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A recent decision by the Texas Commissioner of Education creates an exception to probationary contract rules that will affect school administrators across the state.  A teacher in Alief ISD, David Almeyda, was notified in early 2010 that his contract would be terminated at the end of its term.  That contract being probationary, the school district was under no legal obligation to divulge the reasons for its decision.  Almeyda, however, believed it was based on an incident that had occurred in March of the previous year, when he had used force to subdue a student who had assaulted him.  Having been cleared of disciplinary action by a hearing examiner who found the application of force reasonable and justified, Almeyda appealed the boardʼs decision to let his contract lapse on the basis that it was based on his justified use of force.  Although his appeal was judged to be without merit, the Commissioner broke with tradition by affirming that he had the right to appeal the termination of his probationary contract.


Douglas Brock is an associate in the Austin office of Walsh, Anderson, Gallegos, Green & Treviño and a specialist in public school employment and student issues.  He suggests that this precedent reaffirms the importance of open lines of communication between teachers and administrators. “The Almeyda decision, and common sense, tell us that there is a benefit in the district sharing with the employee why their probationary contract is being terminated at the end of the term prior to the Boardʼs action to terminate,” he said.  Brock explains further that the majority of cases are due to performance concerns that should be brought to the teacherʼs attention and documented throughout the year.  That way, he said, “they are less likely to be caught off guard when they are terminated and thus less likely to file a grievance or complaint challenging the termination.”  Brock added that doing so allows an employee the chance to resign.
Though the case of Almeyda v. Alief ISD narrowly affords an employee the chance to appeal a probationary nonrenewal (in the event that employee believes a justified use of force was central to the decision), it also levels the burden of proving such a claim squarely on the shoulders of that employee.  And yet, says Brock, “School districts…should not be misguided into thinking that they do not need any documentation.  As with any employment action, it is always important to have good documentation.  A terminated probationary contract employee can always file a grievance and/or file a complaint with the Equal Employment Opportunity Commission or the Texas Workforce Commission on Civil Rights.  Documentation of performance concerns is very beneficial in defending any such challenges.”

Brock was equally firm in belief that hearings not be offered probationary employees whose contracts are terminated at end of term, remarking that a primary benefit of such a contract is its simplicity.  “Allowing a hearing would create…substantial costs in both money and time…  It would be problematic for the Board to provide hearings for some probationary contract terminations at the end of term and not for others, [and] the board would be creating a record which could then be used against it to show that a reason for the termination was the use of force.“ Anytime an educator uses force against a student,” Brock concluded, “the incident should be documented and statements taken from all parties involved–as well as any witnesses.  It is highly recommended that the district contact legal counsel prior to determining whether the use of force was reasonable or not.”


Read more about Almeyda v. Alief ISD in the January issue of Texas School Administratorsʼ Legal Digest .

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