Ima Stayin, a third-year probationary contract teacher at your school, has noticeably declined in her classroom performance for unknown reasons. You, Able Admin, have conducted observations, placed Ima on a growth plan, and visited with her on several informal occasions in an attempt to remediate her performance. At your last meeting before the holidays, you inform Ima that if she is unable to improve, you will have to consider recommending the termination of her probationary contract. Unfortunately, Ima has been resistant to your attempts and expressed consternation at the idea of her not being the best teacher in the district. Instead, Ima returns from the winter break and presents you with a letter from her attorney, the Texas Chisel, who informs you that any alleged deficiencies in Ima’s performance are the result of: (i) illegal harassment from her department chair, which Ima intends to complain about with the Equal Employment Opportunity Commission (EEOC); (ii) a reaction to a bite she claims she received from a service animal accompanying a student in one of her classes that inflicted her with “Dawg Rabies” and now renders her disabled and unable to concentrate properly in the classroom; and (iii) the stress created by your seemingly constant presence in her classroom.
As if this is not enough of a headache for you, the letter requests that Ima be placed on workers’ compensation and assault leave for the remainder of the school year while she gets treated for her “Dawg Rabies.” The letter also includes a DGBA grievance form which complains that you are personally biased against her only because she is engaged to be married to another teacher, the head of the local teacher association, who coincidentally spoke negatively against you during the public comment session at the most recent Board meeting. The letter concludes by informing you that Ima observed the department chair drinking vodka and smoking with three of her fifth-grade students in the boy’s room during her planning period, and that she has notified the sheriff and the Department of Family and Protective Services.
Leading up to this meeting, Ima had not completed any of the items on her growth plan, and you had already tentatively decided that she was not a candidate to be recommended for a term contract for the following school year. Following receipt of this letter, you also learn from a student that Ima has created a Facebook page asking her friends to support her petition with “likes” which she will file with the Board asking that both you and the department chair be fired.
What do you do? Should you move forward with a recom- mendation to terminate her probationary contract? What are the pitfalls? If you do move forward as planned, how do you and the district navigate and address the various complaints raised by Ima in her letter?
Although perhaps extreme in example, the Ima Stayin hypo- thetical here presents issues that are common to school districts, even if not presented in such dramatic combination. The myriad of complaints and concerns raised by Ima Stayin can constitute the invocation of protected legal rights that prohibit retaliation in response. Even if the complaints and concerns raised by Ima Stayin prove to be without merit, how you and the district respond will determine whether a viable retaliation claim can arise. We look at the legal parameters surrounding retaliation claims to understand how you, Able Admin, can steer through this storm and avoid turning a slam dunk adverse personnel action decision against a poor performing employee into a costly retaliation lawsuit.
What is retaliation?
Retaliation by an employer occurs when an employer bases an adverse employment action on an employee’s exercise of any of his or her federal or state rights. In general, review of a retaliation claim will begin with three preliminary questions:
- Did the employee engage in a “protected activity”?
- Was there an adverse employment action?
- Is there a causal connection between the protected activity and the adverse action?
If a plaintiff employee is able to demonstrate that the answer to each of these three questions is yes, the employer must show that there was a legitimate non-retaliatory reason for the adverse actions at issue. Proper administrative documentation is crucial in not only answering the three-part test set out above, but also establishing the legitimacy of any personnel actions so as to defeat a retaliation claim. This article will provide an overview of what the courts are saying about retaliation claims, the role of documentation with respect to retaliation claims, and provide practical tips on how the school administrator can effectively document personnel actions in a manner that will minimize the potential risk of liability from a retaliation claim asserted by an employee.
What is protected activity?
Retaliation claims may be brought under a variety of federal anti-discrimination statutes, as well as state and local laws. Many of these laws contain express prohibitions against retaliation and create a separate cause of action for an employee who has asserted his or her rights under the statute. The employee’s assertion of these enumerated legal rights is considered “protected activity.” Below is a list of some of the more typical laws that prohibit retaliation.
FEDERAL ANTI-DISCRIMINATION RETALIATION LAWS
Title VII of the Civil Rights Act of 1964
Title VII prohibits retaliation for an employee’s opposition to an employment practice believed to be in violation of Title VII prohibitions against discrimination based on race, color, religion, sex or national origin. Courts have recognized two types of protected activity for purposes of Title VII retaliation claims:
1. Opposition to a practice which the individual believes is unlawful discrimination; and
2. Participation in an employment discrimination proceeding.
Protected activities include opposing any unlawful employment practice or making a charge, testifying, assisting, or participating in an investigation, proceeding or hearing. According to EEOC guidelines, covered individuals include those who oppose unlawful practices, participate in proceedings or request accommodations related to employment discrimination under Title VII, as well as persons with a close association with an individual who has engaged in a protected activity (e.g., firing an employee based on her spouse’s protected activity). This broad definition protects those individuals who may not have been the original target or subject of the discrimination, but subsequently participate or aid in an investigation regarding the matter.
Age Discrimination in Employment Act
Protected activities include opposing unlawful employment practices and participating in an investigation, proceeding or litigation.
Equal Pay Act (and the Fair Labor Standards
Protected activities include filing a complaint and testifying.
Americans with Disabilities Act (“ADA”)
Protected activities include opposing any unlawful employment practice or making a charge, testifying, assisting or participating in an investigation, proceeding or litigation. It is also unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of any protected rights under the ADA.
Family and Medical Leave Act (“FMLA”)
Protected activities include opposing unlawful employment practices, filing a charge, or testifying at a proceeding.
STATE ANTI-DISCRIMINATION RETALIATION LAWS
Texas Workers’ Compensation Act
Employers are prohibited from discriminating or retaliating against any individual based on his or her filing of a claim forworkers’ compensation. The law states:
A person may not discharge or in any other man- ner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith or hired a lawyer to represent the employee in a claim. Tex. Labor Code § 451.001.
An employee who files a claim for workers’ compensation and does not or cannot attend work as a result of the claimed injury may not be fired for considering or filing a claim, but can be ter- minated pursuant to a neutral absence control policy, assuming he or she is not otherwise protected under the ADA or the FMLA.
Texas Whistleblower Act
(Tex. Gov’T Code § 554.001-010)
The Texas Whistleblower Act prevents retaliation against public employees who report violations of the law by public officials.
A state or local government entity 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 employ- ing governmental entity or another public employee to an appropriate law enforcement authority. Tex. Gov’T Code § 554.002(a).
The TWA expressly waives the sovereign immunity typically enjoyed by school districts. The Act requires a district employee to file a grievance pursuant to board policy, alleging retaliation in violation of the Texas Whistleblower Act, before suing in state district court.
Common Board Policies Relating to Employee
Rights and Privileges
There are several Board Policies that specifically discuss prohibitions against discrimination or retaliation of an employee engaging in specific employment rights and privileges. Below is a list of the more common Board Policies that incorporate state and federal laws relevant to this discussion.
Workers’ Compensation. A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; (3) instituted or caused to be instituted in good faith a proceeding under the Texas Workers’ Compensation Act; (4) testified or is about to testify in a proceeding under the Texas Workers’ Compensation Act. Tex. Labor Code § 451.001.
Note: CRE(LEGAL) also states that a district that terminates an employee for violating a reasonable neutral absence-control policy cannot be liable for prohibited discrimination as long as the rule is uniformly enforced.
Whistleblower Protection. To establish a claim under the Whistleblower Act, a plaintiff must establish that: (1) he was a public employee, (2) the defendant was a state or local government entity, (3) plaintiff reported, in good faith, a violation of law, (4) to an appropriate law enforcement agency, and that (5) his report was the cause of defendant’s decision to terminate his employment.
Child Abuse Reporting. The Board may not suspend or terminate the employment or otherwise discriminate against a professional employee who in good faith:
(a) reports child abuse or neglect to:
(i) the person’s supervisor,
(ii) an administrator of the facility where the person is employed,
(iii) a state regulatory agency, or
(iv) a law enforcement agency; or
(b) initiates or cooperates with an investigation or proceed- ing by a governmental entity relating to a child abuse or neglect allegation.
Free Speech Rights. A District employee does not shed his or her constitutional rights to freedom of speech or expression at the schoolhouse gate. However, neither an employee nor anyone else has absolute constitutional rights to use all parts of a school or its immediate environs for unlimited expressive purposes. When a public employee makes statements pursuant to his or her official duties, the employee is not speaking as a citizen for First Amendment purposes, and the Constitution does not insulate the communications from employer discipline. Garcetti v. Cebal- los, 547 U.S. 410 (2006); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). The test used by Courts is whether the employee is speaking on a matter of public concern.
Use of Physical Force. An employee may not be subject to disciplinary proceedings for the employee’s use of physical force against a student to the extent justified under Texas Penal Code
§ 9.62, which provides that the use of force, other than deadly force, is justified against a person:
(a) if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and
(b) when and to the degree the actor reasonably believes force is necessary to further the special purpose or to maintain discipline in a group.
The District is not prohibited from enforcing a policy against corporal punishment or taking disciplinary action against an em- ployee who violates the corporal punishment policy.
Freedom from Discrimination, Harassment, and Retali- ation. Most schools’ DIA(LOCAL) will set out that the school prohibits retaliation against an employee who makes a claim alleging to have experienced discrimination or harassment, or another employee who, in good faith, makes a report, serves as a witness, or otherwise participates in an investigation. Examples of retaliation may include termination, refusal to hire, demotion, and denial of promotion. Retaliation may also include threats, unjustified negative evaluations, unjustified negative references, or increased surveillance. An employee who intentionally makes a false claim, offers false statements, or refuses to cooperate with a District investigation regarding harassment or discrimination is subject to appropriate discipline.
Family and Medical Leave Act. The FMLA prohibits interference with an employee’s rights under the law, and with legal proceedings or inquiries relating to an employee’s rights. 29 U.S.C. § 2615; 29 C.F.R. § 825.220
Political Participation. The Board or any District employee may not directly or indirectly require or coerce any teacher to re- frain from participating in political affairs in his or her community, state, or nation. Tex. Educ. Code § 21.407(b).
Labor Organization. An individual may not be denied em- ployment by the District because of the individual’s membership or non-membership in a labor organization. Tex. Gov’t. Code § 617.004. “Labor organization” means any organization in which employees participate that exists, in whole or in part, to deal with one or more employers concerning grievances, labor disputes, wages, hours of employment, or working conditions. Tex. Gov’t. Code § 617.001.
Compliance with a Subpoena. A school district may not discharge, discipline, or penalize in any manner an employee because the employee complies with a valid subpoena to appear in a civil, criminal, legislative, or administrative proceeding. Tex. Labor Code § 52.051(a).
Jury Duty. A school district may not discharge, discipline, reduce the salary of, or otherwise penalize or discriminate against an employee because of the employee’s compliance with a summons to appear as a juror. For each regularly scheduled workday on which a non-salaried employee serves in any phase of jury service, the District shall pay the employee the employee’s normal daily compensation. An employee’s accumulated personal leave may not be reduced because of the employee’s service in compliance with a summons to appear as a juror. Tex. Educ. Code § 22.006.
Ima, Ima! Is She Stayin?
As you can see, Ima has done an effective job in her letter to you to at least implicate the assertion of “protected activity” under several of the federal and state laws and Board policies identified here. If Ima is ultimately terminated, she very well may claim that she was retaliated against in violation of Title VII, the ADA, the FMLA, the First Amendment, the Texas Whistleblower Act, the Texas Workers’ Compensation Act, state law protecting child abuse reporting and the assertion of assault leave, and as you will see below, even perhaps protecting her relationship with her fiancé, who is an active labor organization participant. But, remember, before Ima can bring a retaliation claim, she also has to be able to show that she suffered an adverse action.
What is an adverse action?
Over the years, federal courts have broadened the concept of what constitutes an “adverse action”; this term now encompasses many employment decisions or actions in addition to refusal to hire, termination, reassignment or decreased compensation. EEOC guidelines define “adverse action” as any action taken to try to keep someone from opposing a discriminatory practice or participating in an employment discrimination proceeding, including:
• refusal to hire;
• denial of promotion;
• unjustified negative evaluations or references;
• increased surveillance; or
• any other action likely to deter a reasonable person from pursuing their rights.
What has the U.S. Supreme Court said about adverse action?
In 2006, the U.S. Supreme Court finally resolved a conflict between various circuit courts of appeal as to the meaning of an “adverse employment action” which is an important component of a claim for retaliation. In Burlington Northern & Santa Fe. Ry. Co. v. White, 126 S.Ct. 2405 (2006), the Supreme Court held that only actions that result in a materially adverse change in the employee’s terms of employment satisfy the definition. The Court went on to state that an adverse employment action need not relate to the specific terms and conditions of the employee’s job, provided that the action had the effect of dissuading someone from engaging in protected activity.
In 2011, the U.S. Supreme Court reiterated the breadth of what might constitute retaliation in Thompson v. North American Stainless, 131 S.Ct. 863 (2011). In this case, the Plaintiff and fiancée were employees of Defendant. In February 2003, the plaintiff ’s fiancée filed an EEOC claim. The Plaintiff did not therefore technically engage in any protected activity himself, raising an issue as to whether he could even sue for retaliation under Title VII. Three weeks later, the Plaintiff was fired. The Plaintiff filed a claim stating that the Defendant fired him in order to retaliate against his fiancée for filing her EEOC charge. The Supreme Court held that Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct. It prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a discrimination charge. The provision is not limited to discriminatory actions that affect specific terms and conditions of employment. The Supreme Court stated that Title VII’s anti-retaliation provision is worded broadly and there is not an explicit, categorical rule that third-party reprisals do not violate Title VII. The Court found that an “aggrieved” person under the statute is one with an inter- est arguably sought to be protected by the statute – termed the “the zone of interests” test. The Court went on to note that the significance of any given act of retaliation will often depend upon the particular circumstances. “Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules.”
Last year, however, the U.S. Supreme Court, issued two significant decisions that are more favorable to employers than the preceding Burlington or Thompson cases. Perhaps not surprisingly, both of these were decided by a narrow 5-4 majority of the nine justices. In UT Southwestern Medical Center v. Nassar, 133 S.Ct.
2517 (2013), the Court addressed the legal standard for a retaliation claim brought under Title VII. In that case, Nassar, a physician of Middle Eastern descent, brought a Title VII action against the University, alleging (1) he was constructively discharged from a university faculty position because of racially and religiously motivated harassment by a superior and (2) that the university retaliated against him for complaining of alleged harassment. The Supreme Court took the case to determine whether a “but for” or “motivating factor” test should apply. In other words, did Nassar have to show that the alleged desire to retaliate was a motivating factor (a lesser burden of proof for him) or that “but for” a retaliatory desire, no adverse action would have been taken against him. The Supreme Court ruled that the test under Title VII for a retaliation claims is a “but for” test. The majority wrote:
Lessening the causation standard for retaliation claims could lead to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired just for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. The lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage.
In Vance v. Ball State University, 133 S.Ct. 2434 (2013), the same five-justice majority that decided Nassar also positively ruled for employers by narrowly defining who constitutes a “supervisor” that could create employer liability under Title VII’s retaliation provision. Here, the Supreme Court decided that a supervisor under Title VII is one empowered by the employer to make “tangible employment actions.” According to the Court, a co-worker who allegedly harasses an employee is not considered a supervisor under Title VII.
So, if Ima is terminated, the Supreme Court’s decision in Nassar is basically saying that she has to prove that her poor performance was not a factor in the decision. She has to show that “but for” the assertion of her protected activity, the termination decision would not have been made. And the Supreme Court’s decision in Vance would likely preclude any retaliation claims under Title VII against the school based on any alleged actions made by the department chair if he was not authorized to make tangible employment decisions. But has Able Admin done a sufficient job documenting her poor performance?
More Illustrative Court Cases from the Fifth Circuit Court of Appeals
It is widely recognized that the number of retaliation claims has greatly increased since the Court’s decision in Burlington. Below are some recent examples of cases coming out of our own Fifth Circuit Court of Appeals that reflect this increase and the need for careful documentation by administrators when addressing personnel matters.
In Haire v. Board of Supervisors of LSU, 719 F.3d 356 (2013), the Plaintiff, Haire, began as an on-the-beat police officer but was promoted to roles with increased administrative responsibilities: sergeant, lieutenant, captain, major. In 2007, the Chief of Police retired and Plaintiff applied. She never heard anything regarding this application, then Durham, the Public Safety Director, was appointed interim. The position remained open another two years while the new chancellor looked for a permanent replacement. Allegedly, after Durham was appointed, Plaintiff then began to be excluded from decision–making, which her job had previously allowed her to take part. Plaintiff alleged she began to face hostility from a coworker, Rabalais, who was also a major and competing with her for the Chief position. Rabalais allegedly told a coworker that he wanted to get rid of Plaintiff and that if a woman was appointed Chief he would quit. Rabalais was involved in an investigation into Plaintiff ’s alleged misconduct which cost her the promotion. Rabalais exercised significant leverage over LSU’s decision-maker. Rabalais gave Plaintiff the lowest performance rating she had received in her 22 years at LSUPD. As a result, Plaintiff allegedly lost her supervisory responsibilities, certain subordinate personnel, her position as commander of Football Gameday Operations, and the ability to earn overtime pay.
Rabalais was hired interim Chief, despite lacking an undergrad degree. Rabalais was named interim Chief in August 2009. Haire filed an EEOC charge of discrimination on September 29, 2009. Then, Rabalais was named permanent Chief in January 2010. The Fifth Circuit held that the Plaintiff had established a prima facie case of retaliation: she engaged in activity protected by statute; an adverse employment action occurred; and a causal link existed between the protected activity and the adverse employment action. The Fifth Circuit noted that, unlike the discrimination provision of Title VII which limits adverse actions to “ultimate employment decisions” affecting the terms and conditions of employment, the anti-retaliation provision is not so limited. In the Plaintiff ’s case, the evidence that her job changed, that she was excluded from meetings, and that her pay was affected (no more overtime) – rose to the level of adverse actions for the anti-retaliation provision. “They were more than petty slights, minor annoyances, simple lack of good manners.” The Fifth Circuit held that a genuine issue of material fact existed as to whether the University’s reasons for promoting Rabalais instead of Haire were legitimate, thus revers- ing the summary judgment granted by the lower court in favor of the university and sending the case back to the lower court for further review.
Adverse actions that could be actionable retaliation can extend beyond just terminations. So, if Able Admin gives Ima a negative evaluation that leads to a reassignment with lower pay, and he isn’t able to support his negative evaluation, Ima might be able to have a jury decide her case.
In Goudeau v. East Baton Rouge Parish School Board, 2013 WL 5514548 (5th Cir. 2013), the principal allegedly told the Plaintiff teacher to artificially inflate students’ grades. No student was to receive a grade of less than 60. The principal directed Plaintiff to change some grades from an F to a D. The principal’s Monday Morning Memos reinforced the principal’s grading policy. Despite the principal’s directive, the Plaintiff tried to give her students the grades they deserved. This was opposed by the principal and office staff often changed the grades. The principal threatened to discipline and transfer Plaintiff if she did not comply with the grading policy. The principal eventually threatened to fire the Plaintiff if she did not transfer to another campus, which the Plaintiff alleged was a less prestigious school and viewed as retribution. The Plaintiff filed a formal complaint. At a Level III hearing, it was agreed that the principal failed to follow the grading plan, but no action was taken against the principal based on Plaintiff ’s complaint. Plaintiff then alleged that the principal transferred her to a less desirable school in retaliation for her comments. Plaintiff sued under §1983, alleging that defendants violated her First Amendment rights. The Fifth Circuit held that a job transfer can be an adverse employment action for the purposes of a §1983 retaliation claim. The Fifth Circuit also held that the Plaintiff ’s speech here did ad- dress a matter of public concern invoking free speech protections, but ultimately could not satisfy the high standard necessary under § 1983 claims for liability to attach.
In Haverda v. Hays County, 723 F.3d 586 (5th Cir. 2013), the Plaintiff was a Captain of Corrections. He supported the incumbent sheriff in the 2010 election, however, the challenger won. The new Chief Deputy found the jail in bad condition and attributed it to the three command staff. He recommended to the new sheriff that he suspend their terminations while giving them time to improve their performance. The Chief Deputy alleged that the Plaintiff did not improve his performance. In February 2011, Plaintiff was instructed to “get on the train or he would be moved to a maintenance position.” Plaintiff filed a grievance with the Sheriff and a week later was demoted to corrections officer. The Fifth Circuit reviewed the standard for a retaliation claim under the First Amendment, stating a plaintiff must establish: he suffered an adverse employment decision; his speech involved a matter of public concern; his interest in commenting on matters of public concern outweighs the employer’s interest in promoting efficiency; and his speech motivated the adverse employment decision. The Fifth Circuit reversed the district court’s pretrial judgment in favor of the County. Four notable quotes from this decision:
1. “Once the plaintiff meets his burden of showing that his protected speech was a substantial or motivating factor in the Defendant’s adverse employment decision, a Defendant may still avoid liability by showing, by a preponderance of the evidence, that it would have taken the same adverse employment action even in the absence of the protected speech. An employee can refute this showing by presenting evidence that ‘his employer’s ostensible explanation for the discharge is merely pretextual.”
2. “Summary judgment should be used most sparingly in First Amendment cases involving delicate constitutional rights, complex fact situations, disputed testimony, and questionable credibilities. Claims requiring a determination regarding intentions or motives are particularly unsuitable for summary adjudication…If plaintiffs claim that some conduct on the part of defendant abridged their First Amendment rights, summary judgment may be precluded because questions concerning defendant’s motives or knowledge must be determined.”
3. “Defendants must establish that they would have taken the same adverse employment action even in the absence of the protected speech. The issue isn’t whether Plaintiff could have been demoted for the condition of the jail, but whether he would have been demoted if he had not engaged in protected speech.”
4. “For an employee’s speech to be protected by the First Amendment, he must be speaking as a citizen on a matter of public concern.” “An employee isn’t speaking as a citizen, but rather in his role as an employee, when he makes statements pursuant to his official duties.”
In Mooney v. Lafayette County School District, 2013 WL 4018662 (5th Cir. 2013), the district eliminated Plaintiff ’s position, resulting in the nonrenewal of her employment contract and termination. The termination occurred three years after Plaintiff supported a challenger in a local school superintendent election, instead of supporting the incumbent. The record showed that the incumbent was supported by most of Plaintiff ’s colleagues. The Fifth Circuit stated, “Close timing between a public employee’s protected activity and an adverse employment action can be a sufficient basis for a court to find a causal connection required to make out a prima facie case of First Amendment retaliation… Temporal proximity between a protected activity and an adverse employment action should be viewed in the context of other evidence. The causal connection prong, for example may also be satisfied when the Plaintiff relies upon a chronology of events from which retaliation may plausibly be inferred.” Here, the Court reversed the grant of summary judgment, finding the Plaintiff had introduced sufficient evidence on her First Amendment claim that her political choice was a motivating factor in defendant’s decision to nonrenew her contract. The Plaintiff has to prove that protected activity was only “one reason” motivating the adverse employment decision. This makes it difficult for employers to get such cases dismissed on summary judgment.
With the law and these cases providing a backdrop, you can see the importance that documentation will play in responding to retaliation claims. Without contemporaneous documentation supporting the adverse employment action, it will be easier for the employee to argue that the reasons offered are false and a pretext for retaliation. Imprecise or poorly-worded documentation can have the same negative impact. With this in mind, we turn now to documentation.
The role of documentation.
Proper personnel documentation, or the lack thereof, can make or break a claim of retaliation. The concept of retaliation is not specific to one law, but rather is a common theory of liability found within many laws which confer rights upon an individual. Under the various theories of discrimination and retaliation, one common thread in plaintiffs’ arguments is that the employer made a decision or took an action based on an unlawful consideration or factor. Many times, a complaint made by an employee may be frivolous and without merit, but the responses and reactions taken by the employer in follow-up create a viable retaliation claim. Ef- fective documentation serves numerous functions. Ultimately, the
purpose of good documentation is to support decisions made at all levels by all employees and to ensure those decisions are legally defensible. Good documentation will show that you are legally, ethically, and fairly treating employees, parents, and students.
Legal considerations for documentation
Increases Credibility. Good documentation increases the credibility of administrators and school districts at grievance proceedings, hearings before administrative agencies, with the public, the school board, and in the courts. After all, people tend to believe what they read.
Establishes a Record of Any Actions or Events. Documentation can be used to support decisions and becomes especially important if any complaint eventually lands in the courthouse. A good paper trail can make or break your case.
Evidence of Fair Treatment. Employees claiming unfair, discriminatory, or retaliatory treatment will be hard pressed to rebut evidence that other employees were treated the same under similar circumstances.
Creates evidence to support a proposed contract non- renewal or termination action. Action against an employee’s contract typically requires the production of supporting evidence created before the action is taken.
Ethical considerations for documentation
Expected Standards of Conduct. The school district should not assume that students or employees know what standard of conduct is expected. The duty is on the school district to clearly identify the standard of acceptable conduct through policies and rules, and reinforce that standard consistently and through clear documentation where appropriate.
Remediation Factors. For term, probationary or continuing contract employees, remediation efforts may be required prior to termination or nonrenewal. This includes notice of the deficiency and an opportunity to improve. For non-contract employees, remediation efforts may not be required by law, but do show fairness and objectivity. Reviewing agencies, such as the EEOC, often expect this.
Practical considerations for documentation
Aids Memory. All things fade with time. If you do not write down the conclusion of a conference, then the meeting can become a distant memory. It is always best to document as things happen.
Prevents Later Denial of Events. Thorough documentation serves as proof of any meetings or discussions.
Minimizes Misunderstanding. Documentation helps all parties involved understand the situation, and gives the parties a chance to dispute the accuracy of documentation.
Supports a Successor. Proper, well-kept documentation will help any future supervisor make decisions concerning the subject of the documentation, and may also support those decisions if there is a pattern of performance issues.
Documentation Do’s and Don’ts.
1. Do Be Accurate
• Facts are (1) objective, (2) supported by reliable information received from others or your own observations, and (3) do not include subjective conclusions or options.
• Make sure all of the facts are correct to the best of your knowledge, and identify how you have knowledge of the facts.
• Take time to carefully investigate and determine what information is needed. Review the information and draw conclusions from what the evidence reveals.
• Get to the point! Avoid extraneous information – only in rare situations will your documentation require a blow-by-blow of every relevant event that has occurred.
• Information within your documentation that is shown to be erroneous will make it difficult to show that the acts taken are based upon legitimate reasons, not retaliation for protected activity.
2. Do Be Consistent
• Avoid Gaps. Documentation of an employee should be consistent. If you only document every third performance issue that arises, how will you explain the gaps in your documentation? Why did you document what occurred on September 5th and November 6th, but not what happened on October 15th and October 22nd?
• Equal Treatment. Document similar misconduct similarly for all employees, putting personal likes and dislikes aside. Many legitimate actions have been reversed because the employee or student can prove the administrator has treated some individuals differently and more favorably than others.
• Justifying Different Treatment. However, differentiation in consequences among employees may be appropriate considering the degree of misconduct, number of incidents and overall circumstances. Be prepared to justify any inconsistencies to avoid retaliation and discrimination claims. The written memo to the employee should identify any factors which enhanced the consequences for their particular conduct.
The legal analysis will turn in large part on whether someone is treated the same as another who has not engaged in protected activity but who is similarly-situated (engaged in similar misconduct given as the reason for the adverse action). The left hand needs to know what the right hand is doing to ensure uniformity in treatment and a legitimate non-discriminatory reason as to why adverse action is being taken.
3. Do Be Timely
• Documentation should happen as events happen. A system should be in place so that documentation is created throughout the school year. If there is a legitimate reason for the gap between the events documented and the initiation of documentation, explain this in the documentation.
• Do not backdate.
• Timing May Point to Retaliation. The administrator who finally decided over the holidays to write up that teacher for not having her classroom ready at the beginning of school year must realize that untimely documentation creates suspicion about the motive. Was there another event that occurred be- tween the event and the issuance of the documentation? Did the teacher file a grievance? Complain about her evaluation scores? File a sexual harassment complaint?
• Be expedient in visiting with employees about conduct that calls for corrective or adverse action. Document dates of verbal conferences and be timely with written document memorializing incidents. If conduct or incidents are documented and shown to predate the “protected activity,” the District will be well-guarded against a later claim that the basis for the adverse action was false or pretext for retaliation.
4. Do Be Professional
• Avoid using “fighting words” or derogatory language which may elicit a hostile reaction. Memos written in anger often create a less than favorable impression of the author. Focus on the misconduct or deficiencies of the employee. If you do write while angry, throw that version out and rewrite a kinder, gentler version.
• Avoid personal opinions such as “I have known you all your life and you have always been stubborn and resistant to change.” Failure to stick to the facts and conclusions reached from the facts will create problems. The administrator’s professional opinion can be relevant but only after stating the facts sup- porting such opinions.
• Hostile language or personal opinions within documentation can be construed by an employee as evidence of improper motivations. It’s the “you are just out to get me because you don’t like me” argument. The employee can claim that the underlying need for documentation is not legitimate, but instead part of an overall desire on your part to get back at them for engaging in protected activity.
5. Do Be Truthful and Accurate in Evaluations. Where evaluations have been clearly outstanding despite repeated performance problems, the evaluator loses credibility, and contract recommendations may not only be weakened, but subsequent claims that the employee had legitimate performance problems that led to the adverse action will be undermined when fighting against a retaliation claim.
6. Do tell the whole story in your documentation, focusing on the serious events. A memo addresses the teacher’s failure to produce a student’s completed test for parent review, but fails to mention that the teacher could not produce the test because he took it home and used it for kindling, and then lied about it.
7. Don’t use vague language. Avoid using vague or subjective terms. Be precise even when the parties know exactly what you mean and what occurred. You should write with the assumption that your documentation will be reviewed later by third parties that were not present and that the employee may later deny what was discussed or what actually occurred. When possible, use concise, factual descriptions of the conduct rather than subjective or generic terms. To illustrate:
Instead of… Your language was not conducive to student learning.
Use this… Your use of profanity such as “damn” or “damn it” in the classroom with students is unacceptable.
8. Don’t engage in a paper war. Do not get drawn into a battle of the word processors. If a teacher gives you a thirteen- page memo outlining her various complaints, do not assume that you have to give a thirteen-page response. Do not take the bait and lose your cool or you will look like you are also acting irrationally and unreasonable!
9. Do make concerns and directives clear and specific. A directive should use specific language to ensure the employee understands what is expected of him or her and cannot claim ignorance later. Additionally, directives should be written as commands, not as requests. Poorly-worded concerns and directives, allow the employee to claim that he or she was never truly given a chance to know what was expected and was “set up.”
10. Do review your documentation to see if there is any suggestion of possible retaliation or discrimination. Always proofread. Avoid comments that appear to show unlawful bias or motives. Example: “As you get older, you seem to become less and less tolerant of the students,” or “I know you want to retire and go fishing but until you do, you have to show up on time,” or “I know that you have a grievance against me, but I am not taking that into any consideration here at all.”
Practical tips to avoid retaliation claims.
1. DOCUMENT! You should document significant person- nel action that you are taking against employees. If you do not have contemporaneous documentation explaining the legitimate basis for your actions, you will find your motives being questioned and characterized as a sham for retaliation against any protected activity.
2. Avoid blending unrelated issues of “protected activity” and disciplinary, corrective or adverse employment actions noted in documentation.
Write: “You are being reprimanded because I have determined that you failed to adhere to District policies and the Educator Code of Ethics regarding the treatment of students, specifically you threw a blackboard eraser at high velocity at the back of Joey T.’s head on April 1, 2013.”
Do not write: “I know that you are having a hard time get- ting back into the swing of things after being out for so long on workers’ compensation and assault leave when Joey T. ran over you with his car, but you cannot throw blackboard erasers at students when they upset you.”
3. Supervisors and decision-makers should avoid informal conversations with an employee about their “protected activity.” Even innocent, well-intended discussions with an employee can be construed as an improper motivation for retaliation. No good deed goes unpunished. Ask yourself: Why am I discussing the “protected activity” with the employee? Is it job-related and necessary for me to initiate and/or participate in this discussion? If so, is the discussion limited to the scope of job-relatedness and necessity?
4. If it is necessary for the District to discuss “protected activity” issues with an employee, consider scripting out the questions that will be asked in advance, determine who will be the individual(s) engaging in the conversation with the employee and stick to the script!
5. Many times, an employee will engage in “protected activity” when they see the writing on the wall but prior to formal adverse action being taken or completed. In these types of circumstances, consider whether the District may be able to segregate the adverse action from any handling of the “protected activity.”
6. Remove yourself from the equation. Consider using a third party, such as an attorney, or a District official who has no supervisory or decision-making authority over an employee to conduct investigations into complaints/grievances that would constitute “protected activity.” Separating the issues and creating a wall between the investigator and any supervisor or decision- maker of the employee will help negate a claim of retaliation.
7. Along these same lines, have a formal plan of action in place in advance on how your campus administrators will process or respond to assertions of protected activity and addressing personnel concerns or deficiencies. Have the conversation now on how you expect to handle these tricky situations that will inevitably arise at the spur of the moment.
8. The Board may want to consider adopting and implementing a neutral absence control policy to reduce claims of retaliation arising from action taken following a failure to return to work or excessive absences.
9. Be familiar with all Board policies, particularly those that provide employees with rights or benefits as they will set out in general what constitutes “protected activity” and where caution must be exercised in taking adverse action against an employee for reasons unrelated to the “protected activity.”
10. As a general statement, employees cannot have adverse action imposed upon them for the exercise of “protected activity.” However, there may be circumstances in which adverse action is appropriate and legally permissible if an employee improperly engages in “protected activity.”
Example: Assume an employee files a grievance against another employee claiming sexual harassment. During the course of the investigation, the complaining employee admits under questioning to making the story up and falsely accusing the other employee because he was upset that she broke up with him and wouldn’t respond to his sexting. The District here should be able to discipline the employee for the false accusations, and avoid a retaliation claim. The corrective action is not based on the filing of the grievance, but instead on the false statements and disparagement of another employee.
Regardless, great care should be taken whenever any type of disciplinary, corrective or adverse action is taken against an employee when it relates to conduct that falls within the ambit of protected activity. Consult other District administrators, Board policies and/or your legal counsel for assistance to properly differentiate between proper and improper instances of “protected activity.”
11. Be careful about free speech protections. Employees still retain First Amendment rights, although the legal analysis can be tricky and fact-specific. For example, think about whether an employee’s off-campus statements made on a social networking site are on a matter of public concern or not, before taking action and documenting it.
12. To repeat: Be mindful about the timing of your documentation. Close proximity of documentation with an employee’s protected activity can create suspicion that there is an improper retaliatory connection between the two. If an employee files a grievance and that same day you perform a walk-through observation and put him on a growth plan, you are going to have to be able to justify that this action was legitimate and unrelated to the filing of the grievance, which you will likely have difficulty doing without first carefully being able to show that those steps were already planned, noticed and in the works prior to the filing of the grievance.
As you can see, retaliation claims often present more seri- ous considerations than the underlying assertion of protected activity. But knowing the law and having in place an effective approach to documentation will assist school administrators in responding to the assertions of protected activities by employees. This is a litigious area to be sure, so when in doubt, be proactive and consult your legal counsel prior to taking adverse action for assistance in navigating these waters. The costs incurred in get- ting it right will be much less than the cost of a defense against charges, complaints and litigation alleging retaliation against an employee’s “protected activity.”