining to teacher contract nonrenewal.  Both this case and the Los Fresnos case discuss that issue. Also of note: here the Commissioner concludes that the statutory Code Construction Act applies to statutes, but not to school board policies.  Only school law nerds will find that interesting, but for that small group of people, this is important.

Probationary Contracts


Citation:  Armstrong v. Humble ISD, Dkt. No. 080-R2-0810 (Comm’r Educ. Aug. 30, 2013).

Summary:  Pete Armstrong was employed by the Humble Independent School District under a probationary teaching contract for the 2009-10 school year.  The last day of instruction for that school year was June 2, 2010.  The 45th day before the last day of instruction was April 18, 2010.  On April 13, 2010, the board unanimously approved the superintendent’s recommendation to terminate Armstrong’s contract at the end of the contract term.  Armstrong had previously been informed that the recommendation would be made.

The following day, the assistant superintendent of human resources sent Armstrong an email informing him that she needed to deliver a letter to him regarding the board’s action on his contract.  Hand delivery was attempted, but Armstrong had left school early because his wife was ill.  A letter dated April 14, 2010, advising Armstrong of the vote to terminate his contract was sent by certified mail, return receipt requested on April 16, 2010.  Also on April 16, the district sent Armstrong an email with the same letter attached.  However, Armstrong did not retrieve the letter from the post office until April 28, 2010.  He also did not open the email until April 20, 2010.  Armstrong appealed the board’s decision to terminate his probationary contract at the end of the contract term, arguing that the district did not give him timely notice of the termination decision as required by Education Code § 21.103.

Ruling:  The Commissioner held that the district did not give Armstrong timely notice of its decision to terminate the contract.  Under Education Code § 21.103, the board “must give notice of its intention to terminate the employment to the teacher not later than the 45th day before the last day of instruction required under the contract.”  The statute, however, does not state how notice should be given.

According to the Commissioner, some courts have held that when an employee intentionally tries to avoid the delivery of notice, then notice is deemed given.  However, there was no evidence in this case that Armstrong had intentionally tried to avoid delivery of notice.  Instead, the record showed that Armstrong was absent from school because he had to tend to his sick wife.  Further, there is no evidence that he dodged the notice when he waited until April 28 to open the certified letter.  In addition, he did not open the email with the notice letter attached until April 20, only after his attorney informed him of the email.  The district failed to prove that Armstrong had actual notice of the board’s decision to terminate his contract on or before April 18, 2010.  Further, the record did not contain substantial evidence to demonstrate that Armstrong evaded notice.  Because the district did not timely provide him notice of the board’s decision to terminate his contract, Armstrong was entitled to back pay and a teaching contract pursuant to Education Code § 21.103(b).

Things to Remember:  This scenario is unlikely to occur again.  Notice that these events unfolded in 2010.  The next year, the legislature changed the law, making the deadline for notice 10 days prior to the last day of instruction.  Notice must be hand delivered under the 2011 law, but if the teacher is not present on campus, the district can send notice by certified mail, and it will be deemed timely if mailed by the 10th day prior to the last day of instruction. Legal historians will want to read this decision for its discussion of the ill-fated effort of Goose Creek ISD to institute a tenure system for teachers in 1938. Who knew?


Citation:  Henning v. Alvord ISD, Dkt. No. 078-R10-0810 (Comm’r Educ. Aug. 29, 2013).

Summary:  Glenda Henning worked under a 94-day probationary contract during the 2008-09 school year.  The board did not terminate the contract at the end of the school year.  Instead, it provided her another 94-day contract for the 2009-10 school year.  However, Henning did not want to be employed under a part-time contract and, thus, did not report to work during the 2009-10 school year.  The district later hired another probationary teacher full time, who took over Henning’s position.  The new teacher received a probationary certificate on August 1, 2009, for Technology Applications Grades EC-12.

On August 12, 2009, Henning filed a grievance, arguing that the district did not provide her with a contract, did not nonrenew her, and hired a non-certified teacher to fill her position.  The district ultimately determined that it had given her a contract.  The new teacher’s husband was on the school board, and voted to deny Henning’s grievance at Level III.  Henning filed an appeal with the Commissioner, arguing that the district violated her contract and the school laws of Texas by not offering her a full-time contract and hiring an uncertified teacher instead.  She also argued that her Level III grievance hearing was unfair because the new teacher’s husband should have recused himself from the decision, testimony was improperly offered, and the board had used improper procedures for determining that she had failed to exhaust administrative remedies.  Henning claimed further that the local record was not properly created.

Ruling:  The Commissioner upheld the district’s decision to deny Henning’s grievance.  Contrary to Henning’s contentions, the district did offer her a written employment contract for the 2009-10 school year.  She simply chose not to sign and return the contract.  Henning also did not “tender performance” of the contract.  To do so, and be entitled to the benefits of the contract, she would have had to affirm that she was “ready, willing, and able to perform” under the terms of the contract.  The Commissioner observed that Henning could have tendered performance by showing up for work, but she failed to do so.  Because she did not indicate that she was ready, willing, and able to perform her job under the contract terms, she did not “tender performance.”

The Commissioner rejected Henning’s claim that she was entitled to a full-time contract.  The fact that the district hired a full-time, uncertified teacher to take over her position, did not entitled her to a full-time contract.  Although Education Code
§ 21.003(a) requires a teacher to hold an appropriate certificate, it did not entitle Henning to the full-time position.  According to the Commissioner, “even if the Commissioner were to find that Respondent violated Texas Education Code section 21.003(a) when it hired the new teacher to teach the classes Petitioner taught the previous school year, the remedy would not be that Petitioner would get a full-time position that included the classes Petitioner taught the previous year.  Texas Education Code section 21.003(a) prohibits districts from employing those not appropriately certified, it does not say who gets the position of someone who was not appropriately certified.”  Furthermore, the record demonstrated that the new teacher was properly certified when the board voted to hire her.

Henning also objected to the local record because the Level I grievance was not properly recorded and because notes taken during the Level I grievance by the decision maker were included in the local record.  The Commissioner held that Henning did not timely object to the local record.  The objection should have been made within 30 days of the record being filed.  Because Henning failed to do so, her objections were untimely and without merit.

According to Henning, the board improperly decided at Level III that her grievance was untimely under district policy DGBA, because the grievance was not brought within fifteen days of the challenged actions.  The Commissioner held that the grievance was timely, but nevertheless failed on the merits.  With respect to the argument that the district improperly offered testimony of the superintendent at Level III that had not been presented at Level II, the Commissioner held that Henning did not timely object to the testimony.

The Commissioner also determined that the board member, whose wife took over Henning’s position, should have recused himself from the Level III grievance decision.  However, even if he had recused himself, the outcome would remain the same.  Contrary to Henning’s allegations, the wife was properly certified.  Even if she had not been properly certified, that fact alone would not have entitled Henning to a full-time contract.  The Commissioner upheld the board’s decision to deny Henning’s grievance.

Things to Remember:  “The board member in question had a private interest in this grievance and should have recused himself.”  Board members take note.



Citation:  Waterman v. McKinney ISD, 2013 WL 5718546 (E.D. Tex. 2013).

Summary:  Brian Waterman worked for the McKinney Independent School District as a teacher at the Collin County Juvenile Center.  During the 2010-11 school year, Waterman reported to his supervisor:  (1) that the district engaged in “social-grading-without-testing” of the GED students, (2) that student enrollment was being inflated improperly to increase state funding for the district, (3) faculty members were being deprived of their lunch periods, and (4) alleged mishandling of the Teacher of the Year award.  In February of 2011, Waterman’s supervisor initiated a sexual harassment investigation against Waterman, and assigned him to work at a different location.  Waterman claimed that he filed a grievance but that he was denied participation in the grievance process and that his attorney was unable to attend the hearing due to an injury.  Waterman sued the school district claiming that it violated his rights under the First, Ninth, and Fourteenth Amendments.  The district sought dismissal of the suit.

Ruling:   The trial court held that Waterman had not stated valid claims under the Fourteenth and Ninth Amendments, but had stated sufficient facts to proceed on the First Amendment retaliation claims.  According to the trial court, Waterman’s contentions that the district retaliated against him for raising his various complaints was sufficient to state a valid First Amendment claim.  He alleged that he suffered adverse action, that his speech involved a matter of public concern, and that his speech motivated the adverse action against him.  The allegations, therefore, were enough to withstand the district’s motion to dismiss.

The district also requested dismissal of the Fourteenth Amendment due process claims because, according to the district, he did not have a constitutional property interest in his employment contract.  To state a claim, Waterman had to allege that (1) he had a clearly established property interest/right in his employment, and (2) the public employer’s termination of that interest was arbitrary and capricious.  Plaintiff’s employment contract was for the 2010-11 school year only and was nonrenewed after the expiration of its term.  Under Texas Education Code § 21.204(e), a teacher does not have a property interest in a contract beyond its term.  Because Waterman had no property interest or right in employment beyond the contract term, the trial court dismissed the due process claim.  The trial court, likewise, dismissed the Ninth Amendment claim because the Ninth Amendment does not confer any rights upon which a claim could be based.  The trial court dismissed all but the First Amendment retaliation claim.



Citation:  Ethredge v. Waller ISD, Dkt. No. 003-R2-09-2013 (Comm’r Educ. October 28, 2013).

Summary:  Elizabeth Ethredge worked as a teacher for the Waller Independent School District.  The district recommended Ethredge’s termination after she allegedly told her literature class about a particular student stealing her child’s tablet computer and encouraged her students to retaliate against that student.  The district’s notice of proposed termination alleged that Ethredge violated district policy DH(EXHIBIT), standards 3.2 prohibiting treatment of a student that affects or endangers the student, and 3.9 prohibiting inappropriate communications with a student.  A hearing was held before a certified hearing examiner and the hearing examiner found that Ethredge had violated both standard 3.2 and 3.9, FH(LOCAL), and related policy FFI(LOCAL).  Based on the hearing examiner’s recommendation, the board voted to terminate the contract.  Ethredge appealed to the Commissioner of Education.

Ruling:  The Commissioner upheld the termination.  Ethredge argued that no violation of Policy FH or FFI occurred because the student who was harassed was not a student in the district, she did not direct other students to harass the student, and the record did not show that the harassed student was actually harmed.  According to the Commissioner, however, Ethredge did not contest the findings by the hearing examiner, and adopted by the board, that she had violated Policy DH(EXHIBIT), standards 3.2 and 3.9.  According to the Commissioner, this amounted to a failure to exhaust administrative remedies.  In addition, substantial evidence existed to support the termination.  Although the evidence was conflicting on whether she encouraged other students to retaliate against the student, the hearing examiner resolved the conflicting evidence in favor of the district.  Because Ethredge did not contest the reasons that supported her termination, the district’s decision was affirmed.