DID THE FORMER SCHOOL DISTRICT POLICE OFFICER FILE HIS DISCRIMINATION SUIT TIMELY?
Case citation: Adams v. Cedar Hill ISD, 2014 WL 66488 (N.D. Tex. 2014) (unpublished).
Summary: Richard G. Adams, Sr. was a 51-year-old African American who was employed by the Cedar Hill Independent School District as a police officer. Following his termination, Adams filed suit against the district alleging that it discriminated against him during his employment, terminated him for discriminatory reasons, and failed to consider him for several positions when he re-applied after being terminated. Adams raised claims against the district for age discrimination, hostile environment, and retaliation, in violation of the Age Discrimination in Employment Act (ADEA), race discrimination, hostile environment, and retaliation under Title VII of the Civil Rights Act of 1964, and the Texas Commission on Human Rights Act (TCHRA), and retaliation under the Fair Labor Standards Act (FLSA). Adams also alleged mental abuse, defamation, wrongful termination, and denial of regular and overtime wages under the FLSA.
In response, the school district sought dismissal of the suit, arguing that Adams did not timely exhaust administrative remedies under the ADEA, Title VII, or the TCHRA. The district also maintained that its right to sovereign immunity barred the state common law claims for mental abuse, defamation, and wrongful termination. The district also asserted limits to the claims brought under the FLSA.
Ruling: The trial court determined that Adams did not timely exhaust administrative remedies as to his ADEA, Title VII and TCHRA claims, the district was entitled to sovereign immunity with respect to the claims for mental abuse and defamation, and that no common law cause of action exists for wrongful termination. Before filing suit under Title VII or the ADEA, an aggrieved party must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 300 days after the alleged unlawful practice occurred. Also, before filing suit under the TCHRA, a person must exhaust administrative remedies by filing a complaint with the Texas Workforce Commission (TWC) within 180 days of the alleged unlawful practice. In Texas, filing a charge of discrimination with the EEOC fulfills this TCHRA exhaustion requirement.
Here, according to the suit, Adams was terminated on June 4, 2012, and allegedly denied consideration for a lieutenant position on June 10, 2012. However, he filed his charge of discrimination with the EEOC on April 12, 2013, more than 300 days after being terminated and after being denied the lieutenant position. Adams argued that those timelines were “tolled” (i.e., extended) because he filed internal grievances with the district. However, there was no legal authority supporting his claim that internal grievances would toll the timelines for exhaustion. Thus, the claims under the ADEA, Title VII, and the TCHRA were dismissed as time-barred.
The trial court next determined that sovereign immunity barred the alleged Texas common law claims for “mental abuse” and defamation. Under the Tort Claims Act, school districts are entitled to immunity, except for claims alleging the negligent operation or use of a motor vehicle. In this case, the lawsuit made no allegations in reference to the operation or use of a motor vehicle. Thus, the state law claims were barred by sovereign immunity. In addition, the trial court concluded that there was no common law cause of action for wrongful termination under Texas law. The trial court held that the claims under the ADEA, Title VII, TCHRA, and Texas common law were subject to dismissal but granted Adams an opportunity to amend his suit to overcome the deficiencies set out above.
DID SUBSTANTIAL EVIDENCE EXIST TO SUPPORT THE TEACHER’S NON-RENEWAL?
Case citation: Colwell v. Houston ISD, Dkt. No. 021-R1-10-2013 (Comm’r Educ. December 12, 2013).
Summary: Lantagna Colwell was a middle school science teacher in the Houston Independent School District when the district gave her notice of proposed non-renewal. The notice cited six different reasons for non-renewal, including deficiencies pointed out to her, the failure to fulfill duties or responsibilities, incompetency or inefficiency, inability to maintain discipline, a lack of student progress, and insufficient student academic growth as reflected by value-added scores. Colwell requested a hearing before a certified hearing examiner. Following the hearing, the hearing examiner concluded that the evidence was sufficient to support each of the proposed reasons for Colwell’s non-renewal. The board later adopted the hearing examiner’s recommendation and voted to non-renew Colwell’s contract. Colwell appealed the decision to the Commissioner of Education, arguing that substantial evidence did not support the non-renewal.
Ruling: Although substantial evidence did not support one of the six reasons set out in the proposed non-renewal, the other five reasons were supported by substantial evidence. While the hearing examiner concluded that the preponderance of the evidence supported the contract action due to insufficient student academic growth as reflected by value-added scores, no findings of facts supported that conclusion. According to the Commissioner there was no evidence in the local record regarding value-added scores for Colwell’s students.
Nevertheless, the Commissioner observed that a non- renewal will be affirmed as long as “there is substantial evidence to support at least one reason for non-renewal that is both listed in Board Policy and included in the Notice Letter.” The Commissioner ultimately concluded that substantial evidence existed to support each of the remaining five reasons cited by the district in Colwell’s notice of proposed non-renewal. While some conflicts in the evidence existed, the hearing examiner could resolve conflicts in the testimony based on the hearing examiner’s own credibility determinations. According to the Commissioner, the evidence showed a progressive decline in test scores by Colwell’s students, negative performance evaluations by several administrators, and frequent tardiness by Colwell. Thus, the Commissioner upheld Colwell’s non-renewal.
The Commissioner also found no error in the statement by the hearing examiner that, “[a]ny conclusion of law deemed to be a finding of fact is hereby adopted as such.” According to the Commissioner, the statement did not violate Texas Education Code § 21.259(c), which allows changes to findings of fact only if there is not substantial evidence in the record to support the findings as drafted by the independent hearing examiner. The Commissioner disagreed with Colwell, who argued that the clause gave the district free rein to change findings of facts contrary to § 21.259. The Commissioner stated: “the clause instead offers helpful flexibility to school districts and hearing examiners alike when the questions at issue in the case involve mixed questions of fact and law, where it can be difficult for a hearing examiner to distinguish a finding of fact from a conclusion of law.” Here, the board made no changes to the findings of fact or conclusions of law. Thus, there was no error in the hearing examiner’s recommendation. The Commission affirmed the board’s decision to non-renew Colwell’s contract.
WAS THE REASSIGNMENT FROM PRINCIPAL TO ASSISTANT PRINCIPAL WITHIN THE “SAME PROFESSIONAL CAPACITY”?
Case citation: Jenkinsv. Crosby ISD, Dkt. No. 043-R10-1211 (Comm’r Educ. December 19, 2013).
Summary: Hermenia Jenkins was employed as a principal of an intermediate school in the Crosby Independent School District. Jenkins’s contract stated that the school district had the right to assign or reassign her to other or additional duties for which she was certified and qualified to perform. On June 28, 2011, the district reassigned Jenkins from principal at the intermediate school to assistant principal at a high school within the district. Jenkins filed a grievance contesting her reassignment, arguing that it violated (1) Texas Education Code § 11.201, which designates a principal as the instructional leader of a campus; (2) Education Code § 11.201, which grants supervisory rights to superintendents; (3) Education Code § 21.206(b), which requires districts to give timely notice of proposed non-renewal or agree to employ the person in the same professional capacity for the following school year; and (4) 19 Tex. Admin. Code § 150.1021, and board policy DN(LOCAL), concerning appraisal processes for administrators. After the school district denied the grievance, Jenkins appealed to the Commissioner of Education.
Ruling: The Commissioner upheld the board’s decision to deny the grievance and the decision to reassign Jenkins from intermediate school principal to high school assistant principal. The Commissioner held first that Texas Education Code § 11.202, 19 Tex. Admin. Code § 150.1021 and policy DN(LOCAL) simply did not address the issue of whether Jenkins was entitled to a principal position. While Education Code § 11.201 addresses a superintendent’s role in making personnel assignments, it does not require that a superintendent exercise discretion wisely or fairly. According to the Commissioner, a board’s decision could be overturned for being arbitrary and capricious, but not a superintendent’s decision. Further, the Commissioner does not have jurisdiction over a claim that the superintendent arbitrarily and capriciously reassigned her.
Jenkins next argued that the reassignment was not proper because the assistant principal and principal positions were not within the “same professional capacity.” Under Education Code § 21.206, if a school district fails to give timely notice of proposed non-renewal when the teacher’s contract is about to expire, the district is required to employ the teacher in the “same professional capacity” for the following school year.
With respect to administrator positions, the Commissioner stated: “Administrators can often be reassigned to different administrator positions, but that does not mean that they may be assigned to any administrator positions. Districts can by contract establish broad professional capacities. However, professional capacities that are too broad will not be allowed.” Here, Jenkins argued that because the definition of “teacher” under Education Code § 21.201(1) references the position “principal,” that “principal” is a distinct professional capacity. Looking to the legislative history of the Term Contract Non- renewal Act and court cases analyzing the meaning of the term “same professional capacity,” the Commissioner disagreed.
According to the Commissioner, the first question districts must ask is whether it could have contracted for the position at issue. For example, an administrator cannot be reassigned as a classroom teacher, a counselor cannot be reassigned as a nurse, and a nurse cannot be reassigned as a librarian. The next question is whether there are any differences in authority, duties, salary and or any other differences so great as to actually render the position in another “professional capacity.” Districts should also consider the capacity set out in the employee’s contract. According to the Commissioner, if a school district hires a teacher under a term contract in a particular capacity, the district must rehire the teacher in that capacity for the next school year.
In this case, the Commissioner observed that a principal can contract for an assistant principal position as a principal certificate is needed for both principal and assistant principal positions. There was little evidence in the record to indicate what duties Jenkins had in either of those positions. Thus, the Commissioner was unable to compare the authority, duties, compensation and other relevant factors to determine whether the reassignment was within the “same professional capacity.” As the two positions were not shown to be in different professional capacities, the district did not violate Education Code § 21.206, when it reassigned Jenkins from an intermediate school principal to a high school assistant principal.
Comments: This is a very interesting opinion, and must- reading for lawyers who handle non-renewal cases. The Commissioner discusses a good bit of legislative history regarding the Term Contract Non-renewal Act. That history shows that the original bill was much more teacher-friendly than the law that was eventually enacted. The bill got watered down in the legislative process, giving school management considerable discretion and flexibility. The bottom line is that principals are not “sui generis” as superintendents are. Thus a principal whose contract identifies her as an “administrator” may be moved to a position other than principal, such as “assistant principal.” The opinion leaves the door slightly open for aggrieved administrators in the future to argue that the positions are significantly different due to differences in “authority, duties, compensation and other relevant factors.” Here, the record did not have enough information for the Commissioner to make that comparison, but that will likely come up in a future case. Superintendents who move administrators around should continue to take those factors into account. This decision actually says that the superintendent’s decision will not be overturned even if it is unwise, unfair, arbitrary and capricious. Nevertheless, best practice is to be wise, fair, and reasonable.