An August decision by the Texas Commissioner of Education concerning employee grievances constitutes an about-face on a policy that will no doubt have district administrators dialing up their attorneys around the state. The issue concerns when the timeline for filing a formal grievance begins to run.

When Melissa Anzaldua, a teacher in Valley View ISD, spoke with a human resources specialist in May, 2013, about the district’s salary freeze, and was informed that she had likely been underpaid, she set in motion a series of events that would culminate in the Commissioner’s decision, fifteen months later, recognizing that initial meeting as having “tolled” the grievance process deadline.

The district’s local grievance policy stipulated that Level One complaints must be filed within fifteen days of an employee’s first becoming aware of the decision or action giving rise to the complaint. Since Alzaldua didn’t file a formal complaint until June of 2013, a month following her contact with the HR specialist, the Valley View ISD board of trustees rejected her complaint as untimely. But the Commissioner disagreed, finding that her efforts to resolve the issue vis a vis the HR department constituted the sort of “informal conference” the district’s policy encourages employees to undertake prior to filing formal grievances.

To help plumb the depths of this issue, Legal Digest turned to Haley Turner, an attorney with Walsh, Anderson, Gallegos, Green & Treviño. Asked if she expected districts to revise their grievance policies based on this decision, Turner said: “Yes, especially if [they’re] discussing this development with their school attorneys. In order to prevent the voluntary, ‘informal process’ from becoming a required, formal process,” as the Commissioner treated Anzaldua’s initial meeting with HR, “grievance policies may be amended to specify that attempts at informal resolution are encouraged but not required, and that attempting informal resolution will not toll or affect the timeline to file a grievance or appeal.”

According to the Commissioner’s decision, the window does not start closing on an employee’s opportunity to file a formal complaint until the informal process is “completed”. Legal Digest asked Turner how a district can verify and document that this has occurred. “Based on the Commissioner’s decision in this case,” she said, “the informal process is complete, and the clock for filing a grievance begins to tick, when a school employee issues a decision in regards to the informal resolution attempts made by the complaining party. The decision may be communicated verbally or in writing, and there should be some documentation of the date on which the decision is delivered. That documentation may take the form of a note to the file after a verbal decision is delivered in person or over the phone, or a written communication directly to the person seeking resolution.”

So now does every conversation an employee has with a supervisor toll the timeline for filing a grievance? “This is a difficult question, as every conversation with a mildly perturbed or frustrated employee, parent or community member could arguably be construed as an attempt at informal resolution. The potential for that extreme result is definitely real based on the language the Commissioner uses in this decision. Until districts have successfully amended their grievance policies, supervisors and administrators should be careful not to leave employees hanging when it comes to concerns or complaints expressed. Keep in mind also that this decision doesn’t require that the complaining party attempt resolution with an employee who has the authority to address their complaint or grant the requested remedy. A complaint about employee compensation expressed to the administrative assistant for Human Resources may be enough to initiate the informal resolution process. Supervisors and administrators should also discuss with their staff members the need to promptly pass on complaints or concerns expressed directly to the staff member.”

Turner believes that the Texas Association of School Boards will be issuing revised versions of all three (“Local”) grievance policies (DGBA, FNG and GF) before the end of the year, and encourages districts to talk with legal counsel regarding their options for implementing interim policies.

Read on about Anzaldua v. Valley View in this month’s Texas School Administrators’ Legal Digest.

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