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Exhaustion of Administrative Remedies

WHEN CAN A NONRENEWED EMPLOYEE FILE SUIT WITHOUT FIRST APPEALING THE NONRENEWAL TO T.E.A.?

Citation:  Sharyland ISD v. Molina, 2013 WL 5305711 (Tex. App. – Corpus Christi 2013).

Summary:  Romelia Farias Molina was employed as an assistant principal in the Sharyland Independent School District.  In the spring of 2011, she was notified that her contract would not be renewed because of a reduction in force.  Molina filed a charge of discrimination alleging retaliation and discrimination on the basis of her disability.  After she received a notice of right to sue from the Texas Workforce Commission Civil Rights Division (TWC), she filed suit.  Molina did not pursue a hearing with the school district’s board of trustees or an appeal with the Commissioner of Education.

Molina sued the Sharyland Independent School District, alleging retaliation and discrimination based on her disability.  The school district filed a plea to the jurisdiction, asserting that the trial court lacked jurisdiction because Molina failed to exhaust her administrative remedies under the Texas Education Code’s Term Contract Nonrenewal Act.  The trial court denied the plea to the jurisdiction and the district filed an immediate pretrial appeal.

Ruling:  The appeals court held that Molina was not required to exhaust her remedies under the Education Code and affirmed the trial court’s order.  The appeals court observed that Chapter 21 of the Labor Code, which is also known as the Texas Commission on Human Rights Act (TCHRA), prohibits an employer from discharging or in any other way discriminating against an employee because of the employee’s race, color, disability, religion, sex, national origin, or age.  The statute also prohibits employers from retaliating or discriminating against an employee who: “(1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.”

Before suing under Chapter 21, the complainant must exhaust her administrative remedies.  It was undisputed that Molina exhausted her administrative remedies under the Labor Code. However, she did not exhaust her administrative remedies under the TCNA.  Molina contended that she was not required to exhaust her administrative remedies under the TCNA because she pursued claims of retaliation and discrimination based on her disability under the Labor Code.  Molina argued that because she exhausted her administrative remedies under the Labor Code, the trial court had jurisdiction over her suit.

A number of courts have explicitly rejected the dual-exhaustion requirement, holding that it was unnecessary for a school district employee to pursue two administrative schemes, one under the Labor Code and the other under the Education Code, before seeking relief in the courts under the TCHRA.  Here, Molina’s pleadings stated that she was only pursuing claims under the Labor Code and was not pursuing claims under the Education Code.  She argued that she had a disability, “a form of cerebral palsy which affected major life activities such as walking, balancing, working and lifting.”  Molina alleged that SISD discriminated against her on the basis of her disability.  She also claimed that the district retaliated against her because she raised the issue of discrimination.  Construing Molina’s pleadings liberally in her favor and looking to her intent, the appeals court concluded that Molina exhausted her administrative remedies under the Labor Code and was not required to exhaust her administrative remedies under the Education Code before filing suit.

Things to Remember:  This decision creates a major hole in the “exhaustion of administrative remedies” doctrine.  This employee did not request a hearing before the board, or take the case to T.E.A.  Because the claim was based on disability discrimination, the court held that exhaustion of those Chapter 21 remedies was not required.

Commissioner Jurisdiction

Editors’ Note:  The cases reported below concern the jurisdictional authority of the Commissioner of Education.  The Commissioner has jurisdiction over violations of the “school laws of this state” and the regulations adopted under those laws.  The Commissioner also has jurisdiction over violations of employment contracts that caused, or would cause, monetary harm.  To establish jurisdiction, petitioners also must exhaust administrative remedies at the district level.  Recently the Commissioner dismissed a number of cases for lack of jurisdiction.  The cases are summarized briefly below.

 

THE PETITIONERS DID NOT ALLEGE THE VIOLATION OF AN EMPLOYMENT CONTRACT

Citation & Summary:  Evans v. Donna ISD, Dkt. No. 040-R3-0311 (Comm’r Educ. August 6, 2013).  Marie Evans worked for the Donna Independent School District when she filed a grievance claiming that she was improperly demoted and reassigned.  When the district denied the grievance, Evans appealed to the Commissioner of Education.  The Commissioner, however, did not have jurisdiction over the claims because Evans failed to allege the violation of an employment contract.  She also did not state which provisions of the Texas Education Code or Texas Administrative Code the district violated.  Although she was given an opportunity to replead her claims, she failed to state facts that provided the Commissioner jurisdiction over the matter.

THE PETITIONERS DID NOT ALLEGE THE VIOLATION OF THE SCHOOL LAWS OF THIS STATE

Citation & Summary:  Olivarez v. Texas Taxpayer and Student Fairness Coalition, Dkt. No. 017-R8-1011 (Comm’r Educ. August 5, 2013).  Guadelupe Olivarez, Jr. filed a petition for review against the Texas Taxpayer and Student Fairness Coalition, La Villa Independent School District, Pharr San Juan Alamo Independent School District, the Texas Education Agency, RGV Coalition of Board Members, and Sharyland Independent School District.  The petition sought to allege a violation of an employment contract.  However, Olivarez failed to specifically allege what portion of an employment contract had been violated.  He also did not allege the violation of the school laws of this state, even after having an opportunity to amend his petition.  Thus, the Commissioner dismissed the claims for lack of jurisdiction.

Citation & Summary:  Olivarez v. La Villa ISD, Dkt. No. 009-R8-0910 (Comm’r Educ. August 5, 2013).  Guadalupe Olivarez, Jr. filed a petition for review against the La Villa Independent School District alleging that the district took action to ensure that he would not teach again in Texas.  However, he failed to allege a specific violation of an employment contract or a violation of the school laws of Texas.  Thus, the Commissioner did not have jurisdiction over the claims.

Citation & Summary:  Child v. Chilton ISD, Dkt. No. 068-R8-0611 (Comm’r Educ. August 7, 2013).  The parent of a student in the Chilton Independent School District filed a grievance complaining that the school district improperly disciplined the child.  When the district denied the grievance, the parent appealed.  However, the parent failed to allege a violation of the school laws of this state.  The Commissioner observed further that jurisdiction does not exist over disciplinary actions under Texas Education Code, chapter 37.  Thus, the claims were dismissed for lack of jurisdiction.

Citation & Summary:  Child v. Spring ISD, Dkt. No. 018-R10-1010 (Comm’r Educ. August 7, 2013).  The a parent of a student in the Spring Independent School District filed a grievance claiming that school officials improperly searched the student’s purse and confiscated her gum.  The district denied the grievance and the parent appealed to the Commissioner of Education.  However, the Commissioner lacked jurisdiction because the parent failed to allege the violation of the school laws of this state and failed to exhaust administrative remedies.  The parent failed to state facts to support claims that the district violated Education Code § 4.001 concerning school district objectives and § 22.0511 concerning professional immunity.  In addition, the parent had not exhausted administrative remedies by raising alleged violations of Education Code § 26.008 in her grievance.

Citation & Summary:  Child v. Blum ISD, Dkt. No. 100-R10-0811 (Comm’r Educ.  August 29, 2013).  The parent of a child in the Blum Independent School District filed a grievance claiming that the district did not properly recognize him as the highest-ranking graduate in his class.  The school district denied the grievance.  On appeal, the Commissioner held that jurisdiction did not exist because the parent failed to allege a violation of the school laws of Texas.

Citation & Summary:  Child v. Rockwall ISD, Dkt. No. 090-R10-0612 (Comm’r Educ. August 29-2013).  The parents of a child in Rockwall Independent School District filed a grievance claiming that the district should have nonrenewed the contract of a coach who allegedly violated Education Code § 26.008 and § 4.001(b), board policy, and the Code of Ethics and Standard Practices for Texas Educators.  The district denied the grievance.  The Commissioner also dismissed the appeal for the lack of jurisdiction.  The Commissioner does not have jurisdiction over alleged violations of the Code of Ethics or board policies.  Education Code § 4.001(b) merely states the objectives of public education and the Commissioner cannot substitute his judgment for the school board when there is an alleged failure of a school board to live up to those objectives.  Further, although Education Code § 26.008(b) allows a district to take action on an educator contract for encouraging or coercing a child to withhold information from a parent, a district’s decision to do so is purely discretionary.  Thus, the failure to take contract action under those circumstances does not violate § 26.008(b).  The claims were dismissed for lack of jurisdiction.

THE PETITIONERS DID NOT EXHAUST ADMINISTRATIVE REMEDIES

Citation & Summary:  Johnson v. Luling ISD, Dkt. No. 083-R1-0810 (Comm’r Educ. August 6, 2013).  Kimberly Johnson worked for the Luling Independent School District.  She filed a petition for review with the Commissioner claiming that the superintendent illegally reassigned her in retaliation for reporting violations of law and that she lost supplemental duty pay as a result.  She also challenged her evaluations for not being conducted annually.  In addition, she alleged that the district failed to report incidents of sexual harassment and violations of the Texas Penal Code.  She also requested that the TEA initiate an investigation against the superintendent.  The Commissioner held that jurisdiction did not exist over the claims.  The claims concerning supplemental duty pay did not amount to an alleged violation of an employment contract.  She did not exhaust administrative remedies with respect to the failure to investigate wrongdoing and her evaluations.  Also, the Commissioner does not have jurisdiction over alleged constitutional violations or claims that the superintendent failed to report wrongdoing to the TEA.

Citation & Summary:  Hooks v. Texhoma ISD, Dkt. No. 029-R10-1111(Comm’r Educ. August 6, 2013).  Theresa M. Hooks was employed as a bus driver and teacher’s aide under an at-will oral contract.  After the district terminated her, she filed a grievance.  She failed to attend the Level I grievance, but nevertheless received a hearing before the board of trustees.  The board denied the grievance.  On appeal to the Commissioner, she argued that the district violated Texas Education Code § 11.171.  However, because she did not raise that argument before the board of trustees, she failed to exhaust administrative remedies.  The Commissioner, thus, lacked jurisdiction over the claims.

Citation & Summary:  Child v. Birdville ISD, 081-R10-0810 (Comm’r Educ. August 7, 2013).  The parent of a student in the Birdville Independent School District filed an appeal with the Commissioner of Education after the school board denied her grievance concerning alleged violations of the Code of Ethics and Standard Practices for Texas Educators.  The claims stemmed from the district’s handling of student-on-student harassment.  The Commissioner informed the parties that jurisdiction did not exist over the matter.  The parent amended the appeal, claiming certain violations of the Texas Education Code.  However, those claims had not been raised before the board of trustees.  Thus, the parent failed to exhaust administrative remedies and the claims were dismissed for lack of jurisdiction.

Citation & Summary:  Child v. Quitman ISD, Dkt. No. 036-R10-0111 (Comm’r Educ. August 7, 2013).  The parent of a student in the Quitman Independent School District filed an appeal to the Commissioner of Education claiming that the district violated Texas Education Code § 28.025.  Specifically, the parent claimed that the district did not comply with statutes and rules related to compiling academic achievement records and reporting class ranking to the Texas Higher Coordinating Board.  According to the parent, the district’s actions resulted in harm to the student by misstating her class rank in representations to colleges where she applied for admission.  The Commissioner lacked jurisdiction over the claims because the parent did not first file a grievance with the school district over the claims.  Because she failed to exhaust administrative remedies, the Commissioner dismissed the appeal.

Citation & Summary:  Child v. Red Oak ISD, Dkt. No. 007-R5-1011 (Comm’r Educ. August 29, 2013).  The parent of a child in the Red Oak Independent School District filed a grievance complaining of the school district’s decision to deny the student’s request for an exemption to the student dress code.  The parent only proceeded through two levels of the district’s three-level grievance process, before appealing to the Commissioner of Education.  The Commissioner dismissed the appeal for lack of jurisdiction because the parent failed to complete the district’s grievance process.

Citation & Summary:  Child v. Trent ISD, Dkt. No. 101-R10-0811 (Comm’r Educ.  August 29, 2013).  The parent of a child in the Trent Independent School District filed some papers with the Commissioner of Education related to a grievance that was presented to the district’s board of trustees.  The Commissioner informed the parent that they had not properly filed a petition for review and provided the parent an opportunity to do so.  When the parent failed to file a petition for review, the Commissioner dismissed the case for lack of jurisdiction.