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Whistleblower

DID THE UNIVERSITY PROFESSOR ESTABLISH CLAIMS UNDER THE WHISTLEBLOWER ACT?

Case citation:  University of Houston v. Barth, 403 S.W.2d 851 (Tex. 2013).

Summary:   University of Houston professor, Stephen Barth, sued the university under the Texas Whistleblower Act.  He claimed that the university retaliated against him for reporting that his supervisor violated internal administrative policies located in the University’s System Administrative Memorandum (SAM), and other state civil and criminal laws.

Barth was an attorney and tenured professor in the hotel management college at the University.  In March and April of 1999, Barth reported to the University’s chief financial officer and general counsel that his college’s dean allegedly engaged in questionable accounting practices, mishandled funds, and entered into improper contracts relating to the University.  In May 1999, Barth also reported the alleged violations to the University’s internal auditor and spoke with an associate provost as well.  In June of 1999, Barth received a “marginal” rating in one area during his annual evaluation, which affected his merit raise for that year.  Barth was also denied travel funds in 1999, and Barth’s annual legal symposium on hotel law was cancelled allegedly after the dean and a sponsor withdrew their support.  Barth filed two administrative grievances against the dean, claiming he was subject to adverse personnel actions for reporting the alleged violations.  However, the parties were unable to successfully resolve Barth’s grievances.

In 2001, an investigation into the dean’s accounting practices concluded that the dean had failed to comply with internal University procedures and state regulations, including section 03.A.05 of the University’s SAM, which requires a contract between the hotel management college and a public relations firm to be approved by the office of general counsel and to be reported to the Board of Regents.  The investigation determined that the dean did not violate criminal laws that prohibit tampering with governmental records.  Shortly after the University published the investigative report, Barth sued the University for retaliation under the Whistleblower Act.

At trial, Barth claimed liability under the Whistleblower Act based on his reporting of three alleged violations of law, which included: (1) the Penal Code, (2) the University’s SAM, and (3) state civil statutes on government contracting.  The jury found the University liable, but the charge did not specify on which of the three grounds.  The trial court rendered judgment in favor of Barth, awarding him $40,000 in actual damages and $245,000 in attorney’s fees.  After several appeals involving unrelated issues, the Supreme Court returned the case to the trial court to consider whether it had jurisdiction over the Whistleblower claims.  The trial court ruled that it did have jurisdiction and Barth appealed.

The court of appeals agreed and affirmed the trial court’s judgment.  The court of appeals concluded that Barth’s allegation that the University retaliated against him for reporting that the dean had violated the SAM’s internal policies was sufficient for purposes of establishing jurisdiction under the Whistleblower Act.  The University sought review of the appeals court ruling, arguing that (1) the SAM’s administrative policies are not “law” under the Whistleblower Act, and (2) Barth failed to show that his alternative reports of violations of law were made to an appropriate law enforcement authority as required by the Whistleblower Act.

Ruling:  The Texas Supreme Court reversed the appeals court decision, and held that because Barth failed to prove the elements under the Whistleblower Act, jurisdiction did not exist over the claims.  Texas Government Code § 554.0035 waives sovereign immunity when a public employee alleges a violation of the Whistleblower Act.  A violation “occurs when a governmental entity retaliates against a public employee for making a good-faith report of a violation of law to an appropriate law enforcement authority.”  The Whistleblower Act defines “law” as a state or federal statute, an ordinance of a local governmental entity, or “a rule adopted under a statute or ordinance.”

The Supreme Court first determined that the SAM’s administrative policies were not “law” under the Whistleblower Act because there the policies were not enacted by the Board of Regents as required by the University’s enabling statute.  The Court observed that a rule is only a “law” under the Whistleblower Act if the rule is “adopted under a statute.”  Section 111.35 of the Education Code grants the University’s Board of Regents authority to “enact bylaws, rules, and regulations necessary for the successful management and government of the university.”  Thus, for the SAM’s administrative policies to be “rule[s] adopted under a statute,” the Board of Regents must have “enacted” the policies as required by that section.  According to the Court, there was no evidence that the Board of Regents enacted or passed the SAM’s administrative policies.  Accordingly, the SAM could not form the basis for a report of a violation of “law” under the Whistleblower Act.

Barth claimed that, even if the SAM’s administrative policies are not “law,” the University’s sovereign immunity was waived because he believed in “good faith” that he was reporting a violation of law.  The good-faith inquiry under the Whistleblower Act has both subjective and objective components, which require that Barth “must have believed he was reporting conduct that constituted a violation of law and his belief must have been reasonable based on his training and experience.”  Although Barth believed that he reported a violation of law, Barth’s belief was not reasonable given his legal training, experience as a former practicing attorney, and familiarity with the University’s rules from serving on the faculty senate.  Thus, jurisdiction did not exist over the Whistleblower claims stemming from alleged violations of the SAM provisions.

With respect to the Whistleblower claims arising from his reports of alleged violations of state civil and criminal law, the University argued that none of Barth’s reports were made to an appropriate law enforcement authority under the Act.  The Supreme Court agreed and observed that the Whistleblower Act requires a claimant to show that he in “good faith” reported a violation of law to an “appropriate law enforcement authority.”  The Texas Supreme Court previously held that “purely internal reports untethered to the Act’s undeniable focus on law enforcement—those who either make the law or pursue those who break the law—fall short.”  To constitute an appropriate law enforcement authority under the Whistleblower Act, it must have “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.  Authority of the entity to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law-enforcement authority status.”

Here, given Barth’s legal training and experience as a practicing attorney, Barth failed to meet the objective component of the good faith test for reporting a violation of law to an appropriate law enforcement authority.  According to the Court, Barth could not have believed in good faith that the University’s general counsel, chief financial officer, internal auditor, or associate provost possessed the power to either (1) regulate or enforce state civil law relating to the University’s contracting with third parties, or (2) prosecute or investigate the alleged criminal law violations.  Thus, the trial court lacked a basis for subject-matter jurisdiction over the entirety of Barth’s Whistleblower lawsuit.

Things to Remember:  This decision by our state’s highest court is an important precedent with regard to elements of a Whistleblower claim. The Supreme Court holds the plaintiff to a higher standard than the average joe because he is a lawyer.  The court says that Barth, given his legal training,  “could not have believed in good faith” that a violation of the SAM rules was a violation of law. Presumably, a non-lawyer could have had that “good faith belief.”  But the court does not explain what that says about the learned judges of the Court of Appeals. They agreed with Barth.  If Barth cannot have believed that he had a case, how could the Court of Appeals say that he did? 

Discrimination

DID THE SCHOOL DISTRICT DISCRIMINATE OR RETALIATE AGAINST THE TEACHER?

Case citation:  Ray-Brown v. Longview ISD, 2013 WL 5433476 (Tex. App. – Texarkana 2013) (unpublished).

Summary:   Masika Ray-Brown, who was African American, worked as a third grade teacher for the Longview Independent School District under a probationary contract.  In September 2010, John York, the caucasian principal of the school at that time, came to Ray-Brown’s classroom, removed a white student from the class, and transferred that student to a third-grade class with a white teacher.  After the transfer, Ray-Brown reported to York that the manner in which the transfer took place “was a race issue.”  Ray-Brown alleged that, after this incident, York retaliated against her by treating her differently than other non-African American teachers.

She reported to York that her coworker, Takeisha Jones, an African American, threatened her with physical violence and that Jones was actively trying to sabotage Ray-Brown’s employment with the district.  Ray-Brown alleged that York failed to take remedial or corrective action after receiving her complaints against Jones.  Ray-Brown claimed that York placed an oppressive workload on her by forcing her to coach students to compete in a UIL reading and writing competition.

From late November 2010 through late January 2011, York placed Ray-Brown on an Intervention Plan for Teachers in Need of Assistance.  York testified that no other third-grade teacher was placed on such a plan during that year.  Ray-Brown argued that York ignored her complaints of discrimination and harassment and that York improperly performed his appraisal. York’s evaluation found Ray-Brown’s performance to be deficient.  Based on that conclusion, York recommended to the District’s Board of Trustees that Ray-Brown’s contract not be renewed.  On or about March 8, 2011, Ray-Brown was informed by letter that her contract would be terminated June 6, 2011.

On March 29, 2011, Ray-Brown submitted a written grievance against York and Jones.  After her grievance was denied, Ray-Brown filed suit against the district under Chapter 21 of the Texas Commission on Human Rights Act (the Act), alleging discrimination based on race and retaliation for opposing racial discrimination.  The district answered and moved for summary judgment, arguing that Ray-Brown failed to make a prima facie case of discrimination or retaliation.  The trial court agreed with the District and granted summary judgment.

Ruling:  The appeals court affirmed the trial court’s ruling because Ray-Brown failed to make a prima facie case of either discrimination or retaliation.  On appeal, Ray-Brown argued that the trial court erred because: (1) she established a prima facie claim of discrimination, (2) she established a prima facie claim of retaliation, and (3) she provided evidence to establish that the district’s proffered reasons for terminating her were pretextual.

The appeals court held that there was insufficient evidence that Ray-Brown was subjected to a hostile work environment.  There was no objectively offensive conduct that was physically threatening or humiliating, and no evidence that Ray-Brown’s work performance was unreasonably impeded.  Considering the frequency, severity, and nature of the incidents as alleged by Ray-Brown, there was no evidence that the district “was permeated with discriminatory intimidation, ridicule, or insult.”  Thus, Ray-Brown failed to offer evidence of actionable harassment.  Even if the incidents were actionable, Ray-Brown failed to provide evidence, other than conclusory allegations and speculation, that any harassment she received was based on her race.

The appeals court also dismissed Ray-Brown’s retaliation claim because she failed to demonstrate that she engaged in a protected activity.  Her statement that the student transfer was a “race issue” did not reflect opposition to a practice of York or the district, and until she was notified of her impending termination, she made no further complaint or follow-up regarding that particular student transfer or any other student transfer.  She failed to make a prima facie case that a causal link existed between her statement and York’s recommendation not to renew her contract.  The appeals court, therefore, affirmed the trial court judgment in favor of the district.

WHAT IS AN “ADVERSE EMPLOYMENT ACTION”?

Case citation:  Webb v. Round Rock ISD, 2013 WL 4434245 (W.D. Tex. 2013) (unpublished).

Summary:   Crystal Webb was employed as a custodian for the Round Rock Independent School District.  On November 16, 2011, Webb filed an internal complaint with the district complaining that her supervisor, Oralia Sandoval, talked about her in Spanish and told her on one occasion to transfer “to a school where they speak English.”  Webb alleged that after she filed the internal complaint, Sandoval retaliated against her by chastising her on one occasion for being late to work; telling her that she could not use the floor scrubber machine; and by “constantly checking behind me and telling me that I am not doing my work correctly.”  On March 23, 2012, Webb filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging race discrimination and retaliation.

On April 9, 2012, Webb received a Performance Evaluation stating that she failed to (1) follow her supervisor’s instructions, (2) communicate with her colleagues, (3) report any problems in her area to her supervisor, (4) work as a team, and (5) help when another employee is out.  The supervisor complained further that Webb needed to improve her attendance.  The day after receiving the poor evaluation, Webb called in sick and did not return to work until May 1, 2012.

On June 14, 2012, Webb filed another internal complaint with the district, complaining that her coworker called her something in Spanish which she heard as “Nerglow or Neglow[sic].”  However, following an internal investigation, the district determined that the coworker had not used a racial epithet, but had actually said “Jingle Bells.”  During the investigation, Webb’s coworkers complained that Webb had been taking photos and videos of them without their permission.  After the investigation, Webb’s supervisors determined that the best solution for Webb and her coworkers was for Webb to transfer to another campus.  Thus, on June 20, 2012, Webb was transferred to Brushy Creek Complex, where she performed the same job duties.

Webb was unhappy with the transfer and filed another EEOC Complaint on June 27, 2012, complaining that the transfer was “forcing me to have to walk a much further distance to work and jeopardizing my safety as I travel to and from work.”  Webb claimed that she was transferred in retaliation for having filed internal complaints and the EEOC Charges of Discrimination.  On July 18, 2012, Webb was transferred again, this time to schools which were much closer to her home.

Webb sued the district for alleged violations of Title VII of the Civil Rights Act of 1964. In response, the district filed a motion to dismiss, arguing that Webb could not make out a prima facie case of employment discrimination or retaliation under Title VII because Webb did not suffer an adverse employment action.

Ruling:  The trial court held that Webb could not make out a case of racial discrimination under Title VII because she failed to show that she suffered an adverse employment action.  Adverse employment actions include only “ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.”  Thus, an employment action that does not affect job duties, compensation, or benefits is not an adverse employment action.  None of the actions that Webb complained about in her complaint qualified as adverse employment actions under Title VII.

The June 2012 transfer was not an adverse employment action.  While a job transfer can constitute an adverse employment action, the new position must be “objectively worse” than the original position.  A purely lateral transfer is not an adverse employment action.  Webb’s transfer was merely a lateral transfer that was not an adverse employment action.  Webb does not dispute that the custodial position at that campus had the same job title, benefits, duties, and pay as Webb’s previous position.  Webb has failed to show that her transfer was an adverse employment action.

Webb also complains that her supervisor gave her a negative performance evaluation in April 2012 and often criticized her work.  An employer’s criticism of an employee, without more, does not constitute an actionable adverse employment action.  Similarly, poor performance reviews do not qualify as ultimate employment actions.  There is no assertion in this case that the negative performance evaluation or general criticisms of her work had any effect on her pay, opportunities for promotion or other similar conditions of employment.  Accordingly, the above-actions are not adverse employment actions.

Webb claimed that her coworkers speak little English and routinely have conversations in Spanish.  Webb complained further that her supervisor “constantly talks about me in Spanish” and on one occasion told Webb to “transfer to another school where they speak English.”  Finally, Webb contended that one of her coworkers once called her something in Spanish, which she heard as “Nerglow or Neglow [sic].”  However, none of Webb’s complaints rose to the level of an adverse employment action.  Thus, she could not establish a claim of employment discrimination under Title VII.

Webb’s retaliation claims also failed.  She alleged that the district retaliated against after she filed internal complaints and her EEOC Charges of Discrimination.  There was no dispute that Webb engaged in protected activity in this case.  Webb claims that she was retaliated against by: (1) her supervisor’s verbal reprimand of her for being late to work; (2) receiving a poor performance evaluation; (3) her transfer to another campus; (4) being talked about and laughed at by her coworkers in Spanish; and (5) receiving unfair treatment.  However, the court already held that none of those actions qualified as materially adverse employment actions.  In addition, other than her subjective belief that she was retaliated against, Webb failed to show any causal connection between her protected activity and the alleged adverse employment actions.  Accordingly, Webb has failed to assert a claim of retaliation under Title VII.

Things to Remember:  The lesson of this case is that things are likely to happen to us at work that we do not like. That does not make it an “adverse employment action.”

Appraisal

DID THE SCHOOL DISTRICT IMPROPERLY CHANGE THE “TINA” COMPLETION DATE?

Case citation:  Wallace v. Bastrop ISD, Dkt. No. 025-R10-1011 (Comm’r Educ.  August 30, 2013).

Summary:  Debra Wallace was employed by the Bastrop Independent School District as a teacher for the 2010-11 school year.  She received an appraisal that required a Teacher In Need of Assistance Plan (TINA).  Wallace and her principal discussed the content of the TINA during the first week of January 2011.  A completion date of February 18, 2011 was discussed.  The TINA form reflecting that completion date, however, was not signed by any party.  On January 12, 2011, Wallace and her principal signed a TINA that had a completion date of June 2, 2011.  Wallace filed a grievance over the matter and, as a result, the TINA completion date was changed from June 2, 2011 to April 25, 2011.  Wallace challenged the appraisal and TINA in grievances filed with the district.  The district denied the grievances and Wallace appealed to the Commissioner of Education.

Ruling:  The Commissioner determined that the appraisal and TINA were proper.  Wallace claimed that she was not informed that she could request a second appraisal.  She also alleged that the TINA was not proper because she had no opportunity to consult with her principal and because the completion date was changed.  Under Texas Education Code § 21.252, teachers are entitled to a second appraisal.  According to the Commissioner, however,
§ 21.252 does not require a district to make a teacher aware of that right each time a teacher receives a written appraisal.  By rule, a teacher is to request a second appraisal if a teacher wishes to have one.  The district, here, did not violate § 21.252 because it did not inform Wallace of her right to a second appraisal.

Wallace claimed that the district violated 19 Tex. Admin. Code §150.1005 when the principal required her to sign the TINA without discussion.  According to the Commissioner, that provision did not concern TINAs and it does not require a principal and teacher to discuss a potential TINA prior to establishing a TINA.

Wallace also claimed that the TINA was invalid because the timeline for completion was changed.  The record contained only one executed TINA, which originally had a completion date of June 2, 2011.  The first TINA that the principal discussed with Wallace was not signed.  Thus, Wallace was placed on only one TINA with a completion date of June 2, 2011.  Wallace filed a grievance over that TINA and the district changed the completion date to April 25, 2011, as a result of her grievance.  Because there were not errors in handling Wallace’s appraisal and TINA, the Commissioner denied each of her claims.

Assault Leave

WAS THE EMPLOYEE ALLOWED TO SUPPLEMENT EVIDENCE TO SUPPORT HER ASSAULT LEAVE CLAIM?

Case citation:  Walker v. North East ISD, Dkt. No. 035-R10-1111 (Comm’r Educ.  August 30, 2013).

Summary:   Jennifer Walker was assaulted while working for the North East Independent School District.  Walker requested and received assault leave.  On January 17, 2011, her workers’ compensation provider determined that Walker could return to work.  Walker objected to that determination in writing, but the district notified her that her assault leave would end on January 26, 2011.  Walker filed a grievance challenging that determination.  At the Level I grievance hearing, Walker became aware of a surveillance video that showed her performing some simple duties.  Following that grievance hearing, Walker’s doctor reviewed the video and determined that Walker looked unstable and was at constant risk of falling.

At Level II and Level III, Walker tried to offer additional evidence, including medical records and the doctor’s notes about the surveillance video.  The additional evidence was not added to the record because it had not been offered at Level I.  When the board deliberated in closed session at Level III, in attendance were the superintendent and an attorney from the same law firm as the attorney who represented the district at the Level III hearing.  Walker filed a second grievance concerning procedural irregularities in the first grievance.  When the grievances were denied, she appealed to the Commissioner of Education.

Ruling: The Commissioner returned the case to the school district to reconsider Walker’s grievance with evidence concerning the doctor’s notes concerning the surveillance video.  Supplementation of the local record is governed by 19 Tex. Admin. Code
§ 157.1073(f), which allows supplementation “if it appears that the party has evidence to offer that is material, relevant, or not unduly repetitious that the party, for good cause, was unable to adduce at the local hearing.”

In this case, Walker sought to supplement the record with evidence concerning the doctor’s evaluation of the surveillance video and other medical records to show that she was unable to return to work.  The Commissioner concluded that all of that evidence was “material, relevant, and not unduly repetitious.”  However, Walker did not demonstrate good cause for failing to timely produce the medical records showing she was unable to return to work.  According to the Commissioner, there was insufficient reason for the delay in obtaining those medical opinions until after the Level I grievance hearing.  According to the Commissioner, Walker did have good cause for not providing the doctor’s opinions concerning the surveillance video because Walker did not become aware of the video until the Level I grievance hearing was held.  Because that evidence was “material, relevant, and not unduly repetitious,” and Walker showed good cause for the delay in submitting the evidence, the Commissioner returned the case to the school district for the board to consider the new evidence.

Walker also objected to the manner in which the district’s board went into closed session to deliberate concerning her first grievance.  The reason given for the closed session under the Texas Open Meetings Act was to consult with the board’s counsel, to discuss personnel, or to hear complaints against personnel.  The attorney who represented the board that night and the superintendent accompanied the board into closed session.  Walker argued that their presence in the board meeting violated the Texas Education Code.  Section 11.1513(j) of the Education Code provides that an employment policy may not restrict the ability of a school district employee to communicate directly with a member of the board of trustees regarding a matter related to the operation of the district.  However, a policy may prohibit ex parte communication related to (1) a hearing under Subchapter E or F, Chapter 21, and (2) another appeal or hearing in which ex parte communication would be inappropriate pending a final decision by the board.

In this case, Walker claimed that she was restricted in her ability to address the board when the chief administrative officer of the district and an attorney, who was a member of the same firm as the attorney who represented the administration, had the potential opportunity to address the board during closed session.  According to the Commissioner, § 11.1513(j) does not in general prohibit a board from conducting executive sessions that exclude employee grievants.

With respect to the attorney’s presence in closed session, the Commissioner observed that Government Code § 551.071 allows a board to consult with its attorney.  Further, under the Texas Open Meetings Act, a governmental body may include individuals in executive session whose participation is necessary for the matter under consideration.  The fact that two attorneys from the same law firm individually represented the administration and the school board during a grievance does not, in itself, establish that a violation has occurred.  According to the Commissioner, it was not improper in this case for the attorney representing the school board to be allowed in the closed session for deliberation.  The record did not reflect that the attorney did anything improper during the closed session.

The Commissioner, however, observed that it is not proper for a superintendent to be allowed into an executive session when a grievance is being deliberated, unless the superintendent’s presence is necessary.  Here, because the superintendent’s presence was not necessary, he should not have been in the executive session when the grievance was discussed.  Nevertheless, the fact that deliberation may have been conducted in violation of the Texas Open Meetings Act does not mean that a vote based on that deliberation is void.  The Commissioner stated:  “There is a considerable difference between a vote that was improperly taken and a deliberation that was not proper.”

Walker also complained that she had filed a second grievance concerning procedural irregularities in the first grievance, but that the board did not respond to the second grievance.  The Commissioner held that Walker did not have to file a second grievance to raise procedural irregularities in the first grievance.  Also, the record did not include the second grievance, so no violation was found.  The Commissioner also held that Walker did not adequately support her claim that the board was incapable of  providing her with a fair hearing.  The Commissioner returned the matter to the school district to consider new evidence relevant to the first grievance.

Things to Remember:  The issue of who goes into closed session with the board on a grievance comes up frequently.  This case provides the Commissioner’s view on the matter.  Attorneys and superintendents should take note.

Compensation

DID THE SCHOOL DISTRICT IMPROPERLY DENY THE TEACHER A “DATE” GRANT?

Case citation:  Trickey v. Longview ISD, Dkt. No. 057-R8-0511 (Comm’r Educ.  August 29, 2013).

Summary:   Judith Trickey worked as a teacher for the Longview Independent School District, when she filed a grievance claiming that the district improperly decided that its District Awards for Teacher Excellence (DATE) grants would be based on two years of performance, instead of one year.  If the district had used only the most recent year of teacher performance to calculate DATE grants, Trickey would have received a grant.  In response, the district argued that the Commissioner did not have jurisdiction over the matter and that it properly awarded the DATE grants.

Ruling:  The Commissioner held that, although jurisdiction existed over Trickey’s appeal, the claims were without merit.  The district argued that jurisdiction did not exist because 19 Tex. Admin. Code § 1073(h)(3) states: “Local decisions regard award amounts are final and may not be appealed to the commissioner.”  According to the Commissioner, that provision did not bar a teacher from filing an appeal claiming that she should have received an award.  Rather, the provision prohibits a teacher from filing an appeal that the district set the general award amounts improperly.

With respect to DATE grants, the Commissioner observed that DATE was created under chapter 21, subchapter O of the Texas Education Code, to allow local school districts to award additional compensation to teachers and to provide additional resources for teacher induction and mentoring.  Districts submit a DATE plan to the Texas Education Agency (TEA) for approval.  By statute and by rule, the plans must meet certain requirements.

Trickey argued that DATE grants should be awarded based on one year of performance.  She argued that (1) under Education Code § 21.703, the TEA is required to use DATE funds each year; and (2) under 19 Tex. Admin. Code § 102.1073, DATE is an annual grant program.  The Commissioner held that neither of those provisions required DATE awards to be based on one year’s performance.  The Commissioner stated:  “The fact that an award is annually bestowed does not mean the award must be for work done during one year.”  Thus, the Commissioner denied the appeal.

Reassignment

CAN A SPECIAL EDUCATION DIRECTOR BE REASSIGNED TO DAEP COORDINATOR?

Case citation:  Lopez v. West Oso ISD, Dkt. No. 015-R1-1010 (Comm’r Educ.  August 29, 2013).

Summary:   Alfred Lopez was employed as the Special Education Director of the West Oso Independent School District during the 2009-10 school year.  The district reassigned Lopez to the position of Disciplinary Alternative Education Program Coordinator for the 2010-11 school year.  Lopez received the same salary in the DAEP Coordinator position.  Lopez filed a grievance challenging the reassignment, arguing that the school district improperly changed his professional capacity in violation of Education Code § 21.206.  He claimed the reassignment was a demotion and that the district was required to employ him in the same professional capacity as his previous Special Education Director position.

Ruling:   The Commissioner upheld the reassignment decision.  The district’s positions of Special Education Director and DAEP Coordinator were in the same professional capacity.  After comparing the detailed job descriptions of each position, the Commissioner observed that both positions were administrative positions.  A comparison of the job duties, authority, salary, and required credentials indicated that while there were differences between the positions, the differences were not so great as to put the two positions in separate professional capacities.

Things to Remember:  This is a good illustration of how broad the term “same professional capacity” is. 

DID THE REASSIGNMENT AMOUNT
TO A DEMOTION?

Case citation:  Hughes v. Lancaster ISD, Dkt. No. 048-R3-0112 (Comm’r Educ.  August 30, 2013).

Summary:    Chauna Hughes worked for the Lancaster Independent School District as a middle school instrumental music teacher and received a stipend as the band director.  By letter dated June 23, 2011, Hughes received notice that she was being reassigned for the 2011-12 school year as an elementary school vocal music teacher.  Hughes filed a grievance challenging the reassignment, but the district denied the grievances.  Hughes then appealed to the Commissioner of Education.  On appeal, she argued that the district improperly reassigned her to a position that was not within the same professional capacity and amounted to a demotion.  She claimed that she did not receive timely notice of a reduction in pay and that, instead of a reassignment, the district’s actions constituted an unlawful nonrenewal.

Ruling:   The Commissioner held that the district’s actions were supported by substantial evidence.  The Commissioner observed that, under Texas Education Code § 21.206, if a school district fails to timely give a teacher notice of proposed nonrenewal when the teacher’s contract is about to expire, the school district is required to employ the teacher in the “same professional capacity” for the following school year.  A requirement to employ a teacher in the “same professional capacity” is triggered only when a contract is about to expire and timely notice of proposed nonrenewal is not given.  Here, the Commissioner held that the district did not violate § 21.206 because Hughes was reassigned for the third year of a three-year contract.

The claims regarding Hughes’ salary also were without merit.  According to the Commissioner, a district may reduce a teacher’s total salary if the teacher is given notice of the salary reduction at a time when the teacher can unilaterally withdraw from the teaching contract.  In this case, the evidence was insufficient to show what Hughes’s total compensation was for the 2011-12 school year.  Thus, the Commissioner could not determine whether the district improperly decreased her total compensation.  The district’s reassignment decision was supported by substantial evidence.

Use of Force

DID THE DISTRICT PROPERLY NONRENEW THE TEACHER FOR USING FORCE AGAINST A STUDENT?

Case citation:  Allen v. Jacksboro ISD, Dkt. No. 052-R1-06-2013 (Comm’r Educ.  August 5, 2013).

Summary:   Sarah Allen was employed as a special education teacher for the Jacksboro Independent School District during the 2012-13 school year, when the district proposed her nonrenewal.  The notice of proposed nonrenewal listed the following policy reasons:  (1) deficiencies pointed out in observation reports, appraisals, or evaluations, supplemental memoranda, or other communications; (2) incompetency or inefficiency in performance of duties; (3) insubordination or failure to comply with official directives; (4) failure to comply with board policies or administrative regulations; (5) failure to meet the district’s standards of professional conduct; (6) any breach by the employee of an employment contract; (7) misrepresentation of facts to a supervisor or district official; and (8) any reason constituting good cause for termination.  The notice of proposed nonrenewal did not specify the conduct by Allen that may have violated those policy reasons.

At the hearing, the district contended that Allen improperly disciplined a special education child who was afraid of the dark by taking the child into a dark room.  According to the district, taking the child into a dark room where the two could not be observed was inappropriate.  The technique of bringing the child into a dark room was not approved by the student’s Admission, Review, and Dismissal (ARD) Committee.  The record showed that, when the student would get disruptive in class, Allen would take the student into the bathroom with the lights off until the student calmed down.  Allen also instructed her teacher’s aide to do the same.  After the hearing, the board voted to nonrenew Allen’s contract and Allen appealed to the Commissioner of Education.

Ruling:  The Commissioner upheld the decision to nonrenew Allen’s term contract.  The main issue before the Commissioner was whether Allen’s conduct was protected by Texas Education Code § 22.0512, which provides professional employees with immunity from disciplinary proceedings when force is used against a student.  To be entitled to immunity under § 22.0512, the use of force must be justified under Texas Penal Code § 9.62 and must not violate the district’s corporal punishment policy.

The district first argued that Allen had not exhausted administrative remedies on her claim of immunity under § 22.0512, because she first raised the argument in her closing statement before the school board.  The Commissioner has previously held that a teacher who raised the issue of Education § 22.0512 in closing argument has properly exhausted administrative remedies.  According to the Commissioner, immunity under § 22.0512 is not an affirmative defense that has to be raised early in the proceedings.  Rather, the statute prohibits disciplinary action if the force is justified.

The Commissioner next considered whether the notice of proposed nonrenewal was specific enough to put Allen on notice of the conduct at issue.  The notice did not contain factual allegations to support the policy reasons cited for nonrenewal.  The Commissioner observed that when a notice of proposed nonrenewal does not provide specific factual allegations, the employee should request a more specific notice in writing.  Here, Allen did not request more specific notice and, as a result, she waived the argument that the notice of proposed nonrenewal was insufficient.

The district argued at hearing that Allen improperly used force by holding the student’s hand and that she used an inappropriate punishment by placing a special needs child who was afraid of the dark in a dark room.  The Commissioner concluded that holding the student’s hand constituted the use of force and that Allen was entitled to immunity under § 22.0512 for her action holding the child’s hand.  However, taking the child to a dark room was not punishment justified under Penal Code § 9.62.  According to the Commissioner, it was improper for the teacher to (1) use a special needs child’s fear of the dark as punishment; (2) be alone with a child in a dark room; and (3) use a disciplinary technique not authorized by the child’s ARD Committee.  The Commissioner rejected Allen’s evidentiary challenges, in part, because she had not objected to the evidence at the hearing and the evidence had no ultimate impact on the outcome of this case.  Because the teacher’s discipline technique for the student was not justified under Penal Code § 9.62, Allen was not entitled to immunity under Education Code § 22.0512.

Things to Remember:  We learn three things from this case. First, that “Holding hands is a use of force.”  Remember that on Valentine’s Day.  Second: it is OK for teachers to do this: “It is not the law that a teacher should never touch a child.” Third, we learn that it is not OK for a teacher to use an aversive technique like this without ARD approval.  Keep in mind that the ARD Committee does not have to “authorize” minor disciplinary consequences that are already authorized by the code of conduct. But this technique is a bit unusual, and should have been discussed with the parents and the ARD Committee in advance.

 

WAS IT PROPER TO DISCIPLINE THE TEACHER FOR USING A LEFT HOOK ON THE STUDENT?

Case citation:  Moreno v. Donna ISD, Dkt. Nos. 022-R10-1110, 023-R10-1110, 033-R10-1210, 041-R100411 (Comm’r Educ.  August 29, 2013).

Summary:   Silvestre Moreno, Jr. worked as a teacher for the Donna Independent School District when the district placed him on leave with pay for hitting a student.  Moreno filed grievances challenging the district’s actions.  The district denied the grievances and Moreno appealed to the Commissioner of Education.

Moreno argued that he was legally justified in using force against the student and that those who suspended him did not have the authority to do so.  He claimed further that the district did not let him present a grievance concerning another person and that it failed to investigate the matter or file a criminal complaint.  Moreno claimed that the district failed to properly train its police officers and that an employee failed to perform her duties as a police officer.

Ruling:  The Commissioner held that the district properly disciplined Moreno for using force against a student.  Under Texas Education Code § 22.0512, force against a student “is allowed if it is not deadly force and only when and to the degree the professional employee reasonably believes the force is necessary to further the purpose of education or to maintain discipline.”  According to the Commissioner, the issues are whether Moreno subjectively believed that force was necessary to further the purpose of education or to maintain discipline and, if so, whether that belief was objectively reasonable.  “An employee’s belief must be objectively reasonable for the protections of Texas Education Code section 22.0512 to apply.”

To determine whether force is reasonable, the following factors are considered:  (1) the age, sex, and condition of the child; (2) the nature of his offense or conduct and his motives; (3) the influence of his example upon other students; (4) whether the force was reasonably necessary to compel obedience to a proper command; and (5) whether the force was disproportionate to the offense, was unnecessarily degrading, or was likely to cause serious injury.

Here, the record showed that one of Moreno’s sixth grade students had been persistently disobedient and was sent to another teacher’s class.  The student returned to Moreno’s class, but continued to misbehave and began to yell and scream.  Moreno told the student to stop six separate times.  When that did not work, Moreno hit the student with a left hook to the side of the student’s torso.  Moreno acknowledged that he was skilled in boxing.  The Commissioner held that punching the student was not reasonably necessary to enforce the commands he had given the student.  The force was not proportionate to the offense and carried the risk of causing injury.  Moreno’s subjective belief that the force used was necessary, was not reasonable.  Thus, Education Code § 22.0512 did not prohibit the district from taking disciplinary action against Moreno.  Moreno claimed self-defense, however, the board could have properly rejected that claim because Moreno had not stated any facts to support a claim of self-defense in the incident report.  The Commissioner upheld the decision to suspend Moreno with pay.

Things to Remember:  This is the first time that we have seen the term “left hook” in this publication.