Discrimination
THE EMPLOYEE FAILED TO STATE DISCRIMINATION AND RETALIATION CLAIMS
Case citation: Thornton v. Dallas ISD, 2014 WL 46398 (N.D. Tex. 2014) (unpublished).
Summary: Wendell James Thornton worked for the Dallas Independent School District, until he was placed on leave and later terminated. Thornton, without the assistance of legal counsel, filed suit against the district and a number of school district administrators and employees. Thornton alleged that he was subjected to harassment, bullying, and intimidation by his supervisor due to Thornton’s refusal to violate district policy by revealing a building security code. He claims that he filed a grievance over the matter and, as a result, was subjected to retaliation when the district placed him on administrative leave and fired him. The trial court requested that Thornton provide more detailed information concerning his claims, since he was proceeding without the assistance of legal counsel. The trial court then considered whether Thornton had stated sufficient facts to proceed on causes of action of employment discrimination and retaliation under Title VII, and retaliation under the Family and Medical Leave Act (FMLA).
Ruling: The trial court held that Thornton had stated insufficient facts to support his discrimination and retaliation lawsuit. Thornton’s discrimination claims were insufficient because, other than conclusory allegations of race-based animus, he offered no facts that any of the actions taken by the defendants were motivated by his race. He cited no specific incidents of racial discrimination, such as racial comments or treatment different from similarly situated employees of another race.
With respect to the retaliation claim, Thornton did not allege that he engaged in any protected activity under Title VII. The trial court observed that an internal grievance about district policy or a workplace dispute is not a “protected activity” under Title VII. Because Thornton failed to allege sufficient facts demonstrating that he suffered retaliation for engaging in a protected activity, the trial court dismissed the claim.
The trial court also determined that the FMLA claim was without merit. Thornton did not allege that he was fired or disciplined because of his use of FMLA leave. Instead, he alleged that he was forced to take medical leave because of the anxiety caused by the mistreatment by his supervisor and policy changes made by the superintendent. Those facts were not sufficient to state a claim for violating the FMLA. Thornton failed to state facts to support discrimination and retaliation causes of action and the trial court dismissed the suit as a result.
DID THE DISTRICT FIRE THE TEACHER FOR HER MILITARY SERVICE OBLIGATIONS?
Case citation: Mayeauxv. Houston ISD, 2014 WL 109350 (S.D. Tex. 2014) (unpublished).
Summary: Ramona Mayeaux worked for the Houston Independent School District as an at-will JROTC teacher. Mayeaux was also an active member of the United States National Guard and, in that capacity, was required to attend military service one weekend every month and military training fifteen days every year. During the 2009-10 school year, the principal at Mayeaux’s school uncovered possible violations by Mayeaux of the district’s fundraising policies. As a result, the principal asked the district’s Office of Inspector General to conduct an investigation into unauthorized fundraising and inaccurate recordkeeping related to fundraising. While the investigation was pending, the principal reassigned Mayeaux.
Following the investigation, the Inspector General issued a report concluding that Mayeaux violated fundraising procedures and left an unexplained shortfall of more than $3,000 for fundraising activities. The report also included significant detail regarding Mayeaux’s military absences. Ultimately, the report concluded that “[b]ecause of Ms. Mayeaux’s absences along with the financial problems previously mentioned in this report, Ms. Mayeaux was relieved of her duties. . .” Upon receiving the report, the principal submitted a memo objecting to the investigation based upon Mayeaux’s military absences. The Inspector General then issued a revised report, which still included discussion of Mayeaux’s military absences, but concluded that she was relieved of her duties solely based on her improper fundraising activities. The principal later recommended Mayeaux’s termination.
After her termination, Mayeaux filed suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), claiming that the district terminated her for absences resulting from her military obligations. The district sought judgment in its favor prior to trial.
Ruling: The trial court denied the district’s request for judgment prior to trial. USERRA prohibits employers from denying uni- formed service members the benefits of employment on the basis of their membership in the armed services. Employers violate USERRA if an employee’s service or obligation for service in the uniformed services is a “motivating factor in the employer’s [adverse] action, unless the employer can prove that the action would have been taken in the absence of such membership, service . . . or obligation for service.” Courts have held that military service is a motivating factor for an adverse employment action “if the employer relied on, took into account, considered, or conditions its decision on the employee’s military-related absence or obligation.”
The court observed, however, that if Mayeaux could establish that her military service was a motivating factor in her termination, the district could still escape liability by showing by a preponderance of the evidence that it would have made the same decision without regard to Mayeaux’s military status. The trial court noted that, in contrast to Title VII discrimination cases in which the burden remains on the plaintiff to show pretext, in USERRA cases the burden is on the employer to show lack of pretext.
The trial court held that, based on the Inspector General reports discussing Mayeaux’s military absences, a jury could find that Mayeaux’s military service obligations were a motivating factor in her termination. While the district had a sufficient basis to conclude that Mayeaux violated fundraising procedures, it was for a jury to decide “whether the problems with Mayeaux’s fundraising activities would have led to her termination even if she were not serving in the military.” The trial court, thus, denied the district’s request for pretrial judgment of the USERRA suit.
Comments: Lawyers will want to make note of the subtle but important distinction in burdens of proof in a USERRA case as opposed to a more common Title VII discrimination case. Here, the court noted that the district’s affirmative defense (we would have fired her anyway) “can be a strong defense at trial.” But at this stage of the proceedings (motion for summary judgment) “it is difficult to prevail….on an affirmative defense on which HISD has the burden.” In a Title VII case, the defendant/employer only needs to identify a legitimate reason for the adverse employment action. Doing that shifts the burden of proof back to the plaintiff. But as the court notes, “USERRA is different.” The employer/defendant retains the burden of proving that its stated reason is NOT a pretext.
Nonrenewal
THE TRIAL COURT UPHELD THE TEACHER’S NONRENEWAL
Case citation: Jennings v. Scott, 2014 WL 60920 (Tex. App.– San Antonio 2014) (unpublished).
Summary: Jennings was employed by the Boerne Independent School District as a teacher for the 2010–11 school year under a one-year term contract. On April 1, 2011, Jennings received notice of proposed nonrenewal. Jennings requested a hearing before a certified hearing examiner. The board and Jennings agreed that the hearing would be held on May 26, 2011, past the fifteen-day deadline provided under Texas Education Code § 21.207(a). However, due to concerns about compliance with the Texas Open Meetings Act, the hearing was not held on May 26, 2011. Jennings agreed to reschedule the hearing, which was ultimately set for June 14, 2011.
On May 25, 2011, Jennings filed a grievance, complaining that her recent performance appraisal contained unjustified ratings based on false and exaggerated documentation by her principal and the Human Resources Director. The district informed Jennings that her grievance would be heard on June 14, 2011, in conjunction with the nonrenewal hearing.
On June 14, 2011, the board held a hearing and Jennings and her lawyer appeared briefly at the hearing. However, when the board began to consider the nonrenewal of her contract, Jennings and her lawyer left the hearing, taking the position that her contract had been renewed by operation of law because the board had not held the nonrenewal hearing within fifteen days of her request and the parties had not agreed in writing to a June 14, 2011 hearing date. Notwithstanding Jennings’s position, the board proceeded with the nonrenewal hearing on June 14, 2011, and decided that Jennings’s term contract would not be renewed.
In response, Jennings appealed the board’s nonrenewal decision to the Commissioner of Education, arguing that her contract was renewed by operation of law when the board failed to hold a nonrenewal hearing within fifteen days after the date it received her request in accordance with Education Code § 21.207(a). The Commissioner determined Jennings agreed to waive the fifteen-day deadline, and therefore, the board had authority under § 21.207(a) to conduct the nonrenewal hearing on June 14, 2011. The Commissioner upheld the board’s nonrenewal decision and denied Jennings’s administrative appeal.
Jennings then filed suit, seeking judicial review of the Commissioner’s decision. Jennings also claimed that the board violated Texas Government Code § 617.005 and article 1, section 27 of the Texas Constitution by failing to hold a hearing on her grievance. The trial court upheld the Commissioner’s decision in favor of the district and Jennings appealed.
Ruling: The court of appeals affirmed the trial court’s ruling in favor of the school district. Under Education Code § 21.207, a nonrenewal should be held not later than fifteen days after the hearing request, “unless the parties agree in writing to a different date.” In this case, the parties had agreed to a date outside of the fifteen-day timeline. Thus, Jennings had agreed to waive the fifteen-day deadline set out in § 21.207. The Commissioner then held that, once waived, the fifteen-day deadline does not apply to subsequent agreements to reschedule a hearing after the waiver had been agreed to, unless specific restrictions or conditions are attached to the original waiver. The court of appeals held that the Commissioner’s interpretation of § 21.207 was reasonable and that substantial evidence supported the Commissioner’s finding that Jennings had waived the fifteen-day deadline.
The appeals court also upheld the dismissal of Jennings’s statutory and constitutional claims based on the alleged failure to grant her a hearing on her grievance concerning her appraisal. The district argued that Jennings did not raise these claims before the Commissioner of Education and, consequently, failed to exhaust administrative remedies. Although an exception to the exhaustion requirement exists for violations of a constitutional or federal statutory right, Jennings’s state statutory claim did not fall under that exception. In addition, the constitutional claim was only ancillary to or supportive of her complaint about the board’s handling of her employment contract. Thus, Jennings was not exempt from exhausting administrative remedies on the statutory and constitutional claims. The court of appeals upheld the judgment in favor of the district.
Comments: Parties who want to waive the 15-day deadline for a nonrenewal hearing will want to study this case.
WAS THE TEACHER’S PLACEMENT IN THE “EXCESS POOL” A VALID REASON FOR NONRENEWAL?
Case citation: Lehman v. Dallas ISD, Dkt. No. 014-R1-10-2013 (Comm’r Educ. November 26, 2013).
Summary: Sharon Lehman worked as a health teacher for the Dallas Independent School District. Lehman received notice of proposed nonrenewal based on “Current Placement as an Excess Chapter 21 Employee,” an established reason in the district’s nonrenewal policy. Under district policy DK(Local), when staff reductions become necessary due to reduced enrollment or budget reductions, the immediate supervisor selects personnel for release into the excess pool.
Lehman received a nonrenewal hearing, and the independent hearing examiner determined that the proposed nonrenewal was based on a legitimate pre-established reason in the district’s nonrenewal policy and the district had provided Lehman proper notice of nonrenewal. According to the hearing examiner, the district’s decision to nonrenew Lehman’s contract for current placement as an excess Chapter 21 employee was not arbitrary, capricious, or unlawful.
When the board nonrenewed the contract, Lehman appealed the decision to the Commissioner of Education. On appeal, Lehman argued that placement in the excess pool is not a legitimate reason for nonrenewal and that the district should have implemented a reduction in force instead. She claimed that, since the district did not follow reduction in force procedures, the nonrenewal was not proper and the district breached her contract as a result.
Ruling: The Commissioner upheld Lehman’s nonrenewal. The Commissioner observed that Chapter 21 of the Texas Education Code, subchapter E, requires school boards to adopt reasons for not renewing contracts, but places no explicit limitations as to such reasons. According to the Commissioner, the sole limitation to pre-established reasons for nonrenewal is that they may not be arbitrary and capricious. In reviewing a pre-established reason, the Commissioner considers whether there is a “legitimate business justification for the reason.” Reviewing the Education Code, relevant case law, and the legislative history of Chapter 21, subchapter E, the Commissioner concluded that school districts have broad discretion in establishing reasons for nonrenewal.
Here, Lehman claimed that the excess pool policies were not followed and were arbitrary and capricious on their face and as applied to her. The district argued, however, that Lehman could not contest her placement in the excess pool because she did not grieve the issue at the time she was placed in the excess pool. The Commissioner agreed and held that when Lehman was placed in the excess pool, she should have filed a grievance challenging that action. Because she failed to do so, she did not exhaust administrative remedies as to that claim.
Even assuming that Lehman exhausted administrative remedies, the Commissioner concluded nonetheless that the district did not err when it nonrenewed her contract. The district’s nonrenewal policy, making placement in the excess pool a pre-established reason for nonrenewal, was not arbitrary and capricious. Neither the Education Code nor Lehman’s contract provisions concerning assignment did not prohibit placement in the excess pool. The district’s excess pool policy was triggered by necessary staff reductions and the district properly followed the nonrenewal policy. Further, the district was not required to use its reduction in force policy. Thus, the Commissioner upheld the district’s decision to nonrenew Lehman’s contract.
Comments: This very interesting decision should be reviewed by superintendents and HR directors who anticipate future staff layoffs. Rather than using the more traditional RIF policy, Dallas created the “excess pool” and authorized principals to place teachers in the pool based on criteria laid out in policy. Teachers who are placed in the “excess pool” may be nonrenewed. Here, the Commissioner finds that being placed in the “excess pool” is a legitimate reason for nonrenewal, if it is so stated in district policy. It was. Policy DFBB (Local) lists 38 reasons for nonrenewal, including “Current placement as an Excess Chapter 21 Employee.”
Whistleblower
WHAT IS REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES ON A WHISTLEBLOWER CLAIM?
Case citation: Fort Worth ISD v. Palazzolo, 2014 WL 69889 (Tex. App. – Fort Worth 2014) (unpublished).
Summary: Joseph Palazzolo worked as an assistant principal for the Fort Worth Independent School District and was assigned to Arlington Heights High School (AHHS). Between late 2009 and mid-2010, Palazzolo reported to several organizations and district officials that district employees had falsified student at- tendance records, misused booster club funds, improperly enforced disciplinary procedures against minority students, and engaged in inappropriate sexual relationships with each other.
In mid-June 2010, Palazzolo received an appraisal report issued by the principal of AHHS that provided in relevant part that Palazzolo “need[ed] improvement” in a particular aspect of his position as an assistant principal. Around the same time, Palazzolo learned that he had been reassigned from AHHS to an assistant principal position at the International Newcomers Academy (INA) for the upcoming 2010–2011 school year. Palazzolo’s pay rate would be less than his pay at AHHS.
Palazzolo subsequently filed a Level I grievance with FWISD outlining the reports that he had made and claiming that he had been reassigned to INA in retaliation for making those reports. He sought to have his reassignment to INA revoked, to be paid the same salary that he was paid at AHHS, to have his appraisal report voided, to receive no future threats and be assured of no future retaliation, and to enter into a two-year contract with FWISD. The hearing officer granted most of the relief Palazzolo requested. Shortly thereafter, FWISD reassigned Palazzolo to Western Hills High School (WHHS) at a rate of pay similar to what he had made at AHHS.
Palazzolo pursued a Level II grievance. At a conference on that matter, he indicated that he wanted to remain at WHHS. The hearing officer granted Palazzolo’s request and, in response to Palazzolo’s previous requests, confirmed that he would be paid an assistant principal’s salary for the upcoming year, confirmed that his appraisal report had been amended, explained that he was serving the second year of a two-year contract, and assured him that he would be treated in a manner consistent with district policy and the law.
Palazzolo then pursued a Level III grievance. At the hearing, he told the board of trustees that he had “no problem being reassigned,” that he was “fine with either school, Arlington Heights or Western Hills,” and that he was “fine with the evaluation” that he had previously challenged and that had been amended. The Board voted that no action be taken at the time on Palazzolo’s whistleblower claims.
Shortly thereafter, Palazzolo sued the school district for violating the Whistleblower Act. He alleged that the district retaliated against him for making the reports by (1) transferring him from AHHS, (2) making the negative appraisal report, and (3) lifting a trespass warning against the parent of an AHHS student who had allegedly threatened his daughter when she was a student at AHHS. FWISD moved for summary judgment on Palazzolo’s claims. However, the trial court denied the motion and the district took an immediate, pretrial appeal.
Ruling: The appeals court reversed the trial court ruling and rendered judgment in favor of the school district. The appeals court held that Palazzolo had not exhausted administrative remedies under the Texas Whistleblower Act and, therefore, the court did not have jurisdiction over the claims. Before filing a Whistleblower suit, a claimant “must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action.” The purpose of the exhaustion requirement is to afford the governmental employer an opportunity to investigate and correct its errors and to resolve disputes before incurring the expense of litigation.
The main issue on appeal was whether Palazzolo “initiated” grievance procedures under the Whistleblower Act. Palazzolo argued that, because he filed a grievance, he initiated grievance procedures in compliance with the Act. However, according to the appeals court, “if a party who invokes a grievance or appeal procedure goes on to actively circumvent the governmental entity’s efforts to redress the complained-of conduct, that party does not comply with [the Act’s] initiation requirement.”
The record in this case showed that, although Palazzolo filed a grievance that proceeded to a Level III board hearing, he announced to the board that he was fine with any transfer and with his appraisal. According to the court of appeals, Palazzolo led the board to believe that as to his complaints concerning the transfer and appraisal, there was no further investigation that needed to occur and no need to correct any potential misconduct. Thus, Palazzolo actively circumvented the district’s efforts to redress his complaints and, as a result, did not exhaust administrative remedies under the Whistleblower Act.
The trial court erred by denying the district’s request for judgment as to Palazzolo’s claim that the district improperly lifted the trespass warning against the parent of an AHHS student. To prevail on a claim under the Whistleblower Act, a public employee must demonstrate that he suffered an adverse employment action. Here, the record showed that the district did not lift the trespass warning until after Palazzolo had been reassigned to another school and after he had made the decision to remove his daughter from AHHS. According to the court of appeals, the district’s lifting of the trespass warning in this way did not constitute an adverse employment action under the Whistleblower Act. The appeals court determined that Palazzolo’s Whistleblower claim was without merit and rendered judgment in favor of the district
