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Discrimination

DID THE TEACHING ASSISTANT HAVE VALID TITLE VII CLAIMS AGAINST THE SCHOOL DISTRICT?

Case citation:  Hatch v. Del Valle ISD, 2012 WL 5419861 (5th Cir. 2012) (unpublished).

Summary:  Connie B. Hatch III worked as a teaching assistant for the Del Valle Independent School District when the district terminated his employment.  Hatch, an African American, filed suit against the school district under Title VII of the Civil Rights of 1964, claiming discrimination and retaliation.  The trial court granted judgment in favor of the school district and Hatch, appearing without the assistance of legal counsel, appealed the trial court judgment.

The record showed that between October of 2007 and May of 2009, Hatch worked as a substitute teacher and teaching assistant in the district’s disciplinary alternative education program (DAEP).  However, during his employment in the DAEP, his supervisors observed that Hatch was not meeting job expectations in that he failed to monitor students adequately.  Hatch often remained seated and wore sunglasses in the classroom, despite instructions from his supervisor not to do so.  Supervisors issued a memo documenting these deficiencies, but Hatch responded that they were being discriminatory.

Hatch later applied for a full-time position, but the district chose another substitute teacher over Hatch.  Hatch received a memo after students engaged in a paint fight while under his supervision, and while he sat idly by with his sunglasses on.  Hatch’s supervisor filed another complaint against Hatch alleging that he had initiated a parent meeting without the teacher present, which teaching assistants are not allowed to do.  The DAEP principal then advised the district’s human resources department that Hatch would not be offered a teaching assistant position at the DAEP for the 2009-10 school year.

In his lawsuit, Hatch claimed race and gender discrimination, as well as retaliation.  Specifically, he claimed that disciplining him for wearing sunglasses and sitting during class, meeting with parents, and terminating him was due to his race.  He claimed gender discrimination for not hiring him for the permanent teaching position and for paying him less than female employees.  He claimed further that the district retaliated against him for filing a grievance and violated his due process rights.  The trial court entered a pretrial judgment against Hatch and Hatch appealed to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit upheld the judgment in favor of the district dismissing Hatch’s Title VII suit.  The school district established that the disciplinary memos issued to Hatch were drafted in response to Hatch’s failure to properly supervise the classroom and his habit of sitting and wearing sunglasses in class.  Hatch presented no evidence contradicting the district’s evidence and, as a result, the district was entitled to judgment with respect to those disciplinary memos.

With respect to his compensation, the district showed that Hatch was paid according to the pay scale that governed all teaching assistants and substitute teachers.  Further, the district demonstrated that Hatch was not given the permanent teaching position, because he was not qualified.  The district also demonstrated that it terminated his employment due to his continued failure to monitor students and correct his classroom behavior.  Other than his own subjective beliefs, Hatch did not present any evidence that the district acted with a discriminatory or retaliatory animus.  As a result, the trial court properly entered judgment in favor of the district and dismissed Hatch’s suit.

Nonrenewal

DID THE CHANGE IN NONRENEWAL HEARING PROCEDURES INVALIDATE THE EMPLOYEE’S NONRENEWAL

Case citation:  Valdez v. Alief ISD, Dkt. No. 096-R2-0612 (Comm’r Educ. July 31, 2012).

Summary:  Maria Valdez held a term contract with the Alief Independent School District.  After she signed her contract for the 2011-12 school year, the district changed its policy from having nonrenewals heard before an independent hearing examiner to having nonrenewals heard by the school board.  The district ultimately proposed the nonrenewal of Valdez’s contract and the board presided over the nonrenewal hearing.  Following the hearing, the board voted in favor of nonrenewal.  Valdez appealed the board’s decision to the Commissioner of Education.

Ruling:  The Commissioner upheld the nonrenewal of Valdez’s term contract.  Valdez argued that the nonrenewal was improper because the district changed its policy concerning whether the board would hold the nonrenewal hearing after she signed her term contract for the 2011-12 school year.  The Commissioner observed, however, that Valdez made no citation to any authority for the proposition that the district could not make that change in its nonrenewal procedure after she signed her contract.

According to the Commissioner, briefing is an essential element of an appeal.  Further, under 19 Tex. Admin. Code § 157.1058(a)(4),  a petitioner’s brief must contain clear and concise argument for the contentions raised with appropriate citations to authorities and the record.  The failure to provide citations to authority amounts to the failure to exhaust administrative remedies.  Because Valdez did not provide citations to any authority, statute, rule, or case law in her briefing, she did not exhaust administrative remedies.

The Commissioner held further that, even if she had exhausted administrative remedies, her claims were without merit.  The Commissioner stated, “Procedural changes can be made but substantive changes cannot be made.”  The change from an independent hearing examiner hearing to a board hearing was a procedural change.  The Commissioner, therefore, concluded that the district had the authority to change its policy, even after Valdez signed her contract.  The Commissioner ruled in favor of the district.

DID THE TEACHER/COACH WAIVE HER RIGHT TO CHALLENGE HER NONRENEWAL?

Case citation:  Steans v. Manor ISD, Dkt. No. 095-R1-0612 (Comm’r Educ. July 31, 2012).

Summary:  Deydra Steans worked as a teacher and coach for the Manor Independent School District and held a “Dual Term Contract.”  By letter dated April 5, 2012, the district informed Steans that the superintendent would recommend to the board of trustees that it propose the termination of her contract and that it offer Steans a term contract as a teacher.

The board held a nonrenewal hearing, and ultimately voted to nonrenew the dual contract.  In addition, on April 18, 2012, Steans signed a term contract as a teacher for the 2012-13 school year.  The contract stated, in part, that it “supersedes all existing agreements, verbal and written” between Steans and the district.  The contract also stated that it did not constitute a “unified” contract with any supplemental duty agreement between the parties.

Steans appealed the nonrenewal of her dual term contract to the Commissioner of Education.  She requested an evidentiary hearing before the Commissioner, but the request was denied.  She also claimed procedural irregularities during the nonrenewal hearing and argued that substantial evidence did not exist to support the nonrenewal.  The district denied the claims and asserted that Steans waived her challenge to the nonrenewal by signing a new term contract.

Ruling:  The Commissioner held that Steans had relinquished her right to contest the nonrenewal when she signed the new term contract.  By its terms, the new contract superseded all other written employment agreements between Steans and district.  The Commissioner observed that the Education Code does not prohibit teachers and school districts from entering into contracts that change a teacher’s professional capacity.  For example, often classroom teachers enter into administrator contracts.

In this case, Steans chose to sign a contract that changed her professional capacity.  By signing the contract, Steans agreed to be employed for the 2012-13 school year under a term contract, which was not a dual employment contract.  According to the Commissioner, the new contract extinguished her contractual rights under the old, dual contract.

Steans argued that she did not sign the new contract voluntarily because she signed it to “feed her family.”  According to the Commissioner, that was not a reason to hold that it was not voluntary.  Because Steans “intelligently, voluntarily, and knowingly” entered into the new contract, she waived her right to challenge the nonrenewal.

Things to Remember:  The Commissioner makes it clear in this case that when a teacher “intelligently, voluntarily, and knowingly” signs a new contract, any contractual rights under the old contract are extinguished. 

DID THE SCHOOL DISTRICT PROPERLY NONRENEW THE TEACHER FOR VIOLATING THE DISTRICT’S CORPORAL PUNISHMENT POLICY?

Case citation:  Gaddy v. Kilgore ISD, Dkt. No. 086-R1-0512 (Comm’r Educ. July 19, 2012).

Summary:  Mary Beth Gaddy worked as a special education teacher for the Kilgore Independent School District, when the district proposed the nonrenewal of her term contract.  It was alleged that she violated the district’s corporal punishment policy when she slapped a four-year-old student.  The incident occurred when the student first struck Gaddy during a field trip.  Gaddy allegedly told the child, “No.  We don’t do that.”  Then she slapped the student.

The school district’s corporal punishment policy set out specific guidelines for administering corporal punishment.  For example, a student was told the reason for the punishment.  It was to be administered only by the principal or designee and only by an employee who is the same sex as the student.  The instrument to be used had to be approved by the principal.  In addition, it was to be administered in the presence of one other district professional employee and out of view of other students.  The district voted to nonrenew Gaddy’s contract for violating the district’s corporal punishment policy.  Gaddy appealed the board’s decision to the Commissioner of Education.

Ruling:  The Commissioner upheld the nonrenewal of Gaddy’s contract.  Gaddy argued that the board’s decision was not supported by substantial evidence.  The Commissioner acknowledged that eyewitnesses gave some conflicting testimony regarding the incident.  However, according to the Commissioner, when there are conflicts in testimony, the fact finder resolves the conflicts.  Here, the board held the nonrenewal hearing instead of a hearing examiner and, thus, no findings of fact were required.  As in this case, when the board does not issue findings of fact, the Commissioner determines whether substantial evidence exists to support the nonrenewal.

It was undisputed that Gaddy was supervising two children during a field trip and that one of the students slapped her.  There was conflicting evidence concerning whether Gaddy immediately slapped the student back or admonished him first.  One witness stated that the student sobbed, while another witness testified that the student happily continued on with activities during the field trip.  Gaddy testified that, due to medical treatment she had received, the bones in her face were sensitive and she reacted instinctively to protect her face.  However, that explanation was not consistent with statements she made near the time of the incident.

Based on the evidence, the board could have concluded that Gaddy violated the district’s corporal punishment policy.  One of the pre-established policy reasons given for the proposed nonrenewal was the failure to comply with board policies or administrative regulations.  The Commissioner concluded that substantial evidence existed to support Gaddy’s nonrenewal based on that policy reason.

Things to Remember:  In termination and nonrenewal hearings, there is often conflicting testimony about the events at issue.  The board in this case had to make credibility determinations to reach its decision.  On appeal, the Commissioner cannot re-weigh the evidence or make his own credibility determinations.  The issue is whether some evidence exists to support the board’s decision.  In this case, enough evidence existed in favor of nonrenewal.

DID THE DISTRICT PROPERLY NONRENEW THE TEACHER DUE TO A PROGRAM CHANGE?

Case citation:  Limbrick-Sanders v. Houston ISD, Dkt. No. 046-R1-1211 (Comm’r Educ. Feb. 3, 2012).

Summary:  Brenda Limbrick-Sanders worked as a physical education teacher, when she was nonrenewed as part of a program change.  The program change eliminated the physical education staff at her school.  Limbrick-Sanders filed an appeal with the Commissioner of Education challenging the nonrenewal decision.  She claimed that substantial evidence did not exist to show that the program change was necessary.  Limbrick-Sanders also argued for the first time before the Commissioner that her principal made a premature decision to nonrenew the contract, the district failed to consider her for open positions, and the district violated Chapter 451 of the Texas Labor Code.

Ruling:  The Commissioner dismissed some of the claims for lack of jurisdiction and held that substantial evidence existed to support the nonrenewal.  The record showed that Limbrick-Sanders did not raise the following claims at the local level: (1) that her principal made a premature decision to nonrenew the contract, (2) the district failed to consider her for open positions, and (3) that the district violated Chapter 451 of the Texas Labor Code.  Because she did not exhaust administrative remedies as to those claims, the Commissioner dismissed the claims for lack of jurisdiction.

There was no evidence to support Limbrick-Sanders’s assertion that the reduction in force was invalid because the district failed to offer her an open position.  The Commissioner observed that a district’s reduction in force may be overturned when there is an open position and the teacher proposed for nonrenewal meets the objective requirements for filling the position.  In support of this claim, Limbrick-Sanders offered an affidavit that supposedly demonstrated that a position had been filled when she was nonrenewed.  However, that affidavit had not been presented at the local level.  As a result, the Commissioner could not consider it and Limbrick-Sanders failed to prove that the district improperly filled an open position for which she qualified.

The Commissioner rejected Limbrick-Sanders’s contentions that the superintendent improperly declared a program change, the superintendent improperly consulted with her principal, and that the program change was not necessary.  District policy allowed the superintendent to determine whether a program change was needed.  Further, district policy did not prohibit a superintendent from consulting with school principals in making that decision.  In addition, contrary to her contentions, the district did not have to prove that the program change was necessary.

The Commissioner also concluded that substantial evidence existed to uphold the nonrenewal.  The record showed that there was a real need to reduce expenditures.  After reviewing staffing needs, it was decided that instead of having a physical education teacher on campus, the teachers could incorporate physical education into their weekly lesson plans.  The decision was reasonable and no error was shown.  Thus, the Commissioner upheld the nonrenewal based on a program change.

WAS THE LOSS OF FEDERAL FUNDING A VALID REASON FOR NONRENEWAL?

Case citation:  Blumrick v. Louise ISD, Dkt. No. 084-R1-0512 (Comm’r Educ. July 10, 2012).

Summary:  Diana Blumrick worked for the Louise Independent School District and moved from an administrator’s contract for the 2010-11 school year, to a classroom teaching contract for the 2011-12 school year.  After Blumrick signed the teaching contract, she was informed that she would be teaching at the junior high in a position funded by a federal grant known as the EDU Jobs Fund.  The funding for this job ran out at the end of the 2011-12 school year.  As a result, the district proposed nonrenewal.  Blumrick’s contract provided that if the position was funded by grants, federal funding, or other special funding, then her employment was “expressly conditioned on the availability of full funding for the position.”  The contract stated further, “If full funding becomes unavailable, your employment is subject to termination or nonrenewal, as applicable.”

The district nonrenewed Blumrick’s contract at the end of the 2011-12 school year because funding was no longer available for her position.  She appealed the nonrenewal to the Commissioner of Education arguing that the district violated her contract and failed to follow its reduction in force (RIF) policy.

Ruling:  The Commissioner upheld Blumrick’s nonrenewal.  Blumrick claimed that since she was not assigned to any position when she signed her term contract, the district could not place her in a position that was funded by a grant and then propose her nonrenewal when the grant expired.  The Commissioner disagreed and observed that when Blumrick signed her contract it was not for a specific position but for a general classroom teacher position.  The contract did not require the district to decide which position she would hold for the coming school year at the time she signed the contract.  The contract only required the district to provide her with a position as a certified classroom teacher.  In addition, the contract allowed the district to assign, reassign, or transfer Blumrick at any time during the contract.

Blumrick claimed that the clause in her contract related to positions funded by grants should not have applied to her because she was not assigned to such a position when she signed the contract.  According to the Commissioner, the point of that clause was that if a position is funded by a grant and the grant runs out, the teacher’s contract may be nonrenewed.  “Blumrick had no contractual right to be in a position not funded by grants on the day she signed the contract or any other day.”  The Commissioner concluded that, under the terms of the contract, the district could properly nonrenew the contract because she held a position that was funded by a grant and full funding had become unavailable.

The Commissioner also rejected Blumrick’s contention that the district should have used its reduction in force policy to nonrenew her contract.  Under district policy, when there is a need to reduce costs the superintendent was to develop a plan that could contain salary reductions, furloughs, and reductions in force due to financial exigency.  Reductions in force are not the only method to reduce costs.  The district did not rely on its RIF policies as a policy reason for Blumrick’s nonrenewal.  The Commissioner held that the district properly relied upon the policy reason that allowed for nonrenewal for “any reason specified in the employee’s employment contract.”  The Commissioner rejected each of Blumrick’s claims and upheld the nonrenewal.

DID SUBSTANTIAL EVIDENCE SUPPORT THE NONRENEWAL?

Case citation:  Green v. Brazosport ISD, Dkt. No. 083-R1-0512 (Comm’r Educ. July 10, 2012).

Summary:  Robert Green held a term contract with the Brazosport Independent School District, when he received notice of proposed nonrenewal.  The policy reasons given included (1) the failure to comply with official directives, (2) deficiencies pointed out in observation reports, appraisals or evaluations, memorandums or other communication, (3) failure to fulfill duties or responsibilities, (4) incompetency or inefficiency in the performance of duties, (5) failure to comply with board policies or administrative regulations, (6) failure to comply with requirements of a professional improvement or growth plan, and (7) insubordination.

At Green’s request, the board conducted a nonrenewal hearing.  Legal counsel of another school district acted as legal counsel to the board.  The parties were given two hours each to present their cases, examine and cross-examine witnesses, and present argument.  At the close of the district’s case, Green had only two minutes left to present his case, although he had been informed throughout the hearing how much time remained.

The hearing included evidence that Green had secured leave without informing the principal that he would miss a mandatory district-wide meeting that he was scheduled to attend.  Green did not secure a replacement and, as a result, the school was not represented at the meeting.  During a meeting with the principal, Green became “loud, aggressive, and disrespectful.”  The principal instructed Green to behave appropriately in compliance with policy DH.  In a follow-up meeting with assistant superintendents, Green continued to refuse to accept his supervisor’s directives and left the meeting abruptly.  Green was then placed on two weeks of paid administrative leave.

When Green returned, he allegedly failed to perform his job duties regarding students, student discipline, and student home visits.  In addition, he violated the school’s dress and attendance policies.  He also was disrespectful to the principal.  Green received a negative performance appraisal in January of 2012.  Nevertheless, he failed to improve and did not follow a Performance Improvement Plan given to him.  In March of 2012, Green notified his principal that he had filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).  Following his nonrenewal, Green appealed to the Commissioner of Education claiming procedural and substantive violations.

Ruling:  The Commissioner found no procedural violations and concluded that substantial evidence existed to support Green’s nonrenewal.  Green contended that the district (1) improperly used general counsel from another district to preside over the hearing, (2) he was not allowed enough time to present his case, (3) the board should have used the Texas Rules of Evidence during the hearing, (4) substantial evidence did not exist, and (5) the nonrenewal was a pretext for retaliation.  The Commissioner rejected each of the procedural claims because he had failed to object to those issues during the hearing.  Further, with respect to the board’s counsel, Education Code § 21.207, which sets out requirements for attorneys who preside over nonrenewal hearings, did not apply because the board presided over Green’s hearing.  In addition, throughout the hearing, Green’s attorney was informed of the time limits and how much time had been used and no objection was raised.  Finally, there was no requirement to use the Texas Rules of Evidence in the nonrenewal hearing.  Thus, the Commissioner rejected each procedural issue raised on appeal.

The Commissioner determined that substantial evidence existed for each of the seven policy reasons stated in Green’s notice of proposed nonrenewal.  The Commissioner observed that “if more than a scintilla of evidence in the record supports the decision of the board, the decision must be upheld.”  Here, the board presented evidence with respect to each policy reason and Green failed to rebut the evidence offered by the district.  In addition, Green failed to present evidence that the actions taken by his supervisor amounted to retaliation for his EEOC charge of discrimination.  It was undisputed that the supervisor did not know of the charge of discrimination and the evidence showed that the actions were based on Green’s performance deficiencies.  The district properly nonrenewed Green’s contract.

Things to Remember:  Here, Mr. Green raised both procedural and substantive challenges to the board’s decision.  However, as this case demonstrates, procedural challenges must be raised at the local level first before they reach the Commissioner.  

DID THE SCHOOL DISTRICT FOLLOW ITS RIF POLICY WHEN IT NONRENEWED THE ASSISTANT PRINCIPAL?

Case citation:  Brosemer v. Union Hill ISD, Dkt. No. 085-R1-0612 (Comm’r Educ. July 10, 2012).

Summary:  John Brosemer held a term contract for the 2011-12 school year as “assistant principal pre-K-12” for the Union Hill Independent School District.  The district’s board of trustees voted to implement a program change in the district’s Pre-K-12 campus by reorganizing administrative staffing patterns.  The reorganization eliminated the Pre-K-12 principal and assistant principal positions as employment areas and created for the 2012-13 school year one high school principal and one elementary principal.  Brosemer was the only employee in the employment area of assistant principal.  The board proposed Brosemer’s nonrenewal based on the program change.

District policy DFBB allowed employees who receive notice of proposed nonrenewal to apply for available positions during the pendency of the employee’s appeal.  Employees must meet the district’s objective criteria for the position and be the most qualified internal applicant.  Broseman applied for a vacant position of high school principal, but had no prior experience as a principal.  As a result, he did not receive that position.  After the board voted to nonrenew Brosemer’s contract, he appealed to the Commissioner of Education challenging the district’s application of its reduction in force policy and the district’s failure to hire him for the principal position.

Ruling:  The Commissioner upheld the district’s decision to nonrenew Brosemer as part of a program change, as well as the decision not to hire him as principal.  Brosemer claimed that the district did not follow its reduction in force policy because the board did not apply the criteria for decision to select the employee subject to the reduction in force.  The record showed, however, that the district did not have to apply the criteria set out in the reduction in force policy because Brosemer was the only employee in the affected employment area.  Thus, the board was authorized to accept the superintendent’s recommendation to reduce the single position and to propose nonrenewal of Green’s contract without application of the reduction in force criteria.

With respect to the hiring decision, the Commissioner concluded that Brosemer did not meet the minimum qualifications for the position.  The principal position required a minimum of two years of experience as a campus principal.  It was undisputed that Brosemer had no experience as a campus principal.  Because Brosemer was not qualified for the position, the district did not err when it failed to hire him.  The Commissioner upheld Brosemer’s nonrenewal.

SUBSTANTIAL EVIDENCE DID NOT EXIST TO SUPPORT THE NONRENEWAL

Case citation:  Guerra v. Brooks County ISD, Dkt. No. 094-R1-0612 (Comm’r Educ. July 31, 2012).

Summary:  Javier Guerra was employed under a one-year term contract as a classroom teacher for the Brooks County Independent School District during the 2011-12 school year.  The board voted to nonrenew Guerra’s term contract and Guerra appealed to the Commissioner of Education.  However, the school district did not file a timely answer in response to Guerra’s appeal.  In addition, the district did not file the local record or a brief.

Ruling:  The Commissioner held that substantial evidence did not exist to support Guerra’s nonrenewal.  Under Texas Education Code § 21.301(a), the school district was required to file the local record “not later than the 20th day after the date the petition for review is filed.”  The filing requirement is mandatory.  The failure to file the local record results in issues that require the record for resolution to be deemed against the school district.  According to the Commissioner, without a local record, substantial evidence does not exist to support the district’s actions.  Thus, the Commissioner granted Guerra’s appeal.

In addition, the failure to file a brief is a failure to exhaust administrative remedies.  In this case, the district did not file a brief or request an extension of time to do so.  Thus, the district waived its opportunity to raise objections to Guerra’s arguments.  Guerra properly invoked the Commissioner’s jurisdiction, arguing that substantial evidence did not exist to support his nonrenewal.  Because the district waived its objections to Guerra’s factual and legal arguments, Guerra prevailed on appeal.  Guerra was entitled to reinstatement with back pay and benefits, or one year’s salary.

Termination

DID THE SCHOOL DISTRICT IMPROPERLY TERMINATE THE PROBATIONARY TEACHER FOR USING FORCE AGAINST A STUDENT?

Case citation:  Almeyda v. Alief ISD, Dkt. No. 086-R2-0810 (Comm’r Educ. September 21, 2012).

Summary:  David Almeyda was employed by the Alief Independent School District under a probationary teaching contract for the 2008-09 and 2009-10 school years.  In March of 2009, Almeyda was attacked by a student and used force against the student in response to the attack.  In August of 2009, the board proposed the termination of Almeyda’s probationary contract for using force against the student.  Following a termination hearing, the hearing examiner found that the force used was reasonable and that Almeyda was immune from disciplinary action under Texas Education Code § 22.0512.  The board adopted the hearing examiner’s recommendation and did not terminate Almeyda.

In February of 2010, however, the district informed Almeyda that his probationary contract would be terminated at the end of the contract period.  The board did not indicate that its decision to terminate Almeyda’s contract was based on the use of force incident.  Following the board’s decision, Almeyda appealed to the Commissioner of Education.  He claimed that the true reason for the termination was the use of force incident.  He attempted to use as evidence a district email suggesting that the board would consider that as a reason for the termination.  Almeyda also claimed that he requested in writing that administrators testify at his grievance proceedings, but they failed to do so.  The district argued, in response, that Almeyda could not challenge the termination of his probationary contract at the end of the contract term.

Ruling:  The Commissioner held that Almeyda could appeal the termination of his probationary contract, but that his claims were without merit.  According to the Commissioner, the appeal was proper because Almeyda claimed that the district improperly terminated him in violation of Texas Education Code § 22.0512.  In a matter of first impression, the Commissioner stated, “A school district cannot terminate a probationary contract at the end of the contract period for the use of force against a student that is justified under Texas Penal Code § 9.62.”  Thus, Almeyda could challenge the board’s decision to terminate his contract on that basis.

However, Almeyda was unable to prove that the district intended to terminate his contract based on the use of force incident.  Almeyda tried to introduce as evidence an email that reflected the advice of legal counsel.  Thus, it was protected by attorney-client privilege.  Almeyda argued that the document fell within an exception to the privilege that allows disclosure of documents when counsel is hired to aid in the commission of a crime or fraud.  According to the Commissioner, there was no evidence to suggest that the district’s counsel was hired to assist the district to commit a crime or fraud.  The document at issue was privileged and, therefore, could not serve as evidence in the matter.

The Commissioner also rejected Almeyda’s claim that the district improperly denied his request for testimony of school employees because Almeyda failed to raise this challenge before the board of trustees.  The Commissioner ultimately concluded that Almeyda did not prove that the board terminated his probationary contract because of a justified use of force against a student in violation of Education Code § 22.0512.  The Commissioner upheld the termination of Almeyda’s probationary contract at the end of the contract term.

Things to Remember:  School administrators and attorneys should take note of this decision.  Typically, probationary teachers can be terminated at the end of the contract period if the termination is in the best interests of the school district.  Under Education Code § 21.103(a), the termination is final and cannot be appealed.  However, this case establishes a new exception to Education Code § 21.103(a).  Now, a probationary teacher can appeal when they are being terminated at the end of the contract period because of a justified use of force against a student under Education Code § 22.0512.