THE SPECIAL EDUCATION DIRECTOR COULD NOT DEMONSTRATE DISCRIMINATORY EMPLOYMENT ACTION
Case citation: Morgan v. Braswell, 2014 WL 1280499 (N.D. Tex. 2014) (unpublished).
Summary: Valda Morgan, who is African American, was the special education director of Denton Independent School District when the Texas Education Agency (TEA) conducted an audit of the special education department. The TEA found that the district was not in compliance with applicable legal requirements in twenty-one areas. Morgan was given the responsibility of correcting the problems TEA identified. After numerous unsuccessful efforts to achieve compliance between 2007 and 2009, the TEA placed the district’s special education department under State Conservatorship. The special education department was under conservatorship for the remainder of Morgan’s tenure with the district.
During the fall semester of the 2009-10 school year, the district contracted with an independent agency to conduct a program evaluation of the special education department. The evaluation recommended a reorganization of the special education department and a change in leadership. Morgan ultimately agreed to work one more year as the Residential Facilities Administrator under the same salary and to resign effective June 2011. The district later sought applicants for an Executive Director of Special Education to replace Morgan.
Morgan applied for the position of Executive Director, but the district awarded it to Debbie Roybal. Due to budget cuts announced by the Texas Legislature, the district also implemented a program change, which eliminated the position of Residential Facilities Administrator. Morgan was allowed to work in that position until her previously chosen resignation date and was paid the same salary for the remainder of her employment with the district.
Morgan filed suit, claiming race and age discrimination, and retaliation under Title VI and Title VII of the Civil Rights Act, as well as the Age Discrimination in Employment Act (ADEA). The district filed a motion requesting judgment in its favor, arguing that Morgan could not produce sufficient evidence to substantiate her claims.
Ruling: The trial court granted the district’s motion and entered judgment against Morgan. To establish Title VII discrimination claims, Morgan’s initial burden of proof required her to show that (1) she was a member of a protected group, (2) she was qualified for the position, (3) an adverse action occurred, and (4) she was treated less favorably than other similarly-situated employees outside of her protected category, under nearly-identical circumstances. According to the trial court, she failed to do so. The record contained no evidence that similarly-situated employees were treated more favorably than her under nearly-identical circumstances. Morgan argued that campus principals were also responsible for compliance with TEA’s directives and special education legal requirements. The trial court determined, however, that the campus principals were not similarly-situated to her. As the special education director, she oversaw the principals’ compliance with legal requirements of the special education program. The Title VII claims were without merit because Morgan failed to produce sufficient evidence to meet her initial burden of proof, namely that other similarly-situated employees outside of her protected category were treated more favorably.
To establish a violation of Title VI, Morgan had to demonstrate intentional discrimination based on race, color or national origin. In an effort to show intentional discrimination on the part of the district, Morgan challenged many of the TEA’s findings leading up to its decision to place the special education department under conservatorship. Morgan also placed blame for the problems on the campus principals. The trial court held that Morgan’s assertions were insufficient to demonstrate intentional discrimination. In addition, she could not overcome the district’s documented, legitimate nondiscriminatory reasons for its employment decisions.
Morgan’s age discrimination claims failed for the same reasons. The district offered sufficient summary judgment evidence to show legitimate nondiscriminatory reasons for discharging Morgan and deciding not to hire her for the Executive Director of Special Education position. She claimed that the woman hired for the Executive Director position was not as qualified as her for the position. The record showed, however, that Roybal met all of the listed qualifications. Further, Morgan failed to produce sufficient evidence to counter the fact that she was not hired because of her poor job performance as the special education director. Thus, the trial court determined that the ADEA claims were without merit.
Morgan also failed to establish retaliation claims. She simply failed to show that she engaged in protected activity under Title VI, Title VII, or the ADEA. Morgan also did not demonstrate that she was subjected to adverse personnel action because of protected activity in which she allegedly engaged. Instead, the record showed that the district declined to renew her contract or hire her for the Executive Director position because of her inability to correct the problems TEA identified and her inability to lead the special education department. Because Morgan could not substantiate her discrimination or retaliation claims, the trial court entered judgment in favor of the district.
Family Medical Leave Act
DID THE EMPLOYEE’S TERMINATION VIOLATE THE FMLA?
Case citation: Henderson v. Grand Prairie ISD, Fed. Appx. , 2014 WL 1304608 (5th Cir. 2014) (unpublished).
Summary: Angel Henderson worked for Grand Prairie Independent School District. When she was on medical leave, the district notified her that she was to be terminated. She received the full benefit of her medical leave and was paid for several more months, through the end of the school year. At the end of the school year, her probationary contract’s term expired. Henderson sued the school district, claiming violations of the Family Medical Leave Act (FMLA), retaliation, and intentional infliction of emotional distress. The trial court granted judgment in favor of the district and Henderson appealed to the Fifth Circuit Court of Appeals. The main issue on appeal was whether Henderson’s termination violated the FMLA.
Ruling: The Fifth Circuit affirmed the judgment in favor of Grand Prairie ISD. The appeals court observed that the district complied with the FMLA, granting her all of the benefits of her medical leave. The district also demonstrated that it had documented concerns over her work performance before she requested FMLA leave. For example, the district was concerned about conflicts with personnel, arriving late and leaving early, spending time out of the classroom, and adequate documentation and work logs. In addition, the district suspected that Henderson was conducting a private for-profit business on school time. Henderson failed to show any connection between her termination and the exercise of her FMLA rights. Thus, the trial court properly granted judgment in favor of the district.
Comments: This is a very short opinion, relying on the “thorough and convincing twenty-four page opinion” from the district court. The main point is that taking FMLA leave does not completely insulate an employee from adverse employment action. Here, the district produced evidence of independent reasons for the contract nonrenewal. It also helped the district’s case that those reasons existed and were documented prior to the employee seeking FMLA leave.
THE SCHOOL DISTRICT PLUMBER FAILED TO ESTABLISH WHISTLEBLOWER CLAIMS
Case citation: Dallas ISD v. Watson, 2014 WL 1008059 (Tex. App. – Dallas 2014) (unpublished).
Summary: Douglas Watson worked for the Dallas Independent School District as a plumber for nineteen and a half years until he was given notice of termination in September 2007 and subsequently terminated. On July 11, 2007, Debbie Pruitt, Watson’s supervisor, notified him to stop his normal duties and start gas tests at schools in their division. Watson testified Pruitt “demanded that we do three [tests] a day.” Watson and a co-worker, James Mullins, told Pruitt they were not sure they could complete three tests in a day. Watson and Mullins completed only one gas test that day.
On July 12, 2007, Pruitt indicated that Watson and Mullins “needed to hurry up,” and she gave them additional work orders to complete. Following the testing, Pruitt summoned Watson to her office where they discussed Watson’s progress. An argument ensued, and Pruitt led Watson to the office of Cesar Villareal, with whom Pruitt shared the responsibilities of plumbing supervisor. The argument over the gas tests continued in Villareal’s office, and Villareal ultimately asked Watson to leave the office.
The following day, Watson called the Texas Railroad Commission (TRC) to “inform them [he] was being pressured into doing these gas tests in an unsafe, hurried-up manner.” Watson contacted the TRC because they were “the ones that require that the school districts do these gas tests.” The person Watson spoke to at the TRC told him to contact the Texas State Board of Plumbing Examiners (TSBPE). Watson called TSBPE and stated “it had been demanded of [him] that [he] do these three gas tests a day and that [he] felt like it was in an unsafe manner and that for—in order for [him] to comply….” The TSBPE representative did not tell Watson to file a written complaint, and Watson did not file a written complaint.
The next week, Watson returned to work, and Pruitt told him he was “being taken off the gas tests.” Watson was subsequently notified his employment was being terminated because of his insubordination and hostile and belligerent behavior. Watson appealed his termination through the grievance process, but he was ultimately terminated. Watson filed suit, claiming his termination violated the Texas Whistleblower Act. The district filed a plea to the jurisdiction asserting Watson did not meet the requirements of the Whistleblower Act, and the trial court therefore lacked jurisdiction. The trial court denied the district’s plea to the jurisdiction, and the case went to trial. A jury found (1) Watson made a good faith report of a violation of law by the district to the TSBPE and/or the TRC and (2) his report was the cause of his termination. In accordance with its verdict, the jury awarded Watson damages and attorney’s fees. The trial court entered judgment in favor of Watson, and the school district appealed.
Ruling: The appeals court reversed the judgment in favor of Watson and dismissed the claims. Under the Whistleblower Act, a public employer “may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” A whistleblower plaintiff must allege each element of a whistleblower claim, or the suit will be dismissed for lack of jurisdiction.
The main issue, in this case, was whether Watson had alleged sufficient facts to show that he reported a “violation of law.” According to the court of appeals, Watson’s allegations merely recited his prediction that completing three gas tests on a single day in the future might be “unsafe” and “hurried-up.” There was no evidence that Watson actually completed three gas tests in one day or that doing so would have constituted a “violation of law” under the Whistleblower Act. The allegations of what might happen did not amount to a good-faith report of an existing or past violation of law. Because Watson did not report a violation of law, he failed to state a claim under the Texas Whistleblower Act. The appeals court dismissed the suit.
Comments: The jury that ruled in favor of Mr. Watson will probably be disappointed to hear that their verdict in his favor has been tossed out. Even more disappointed will be the lawyers who represented Mr. Watson. According to the court, they were awarded $400,000 in fees for winning this case. All for naught, as the appellate court holds here that the court lacked jurisdiction to hear the case in the first place. The lesson of the case is that a Whistleblower case must involve an existing or past violation of law—not anxiety and speculation over safety.
DID THE VETERAN EDUCATOR STATE A WHISTLEBLOWER CLAIM?
Case citation: Gordon v. Greenville ISD, 2014 WL 1243978 (N.D. Tex. 2014) (unpublished).
Summary: Richard Gordon was an educator for fifty years and worked for the Greenville Independent School District as a teacher from 2007 to April 2013. Gordon taught high school Spanish for four years, followed by two years teaching English as a Second Language (ESL) at Crockett Elementary School under the supervision of Principal Shannon Orsborn. Gordon filed several grievances against the district, five of which were decided against him and, of those five, he appealed two to the Texas Education Agency (TEA).
Gordon claimed that, during the 2011-12 school year, he taught his ESL students the standardized curriculum during their designated class period, but Orsborn changed the ESL program to a “full inclusion model” for the 2012-13 school year. That model required Gordon to teach his ESL students amid their other classroom instruction. He claimed that he received no direction for implementing the new model, and that only one or two meetings were held on the subject.
According to Gordon, the full-inclusion model was illegal because, due to his unfamiliarity with the subject-matter being taught in the inclusion classrooms, he was used only minimally by the other teachers, so that his students received only a few minutes of ESL instruction each class period. Gordon complained to Orsborn, who he claimed threatened negative consequences, including the loss of his job if Gordon pursued his complaints further. Gordon claimed that Orsborn treated him differently than the other teachers in an attempt to intimidate him and prevent him from reporting the purported illegalities in the ESL program to federal authorities. Gordon also claimed that, beginning in January 2013, he was instructed to document that he provided daily services to his students when, in actuality, he had not done so sufficiently or at all.
On March 18, 2013, Gordon was told that his contract would be renewed for the 2013-14 academic year as a teacher of bilingual classes. However, on March 29, 2013, Gordon refused to sign the forms documenting that he had provided the required ESL services, told Orsborn he was “now invoking the Whistle-blower act,” and soon thereafter, called the “various Federal Fiscal Monitoring” of TEA. On April 16, 2013, Gordon alleged that he was notified orally and in writing that he was terminated. Then, on May 20, 2013, Gordon wrote a formal, “whistle-blower type” letter to the TEA informing the agency of the “illegalities” regarding the ESL services.
On June 26, 2013, proceeding without the assistance of counsel, Gordon sued the district claiming: (1) unlawful retaliation under the Texas Whistleblower Act; (2) violations of his First Amendment and Texas Constitutional free speech rights; and (3) violations of his due process rights under the Fourteenth Amendment. The district sought dismissal of the suit.
Ruling: The trial court held that all of the claims, as stated in the lawsuit, were subject to dismissal. The court gave Gordon an opportunity to amend his pleadings with regard to all claims except the conspiracy claim, which the court dismissed outright. However, Gordon failed to amend and thus all claims were dismissed. The Whistleblower claim failed because Gordon had not alleged with enough specificity what law had been violated. Instead, he only referred generally to “illegalities.” The trial court observed that, under the Whistleblower Act, a plaintiff must have reported a violation of law to an appropriate law enforcement authority. A “law” is defined as a state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance. Gordon also failed to state facts that would establish a causal connection between his alleged report to TEA and his termination. The lawsuit, in fact, stated that the first contact he made with TEA was after his termination.
Gordon’s First Amendment and due process claims against the school district under 42 U.S.C. § 1983 also failed because he did not state that an official school district policy or custom led to any alleged constitutional violation. The board of trustees was the district’s final policymaking authority. Because Gordon failed to allege that the actions of the board led to his termination, he did not state a valid § 1983 claim against the district. He also did not state a specific policy or custom that supposedly led to any constitutional deprivation.
With respect to the due process allegations, Gordon did not properly allege a liberty interest in the failure to renew his employment contract. Gordon alleged that the district defamed him and issued stigmatizing charges against him. The trial court disagreed and held that allegations that the district questioned his professionalism were insufficient to state a due process claim.
Gordon’s conspiracy c laim brought under 42 U.S.C . § 1985 also failed. To state such a claim, Gordon had to allege facts demonstrating (1) the existence of a conspiracy, (2) for the purpose of depriving a person of the equal protection of law, and (3) an act in furtherance of the conspiracy, (4) which caused injury to a person or deprivation of any right or privilege of a United States citizen. Gordon did not allege a conspiracy involving more than one actor or that the alleged conspiracy was based on a suspect class or as a result of “class-based discriminatory animus.”
Comments: Suffice it to say that federal court cases are tough to win without assistance of counsel.