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Discrimination

DID THE SCHOOL DISTRICT DISCRIMINATE WHEN IT FAILED TO PROMOTE THE FACILITIES EMPLOYEE?

Case citation:  Autry v. Fort Bend ISD, __ F.3d __, 2013 WL 68730 (5th Cir. 2013).

Summary:  Albert Autry worked in the Fort Bend Independent School District’s facilities department as an operations area supervisor.  In July of 2008, a new position opened up titled “support manager.”  The position required a bachelor’s degree in engineering, business administration, facilities management, or a related field.  The job involved a wide range of administrative oversight tasks related to supervision, monitoring, and quality control.

Autry, an African-American, applied for the support manager position.  At the time, he had worked at the district for two years, managing custodial staff at sixteen school buildings.  He administered payroll, investigated accidents, and managed each building’s custodial budget and supplies.  Autry also had been an area manager of another school district for eleven years.  He had a bachelor’s degree in social work and served for 22 years in the Navy.

Nevertheless, the school district hired another applicant for the support manager position.  The candidate was a Caucasian female with no formal education beyond high school.  She had no prior school district experience or connection to the Fort Bend ISD.  Her most recent position was as an escrow agent for a title insurance company.  Autry lodged a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that the district’s hiring decision amounted to discrimination based on race, sex, and age.  After receiving a notice of right to sue from the EEOC, Autry filed suit against the school district, alleging violations of Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (ADEA).  The trial court granted judgment in favor of the school district on each of Autry’s claims.  The court also awarded the district more than $24,000 in attorney’s fees, finding the case to be “frivolous, unreasonable, and groundless.”  Autry appealed the judgment with respect to his race discrimination claim and award of attorney’s fees to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit upheld the judgment in favor of the district on the discrimination claims, but held that the school district was not entitled to attorney’s fees.  Autry failed to produce sufficient evidence showing that the district’s decision to hire the woman in lieu of promoting him was motivated by race discrimination.  The district showed that the hiring decision was made by a committee that included two African Americans.  Following interviews, the committee ranked the final candidates and the woman ultimately ranked higher than Autry.  The appeals court, therefore, held that the district demonstrated a legitimate, nondiscriminatory reason for the hiring decision.

Autry could not demonstrate that the district’s reason was false or that discrimination played a part in the hiring decision.  Autry attempted to show discrimination based on certain comments made by the facilities director during the hiring process.  According to Autry, during the interview, the director said, “Obama would ruin the damn country if he gets elected.”  One of the committee members also claimed that the director stated that if Obama got elected they would have to put a piece of fried chicken in the Statue of Liberty’s hand.  The appeals court held that the second statement was inadmissible hearsay and that the first statement was political, rather than racial in nature.

Autry also claimed that race discrimination could be inferred because he was “clearly better qualified” than the woman hired.  The appeals court disagreed, finding the evidence calling into question the woman’s qualifications was insufficient.  Autry had not seen her resume and did not know what her prior job entailed.  Further, neither  candidate  met the degree qualifications.  Ultimately, the record provided no reasonable basis upon which to compare the qualifications of the two candidates.  Because Autry failed to produce sufficient evidence showing that the district’s hiring decision amounted to race discrimination, the appeals court upheld the judgment in favor of the district.  The Fifth Circuit, however, reversed the award of attorney’s fees, holding that the case was not “frivolous, unreasonable or without foundation.”

Employee leave

WAS THE SCHOOL DISTRICT REQUIRED TO RESTORE THE EMPLOYEE TO HIS POSITION AFTER TAKING FMLA LEAVE?

Case citation:  Matamoros v. Ysleta ISD, __ F.Supp.2d __, 2012 WL 6800505 (W.D. Tex. 2012).

Summary:  Arturo Matamoros, a full-time custodian and gardener for the Ysleta Independent School District, received several written and oral warnings regarding performance problems.  In addition, the district suspended him for three days and issued a warning that he would be terminated if performance problems continued.  Not long after he returned to work, Matamoros allegedly submitted falsified timesheets.  As a result, his supervisor recommended that Matamoros be terminated.

Pending the termination, Matamoros requested leave under the Family and Medical Leave Act (FMLA) for stress.  The district granted the request and Matamoros took leave from September 28, 2010 to November 18, 2010.  At that time, he submitted a return to duty request from his physician.  According to the district, it informed Matamoros of additional steps he needed to take to return to duty, but Matamoros did not comply with those instructions.  As a result, the district did not reinstate Matamoros and, instead, proceeded with his termination.  Matamoros sued the district, alleging that the district violated the FMLA because it failed to reinstate him to his position.  Both parties sought judgment in their favor prior to trial.

Ruling:  The trial court granted judgment in favor of Matamoros because the FMLA required the district to reinstate Matamoros to his position after taking FMLA leave.  The trial court observed that the FMLA has a prescriptive component and proscriptive component.  The prescriptive enforcement provision provides that an eligible employee who takes FMLA leave “shall be entitled, on return from such leave . . . to be restored by the employer to the position of employment held by the employee when the leave commenced.”  Under the proscriptive component, it is unlawful for any employer to discharge or otherwise discriminate against any individual for opposing any practice made unlawful by the FMLA.  In this case, Matamoros argued that the prescriptive enforcement provision required the district to reinstate him.

Relying on the Fifth Circuit holding in Nero v. Industrial Molding Corporation, 167 F.3d 921 (5th Cir. 1999), Matamoros argued that the FMLA required his reinstatement, regardless of the district’s intent.  The district argued that, under FMLA regulations, it did not have to reinstate Matamoros if it could prove that Matamoros’s employment would have ended regardless of his FMLA leave.  According to the district, because it was in the process of terminating Matamoros when he requested leave, the district did not have to reinstate him.

The trial court granted judgment in favor of Matamoros, holding that it was required to follow Fifth Circuit precedent in Nero that when an employee returns from FMLA leave, the employer must restore the employee to the same or equivalent position.  Here, the parties did not dispute that Matamoros took leave under the FMLA and that the district did not restore him to the same or equivalent position.  Thus, the district violated the FMLA.

Things to Remember:  This decision will surprise a lot of HR Directors.  In assessing the scales of justice, the court notes that “one side of the scale bears the weight of nearly ‘every federal circuit court,’ of nearly ‘every Texas federal district court,’ of concerns for economic inefficiency, and even, perhaps, of commonsense itself.”  But the court holds that its interpretation of an earlier 5th Circuit case, Nero v. Industrial Molding Corporation, 167 F.3d 921 (5th Cir. 1999) outweighs all of that.  Thus, the employee is entitled to return to work, even though he was on his way out the door when he first requested FMLA Leave. 

Whistleblower Act

DID THE EMPLOYEE REPORT A VIOLATION OF LAW TO AN APPROPRIATE LAW ENFORCEMENT AUTHORITY?

Case citation:  Ysleta ISD v. Franco, __ S.W.3d __, 2012 WL 6707752 (Tex. App. – El Paso 2012).

Summary:  Marcelino Franco worked as a principal for the Ysleta Independent School District, when he reported asbestos hazards in his school to district officials.  He sent two memorandums to his immediate supervisor, and later sent a third memorandum to the superintendent and board of trustees detailing his concerns about asbestos at his school and its remediation, or lack thereof.  About two months later, the district suspended Franco.

Franco sued the district, claiming violations of the Texas Whistleblower Act.  He alleged that the district’s failure to respond to an asbestos hazard violated the Asbestos Hazard Emergency Response Act and that he made a good faith report of the violation of law to a law enforcement authority.  The district filed a plea to the jurisdiction.  According to the district, the trial court did not have jurisdiction over the case because Franco had not reported the alleged violations to an “appropriate law enforcement authority,” as required by the Whistleblower Act.  The trial court denied the district’s plea to the jurisdiction and the district appealed.

Ruling:  The appeals court affirmed the trial court decision to deny the district’s plea to the jurisdiction.  Under the Whistleblower Act, a government employer cannot take adverse action against an employee who makes a good faith report to an appropriate law enforcement authority that the entity or another employee violated the law.  A report is made to an “appropriate law enforcement authority” if the authority is “part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law.”  Good faith, in this context, means that the employee believed the governmental entity was authorized to either regulate, enforce, investigate or prosecute the violation of law.  The employee’s belief must be reasonable in light of the employee’s training and experience.

The appeals court held that Franco produced sufficient evidence to support his claim that he reported a violation of law to an appropriate law enforcement authority.  He produced evidence of his subjective belief that the superintendent and trustees were authorized to regulate or enforce the Asbestos Act.  He also raised a fact issue as to whether he had an objectively reasonable belief that the superintendent and trustees were authorized to regulate under or enforce the Act, in light of his training and experience.  The Asbestos Act and implementing regulations require school districts to ensure that asbestos remediation be carried out and that the requirements under the Act be implemented.  Further, memos by Franco showed that district officials had directed him to implement their policies on asbestos containment.  Because Franco submitted sufficient evidence of his good faith belief that the district superintendent and trustees were authorized to regulate under or enforce the Asbestos Act and that his belief was reasonable in light of his training and experience, the appeals court held that the trial court properly denied the district’s plea to the jurisdiction.

Things to Remember:  Notice that the plaintiff did not report the alleged violation to anyone outside of the school district.  This is why the district filed a plea to the jurisdiction.  However, the court held that under these circumstances, the report to internal district officials satisfied the legal requirement to make a report to an “appropriate law enforcement authority.”  The case is far from over, since this ruling only concerns the court’s jurisdiction. 

Compensation

WAS THE SUBSTITUTE TEACHER A “CLASSROOM TEACHER” ENTITLED TO AN EMPLOYMENT CONTRACT?

Case citation:  Neild v. Beaumont ISD, Dkt. No. 024-R10-1110 (Comm’r  Educ. September 14, 2012).

Summary:  Karen Neild was employed by the Beaumont Independent School District as a substitute teacher and worked five hours per day, Monday through Friday.  Neild held a teaching certificate and was classified as a teacher, as opposed to an aide or administrator.  Neild worked in the classroom, teaching students four hours per day.  The district considered her a part-time, at-will employee.

Neild filed a grievance against the district arguing that she was entitled to an employment contract.  The school district denied her grievance at each level.  The school board did not create a recording or transcript of the board hearing over her grievance.  Neild appealed the board’s decision to deny her grievance to the Commissioner of Education.  In response, the district argued that the Commissioner did not have jurisdiction over Neild’s claims.

Ruling:  The Commissioner held that Neild was a “classroom teacher” as defined by law and, thus, was entitled to an employment contract.  Jurisdiction existed over Neild’s claim that the district violated Texas Education Code § 21.002 by not giving her an employment contract.  Under § 21.002(a), “classroom teachers” are entitled to a probationary, term, or continuing contract.  Texas Education Code § 5.001(2) defines a “classroom teacher” as “an educator who is employed by a school district and who, not less than an average of four hours each day, teaches in an academic instructional setting or a career and technology instructional setting.”  An “educator” is defined as “a person who is required to hold a certificate issued under Education Code Chapter 21, Subchapter B.”

In this case, Neild held a teaching certificate and worked for the district five hours per day, Monday through Friday.  According to the district, Neild worked in the classroom four hours per day.  Documentation also showed that Neild was classified as a teacher, rather than an aide or administrator.  Since Neild was a certified teacher who taught four hours per day in an academic setting, she met the definition of a “classroom teacher” and, thus, was entitled to a probationary, term, or continuing contract.

The Commissioner held further that the statute of limitations for contract actions is four years.  Thus, the district should have employed Neild under a contract for the 2010-11, 2009-10, 2008-09, and 2007-08 school years.  Neild was entitled to the amount of pay required under the Texas Minimum Salary Schedule set out in Texas Education Code § 21.402, and Teacher Retirement System contributions that she should have received for the four years in question, less the amount she had already received.

Things to Remember:  The district failed to create a local record, and failed to show good cause for this failure.  Thus, all “substantial evidence issues” that would require a record for resolution would be deemed against the school district.  However, the Commissioner held there were no such issues.  Note well that this teacher was not what we normally think of when we hear the term “substitute teacher.”  She worked every day in the same classroom and had done so for 14 years.  Calling her a “sub” did not make her one.  She was entitled to a teaching contract.

Nonrenewal

DOES A BOARD HAVE TO PROVE ALL OF THE REASONS GIVEN FOR PROPOSED NONRENEWAL?

Case citation:  Black v. Hart ISD, Dkt. No. 087-R1-0612 (Comm’r Educ. July 25, 2012).

Summary:  Dana Black worked as a physical education teacher for the Hart Independent School District under a term contract.  In September of 2011, Black met with her principal concerning a parent complaint that Black had grabbed their child’s arm.  Black signed a document acknowledging the meeting, the parent’s concerns, and future action by Black to remedy the situation.  In February of 2012, however, the school received another complaint about Black using unnecessary force against students.  According to the complaint, Black allegedly used her hand to force the heads of approximately fourteen first grade students downward to look at a line on the gym floor that Black had told them not to cross.

In response to the complaint, the new principal and the superintendent met with Black.  The superintendent asked about her conversation with the former principal concerning the incident in September 2011.  Black denied that there had been any other issues during that school year and that any conference had taken place.

The board proposed nonrenewal of Black’s contract at the end of the contract term citing a number of reasons, including the use of force against students, not being truthful about the prior September 2011 incident, and also for smoking on campus.  Black requested a hearing and challenged the proposed nonrenewal, arguing that she was immune from disciplinary action for using reasonable force against students as authorized by Texas Education Code § 22.0512.  However, she did not challenge the other reasons for her proposed nonrenewal.  After the board voted to nonrenew the contract, Black appealed to the Commissioner of Education.

Ruling:  The Commissioner upheld Black’s nonrenewal.  Because Black had not challenged her nonrenewal based on her misrepresentations to the superintendent and smoking on campus, she did not exhaust administrative remedies with respect to those issues.  According to the Commissioner, if a district notifies an educator of multiple, independent violations of the nonrenewal policy, it may proceed on any of those reasons.  If any of those reasons is supported by substantial evidence, the Commissioner cannot substitute his judgment and must uphold the board’s decision.

In this case, Black only challenged her nonrenewal based on an excessive use of force against students.  However, the board also notified her of other violations of the nonrenewal policy —  being untruthful and smoking on campus.  The record contained substantial evidence that Black had been untruthful to the superintendent and the new principal about a prior incident involving an alleged excessive use of force against a student in September of 2011.  The record also contained evidence indicating that Black had been smoking on campus in a storage closet.  Black had exclusive access to the closet, which had been found to contain a smoking filter, cigarette ashes, and matches.  Because substantial evidence existed to support those independent reasons for Black’s nonrenewal, the Commissioner upheld the board’s decision.

Things to Remember:  This is a good illustration of one of the fundamental standards for contract nonrenewal.  The board has to provide notice of all of the reasons for the proposed nonrenewal, but proof of any one of them will be sufficient to uphold a nonrenewal decision.

CAN A SCHOOL BOARD CHANGE ITS NONRENEWAL POLICY AFTER AN EMPLOYEE SIGNS AN EMPLOYMENT CONTRACT?

Case citation:  Harris v. Dallas ISD, Dkt. No. 098-R1-0712 (Comm’r Educ. August 29, 2012).

Summary:  Patricia Harris held a term contract with the Dallas Independent School District, when the board provided notice of proposed nonrenewal.  Harris requested a hearing before an independent hearing examiner.  She challenged the nonrenewal based on policy reasons set out in the district’s policy DFBB (Local) because that policy had been adopted after she executed her term contract.  The hearing examiner ruled in her favor and declined to reach the merits of the case.

However, the board changed the hearing examiner’s recommendation and voted to nonrenew Harris’s contract.  According to the board, Harris violated reasons set out in DFBB, including deficiencies pointed out to her, unsatisfactory and below expectations appraisal ratings, and the failure to fulfill the requirements of a Teacher in Need of Assistance plan.  Ultimately, the board voted to nonrenew Harris’s contract and she appealed to the Commissioner of Education.

Ruling:  The Commissioner granted Harris’s appeal in part and returned the case to the hearing examiner to reach a decision on the merits of the appeal.  It was undisputed that the board changed its nonrenewal policy after Harris signed her contract.  According to the Commissioner, however, such a change in policy is permitted, as long as the new policy does not change the general purpose and effect of the contract.  There was no evidence that the new policy changed the purpose or effect of Harris’s employment contract.  Thus, the district could rely on the new DFBB policy to support the nonrenewal.

Harris also argued that the nonrenewal was invalid because the board had not voted to propose nonrenewal before providing notice of proposed nonrenewal.  The Commissioner disagreed, however, because the notice of proposed nonrenewal indicated that the district had voted to propose her nonrenewal.  Agenda minutes also indicated that a vote had been taken to nonrenew a list of employees.  Although that list was not in evidence, it supported the district’s contention that the board voted to propose nonrenewal.  Harris did not contest the evidence provided by the district and, therefore, sufficient evidence existed to show that the board had voted to propose nonrenewal.

Although the hearing examiner declined to reach the merits of Harris’s appeal, the board changed the hearing examiner’s recommendation and determined that Harris had violated certain policy reasons set out in its nonrenewal policy.  Those reasons included deficiencies pointed out to her, unsatisfactory and below expectations appraisal ratings, and the failure to fulfill the requirements of a Teacher in Need of Assistance plan.  The Commissioner observed that the district could change the hearing examiner’s recommendation if the facts at issue are undisputed.  Here, however, for each policy reason that the district relied upon, disputed facts existed.  Thus, the district improperly changed the hearing examiner’s recommendation.  The Commissioner returned the case to the hearing examiner for a decision on the merits of the case.

DID SUBSTANTIAL EVIDENCE EXIST TO SUPPORT THE TEACHERS’ NONRENEWALS?

Case citation:  Hurst v. Dallas ISD, Dkt. No. 105-R1-0712 (Comm’r Educ. August 29, 2012); and Rosamond v. Dallas ISD, Dkt. No. 106-R1-0712 (Comm’r Educ. August 31, 2012).

Summary:  Mark Hurst and Georgann Rosamond worked for the Dallas Independent School District under term contracts.  The board notified them that it had voted to propose the nonrenewal of their contracts.  Separately, Hurst and Rosamond requested hearings before an independent hearing examiner.  Following the hearings, the board voted to nonrenew their contracts and the two appealed to the Commissioner of Education.

The main issues in both appeals were whether (1) the board improperly relied upon a nonrenewal policy adopted after they signed their contracts, (2) the board properly voted to propose nonrenewal, and (3) substantial evidence existed to support the nonrenewals.

Ruling:  The Commissioner upheld the board’s decision to nonrenew Hurst’s and Rosamond’s contracts.  According to the Commissioner, the district can change its nonrenewal policy after an employee signs an employment contract as long as the new policy does not change the purpose and effect of the employee’s contract.  There was no evidence in this case that the district’s new nonrenewal policy changed the purpose of the contracts.  Thus, the district did not err when it relied on the new nonrenewal policy.

The Commissioner also determined that the board had properly voted to propose nonrenewal.  Each notice of proposed nonrenewal indicated that the board had so voted.  Neither Hurst nor Rosamond objected to the notice.  According to the Commissioner, when “a notice of proposed nonrenewal is entered into evidence without objection or limitation, the notice of proposed nonrenewal is evidence.”  Further, if the facts alleged in the notice are undisputed, they are conclusively established.  Here, the notice provided sufficient evidence that the board had voted to propose nonrenewal.

The Commissioner also held that substantial evidence existed to support the reasons stated for nonrenewal.  The record contained evidence that Hurst was tardy, failed to submit the required number of grades per grading period, failed to submit weekly lesson plans, and failed to submit emergency lesson plans.  Evidence showed further that Hurst failed to maintain discipline in a confrontation with a student and used profanity with students and others.  In addition, the record showed that Hurst failed to comply with directives of his assistant principal and principal.  In all, the evidence supported ten of the reasons for proposed nonrenewal.  Hurst did not present sufficient briefing to contest each of those policy reasons and, as a result, he waived substantial evidence challenges to those reasons for his nonrenewal.  The Commissioner upheld Hurst’s nonrenewal.  With respect to Rosamond, the Commissioner observed that although conflicting evidence existed concerning the reasons for her nonrenewal, substantial evidence supported the nonrenewal.  Thus, the district prevailed in each of the nonrenewal cases.

MUST SUBSTANTIAL EVIDENCE EXIST AT THE TIME THE BOARD PROPOSES NONRENEWAL?

Case citation:  Hobson v. Pasadena ISD, Dkt. No. 107-R1-0712 (Comm’r Educ. September 5, 2012).

Summary:  Marsha Hobson worked as a teacher for the Pasadena Independent School District when the board proposed her nonrenewal.  The reasons given for the proposed nonrenewal included (1) deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda, or other communications; (2)  inability to maintain discipline in any situation in which the employee is responsible for the oversight and supervision of students, (3) failure to meet the district’s standards of professional conduct, and (4) failure to maintain an effective working relationship, or maintain good rapport, with parents, the community or colleagues.  At Hobson’s request, a hearing was held but the board ultimately voted to nonrenew her contract.  Hobson appealed to the Commissioner of Education.

Ruling:  The Commissioner upheld Hobson’s nonrenewal.  Hobson first argued that the nonrenewal was improper because substantial evidence did not exist to support her nonrenewal at the time the board voted to propose nonrenewal.  The Commissioner rejected that argument, holding that a district is not required to prove that the reasons for proposed nonrenewal are supported by substantial evidence at the time the proposal is made.  No final decision is made at the proposal phase.  The teacher can request a hearing, during which the district must present evidence to support the proposed nonrenewal.  Thus, there was no error in the district’s decision to propose nonrenewal.

Further, substantial evidence existed in the record to support Hobson’s nonrenewal.  The record showed that during a walk-through appraisal, a student hit another student in the face.  On another occasion, one of Hobson’s students slapped another student in the face.  Deficiencies were noted in a cumulative data form.  According to the evidence, Hobson also failed to successfully complete two growth plans by March of 2012.  This evidence supported the nonrenewal based on deficiencies pointed out to her and for her inability to maintain discipline over students.  The record also showed that Hobson was the subject of parent complaints about child safety and teacher contact.  Those facts supported her nonrenewal for her failure to maintain an effective working relationship, or maintain good rapport with parents, the community, or colleagues.  The Commissioner, thus, held that substantial evidence existed to support the nonrenewal.

Things to Remember:  Teachers who work many years for a district before being nonrenewed often make the argument this teacher made: look at my whole career, not just this year, or this incident.  The Commissioner flatly rejects this, saying “Neither the board nor the Commissioner is required to consider the totality of an employee’s career, nor should they, but only whether one or more reasons for proposed nonrenewal are supported by the evidence.”

DID THE DISTRICT ENTER INTO AN AGREEMENT PROHIBITING NONRENEWAL OF THE TEACHER?

Case citation:  Evans v. New Caney ISD, Dkt. No. 017-R1-10-2012 (Comm’r Educ. December 13, 2012).

Summary:  Sarah Evans worked for the New Caney Independent School District as a counselor for the 2011-12 school year, when a dispute arose concerning Evans’s employment.  On May 15, 2012, counsel for Evans sent the school district’s attorney a letter indicating that Evans would waive the deadline for her evaluation in consideration for a settlement of all disputes between the parties.  The settlement would include providing Evans with proficient ratings and a recommendation for renewal.  Evans would also be renewed with a term contract for the 2012-13 school year, retain all compensation packages, and would be reassigned to a middle school without any negative comments given to the middle school principal.  Both attorneys signed the letter.

However, the district later sent Evans a document titled “Re-Assignment and Release Agreement.”  The document contained terms similar to the May 15, 2012 document, but also required Evans to refrain from speaking about the underlying events.  Evans refused to sign that letter.  Then, on May 30, 2012, the district’s board proposed Evans’s nonrenewal.  The board voted to nonrenew the contract on September 25, 2012, and Evans received notice of the board’s action on October 4, 2012.  Evans appealed the board’s decision, filing a petition for review with the Commissioner of Education on October 24, 2012.  The district argued that the petition was not filed timely and, thus, the Commissioner did not have jurisdiction over the appeal.

Ruling:  The Commissioner concluded that the appeal was timely filed and that the district improperly nonrenewed Evans’s term contract.  Under Education Code § 21.301, a request for an appeal to the Commissioner must be filed not later than the 20th day after the date the board advises the teacher of its decision not to renew the teacher’s contract under § 21.208.  Evans received notice of the nonrenewal on October 4, 2012.  According to the Commissioner, Evans appealed the decision within 20 days of receiving that notice and the district did not prove that it provided notice to her earlier than October 4, 2012.

The Commissioner also concluded that, based on the terms of the agreement signed by the parties’ lawyers on May 15, 2012, the district was not authorized to nonrenew Evans’s contract.  According to the Commissioner, the May 15, 2012 letter was a binding contractual agreement.  The agreement specifically stated, “Ms. Evans will be renewed in her contractual relationship with New Caney ISD on a term contract for the 2012-13 school year.”  The Commissioner, therefore, concluded that the district was bound by the terms of the agreement.  Even though substantial evidence existed to nonrenew Evans, the district’s “board should never have reached this issue because it was contractually obligated to renew Petitioner’s contract.”  The Commissioner awarded Evans back pay and benefits, or one year’s salary.

Termination

DID THE DISTRICT IMPROPERLY TERMINATE THE ADMINISTRATOR’S CONTRACT?

Case citation:  Brandon v. Zapata County ISD, Dkt. No. 005-R2-09-2012 (Comm’r Educ. November 5, 2012).

Summary:  Diana Brandon worked for the Zapata County Independent School District as a School Improvement Facilitator (SIF) for the 2011-12 school year.  Brandon’s term contract was for an administrator position and stated that “[e]mployment in federally or categorically funded positions is expressly conditioned on the availability of full funding for the position.”  Brandon’s contract had the ending date of June 30, 2012, and the last day of instruction for that school year was June 1, 2012.

By letter dated June 13, 2012, the district’s board president informed Brandon that the board had voted to propose the termination of her 2011-12 contract.  In the letter, the board president offered Brandon a one-year term contract for a teaching position.  Brandon requested a hearing before a certified independent hearing examiner.

After the hearing, the hearing examiner issued a recommendation finding that the board did not have good cause to terminate Brandon’s contract.  The hearing examiner determined that the district did not timely notify Brandon of the proposed action and, thus, had elected to employ her in the same professional capacity for the 2012-13 school year.  Because the district had already elected, by operation of law, to employ Brandon in the same professional capacity the following school year, good cause did not exist for termination.  The hearing examiner held further that, pending the termination hearing, the 2011-12 contract expired.

When the board met to consider the hearing examiner’s recommendation, it changed a number of conclusions of law.  The board found that Brandon’s position was a “categorically funded” position that was subject to termination if funding was not available.  The board determined that good cause existed to terminate the 2011-12 contract due to lack of funding.  Brandon appealed the board’s decision to terminate the contract.

Ruling:  The Commissioner granted Brandon’s appeal, concluding that the district did not have good cause to terminate her contract and improperly changed the recommendation of the hearing examiner.  The Commissioner observed that under Texas Education Code
§ 21.206, the board was required to notify Brandon not later than the 10th day before the last day of instruction whether it intended to renew or not renew her contract.  It was undisputed that the district failed to do so.  By not giving Brandon timely notice of proposed nonrenewal, the district elected to employ her in the same professional capacity for the 2012-13 school year.  Thus, in this case, there was no written contract for the 2012-13, but a contract established “by operation of law.”

The district argued that the proposal to terminate the 2011-12 contract overrode the requirement to employ Brandon in the same professional capacity for the following school year.  The Commissioner disagreed, stating that a “vote to propose the termination of a contract is not an intervening action that relieves a school district of its obligations under Texas Education Code section 21.206(b).”

The Commissioner also rejected the board’s conclusion of law that it had “good cause to terminate the 2011-12 contract due to lack of funding for [Brandon’s] categorically funded position.”  The record showed that the board voted to terminate the 2011-12 contract on August 29, 2012.  However, the contract had expired in June of 2012.  Thus, the issue of whether the district had good cause to terminate the contract became moot when it expired.

Ultimately, the Commissioner concluded that the district did not have good cause to terminate Brandon’s employment.  Brandon’s term contract for the 2012-13 school year came into existence by operation of law because the district did not propose to nonrenew the 2011-12 contract.  The district also failed to provide Brandon notice of proposed termination of the 2012-13 contract.  The notice provided to Brandon stated the reason for the proposed termination was lack of funding for the 2012-13 school year.  According to the Commissioner, that is not a valid reason for terminating the 2011-12 contract.  There simply was no contractual reason given for ending Brandon’s employment under either contract.

The school district’s conclusion that good cause existed due to lack of funding also failed because the district did not contradict, with record references, Brandon’s showing that her position was not a “categorically funded position” that could be terminated if funding ceased.  The Commissioner stated that a “petitioner’s statement of fact in a brief, supported by record references, will be deemed true unless a respondent contradicts the petitioner’s statement of fact and includes record references.”  Because the district failed to refute Brandon’s factual assertions, the Commissioner found that Brandon’s position was not a categorically funded position.  The Commissioner rejected the changes that the board made to the hearing examiner’s recommendation and ruled that Brandon was entitled to reinstatement to an administrator position, with back pay and benefits, or one year’s salary.

Things to Remember:  This case provides yet another example of how difficult it is for a school board to override an adverse recommendation from an independent hearing examiner.

DID EVIDENTIARY MISTAKES DURING THE TERMINATION HEARING INVALIDATE THE TEACHER’S TERMINATION?

Case citation:  Ward v. Aldine ISD, Dkt. No. 008-R2-10-2012 (Comm’r Educ. November 21, 2012).

Summary:  Debbie Ward worked as a teacher for the Aldine Independent School District when the district proposed her termination for allegedly helping students during standardized testing.  Ward requested a hearing before a certified hearing examiner, who ultimately concluded that good cause existed to support the termination.  Based on the hearing examiner’s recommendation, the board voted to terminate Ward’s contract.  Ward appealed the board’s decision to the Commissioner of Education, arguing that the ruling was improperly based on hearsay statements by students, improper expert witness testimony, as well as other evidence that was not admitted at the hearing.  She also claimed that the hearing examiner’s recommendation mischaracterized the evidence.

Ruling:  The Commissioner rejected each of Ward’s contentions and upheld the termination.  Although some of the witness statements admitted into evidence contained hearsay statements by some student witnesses, Ward did not object to the admission of those witness statements.  Because no objection was made to the statements, the statements could be used for all purposes.  Ward claimed that her counsel made a “running objection” to the evidence.  However, the record did not support that claim.  A running objection must be specific and unambiguous and identify the evidence at issue.  The record did not show that Ward’s counsel made a running objection to the witness statements.

Ward also failed to show that expert witness testimony was improper or that the hearing examiner mischaracterized the evidence.  The evidence supported the hearing examiner’s findings of fact.  Further, substantial evidence existed to support the termination decision.  While conflicting evidence existed in the record, the Commissioner observed that it was not his role to reweigh the evidence.  Thus, the Commissioner upheld Ward’s termination.

THE INTERN WAS NOT ENTITLED TO A PROBATIONARY CONTRACT

Case citation:  Conner v. Dallas ISD, Dkt. No. 072-R10-0707 (Comm’r Educ. September 21, 2012).

Summary:  The Dallas Independent School District hired Patrick Neal Conner as an Alternative Certification Teacher Intern for the 2006-07 school year.  At the time, he did not have any prior teaching experience and did not hold a teaching certificate.  The internship agreement provided that it was governed by Texas Education Code § 21.409, and that the position was an at-will position.  In September of 2006, the district informed Conner that his position was terminated.

Conner appealed the district’s actions to the Commissioner of Education, arguing that he was entitled to a probationary contract and that the district improperly terminated his probationary contract.

Ruling:  The Commissioner of Education rejected Conner’s appeal.  Conner had argued that he was a “classroom teacher” under Education Code § 21.002, entitled to an employment contract.  The Commissioner observed that a “classroom teacher” must be an “educator” defined as “a person who is required to hold a certificate issued under Subchapter B, Chapter 21.”

Although it was undisputed that Conner did not hold a teaching certificate, Conner claimed that the district had issued him an “emergency permit.”  The record, however, did not support that claim.  According to the Commissioner, there is no such thing as an “emergency permit” issued by a school district.  The only type of teaching credential that can be issued by a school district is a school district teaching permit.  Emergency permits are issued by regional service centers.  There was no evidence that a regional service center had issued Conner a permit.

Conner was not entitled to a Chapter 21 contract.  Under the terms of the intern agreement, Conner was an at-will employee.  He had no teaching credential and the type that he claimed to have did not exist.  According to the Commissioner, even if such an emergency permit existed, it would not entitle him to a probationary contract because permits issued by school districts do not entitle an employee to a Chapter 21 contract.