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TEXAS SCHOOL ADMINISTRATORS’ Publisher: Park Place Publications, L.P. Managing Editor: Jim Walsh Editor: Jennifer Childress Chief Operating Officer: Ted Siff

LEGAL DIGEST Volume 25, Number 2


February 2009

A Look inside . . . This month we report a dozen court cases, including two from the Fifth Circuit, along with three decisions from the Texas Education Agency and three opinions from the Attorney General’s Office. Here are the highlights. Procedures! The theme that emerges this month is the importance of procedural compliance in any legal dispute. We have more cases decided on procedural grounds than substantive this month. We learn of the importance of timelines in going to the EEOC or Texas Workforce Commission (Davison v. Plano ISD, page 11) and about the “tolling” of Title VII deadlines (Patterson v. Spellings, page 12). We learn that a teacher appealing to the Texas Education Agency must spell out the basis for the Commissioner’s jurisdiction (Nassar v. HEB ISD, page 15), submit briefs as required (Rayburn v. Pasadena ISD, page 15) and file a Motion for Rehearing (Marble Falls ISD v. Scott, page 21). We have a venue dispute in federal court (McClintock v. School Board of East Feliciana Parish, page 19). Teacher at Graduation Ceremony? We get a very inconclusive decision in the case of North East ISD v. Kelley, (page 17). This case has generated a great deal of interest among educators and school lawyers, and thus gets the Dawg’s Award for Most Interesting Case of the Month. The case was filed by a teacher who objected to the requirement that he attend graduation ceremonies. Mr. Kelley pointed out that he had worked all 187 days as required by his contract, and that the graduation ceremony took place after that. In effect, he

Also . . .

• What You Need to Know to Avoid Retailiation Claims: An Overview of the Texas Whistleblower Act and Other AntiRetaliation Laws (David P. Thompson)

argued that the school district paid him for 187 days and required him to work 188. The Commissioner’s decision on this matter opened the door to a “quantum meruit” claim by the teacher. Mr. Kelley followed up with two lawsuits, one in Bexar County and one in Travis. Mr. Kelley’s victory in Bexar County was reversed by the Court of Appeals, as we explain on page 18, but like most of the decisions reported this month, it is more about procedure than substance. More to come on this one, we expect. Document. Document. Document. Thomas v. Corpus Christi ISD (page 13) shows the value of documentation of job related problems in addressing allegations of discrimination and/or retaliation when dealing with the termination of an employee. Remediation? There is no guarantee in the law that a school employee must be given the opportunity to remediate problems and deficiencies in job performance. For the latest illustration of this, take a good look at our summary of Jeffery v. Fort Bend ISD, (page 14). And More! UTSA’s Dr. David Thompson offers us a comprehensive and analytical look at retaliation claims in our lead article this month. In light of the notable increase in such claims, we think this is must reading for Human Resources Directors. We hope you learn from and enjoy this month’s offerings.

• Law Dawg (Jim Walsh) • Legal Developments • Legal Digest-TCASE Conference on Special Education Law


What You Need To Know To Avoid Retaliation Claims: An Overview Of The Texas Whistleblower Act And Other Anti-Retaliation Laws By David P. Thompson Professor and Chair Department of Educational Leadership & Policy Studies The University of Texas at San Antonio Introduction Consider the following scenarios. An elementary school diagnostician is transferred to the high school after school administrators learn that she was among a group of special education personnel who filed complaints with the Texas Education Agency and the U.S. Department of Education’s Office of Civil Rights alleging violations of state and federal laws in the school district’s special education programs. An assistant principal is transferred to a less prestigious position after complaining that the principal was having an affair with a volunteer parent. A high school athletic director is terminated after writing two letters to supervisors alleging mismanagement of athletic department funds. Two high school teachers are transferred the day after asserting in a site-based decision making committee meeting that there would be mutiny in the school if the high school principal remained on the job. Finally, an assistant superintendent for curriculum and instruction is demoted to an administrative associate responsible for custodians and textbooks after reporting to the superintendent that teachers were “pacing” students on the TAKS. In each of the scenarios above, a public school educator appears to have suffered adverse action for reporting activities Texas School Administrators’ Legal Digest ISSN 0882 – 021X Published 10 times a year Individual subscription..................................................................... $140 Copyright © 2009. Reproduction of all or part of this publication requires permission from the editor. Managing Editor: Jim Walsh Editor: Jennifer Childress Chief Operating Officer: Ted Siff

Editorial Advisory Board: Mark Goulet, Chair – Walsh, Anderson, Brown, Aldridge & Gallegos, P.C. Chris Gilbert – Thompson & Horton, L.L.P. Sarah Orman – Attorney at Law David Thompson – UTSA Jim Raup – McGinnis, Lochridge & Kilgore, L.L.P. Jan Watson – Walsh, Anderson, Brown, Aldridge & Gallegos, P.C.

Texas School Administrators’ Legal Digest welcomes your comments and contributions, though publication is not guaranteed. The views of feature article authors are their own and do not necessarily reflect the views of the DIGEST. The information provided in the DIGEST is not intended to constitute specific legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Direct correspondence and subscription inquiries to: Texas School Administrators’ Legal Digest 1601 Rio Grande, Ste. 441 • Austin, TX 78701 512-478-2113 FAX 512-495-9955 Email: • Website:

that, if not in violation of the law, are highly improper. These scenarios, and many others like those above, illustrate what seems to be an increase in cases where educators are bringing claims of unlawful retaliation after they have complained of or reported unlawful or untoward activities. Under what laws and what circumstances can school employees bring retaliation claims for “whistleblowing” activities? The purpose of this article is to explore that question, with particular emphasis being paid to the Texas Whistleblower Act and its provisions and relevant case law interpreting these provisions. In addition, this article will examine retaliation under additional federal and state provisions. Finally, the article will conclude with practical principles gleaned from the examination of these statutes and court cases. The Texas Whistleblower Act General Provisions Titled “Protection for Reporting Violations of Law,” the Texas Whistleblower Act (TWA) is found in Chapter 554 of the Texas Government Code.1 In general, the TWA provides that “[a] state or local governmental 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 employing governmental entity or another public employee to an appropriate law enforcement authority.”2 As with many other statutes, there are several important terms defined by the Texas Legislature that clarify the general prohibition against retaliation above. Some of the definitions are fairly straightforward, while others have been the subject of judicial interpretation. With regard to the straightforward definitions, first, a local governmental entity includes public school districts.3 Second, in addition to suspension and termination of employment, a “personnel action” is one “that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.”4 Third, while a public employee includes public school personnel, it does not include an independent contractor.5

Several terms that have been defined by the Legislature deserve special attention, due to extensive judicial interpretation of these terms. First, the TWA defines “law” to mean: (1) “a state or federal statute,” (2) “an ordinance of a local governmental entity,” or (3) “a rule adopted under a statute or ordinance.”6 What constitutes a “law” has been the subject of considerable judicial interpretation, and does not necessarily clarify whether or the degree to which school board policies constitute “laws” under the TWA. For example, in one case, a teacher who was

3 struck by a student while attempting to break up a fight, wrote a letter to the FBI (which she also copied to the Texas Governor and Commissioner of Education) expressing her concerns over school safety, and was subsequently transferred from a middle school to an elementary school. The Texas Commissioner of Education found that alleging a violation of board policy does not constitute alleging a violation of “law” under the TWA.7 Similarly, an alleged violation of a university’s internal policies regarding the misuse of state property for personal use does not constitute a violation of the law.8 Moreover, “pacing” on the old Texas Assessment of Academic Skills (TAAS), where the practice was not specified as a violation of law or regulation, did not constitute a violation of the law under the TWA.9

Conversely, other courts have found, for example, that violating a local city policy adopted by a city council might constitute a violation of the law10 and that an equal employment opportunity policy formally adopted by city council resolution is a law under the TWA.11 What seems more clear is that while a public employee need not identify a specific law that has been violated while making a complaint, there must be some law that prohibits the complained-of employer conduct.12 Thus, while school district policies are formally adopted by local boards of trustees in properly called open meetings, whether such policies constitute laws may depend on whether a local board policy incorporates already-existing statutes or regulations. The second set of terms that merit attention comes from the language in the TWA that protects “a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.”13 The statute specifies that “…a report is made to an appropriate law enforcement authority if the authority is part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (a) regulate under or enforce the law alleged to be violated in the report; or (b) investigate or prosecute a violation of criminal law.”14 Unfortunately, the Texas Legislature did not define the term “good faith,” leaving it to the Texas courts to do so. So, in two cases, the Texas Supreme Court defined what “good faith” means in the context of (1) the report of the violation of law itself, and (2) what constitutes an appropriate law enforcement authority. Regarding the “good faith reporting” element, the Texas Supreme Court held that a public employee reports a violation of the law in good faith when “…(1) the employee believed that the conduct reported was a violation of the law and (2) the employee’s belief was reasonable in light of the employee’s training and experience.”15 The Texas Supreme Court in Tex. Dept. of Transportation v. Needham has ruled that a report is made to an “appropriate law enforcement authority” if “…(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and (2) the employee’s belief was reasonable in light of the employee’s training and experience.”16

The Needham case is particularly instructive, as it dealt with an employee of TxDOT who made several reports to supervisors regarding his concern that a co-worker was driving

while intoxicated. A jury found in favor of employee and a state appellate court affirmed the jury’s verdict. However, the Texas Supreme Court reversed, concluding that the employee’s belief that TxDOT had the authority to enforce DWI laws was not reasonable in light of his training and 23 years of experience with TxDOT. The fact that TxDOT had the authority to discipline the co-worker internally was not sufficient to convert TxDOT into an appropriate authority to enforce DWI laws in Texas, and thus the employee’s TWA claim failed.

Accordingly, to fall under the protections of the TWA, courts will require that an employee have (1) an honest belief that a violation of the law occurred and that the law enforcement authority is authorized to regulate, enforce, investigate, or prosecute violations of the law that is (2) objectively reasonable in light of the employee’s training and experience (i.e., “a reasonably prudent employee in similar circumstances would have believed” that a violation of the law occurred and that the law enforcement authority is authorized to regulate, enforce, investigate, or prosecute violations of the law.)17 Practically speaking, public school employees with greater degrees of training and experience, such as administrators, may have a higher burden than those with less training and experience to demonstrate that their reports to an appropriate law enforcement authority are made in good faith.

The third and final term deserving special attention is “adverse” as it comprises the phrase “adverse personnel action” in the TWA’s general prohibition.18 While the Legislature defined “personnel action,”19 it did not define “adverse,” again leaving the courts to sort out the legal meaning of this term.

Recently, the Texas Supreme Court did so in Montgomery Co., Texas v. Park.20 In Park, a county sheriff’s department patrol officer also served as a security events coordinator for the county’s convention center. As part of this duty, the officer arranged to hire off-duty police officers to provide security for events at the convention center, many of which were privatelysponsored. Under this arrangement, he did not receive additional compensation for serving as the events coordinator, but presumably could hire himself for off-duty events to be paid by a private sponsor. When the officer reported to the county sheriff that a county commissioner had made sexually graphic remarks about two female administrative assistants, he was relieved of his duties as security events coordinator. The officer sued the county under the TWA and the case made it all the way to the Texas Supreme Court. The Court ultimately reversed a lower court ruling in favor of the county, finding that the officer did not suffer an adverse employment action. The Court determined that a public employee must demonstrate that he suffered an employment action that is “materially adverse” in that the action “would be likely to dissuade a reasonable, similarly situated worker from making a report under the Act.”21 In this case, because the officer was relieved of only “secondary” duties, and did not suffer a loss in pay and prestige, the court held that he did not suffer an “adverse employment action” under the meaning of the TWA. Thus, the Texas Supreme Court required an objective “reasonableness” determination of adversity. Under that objective standard, a reasonable person in the plaintiff employee’s circumstance must believe that the

4 personnel action would deter the employee from making a report under the TWA.

One additional recent development in Texas case law affecting public educators deserves special attention. In City of Waco v. Lopez, a chief plumbing inspector for the city of Waco was reinstated to a position from which he had been transferred after complaining of race and age discrimination. However, the man later was terminated for improper use of a city vehicle. He filed a Texas Whistleblower Act claim against the city alleging that he was terminated in retaliation for filing the discrimination complaints with the city’s equal opportunity officer. The Texas Supreme Court ultimately dismissed the case and held that the Texas Commission on Human Rights Act (TCHRA), which prohibits (1) employment discrimination on the basis “of race, color, disability, religion, sex, national origin, or age” and (2) retaliation for complaining about such discrimination, is the exclusive avenue for retaliation claims predicated on discrimination complaints. Thus, an employee who claims that they have been retaliated against for reporting race, color, disability, religion, sex, national origin, or age in violation of the TCHRA, cannot bring their retaliation claim through the TWA.22 Relief Available under the TWA Under the TWA, a public employee who is successful is entitled to relief against both the employer and the supervisor who violates the provisions of the TWA. With regard to the employer (e.g., a public school district), the statute specifically waives and abolishes sovereign immunity “to the extent of the relief available” for violations of the TWA.23 The TWA further provides that a public employee who is suspended, terminated, or otherwise suffers an adverse personnel action is entitled to sue the employer for “injunctive relief, actual (compensatory) damages, court costs, and reasonable attorney fees.”24 The employee may also seek reinstatement to his/her former or an equivalent position, compensation for lost wages, and “reinstatement of fringe benefits and seniority rights” if the employee has been suspended or terminated.25 The TWA also sets out limits on compensatory (actual) damages for a successful TWA claim, graduated according to the size of the state or local governmental entity as follows: (a) $50,000, if the entity has fewer than 101 employees; (b) $100,000, if the entity has more than 100 and fewer than 200 employees; (c) $200,000, if the entity has more than 200 and fewer than 501 employees; and (d) $250,000, if the entity has more than 501 employees.26 As noted above, relief can also be sought against the supervisor who violates the provisions of the TWA, although the relief does not accrue to the plaintiff public employee. Specifically, a supervisor who suspends, terminates, or otherwise takes an adverse personnel action against a public employee in violation of the TWA is liable for a civil penalty not greater than $15,000.27 The TWA further authorizes “the attorney general or appropriate prosecuting attorney” to sue to collect the civil penalty28 which, if collected, must be deposited in the state treasury.29 Importantly, the penalty must be paid by the supervisor personally, and not by the supervisor’s employer,30 and the supervisor’s personal liability is limited to this extent.31

Bringing Suit under the TWA Not surprisingly, the TWA sets forth specific procedures for bringing suit. The statute requires a complaining public employee to bring suit “not later than the 90th day after the date on which an alleged violation…occurred or was discovered by the employee through reasonable diligence.”32 However, prior to bringing suit, a public employee must initiate action under the employer’s grievance or appeal procedures33 and must do so “not later than 90 days after the date on which the alleged violation occurred or was discovered through reasonable diligence.”34 If the employer’s grievance or appeal procedures do not result in a final decision before the 61st day after the date from which the procedure is invoked, the public employee has two options: (a) continue to exhaust the grievance procedure, in which case the employee must bring suit not later than 30 days after the date on which the procedure was exhausted;35 or (b) terminate the procedure, in which case the employee must bring suit within the remaining time period. For example, if the employee terminates the procedure 65 days after invoking it, the employee has 25 days to bring suit.36 Most important to this discussion, a public employee who initiates the employer’s grievance or appeal procedure is not required to exhaust it prior to filing suit.37 Finally, a suit may be brought in state district court in the county in which the alleged violation occurred or in Travis County state district court.38 Legal Standards Governing TWA Claims With regard to the “meat and potatoes” of TWA claims, the Texas Legislature has articulated standards of proof, presumptions, and affirmative defenses under the Act, and of course the courts have interpreted certain of these standards. Initially, both the statute and attendant court cases specify that the public employee in a TWA case has the ultimate burden of proof.39 The Legislature has articulated one exception to this general rule. Under Tex. Gov’t Code § 554.004(a), if an adverse personnel action is taken against an employee within 90 days after the employee reports a violation of law to an appropriate law enforcement authority, the employment “action is presumed, subject to rebuttal, to be because the employee” reported the violation.40 Regardless of timing of the adverse employment action, the employer has an affirmative defense in a TWA claim, that it “would have taken the employment action against the employee based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under this chapter of a violation of the law.”41 Because the Legislature did not define what it meant by the word “because” under § 554.004(a), as noted above, the Texas courts have had to interpret the word’s meaning. In 1995, the Texas Supreme Court took on this issue in Tex. Dept. of Human Svcs. v. Hinds,42 a case involving a caseworker employed by the TDHS who determined the eligibility of individuals for various types of federal assistance (e.g., Medicaid, food stamps). When the caseworker complained to his supervisor that the department illegally “pre-reviewed” case files prior to these files being randomly selected for audit by an evaluation team, he alleged that he suffered a series of adverse personnel actions (including an official reprimand, a negative performance evaluation, and increased supervisory

5 scrutiny) prior to resigning. In his suit against the TDHS, a trial court found in favor of the caseworker and awarded more than $500,000 in damages, and a state appellate court affirmed while modifying the damage award. The Texas Supreme Court reversed and returned the case to the trial court for a new trial. In doing so, the Court set forth the standard of causation for TWA cases. The Court held that the burden is on the employee to demonstrate “that the employee’s protected conduct (whistleblowing) must be such, that without it, the employer’s prohibited conduct would not have occurred when it did.”43 In other words, the Court held that if the employer would have made the same adverse personnel decision in the absence of the protected conduct, the employee has not met the burden of proving that he was adversely affected because he made a report of a violation of the law. Two examples of cases from the public school domain rejecting TWA claims are instructive. In one case, a teacher brought a TWA claim against her employing school district, alleging that she was nonrenwed in retaliation for filing a grievance against the district within the previous year. In affirming the judgment in favor of the school district, the state appellate court found that the alleged whistleblowing activity was not the cause of the teacher’s nonrenewal, as there was evidence that the teacher intentionally disparaged a student as well as 46 other grounds on which the district relied for the proposed nonrenewal. Thus, the court found that the board would have taken the same action in the absence of the protected conduct.44

Similarly, another court upheld the termination of a school district assistant superintendent for business and finance who was terminated over 10 months after he reported improper misconduct by two school board members. Specifically, he alleged that the board members illegally used district funds to pay for their spouses’ airfares to a conference, to pay for an unneeded extra hotel room, and other untoward activities. A state appellate court rejected the assistant superintendent’s TWA claim, finding no causation between the whistleblowing and the termination. The record showed that the termination occurred well beyond the 90-day presumptive causation time frame. Evidence further showed that the assistant superintendent himself did not comply with competitive bidding practices and used district property for personal use.45 Thus, from a practical perspective, it is crucial that an employing school district, when taking an adverse personnel action against an employee who has allegedly reported a violation of the law (or any employee for that matter), be able to articulate legitimate and documented job-related reasons for the action not related to the alleged report of a violation of the law. In summary, the elements of a successful Texas Whistleblower Act claim were recently reiterated by a Texas appellate court. To be successful on a TWA claim, a plaintiff must prove that: (1) he/she is public employee, (2) the defendant is a state or local governmental entity, (3) he/she “reported in good faith a violation of the law to (4) an appropriate law enforcement” authority, and (5) that the “report was the ‘but-for’ cause” of the adverse personnel action “at the time” of the action.46 Finally, a public employer has an obligation to notify its

employees of its rights under the TWA. Specifically, it must inform its employees of their rights under the TWA “by posting a sign in a prominent location in the workplace.”47 Moreover, the Texas Attorney General is required to “prescribe the design and size of the sign” for posting.48 Other Relevant Provisions Prohibiting Retaliation for “Whistleblowing” A host of other federal and state laws prohibit retaliation for reporting illegal activities. While space limitations preclude covering each one, several important provisions are covered in the following pages. First Amendment The U.S. Supreme Court has long held that the free speech clause of the First Amendment protects public employees who speak out on matters of public concern, so long as their speech does not impair the ability of the public employer to deliver efficient public services.49 This protection extends to retaliation for reporting illegal activities. Keep in mind, however, that a public employee may not hide behind the protection of the First Amendment to claim protection from job-related conduct that would otherwise result in an adverse personnel action.50

To be successful in proving a First Amendment retaliation claim, the public employee is required to prove that (1) she “suffered an adverse employment action; (2) the speech involved a matter of public concern;” (3) her interest in commenting on the matter of public concern outweighed the employer’s interest in delivering efficient public services; and (4) that the employee’s “speech was a substantial or motivating factor” in the adverse employment action.51

However, the First Amendment retaliation landscape changed drastically with the U.S. Supreme Court’s decision in Garcetti v. Ceballos.52 In this case, Ceballos, a Los Angeles County District Attorney, claimed he suffered retaliation when he reported to his supervisors that information used in an arrest warrant affidavit contained “serious misrepresentations.” Ceballos wrote a disposition memorandum in which he recommended that the criminal case be dismissed, and he later testified in a court hearing concerning a motion to challenge the warrant; however, the trial court rebuffed the challenge. The retaliation that Ceballos alleged included reassignment, transfer, and the denial of a promotion. The Ninth Circuit Court of Appeals ruled in favor of Ceballos, holding that communicating his concerns about the affidavit was “inherently a matter of public concern,” and that Ceballos’s interest in expressing his concerns outweighed the employer’s interest in maintaining efficient services. However, the U.S. Supreme Court reversed,53 holding “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”54 Since Ceballos’s memorandum was required as part of his normal job duties, his speech was not protected, and the First Amendment did not insulate him from the adverse personnel actions.

6 In essence, Garcetti has added a threshold inquiry to the free speech retaliation test noted above, and if a court determines that the public employee’s speech is pursuant to their official duties, the employee will not be successful in bringing a retaliation claim under the First Amendment. It is safe to say that the effect of the Garcetti case has been to render futile most claims that have made it to the courts, and a leading case in the Fifth Circuit illustrates this aptly.

In Williams v. Dallas Indep. Sch. Dist.,55 the plaintiff was a campus athletic director and high school football coach in Dallas ISD who, after becoming concerned about the appropriation of funds for athletic activities, wrote a memorandum to his office manager and copied it to the principal. In the memorandum, the athletic director communicated his frustration with the lack of information about athletic funds. A couple of months later, the athletic director wrote a second memorandum, this time to the principal, in which he expressed concern about, among other things, the handling and appropriation of gate receipts. Four days later, the principal removed him as athletic director, later elevated the removal to an emergency removal and administrative leave, and subsequently recommended his nonrenewal. In the athletic director’s First Amendment retaliation suit against the school district, the Fifth Circuit, in a chance to apply Garcetti, affirmed a trial court ruling in favor of the school district. In observing that the “pursuant to official duty” test is now the threshold inquiry in a free speech retaliation claim, the Fifth Circuit noted that even if employee speech is of “great social importance,” it is not protected if it is uttered pursuant to the employee’s official duties.56 In Williams, because the athletic director’s memoranda were written in the normal course and performance of his job, the speech was pursuant to official duties, and thus the First Amendment did not protect him from the adverse employment actions. Based on these two decisions alone, it arguably will be more difficult for public school employees to bring successful First Amendment retaliation claims.

Title IX & Title VI Title IX of the Educational Amendments of 1972, which prohibits sex discrimination in any federally-assisted educational program or activity;57 and Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in any federally-assisted program or activity (educational or otherwise),58 both have regulations that prohibit retaliation for a person who makes a complaint, testifies, assists, or participates “in any manner in an investigation, proceeding, or hearing…”59 As funding statutes with no explicit right of a private individual to bring suits (“private right of action”) against federally-assisted programs or activities which engage in prohibited discrimination, it was generally thought that the regulations against retaliation could, at most, be enforced by the ultimate loss of federal funding to the program or activity. However, Title IX has long been interpreted to have an implied private right of action against federally-assisted educational programs and activities that include suits60 for damages for intentional discrimination,61 including teacher-to-student62 and student-to-student sexual harassment,63 where the program or activity is deliberately indifferent to known acts of sexual harassment.

In 2005, this private right of action under Title IX was extended to include retaliation claims brought by employees who suffer adverse employment actions for complaining of sex discrimination in the institution’s program or activities, even if the complainant is not the direct victim of sex discrimination. This was the holding in Jackson v. Birmingham Bd. of Ed.,64 where a high school girls’ basketball coach was allowed to proceed in his suit against the school district when the district allegedly retaliated against the coach for complaining of inequities in the basketball programs at his school. That the regulations prohibited retaliation was of no consequence to the U.S. Supreme Court, as the statute is sufficiently broad to prohibit retaliation, since retaliation by its own terms is prohibited intentional discrimination. Thus, both Title IX and its regulations prohibit retaliation, and an aggrieved person may sue a federally-assisted educational program or activity to enforce the statutory prohibition on retaliation.65

Finally, one Texas federal district court has decided a Title IX retaliation claim against a female student who claimed that she was retaliated against when she alleged that she was sexually assaulted by a teacher off school premises. The court ruled against the student because she failed to allege that she first complained of sex discrimination and was then retaliated against for making the complaint. In doing so, the court set out the elements of a successful prima facie (sufficient to establish) Title IX retaliation claim: (1) that the plaintiff alleged “facts sufficient to show that she engaged in an activity protected by Title IX” (reporting sex discrimination); (2) “that the alleged retaliator knew of the protected activity; (3) that the alleged retaliator subsequently took some action disadvantageous to the actor; and (4) that a retaliatory motive played a substantial part in prompting the adverse action.”66

Title VII of the Civil Rights Act of 1964 Title VII, the wide-ranging federal employment anti-discrimination statute that prohibits public and private employers from discriminating on the basis of “race, color, religion, sex, or national origin,” explicitly prohibits an employer from retaliation. Under Title VII, an employer is prohibited from taking “unlawful employment” actions67 against a person “because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.”68 Title VII explicitly provides a right to sue an employer for retaliation, and in order to be successful in a Title VII retaliation claim, the employee must first demonstrate a prima facie case of retaliation by showing that (1) the employee engaged in a protected activity (i.e., opposing, charging, testifying, assisting, or participating), (2) the employee suffered an adverse employment action, and (3) that a causal connection exists between the protected activity and the adverse employment action. If the employee makes such a showing, the employer must put forth a legitimate, nondiscriminatory (i.e., job-related) reason that supports the adverse employment action. If the employer comes forward with such a reason, the employee may still prevail on the retaliation claim by showing that the employer’s reason is merely a pretext for unlawful retaliation.69

7 Like the Texas Whistleblower Act, an employee must demonstrate that an adverse employment action is “materially adverse,” in that the actions “would have dissuaded a reasonable worker from making or supporting a charge of discrimination.”70 Importantly, an adverse employment action in the retaliation context can extend beyond the workplace. For example, excluding a teacher from participating in a professional development activity outside the school could be an adverse employment action, even if it does not affect the teacher’s “compensation, terms, conditions, or privileges of employment.”71 Thus, it is again critical that any adverse employment action be legitimate, non-discriminatory, non-retaliatory, and job-related. Finally, the elements of a Title VII retaliation claim also extend to retaliation claims made under the Americans with Disabilities Act,72 the Age Discrimination in Employment Act,73 the Equal Pay Act,74 and the Family Medical Leave Act.75 Child Abuse Reporting in Texas The final legal provision to be examined that prohibits retaliation comes from Chapter 261 of the Texas Family Code and relates to child abuse and neglect reporting. The statute prohibits employers from suspending, terminating, or otherwise discriminating against a professional76 “who in good faith reports child abuse or neglect to” their supervisor, the supervisor of the facility that employs the professional, a state regulatory agency, or a law enforcement agency; or who “initiates or cooperates with an investigation or proceeding by a governmental entity relating to an allegation of child abuse and neglect.”77 Professionals who believe they are the victim of retaliation for the protected activities above may sue the employer for “injunctive relief, damages, or both,”78 and may recover “actual damages,… court costs, and reasonable attorney’s fees,”79 as well as be reinstated to their former or comparable position with fringe benefits and seniority rights and compensation for lost wages.80 The statute waives and abolishes sovereign immunity for public employers, including school districts, to the extent provided by the statute,81 and the limitations on actual damages are identical to those found in the Texas Whistleblower Act.82 However, a public employee may not bring a claim under this section if they have a cause of action under the Texas Whistleblower Act (in other words, the public employee may not bring dual claims for the same prohibited employer conduct). Conclusion So, what does this all mean? To this point, we have examined a host of legal provisions that prohibit employer retaliation. From this examination, there are several practical principles that can be gleaned to guide and inform the actions of public school officials who are faced with taking adverse employment actions that may be in proximity to whistleblowing activities: 1. In general, the closer the alleged adverse employment action is to the whistleblowing activity, the more likely it’s going to appear that the adverse employment action is because of the whistleblowing activity.

2. In general, an employee’s good faith report of unlawful or other untoward conduct is measured objectively, i.e., the employee’s belief that the conduct was unlawful or untoward must be reasonable.

3. Under Title IX, the prohibition on retaliation extends to those who are not the direct victims of discrimination.

4. Under the First Amendment, speech that is pursuant to the public employee’s official duties is not protected. Further, a public employee speaks pursuant to their official duties when the expression is required for the job or is undertaken in the performance of the employee’s official duties, even if the speech is not required. 5. The elements of retaliation claims under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and the Family Medical Leave Act are generally the same.

6. In general, adverse employment actions must be “materially adverse,” i.e., they must be “likely to dissuade a reasonable, similarly situated worker from making a report…”83

7. Most importantly, if the school district can articulate and demonstrate that, in the absence of the protected whistleblowing activity, the adverse employment action would have occurred nonetheless, and that the non-whistleblowing activity that forms the basis for the adverse employment action is not a pretext for retaliation, the school district generally will be in good shape. In other words, adverse employment actions should be job-related, documented, and legitimate.

As noted above, retaliation claims appear to be on the rise, both in Texas and beyond. Thus, in employment situations where school administrators have a legitimate, job-related reason to discipline an employee who may have engaged in any type of “whistleblowing” activity, the local school district attorney should be consulted so that steps may be taken to avoid retaliation claims. ENDNOTES

1. The provisions of the TWA are also found in TASB Schol Board Policy DG (Legal). 2. Tex. Gov’t Code § 554.002(a). 3. Tex. Gov’t Code § 554.001(2)(c). 4 Tex. Gov’t Code § 554.001(3) 5 Tex. Gov’t Code § 554.001(4). For example, a custodian working for a private company contracted by a school district for custodial services is not a “public employee” protected by the TWA. Alaniz v. Galena Park Indep. Sch. Dist., 833 S.W. 2d 204 (Tex. App.—Houston 1992). 6. Tex. Gov’t Code § 554.001(1). 7. Lane v. Galveston I.S.D, Dkt. No. 187-R3-799 (Comm’r Educ. 1996). 8. Phelan v. Texas Tech Univ., 2008 Tex. App. LEXIS 500 (Tex. App.—Amarillo 2008). 9. Rodriguez v. Bd. of Trs., 143 F.Supp.2d 727 (S.D. Tex. 2001). 10. City of Houston v. Kallina, 97 S.W. 3d 170 (Tex. App.—Houston 2002). 11. City of Waco v. Lopez, 183 S.W. 3d 825 (Tex. App.—Waco 2005), overruled on other grounds, 259 S.W. 3d 147 (Tex. 2008). 12. Llanes v. Corpus Christi I.S.D., 64 S.W. 3d 638 (Tex. App.—Corpus Christi 2001). In this case involving a secretary who unsuccessfully applied for a position and was terminated less than two months after complaining that the district violated Policy FAA (Legal) (Employment Objectives: Equal Opportunity Employment) in the hiring process, the appellate court did not decide whether


13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.


39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

the policy was a “rule” under the TWA, instead finding that the district’s actions did not violate the policy in question. See note 1, supra (emphasis added). Tex. Gov’t. Code § 554.002(b). The media is not an appropriate law enforcement authority (City of Beaumont v. Bouillion, 889 S.W. 2d 143, 145 (Tex. 1995)). Wichita Co., Texas v. Hart, 917 S.W. 2d 779, 784 (Tex. 1996). 82 S.W. 3d 314, 321 (Tex. 2002). See note 14, supra at 785. See note 1, supra. See note 3, supra. 246 S.W. 3d 610 (Tex. 2007). Id. at 614. 259 S.W.3d 147 (Tex. 2008). Tex. Gov’t Code § 554.0035. Tex. Gov’t Code § 554.003(a). Tex. Gov’t Code § 554.003(b). Tex. Gov’t Code § 554.003 (c), internal quotations omitted. In the event that a state or local governmental entity falls under more than one of the classifications noted, the amount of recoverable actual damages “defaults” to the highest damage award. Tex. Gov’t Code § 554.003(d). Tex. Gov’t Code § 554.008(a). Tex. Gov’t Code § 554.008(b). Tex. Gov’t Code § 554.008(c). Tex. Gov’t Code § 554.008(d). Tex. Gov’t Code § 554.008(e). Tex. Gov’t Code § 554.005. Tex. Gov’t Code § 554.006(a). School district personnel should consult their School Board Policies DGBA (Legal & Local), which govern employee grievances. Tex. Gov’t Code § 554.006(b). Tex. Gov’t Code § 554.006 (d). Id. In The Univ. of Texas Medical Branch at Galveston v. Barrett, 159 S.W. 3d 631 (Tex. 2005), the Texas Supreme Court held that the initiation provisions of Tex. Gov’t. Code § 554.001 et seq. do not require a public employee to exhaust the entity’s grievance or appeal procedure prior to filing suit. Thus, it denied UTMB’s plea to the jurisdiction asserting that the trial court did not have jurisdiction until the expiration of the 60 days as noted in Tex. Gov’t. Code § 554.006(d). Tex. Gov’t Code § 554.007(a). In addition, if the county in which the action arises is part of an established council of governments or other regional commission, as that term is defined in Tex. Local Gov’t. Code § 391.002, the public employee may sue in a district court of any county in the geographic area comprising the council or commission. Tex. Gov’t. Code § 554.007 (b). Tex. Gov’t Code § 554.004 (a), Tex. Dept. of Human Svcs. v. Hinds, 904 S.W. 2d 629 (Tex. 1995). Tex. Gov’t Code § 554.004 (a), emphasis added. Tex. Gov’t Code § 554.004(b). 904 S.W. 2d 629 (Tex. 1995). Id. at 636. Adams v. Groesbeck Indep. Sch. Dist., 2003 Tex. App. LEXIS 9792 (Tex. App.—Waco 2003), petition for review denied, 2004 Tex. LEXIS 518 (Tex. 2004). Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663 (Tex. App.—Corpus Christi 2004). Guillame v. City of Greenville, 247 S.W. 3d 457, 461 (Tex. App.—Dallas 2008). Tex. Gov’t Code § 554.009(a). Tex. Gov’t Code § 554.009(b). Pickering v, Bd. of Educ., 391 U.S. 563 (1968). Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). James v. Texas Collin County, 535 F.3d 365, 375-376 (5th Cir. 2008).

52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65.

66. 67.

68. 69. 70. 71. 72. 73. 74. 75. 76.

77. 78. 79. 80. 81. 82. 83.

547 U.S. 410 (2006). Id. (internal citations omitted). Id. at 421. 480 F.3d 689 (5th Cir. 2007). Id. at 692. 20 U.S.C. § 1681 (a). 42 U.S.C. § 2000-d. The Title VI regulations are found in 34 C.F.R. § 100.7; this same regulation is incorporated by reference into the Title IX regulations at 34 C.F.R. § 106.71. Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) Franklin v. Gwinnett Co. Pub. Schs, 503 U.S. 60 (1992) Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629 (1999). 544 U.S. 167 (2005). On the Title VI side, while the prohibitions on race, color, or national origin discrimination are enforceable in a private suit, whether this right extends to retaliation for complaining about such discrimination has not been determined. However, because Title IX is patterned after Title VI, it is quite possible that the U.S. Supreme Court might also find that Title VI’s private right of action extends to claims of retaliation. Practically speaking, the statutory and regulatory prohibitions of Title IX and the regulatory prohibitions of Title VI should be sufficient to deter reasonable educators from retaliating against subordinates who complain of race, color, national origin, or sex discrimination. Baggett v. Burnet Consol. Indep. Sch. Dist., 2007 U.S. Dist. LEXIS 71327, *34-35 (W.D. Tex. 2007). The unlawful employment practices are elaborated in Title VII as follows: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. 42 U.S.C. § 2000e-3(a). McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007), relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). Id. 42 U.S.C. § 12101 et seq. (Title I applies to disability discrimination in employment). 29 U.S.C. § 623. 29 U.S.C. § 215(a)(3), prohibiting retaliation for making a claim under the Equal Pay Act, 29 U.S.C. § 206. 29 U.S.C. § 2615. “…an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, daycare employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.” Tex. Fam. Code § 261.101(b). Tex. Fam. Code § 261.110 (b). Tex. Fam. Code § 261.110(c). Tex. Fam. Code § 261.110(d). Tex. Fam. Code § 261.110(e). Tex. Fam. Code § 261.110(f). Tex. Fam. Code § 261.110(g). See also note 24, supra. See note 20, supra.


LAW DAWG by Jim Walsh Attorney at Law Walsh, Anderson, Brown, Aldridge & Gallegos, P.C.

THE DAWG’S GUIDE TO THE OBAMA ADMINISTRATION Bush is out. Obama is in. What now for public education?

Well, it’s going to be interesting. On the campaign trail, Obama was a good politician—calling for good schools while being vague about how that should be accomplished. Now he has to address No Child Left Behind, IDEA, the push for performance based pay, and all the other hot button issues in education. So what’s going to happen with NCLB?

We have heard that there are a few bills floating around in draft stage that Congress may take up. Perhaps the most interesting is the “NCLB Correction Bill of 2009.” Had not heard of that. What’s it say?

It has some very interesting language in the preamble. We quote verbatim:

WHEREAS, the No Child Left Behind Act was adopted by Congress with the promise that the federal government would fully pay for whatever requirements the new law imposed; and WHEREAS, we didn’t really mean it; and

WHEREAS, the No Child Left Behind Act sets a goal of every single child in every school in every state being “proficient” by 2014; and

WHEREAS, that ain’t going to happen. We knew that from the get go; and WHEREAS, the law promised that “no child” would be left behind; and

WHEREAS, we think that sounds good on paper, but we have come to realize that it’s more important that financial institutions not go belly up, that defense contractors be fully employed and that sports stadiums continue to be built with taxpayer money, NOW, THEREFORE, Congress enacts the No Child Left Behind Correction Act of 2009.

Like what?

It replaces the HQ Teacher requirement (Highly Qualified) with the KSQ requirement (Kinda Sorta Qualified). Thus, standards for teachers will be relaxed. What about accountability?

Big changes. The NCLB Correction Act calls for continued testing, but gives schools much more flexibility in how the results are reported. Under the NCLB we were required to classify students according to race, income, language proficiency and disability status. No more. Now, schools will classify students as follows:

GROUP ONE: KIDS WHOSE PARENTS LET THEM WATCH TOO MUCH TV, EAT TOO MUCH JUNK FOOD, PLAY TOO MANY VIDEO GAMES and DISRESPECT THE HARD WORKING AND UNDERPAID TEACHER WHO IS TRYING TO HELP THEM. GROUP TWO: KIDS WHO DON’T DO SO WELL IN SCHOOL, BUT ARE SO TALENTED IN ART, MUSIC, ATHLETICS OR OTHER ENDEAVORS THAT WE ARE SURE THEY ARE GOING TO BE SUCCESSFUL ANYWAY. GROUP THREE: ALL THE OTHER KIDS. Under the new law, schools will be allowed to classify kids into one of these three groups, and will be held accountable only for the third group. Parents will be held accountable for the first group and no one will be held accountable for the second group. Instead, we will just sit back and enjoy watching them rise to great heights without a high school diploma. That group is informally known as “Lucy’s Kids” in honor of high school dropout and mega-success Lucille Ball. Whoa! What a concept!!!

Well, we don’t know if this will pass, but the teacher unions like it.

Wow! I had no idea. What’s it say?

Anything else?

That may take awhile.

Dawg: that ain’t going to happen HERE.

It postpones all the lofty goals set out in the original version of the law until “the unemployment rate drops below 3%, the Gross National Product jumps up by 5% for three years in a row, the Dow Jones gets back up to 14,000 and stays there for a year, and there is a sustainable peace in the Middle East.” You think? Well, just in case it does, the law provides for some intermediate goals designed to take the pressure off our public schools.

We expect to see more emphasis on basketball in the Obama Administration. The new president’s interest in hoops is likely to have a trickle effect throughout the culture. Look for more schools to make the basketball coach the A.D., thus lowering football just a tad in the pecking order. You are so right. What were we thinking?

Got a comment or question for the Dawg? Send it to


LEGAL DEVELOPMENTS BUSINESS TRANSACTIONS Bidding Proposals CAN AN OUT-OF-STATE COMPANY LEGITIMATELY BID ON A STATE CONTRACT FOR SERVICES? Case citation: GA-0685 (2008). Summary: The Attorney General was asked several questions regarding the interpretation of certain provisions in the State Purchasing and General Services Act (the “Purchasing Act”). The questions resulted from a contract awarded by the Texas Department of Transportation to an out-of-state company involving the marketing and sale of specialty license plates. It was alleged that the private vendor that was awarded the contract listed a Texas address but conducted no business in Texas and had no place of business in Texas. Another firm that also bid on the contract protested the award of the contract to the out-of-state company. However, the executive director of the Texas Department of Transportation ultimately denied the appeal. The Attorney General was asked (1) what constitutes a “Texas bidder” under the Purchasing Act, (2) what remedies are available when a bidder inaccurately affirms that it is a “Texas bidder,” (3) whether certain statutory preferences apply in the case of a tie bid, and (4) the recourse available to compel a state agency to reconsider the application of a bid preference. Ruling: The Attorney General first declined to address whether the award of the particular services contract by the Texas Department of Transportation was proper. The Attorney General typically does not make such factual determinations. Instead, the Attorney General discussed the purely legal questions presented in the request concerning the Purchasing Act. The Attorney General first considered what constitutes a “Texas bidder” under the Purchasing Act. Government Code § 2155.444(c)(2) defines “Texas bidder” as a business that either (1) is incorporated in Texas, (2) has its principal place of business in Texas, or (3) has an established physical presence in Texas. Whether a business has its principal place of business in Texas is a fact-sensitive inquiry. The Attorney General next was asked what recourse existed in a situation in which a company is not a “Texas bidder” but signs an affirmation that it is and is later awarded a state contract. According to the Attorney General, a range of remedies and responses may be available under the Purchasing Act if a bidder inaccurately represents that it is a Texas bidder in its proposal. Agency protest procedures can be initiated by other bidders. Vendors can be barred from participating in state contracts

or be removed from bidder lists as a result. In addition, a contract entered into based on inaccurate representations may be rendered voidable. In some instances, criminal prosecution may be pursued. The next issue before the Attorney General was whether preferences given under Government Code § 2155.444(e) apply in the case of a tie bid. The Government Code requires all state agencies purchasing goods to give certain preferences to those produced or grown in Texas or offered by Texas bidders. The purchasing preferences in Government Code § 2155.444(e) apply when (1) the service otherwise meets the state’s requirements and expected quality, and (2) “the cost of the service does not exceed the cost of other similar services of similar expected quality that are offered by a bidder that is not entitled to a preference under this subsection.” Thus, under that provision, if there is an actual tie in the proposed cost of the service, a preference applies if the service is “of similar expected quality.” The Attorney General also was asked what recourse was available to compel a state agency to reconsider the application of a bidding preference when it is believed that the preference had been applied incorrectly by a state agency during a procurement process. Under the Purchasing Act, Government Code § 2155.076, each agency must develop its own protest procedures for resolving vendor protests related to purchasing issues. According to the Attorney General, any statutes applicable to a particular state agency and any rules adopted by the agency have to be reviewed to determine what recourse is available.

LABOR AND EMPLOYMENT Constitutional Rights WAS THE TEACHER’S TEMPORARY TERMINATION ATTRIBUTABLE TO A POLICY OR CUSTOM OF THE SCHOOL DISTRICT? Case citation: Moore v. Dallas ISD, Dkt. No. 3:07-CV009-D (N.D. Tex. 2008). Summary: Elia Moore was employed by the Dallas Independent School District as a classroom teacher. In June of 2005, she was notified by letter that, effective August 8, 2005, she was assigned to an elementary school within the district. However, in July of 2005, the district sent Moore another letter assigning her to a middle school. Moore alleges that she did not receive that second letter.


Labor and Employment, continued On August 4, 2005, before the start of the school year, Moore’s physician placed her on work restriction due to depression. Shortly thereafter, Moore telephoned the elementary school to which she thought she had been assigned and informed them of her work restriction. The principal told her that she was not assigned to the elementary school. Moore then called the district’s human resources department and left a message. She finally talked to a staff member on August 11, 2005, and was informed that she had been assigned to the middle school. Moore then faxed a copy of the medical work restriction to the middle school. She received no response from the middle school. Moore did not provide the work restriction information to any other district personnel. On August 12, 2005, the middle school principal completed a job abandonment form based on Moore’s failure to report to work on August 8. He also sent the form to the district’s employee relations office. On August 15, 2005, employee relations personnel contacted Moore and told her that she needed to submit the proper forms for leave and Moore did so the following day. Meanwhile, the notice of separation for job abandonment was processed on August 17. Moore did not receive notice of the proposed termination. She only learned of her termination when she tried to return to work and was told that she was ineligible to do so because she had been separated from employment for job abandonment. When Moore brought this to the district’s attention, her employment was reinstated and she began an assignment as an academic coordinator at another elementary school within the district. Moore later filed suit against the district alleging that it improperly terminated her employment without notice and an opportunity to be heard in violation of her procedural and substantive due process rights under the Fourteenth Amendment to the United States Constitution. The district sought dismissal of the claims arguing that Moore could not establish that a district policy or custom caused the alleged constitutional violation. Ruling: The trial court dismissed Moore’s due process claims against the district. The trial court observed that in order to attribute liability to a school district for a constitutional deprivation under 42 U.S.C. § 1983 a plaintiff must demonstrate an official policy or custom that was the “moving force” behind the constitutional deprivation. Further, liability attaches only when the decisionmaker possesses final authority with respect to the employment decision. In this case, Moore failed to demonstrate that her temporary termination was the result of an official policy or custom of the district. Under Texas law, the board of trustees is the final policymaking authority for a school district with regard to employment decisions. There was no evidence that the board of trustees considered or took any action on Moore’s termination. Instead, the record showed that her termination occurred when district personnel processed Moore’s notice of separation and it was ultimately signed by the principal. There

was no evidence demonstrating that the board delegated its policymaking authority to the principal or any other district personnel who handled Moore’s separation of employment. Because Moore failed to establish that the administration’s processing of the notice of separation signed by the principal constituted an official policy or custom, the district could not be held liable for the alleged violations of her due process rights. Things to Remember: There may have been other reasons for the dismissal of this case as well. For example, is this “temporary termination” the type of action that requires “due process”? When the court has ample grounds for the dismissal of a case, it need not explore other reasons that would lead to the same result. The notion that a principal is not a “policymaker” for a school district is well established in the law, and so in this case the absence of any action by the board was fatal to the plaintiff’s case.

Discrimination DID THE TEACHER TIMELY EXHAUST ADMINISTRATIVE REMEDIES ON HER TITLE VII CLAIMS? Case citation: Davison v. Plano ISD, Dkt. No. 4:08-CV247 (E.D. Tex. 2008). Summary: Karen Davison, an African American, was a teacher for the Plano Independent School District when she sued the district for violations of Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment to the United States Constitution. Davison claims that beginning in 2003, she was subjected to a hostile work environment, denied a promotion, and subjected to retaliation due to her race. Specifically, Davison claimed that in August of 2004, she was transferred to another school where she was exposed to racially-motivated hostility from parents and colleagues. Later, after being forced to take medical leave, she was transferred to a co-teaching position at another school which required her to share a classroom with another teacher. According to Davison, at the third school she had difficulty obtaining teaching materials, experienced hostility from colleagues, and was under unfair scrutiny from her supervisors. Davison also alleged that a school nurse created a racially hostile environment. She alleged that the nurse found humor in a picture of Davison drawn by a student in brown crayon, took candy from Davison, and gave Davison a picture of himself standing over a dead moose. Davison claimed that she had reported those incidents to district personnel but that no action was taken on her behalf. Instead, according to Davison, she suffered increased criticism, denial of resources, and ostracism. She also was denied a promotion to “Team Leader” which allegedly was a prerequisite for further promotion.


Labor and Employment, continued In response to the lawsuit, the district argued that many, if not all, of Davison’s complaints were time-barred under Title VII. The district also argued that Davison had not identified a protected property right under the Fourteenth Amendment. The district sought dismissal of the lawsuit. Ruling: The trial court dismissed all but one of Davison’s Title VII claims, as well as the Fourteenth Amendment claim. The trial court observed that a Title VII plaintiff must first exhaust administrative remedies before filing suit. In doing so, Davison had to file a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission. If filing with the state agency, the charge could only challenge discriminatory actions that occurred within the 300 days preceding its filing. In this case, Davison filed her charge with the Texas Workforce Commission on June 11, 2008. Thus, any discrete acts that occurred on or before August 16, 2007, could not serve as a basis for liability against the district. The only claim that fell within the 300-day period was the alleged failure to promote her in August of 2008. According to the trial court, the failure to promote claim was not time-barred. Other claims that fell with the 300-day period simply did not amount to violations of Title VII, according to the court. Rather, the lawsuit alleged discrete, unrelated acts that did not violate Title VII. The trial court dismissed all of Davison’s Title VII claims, except regarding the alleged failure to promote in August of 2008. The trial court also dismissed Davison’s Fourteenth Amendment claim. The trial court observed that the Constitution does not itself create property rights but protects interests that are created by state law or contract. According to the trial court, to succeed on her due process claim, Davison had to show that (1) she had a property right in her employment and (2) her termination was arbitrary or capricious. The record, in this case, showed that Davison was not terminated from her employment and remained a teacher with the district. Davison’s allegation that she was transferred from a third grade class to a first grade class did not support a Fourteenth Amendment claim. She did not have a property interest related to the transfer. She also did not have a constitutionally protected property right in a promotion. Her contract contained no provisions related to promotions that could have created such a property interest. Thus, her Fourteenth Amendment claims related to her transfer and the denial of a promotion were without merit. The only claim that remained in the lawsuit was Davison’s August 2008 failure to promote claim under Title VII. Things to Remember: As a general rule, a transfer from one position to another is not going to amount to a deprivation of property or liberty interests that requires due process procedures.

WHEN WILL A COURT TOLL OR EXTEND THE FILING DEADLINES IN A TITLE VII DISCRIMINATION OR RETALIATION CASE? Case citation: Patterson v. Spellings, Dkt. No. 3:07-CV1880-L (N.D. Tex. 2008). Summary: Treslyn Patterson began working for the Department of Education in June of 1998. In April of 2002, Patterson filed an administrative complaint against the DOE, contending that it discriminated against her. Patterson and the DOE later entered into a settlement agreement regarding the dispute. In January of 2004, Patterson became eligible for promotion. The following year she filed two separate administrative complaints with the DOE’s Equal Employment Opportunity (EEO) office. The first complaint alleged that she had not been promoted in retaliation for her earlier discrimination complaints. The second complaint claimed that the DOE’s failure to promote her breached the settlement agreement that Patterson reached with the DOE previously. In March of 2005, following her two administrative complaints, the DOE promoted Patterson. Nevertheless, on August 31, 2006, Patterson filed suit alleging that the DOE breached the earlier settlement agreement by failing to promote her in January of 2004. While that suit was pending, on November 15, 2006, the DOE’s EEO office dismissed Patterson’s administrative retaliation complaint because of the lawsuit. The dismissal letter from the DOE’s EEO office stated, among other things, that she could appeal the DOE’s decision to the Equal Employment Opportunity Commission (EEOC) within 30 days. It also indicated that she could file a civil action on the retaliation complaint within 90 days of the EEOC’s decision, or within 180 days from the date of her appeal to the EEOC if it had not rendered a final decision. The trial court later dismissed Patterson’s federal lawsuit concerning breach of the settlement agreement and a federal appeals court upheld the decision. Although Patterson had claimed that her lawsuit also included a retaliation claim under Title VII, the appeals court disagreed. The lawsuit did not include a claim of retaliation, according to the appeals court. The appeals court upheld the dismissal of her claims in an order dated October 10, 2007. Thirty days after the appeals court decision, Patterson filed a lawsuit alleging retaliation under Title VII. The DOE sought dismissal of the suit arguing that Patterson had not filed the suit timely. Patterson did not dispute that her retaliation lawsuit was untimely. The record showed that the suit was filed a year after the DOE dismissed her retaliation complaint. Patterson argued, instead, that the limitations period should have been tolled (i.e., extended) because she allegedly had been misled by the DOE about her right to file suit.


Labor and Employment, continued Ruling: The trial court determined that Patterson was not entitled to equitable tolling of the deadline for filing her Title VII retaliation claims. Generally, a limitations period will be extended when (1) a lawsuit between the same parties is pending in the wrong forum, (2) the plaintiff is unaware of facts supporting the claims because of the defendant’s intentional concealment of the facts, or (3) the EEOC misleads the plaintiff about her rights. The trial court determined that Patterson did not demonstrate any of those possible reasons to toll the timelines that applied to her retaliation claim. Patterson contended that she was misled by the DOE’s letter dismissing her internal retaliation complaint because the letter stated that her retaliation claim was the basis of a pending lawsuit. Instead, at the time, the only lawsuit pending involved the alleged breach of the prior settlement agreement. The trial court determined that the DOE’s letter was not misleading. It did not contain any incorrect information. According to the trial court, “nothing in the letter indicates that the DOE’s conduct reasonably induced Patterson not to file suit or act within the applicable limitations period.” Further, Patterson’s own subjective beliefs that she had been misled were insufficient to require tolling of the limitations period. The trial court dismissed Patterson’s retaliation lawsuit for her failure to file it timely.


Summary: Bobby Thomas, an African American, was employed by the Corpus Christi Independent School District as a paraprofessional. He and one other paraprofessional was assigned to a functional behavior improvement unit for special education students at one of the high schools. He was employed on an at-will basis and had no contract guaranteeing him continued employment with the district. During the 2004-05 school year, one of the students in the unit had experienced several severe seizures that caused her to fall and resulted in significant injury. To accommodate the student, the teacher cleared and carpeted the rear area of the classroom. As a result, Thomas’s desk was removed from the classroom. In early March of 2005, the teacher began to compile Thomas’s employment evaluation for the 2004-05 school year. Expecting a poor evaluation, Thomas requested a meeting with the teacher and the assistant principal to complain about the appraisal that the teacher was preparing. The teacher ultimately completed Thomas’s appraisal and noted performance deficiencies in twelve of thirteen categories. Thomas again met with the assistant principal and also prepared a rebuttal for the executive director of human resources. However, Thomas

never expressed a belief that the teacher rated his performance negatively because of Thomas’s race. Following Thomas’s negative performance appraisal, the executive director of human resources allowed Thomas to receive a re-evaluation conducted by both the teacher and the assistant principal. However, the second review continued to reflect the same performance deficiencies. The following school year, the district received several parent complaints about Thomas. One parent complained that Thomas harassed and ridiculed a student in view of fellow students. Others complained that Thomas took lunch money from students who were supposed to receive their lunches for free. Another parent complained that Thomas had told her daughter that the student could call him if she ever needed a “real man.” As a result of these complaints, in December of 2005, the high school principal initiated an investigation into Thomas’s conduct. On that same day, she attempted to find Thomas to inform him that he was being suspended temporarily pending the investigation. However, the principal could not find him on campus. Although the sign-out sheet indicated that Thomas was on the campus until 4:45 p.m. that day, the principal was unable to find him on campus. Since she could not locate him on campus, she sent him a letter notifying him of his suspension and the pending investigation. The investigation ultimately confirmed that Thomas made the inappropriate comment to a student and improperly took lunch money from students. As a result, the principal recommended Thomas’s termination. Thomas eventually was terminated from the district and replaced by an African American man. Following his termination, Thomas filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that the district discriminated against him on the basis of his race. He later filed suit against the district under Title VII bringing claims of discrimination, retaliation, and hostile work environment. The district sought dismissal of the claims prior to trial.

Ruling: The trial court dismissed Thomas’s Title VII lawsuit. To establish a Title VII discrimination claim, Thomas first had to show that he (1) belonged to a protected class, (2) was qualified for the position, (3) suffered an adverse employment action, and (4) was replaced by someone else or was treated less favorably than other similarly situated employees outside of his protected class. The trial court held that Thomas could not meet his initial burden of proof. Thomas first claimed that he suffered racially motivated discrimination in the form of receiving a poor performance appraisal, having his desk removed from the classroom, and being terminated. The trial court determined that the negative appraisal and removal of his desk were not “ultimate employment decisions” actionable under Title VII. Further, Thomas could not meet his initial burden of proof in his race discrimination claim because the record showed that he was replaced by an African American. He also did not


Labor and Employment, continued demonstrate how other similarly-situated employees outside of his protected class were treated more favorably than him. Thomas also failed to offer any evidence to rebut the district’s legitimate nondiscriminatory reasons for his termination. The only support for his discrimination claim was his own subjective belief that the district’s actions were motivated by his race. According to the trial court, such conclusory beliefs are insufficient to support a Title VII discrimination claim. Thomas’s discrimination claims were without merit. The trial court also rejected Thomas’s retaliation claims. First, Thomas failed to raise a retaliation claim in his charge of discrimination to the EEOC. Second, he could not rebut the district’s legitimate reasons for its employment actions. The record showed that the teacher moved Thomas’s desk out of concern for a student. Thomas’s poor performance reviews were based on several evaluations by the teacher and the assistant principal. Further, his termination was based upon the results of an investigation that confirmed a number of parent complaints. Thomas did not offer any evidence, other than his own subjective beliefs, demonstrating a retaliatory motive on the part of the district. Thomas’s hostile environment claim likewise was without merit. To establish his initial burden of proof for the hostile environment claim, Thomas had to show that (1) he belonged to a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment complained of was based on his membership in the protected group, (4) the harassment affected a term, condition, or privilege of his employment, and (5) the district knew or should have known about the harassment and failed to take action to stop it. The trial court concluded that Thomas’s hostile work environment claim failed because he did not present any evidence of racially-motivated workplace harassment on the part of district personnel. The trial court dismissed each of Thomas’s claims. Things to Remember: Notice that the district compiled extensive documentation of job-related problems, which enabled it to convince the court that race was not a factor in this decision. Most paraprofessionals are “at-will” employees, but as this case illustrates, can sue over allegations of discriminatory treatment.

Nonrenewal DOES A NOTICE OF PROPOSED NONRENEWAL HAVE TO CONTAIN EACH INSTANCE OF MISCONDUCT BY THE EDUCATOR? Case citation: Jeffery v. Fort Bend ISD, Dkt. No. 059-R10608 (Comm’r Educ. July 31, 2008).

Summary: Dale Jeffery worked as a teacher for the Fort Bend Independent School District and had a term contract for the 2007-08 school year. By letter dated April 4, 2008, the

district’s superintendent informed Jeffery that the board of trustees had voted to propose the nonrenewal of his contract. The letter listed four policy reasons for proposed nonrenewal and identified nine instances of specific misconduct supporting those reasons. However, a letter dated May 13, 2008, titled Supplement to Notice of Proposed Nonrenewal, the superintendent listed the same four policy reasons for nonrenewal and the same nine instances of misconduct but added an additional nine new instances of misconduct. The board ultimately voted to nonrenew Jeffery’s contract. Jeffery appealed the nonrenewal of his term contract to the Commissioner of Education. Jeffery argued that the board improperly considered conduct set out in the supplemental notice of proposed nonrenewal and that the decision to nonrenew his contract was not supported by substantial evidence.

Ruling: The Commissioner upheld the nonrenewal of Jeffery’s term contract. It was not improper for the board to consider the superintendent’s supplemental notice of proposed nonrenewal. Texas Education Code § 21.206 only required that, 45 days before the last day of instruction, the district provide Jeffery notice of whether the board would propose to renew or not renew the contract. According to the Commissioner, § 21.206 does not require that all reasons for nonrenewal, including each instance of misconduct, be included in the notice of proposed nonrenewal. In this case, the supplemental notice contained the same four policy reasons supporting nonrenewal but added nine specific instances of misconduct. According to the Commissioner, the supplemental notice was not improper. Furthermore, Jeffery had failed to raise the issue of the supplemental notice at the local level. Because the Commissioner only has jurisdiction over issues raised at the local level, Jeffery waived the issue on appeal. Jeffery also argued that because he was not determined to be a teacher in need of assistance and given an intervention plan under the Professional Development and Appraisal System (PDAS) the district could not establish that substantial evidence existed to nonrenew his contract. The Commissioner disagreed noting that, during the 2007-08 school year, Jeffery was exempt from the PDAS. In addition, according to the Commissioner, districts are not required to place teachers on intervention plans prior to proposing nonrenewal. [Editor’s Note: In support of the conclusion that Jeffery was exempt from the PDAS for the 2007-08 school year, the Commissioner cited 19 Tex. Admin. Code § 150.1003(l), which provides that a teacher may be appraised less frequently than annually “if the teacher agrees in writing and the teacher’s most recent appraisal rated the teacher as at least proficient, or the equivalent, and did not identify any area of deficiency.” Further, a teacher who is appraised less frequently than annually must be appraised at least once during each period of five school years]. Jeffery next claimed that he should have been offered a chance for remediation. The Commissioner observed that there is no right to remediation and that remediation is much less likely to be required in a nonrenewal case than in a


Labor and Employment, continued termination case, which requires a showing of good cause. The record showed that Jeffery was given multiple warnings about his misconduct. According to the Commissioner, some of the alleged misconduct was sufficient to warrant nonrenewal without remediation.

7.057(a)(2)(B), for “actions or decisions of any school district board of trustees that violate . . . a provision of a written employment contract between the school district and the school district employee, if the violation causes monetary harm to the employee.”

The Commissioner also concluded that substantial evidence existed to support Jeffery’s nonrenewal. The record showed that the district required its teachers to sign in when they reported to work. Jeffery was informed verbally by the principal that he needed to sign in by 7:30 a.m. On October 11, 2007, Jeffery received a written directive to sign in daily. Despite the directive, Jeffery failed to do so on numerous occasions. According to the Commissioner, “repeatedly failing to follow a supervisor’s directive is generally not an offense that requires remediation.”

In response, the district sought dismissal of the appeal arguing that the Commissioner did not have jurisdiction over the appeal under Education Code § 7.057. The district also requested that the Commissioner strike Nassar’s brief filed in reply to the district’s arguments. The district claimed that Nassar had failed to provide a copy of the reply brief to the district on the same day and in the same manner as provided to the Commissioner.

Jeffery complained that there was no written policy requiring him to sign in and, as a result, a violation of an unwritten policy could not be used to support his nonrenewal. The Commissioner concluded, however, that Jeffery violated Board policy DFBB(LOCAL)’s established reasons for nonrenewal, including (1) deficiencies pointed out in other communications, (2) failure to fulfill duties and responsibilities, and (3) failure to comply with official directives. According to the Commissioner, Jeffery’s failure to follow directives concerning signing in alone was sufficient to support his nonrenewal. The Commissioner upheld Jeffery’s nonrenewal. Things to Remember: This case makes a good and important point: nonrenewal of contract does not have to be based on the teacher’s violation of policy. It can be based on the teacher’s failure to satisfy standards set out in policy. Here, the teacher was notified of deficiencies in performance, and as per Policy DFBB (Local), this gave the school district ample grounds to nonrenew the contract. The case also reminds us that there is no automatic “right” to remediation.

Probationary Contracts DID THE COMMISSIONER OF EDUCATION HAVE JURISDICTION OVER THE TERMINATION OF THE PROBATIONARY CONTRACT? Case citation: Nassar v. Hurst-Euless-Bedford ISD, Dkt. No. 069-R2-404 (Comm’r Educ. July 31, 2008). Summary: Hector Nassar held a probationary contract with the Hurst-Euless-Bedford Independent School District when the district proposed his termination. Following a hearing on the proposed termination, a hearing officer determined that good cause existed to terminate Nassar’s probationary contract during the contract term. The board of trustees later voted to terminate the contract. Nassar appealed the board’s decision to the Commissioner of Education. Nassar maintained that the Commissioner had jurisdiction over the matter under Texas Education Code §

Ruling: The Commissioner struck Nassar’s reply brief and determined that it did not have jurisdiction over the appeal under Education Code § 7.057. First, Nassar violated the Texas Rules of Civil Procedure by failing to provide the reply brief to the district on the same day and in the same manner that it was provided to the Commissioner. The record showed that the reply brief was faxed to the Commissioner and that, three days later, Nassar’s counsel emailed the reply brief to the school district’s lawyer. The brief also lacked the required certificate indicating how it had been sent to the district. That three-day delay and lack of the certificate of service were “egregious violations of the service rules,” according to the Commissioner. The Commissioner, thus, struck Nassar’s reply brief. The Commissioner next concluded that he lacked jurisdiction over Nassar’s appeal. Education Code § 7.057 provides, in part, that it “does not apply to . . . a case to which [Education Code] Subchapter G, Chapter 21, applies . . . .” An appeal of the termination of a probationary contract during the contract term falls under Subchapter G of Chapter 21. Accordingly, Education Code § 7.057 did not provide jurisdiction over Nassar’s appeal. Further, the time available for amending Nassar’s petition to assert the correct basis for jurisdiction already had expired. The Commissioner dismissed Nassar’s appeal for lack of jurisdiction. Things to Remember: It is not that the Commissioner does not have jurisdiction to hear an appeal of the termination of a probationary contract. He does. The problem here was the employee’s failure to assert the right basis for the Commissioner’s jurisdiction.

Terminations WHAT ARE THE BRIEFING REQUIREMENTS FOR APPEALS TO THE COMMISSIONER OF EDUCATION? Case citation: Rayburn v. Pasadena ISD, Dkt. No. 006R2-1008 (Comm’r Educ. Dec. 5, 2008) Summary: Patricia Rayburn was a high school teacher for the Pasadena Independent School District and held a term


Labor and Employment, continued contract during the 2007-08 school year. The high school campus was rated academically unacceptable by the Texas Education Agency (TEA) for the 2006-07 and 2007-08 school years. As a result, the Commissioner of Education ordered that the school be reconstituted and assigned a Campus Intervention Team (CIT) to oversee the process. As part of the reconstitution of the campus, the CIT had to determine whether each individual teacher should be retained on the campus. The CIT determined that Rayburn should not be retained. In May of 2008, the district provided Rayburn notice of her proposed termination. Rayburn requested a hearing before a certified hearing examiner. The hearing was scheduled for August 14, 2008. However, on August 11, 2008, Rayburn requested a continuance of the hearing. The hearing examiner denied that request, as well as another request that was made on the day of the hearing. The hearing examiner ultimately concluded that good cause existed to support Rayburn’s termination. The board of trustees later adopted the hearing examiner’s recommendation and voted to terminate the term contract. Rayburn appealed the board’s decision to the Commissioner of Education. The sole issue that she raised on appeal was whether the hearing examiner properly denied her requests for a continuance of the hearing. Ruling: The Commissioner of Education determined that Rayburn failed to exhaust administrative remedies both at the local level and before the Commissioner on her claim that the hearing examiner improperly denied her requests for a continuance of the hearing. The Commissioner observed that briefing is an essential element of all Commissioner appeals. Under 19 Tex. Admin. Code § 157.1058(a)(4), a brief must contain a “clear and concise argument for the contentions made with appropriate citations to authorities in the record.” In this case, Rayburn’s briefing before the Commissioner made no citations to any authority supporting her contentions. She did not cite to any rule or law that may have been violated by the hearing examiner and she did not explain the standards to be used to determine whether the hearing examiner’s actions were improper. According to the Commissioner, Rayburn failed to exhaust administrative remedies as to her only claim by failing to brief the legal authorities that supported her contentions. Rayburn also waived her arguments on appeal because she did not properly object to the hearing examiner’s denial of her continuance. The record showed that at the hearing before the board of trustees, Rayburn did not identify any law or rule that the hearing examiner may have violated. Because Rayburn did not properly raise an objection before the board, she waived her arguments and failed to exhaust administrative remedies. The Commissioner dismissed the teacher’s appeal and upheld the termination of her term contract. Things to Remember: Here is yet another reminder of how important it is for parties to comply with the procedural requirements to make an appeal to the Agency.

GOVERNANCE Board action WHAT NUMBER OF VOTES ARE NECESSARY FOR A SCHOOL DISTRICT BOARD OF TRUSTEES TO TAKE OFFICIAL ACTION? Case citation: GA-0689 (2009). Summary: The Commissioner of Education asked the Attorney General whether Texas Education Code § 11.051(a-1), as amended, altered the common-law standard for determining the number of votes necessary for a school district board of trustees to take action. Under the common-law standard, a majority vote is generally determined from a majority of those present and voting, excluding abstentions, and assuming a quorum is present. For example, if the board was composed of twelve members, a quorum of seven could act, and a majority of that quorum, four, could bind the body. Texas Education Code § 11.051(a-1) provides that “unless authorized by the board, a member of the board may not, individually, act on behalf of the board. The board of trustees may act only by majority vote of the members present at a meeting held in compliance with Chapter 551, Government Code, at which a quorum of the board is present and voting.” The Commissioner of Education suggested that the phrase in § 11.051(a-1) – “may act only by majority vote of the members present” – may change the common law by requiring a vote of a majority of the members physically present at the meeting. In addition, the phrase – “at which a quorum is present and voting” – could be understood to change the common law by requiring a vote from each member of the quorum. To determine whether the statute changed the common-law standard for determining the number of votes necessary to constitute board action, the Attorney General had to look to the intent of the Legislature when it enacted the statute. Ruling: The Attorney General determined that Texas Education Code § 11.051(a-1) did not alter the common-law standard for determining the number of votes necessary for a school district board of trustees to act in its official capacity. The Attorney General observed that the stated purpose of House Bill 2563 that enacted § 11.051(a-1) was to clarify the “precise roles of and relationship between [school district board of trustees] and superintendents.” It was enacted amid concerns of individual school board members’ inappropriate involvement in the operations of the school district, micromanagement of daily operations, and threatening of district employees. Thus, House Bill 2563 was meant to define the role of a school board member and distinguish it from the role of a superintendent. According to the Attorney General, there was no indication that the Legislature intended to alter the common-law majority vote requirement for a school district board of trustees when it enacted Education Code § 11.051(a-1).


Governance, continued Things to Remember: Thus, with your typical seven-member school board, if four are present, you have a quorum. If the vote is 2-1, with one abstention, the motion has passed and the district is bound by the vote, even though only two members of the board voted for it. This is the general rule of operation. Specific statutes may create exceptions to that general rule.

Dual positions CAN A SCHOOL DISTRICT POLICE CHIEF SIMULTANEOUSLY SERVE AS A MEMBER OF THE CITY COUNCIL? Case citation: GA-0688 (2009). Summary: The Attorney General recently was asked whether the police chief of an independent school district may serve simultaneously as a member of a city council of a city that is located within the geographical boundaries of the school district. The main issue before the Attorney General was whether the common-law doctrine of incompatibility prohibited such an arrangement. Under the common-law doctrine of incompatibility, an individual is prohibited from holding two public offices that perform inconsistent or conflicting duties. In order for “conflicting loyalties incompatibility” to apply, however, both positions must constitute “offices.” The Attorney General previously had held that an individual whose actions are subject to the control of others is not an “officer” under the doctrine of incompatibility. Ruling: The Attorney General concluded that the commonlaw doctrine of incompatibility did not bar an individual from simultaneously serving as a school district chief of police and a city council member of a city located within the geographical limits of the school district. The Attorney General observed that under the Texas Education Code, a school district police chief’s actions are subject to the control of the district’s board of trustees and superintendent. Because a police chief cannot be said to exercise control “independent of the control of others,” he is an employee rather than an “officer” for the purposes of applying the doctrine of incompatibility. The doctrine of incompatibility does not bar a school district police chief from simultaneously serving as a city council member.

PRACTICE AND PROCEDURE Dismissal of Claims THE MAN’S VARIOUS CLAIMS WERE WITHOUT MERIT Case citation: Washington v. Weaver, Dkt. No. 08-30392 (5th Cir. 2008).

Summary: Lester L. Washington was the president of the East Baton Rouge Parish Association of Educators (EBRPAE), beginning in 2001. However, he was removed from office in 2002, in connection with a criminal prosecution that resulted in his conviction. Without the assistance of legal counsel, Washington later sued the National Education Association (NEA), its president, the Louisiana Association of Educators (LAE), its president, the EBRPAE, its president and EBRPAE past and present board members. Washington’s lawsuit contained a lengthy list of grievances against the defendants alleging mistreatment related to his leadership of the EBRPAE and his criminal prosecution. The defendants requested dismissal of the suit prior to trial. The trial court dismissed the lawsuit and Washington appealed. Ruling: The appeals court affirmed the dismissal of Washington’s lawsuit. According to the appeals court, Washington raised numerous claims of liability to which he lacked standing. For example, his Fourteenth Amendment claim lacked merit because none of the defendants were state actors. He also did not have standing to assert claims for alleged violations of child abuse laws, Title IX, or the Sarbanes-Oxley Act. Also, since none of the defendants were subject to the Louisiana civil service rules regarding paid leave, Washington could not assert violations of those rules. Washington failed to allege facts showing that the defendants were negligent in any duty owed to him. He also failed to state facts that would entitle him to relief under the whistleblower protection laws, the False Claims Act or Title VII. The federal Whistleblower Protection Act applies only to claims by federal civil servants against their government employers. Washington was not employed by the federal government. The Title VII claim failed because he did not raise allegations of discrimination or hostile work environment and none of the defendants could be considered his “employer” under Title VII. He also failed to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Washington also did not state facts sufficient to support his claims for breach of contract, or libel and slander. The trial court properly dismissed Washington’s lawsuit.

Jurisdiction DID THE TRIAL COURT HAVE JURISDICTION OVER THE TEACHER’S BREACH OF CONTRACT ACTION AGAINST THE SCHOOL DISTRICT? Case citation: North East ISD v. Kelley, Dkt. No. 04-0800162 (Tex. App. – San Antonio 2008). Summary: John Kelley worked as a teacher for the North East Independent School District and held a one-year probationary contract. The contract provided that Kelley would be employed on a 10-month basis for the 2000-01 school year “according to the hours and dates set by the district as they exist or may hereafter be amended.” The district’s teacher work schedule required 187 days of work and the teacher salary schedule was based on the 187-day work schedule.


Practice and Procedure, continued Kelley filed a grievance against the district after it required him to attend a graduation ceremony, after he had completed the required 187 days of work. He claimed that the district breached his contract and requested compensation for the additional day of work. After his grievance was denied he appealed to the Commissioner of Education. The Commissioner ultimately concluded that the district did not violate Kelley’s contract but that his allegations raised a claim of “quantum meruit.” Because the Commissioner did not have jurisdiction over quantum meruit causes of action, the Commissioner dismissed Kelley’s appeal for lack of jurisdiction. Kelley then filed two lawsuits. First, he filed an administrative appeal of the Commissioner’s decision in Travis County. Second, he filed suit in Bexar County state court alleging breach of contract and quantum meruit against the district. In response to the Bexar County suit, the district filed a “plea to the jurisdiction” arguing that only Travis County had jurisdiction over the administrative appeal. Meanwhile, the Travis County court abated (i.e., halted) its proceedings pending resolution of the Bexar County suit. The Bexar County court rejected the district’s attempt to dismiss the suit and ultimately entered judgment in favor of Kelley. The trial court’s order (1) awarded Kelley damages for the breach of contract claim, (2) declared that the district violated the contract, and (3) prohibited the district from such action in the future. The trial court also awarded Kelley attorney’s fees and costs. The district appealed the judgment in favor of Kelley. Ruling: The appeals court reversed the judgment in favor of Kelley. Texas Education Code § 7.057(d) required Kelley to appeal the Commissioner’s decision to a district court in Travis County. Therefore, the Bexar County court did not have jurisdiction to consider Kelley’s breach of contract claim. Because the Bexar County court was without jurisdiction to consider the breach of contract claim, it also was without jurisdiction to award Kelley attorney’s fees based on the judgment entered on those claims. With respect to the “quantum meruit” claim, the appeals court observed that a party may recover on such a claim “only when there is no express contract covering the services rendered.” The issue of whether an express contract existed in this case was within the exclusive jurisdiction of the Travis County court. Thus, the Bexar County court was required to abate (i.e., halt temporarily) its proceedings on any “quantum meruit” claim until the appeal of the administrative proceedings in Travis County concluded. The appeals court reversed the judgment in favor of Kelley. Things to Remember: This case has generated a lot of interest among educators. Unfortunately, this decision is more procedural than substantive. While the teacher’s victory has been reversed, the court did not go any further than that, so we must await further developments. It appears that those developments will come from Travis County, not Bexar.

Standing DID THE STUDENTS AND SCHOOL DISTRICT EMPLOYEE HAVE STANDING TO SUE THE SCHOOL DISTRICT? Case citation: Peterson v. Dallas ISD, Dkt. No. 3:08-CV1191-M (N.D. Tex. 2008). Summary: Several Dallas Independent School District students and their parents, Dallas ISD bond manager John Williams, and the Coalition to Maximize Education sued the district and ten unnamed individuals alleging that the district provided lower-quality academic programs, equipment, facilities, and materials to schools located in African American communities. The complaint alleged that an insufficient amount of public bond money was being allocated to certain schools, and that the allocation was unlawful. The group brought claims under 20 U.S.C. § 1706, 42 U.S.C. § 1983, the Texas Open Meetings Act, and nuisance under state law. The nuisance claim arose out of an incident in which students at one of the district’s junior high schools allegedly were exposed to poisonous sewage gas. The plaintiffs claimed that the incident occurred because insufficient bond money had been allocated to maintain the school’s facilities. In response, the district sought dismissal of the nuisance claim. The district also requested dismissal of the students and John Williams arguing that they did not have standing (i.e., the legal authority) to sue the district. [Editor’s Note: At this early stage of the litigation, the defendants had not yet sought dismissal of the remaining federal claims]. Ruling: The trial court dismissed the nuisance claim and determined that the students and Williams did not have standing to sue the district. The nuisance claim was without merit because the district was entitled to sovereign immunity. The trial court observed that a governmental unit, like the school district, is immune from tort liability unless the Legislature has waived immunity. The Texas Tort Claims Act waives a school district’s immunity only when an injury occurs during the operation or use of a motor vehicle. None of the plaintiffs’ claims in this case involved a motor vehicle and, as a result, the district was entitled to dismissal of the nuisance claim based on sovereign immunity. The trial court next determined that the students and Williams did not have standing to sue. The trial court observed that, under Texas law, a minor cannot bring a cause of action on her own behalf unless her minor status has been removed. The age of majority in Texas is 18 years. The plaintiffs, here, acknowledged that the four student plaintiffs were minors. The trial court held that the students, as minors, did not have the capacity to bring suit in this case as individuals and dismissed them from the suit. The parents who had sued as their “next friends” remained in the suit.


Practice and Procedure, continued Williams did not have standing to bring claims in this suit. The lawsuit raised allegations that Williams worked for the school district as a bond manager and that he had complained to the district about allegedly inequitable distribution of bond funds. The lawsuit alleged that Williams ultimately was terminated as a result of his whistleblower activities. However, the lawsuit did not raise formal claims for wrongful termination on behalf of Williams. According to the trial court, Williams was free to raise causes of action related to his termination in a separate proceeding but, because this case did not raise those claims on his behalf, he had to be dismissed.

Under Louisiana law, a court will allow you to toll (i.e., extend) the statute of limitations if venue is found to be improper so that the plaintiff can file the suit in the proper court. However, in order to toll the limitations period, the plaintiff had to have properly served the lawsuit on the defendants (i.e., formally provide notice of the lawsuit to the defendants) within the limitations period when suit was first filed. In this case, McClintock did not serve the lawsuit on the defendants until May 3, 2007, long after the limitations period had expired. According to the appeals court, McClintock was not entitled to toll or extend the limitations period and, as a result, her claims were time-barred.

Venue WHERE SHOULD THE TEACHER HAVE FILED HER LAWSUIT? Case citation: McClintock v. School Board of East Feliciana Parish, Dkt. No. 08-30162 (5th Cir. 2008). Summary: Cynthia McClintock worked as a teacher for the East Feliciana Parish School Board in Louisiana. She held a semester contract starting August 2005. On December 16, 2005, a number of McClintock’s students were called to the principal’s office. As McClintock walked towards the office to inquire about her students, she was forcibly detained by a female resource officer and later arrested for interfering with a police investigation. She also was charged with resisting arrest. Although the charges ultimately were dropped, McClintock’s contract with the board was not renewed. McClintock sued the district, originally without the assistance of legal counsel claiming violations of her civil rights and Louisiana state law. The district requested dismissal of the suit claiming that McClintock committed several procedural errors in filing suit. The trial court agreed with the district and dismissed the lawsuit. McClintock appealed the trial court ruling. Ruling: The appeals court upheld the dismissal of McClintock’s claims against the school district. According to the appeals court, McClintock improperly filed the lawsuit in the Western District of Louisiana. The record showed that none of the events giving rise to the lawsuit occurred in the Western District of Louisiana. McClintock argued that she continued to feel the psychological effects of the incident at her new place of employment located in the Western District. The appeals court held that that was insufficient to establish venue there. The appeals court also determined that McClintock’s claims were time-barred under Louisiana law. The woman’s § 1983 and state law claims were governed by a one-year statute of limitations. [Editor’s Note: In Texas, similar claims would be governed by a two-year statute of limitations]. Thus, McClintock’s suit had to be filed by December 16, 2006. Although she filed suit on November 28, 2006, within the limitations period, she did not file suit in the proper venue.

SPECIAL EDUCATION Individual Liability COULD THE PARENT AND STUDENT SUE INDIVIDUAL DEFENDANTS UNDER 42 U.S.C. § 1983 FOR ALLEGED VIOLATIONS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)? Case citation: Melanie W. v. Northwest ISD, Dkt. No. 4:07-CV-14 (E.D. Tex. 2008). Summary: Melanie W. and her son, Nicholas W., sued the Northwest Independent School District alleging that the district failed to provide Nicholas a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). They later amended their lawsuit alleging that the district violated both the IDEA and Section 504 of the Rehabilitation Act of 1973. They also sued 19 individuals associated with the school district under 42 U.S.C. § 1983, the federal statute that allows a person to sue for damages resulting from a violation of federal constitutional or statutory rights. In response, the individual defendants requested dismissal of the lawsuit arguing that it did not state sufficient facts to put them on notice of the specific federal law or laws they allegedly violated. Melanie and Nicholas W. maintained, in response, that the school district officials were being sued under § 1983 for violations of the IDEA. The defendants argued, however, that § 1983 could not be used to sue for violations of the IDEA and, as a result, they were entitled to dismissal of the suit. Ruling: The trial court determined that, under current Fifth Circuit precedent, Melanie and Nicholas W. could maintain a § 1983 claim against the individual district defendants for alleged violations of the IDEA. With the exception of one of the defendants, the facts as alleged in the lawsuit were sufficient


Special Education, continued to maintain such a § 1983 claim against the defendants in their individual capacities. Further, it was too early in the litigation of the case to determine whether the individual defendants were entitled to qualified immunity. The trial court ordered Melanie and Nicholas W. to amend the lawsuit to specify that it was being brought against the individual district defendants under § 1983 for alleged violations of the IDEA. The plaintiffs also were required to plead specific facts to support a claim against the one defendant for whom the allegations previously were insufficient. The trial court denied the individual district defendants’ request for dismissal of the lawsuit. Things to Remember: Circuit Courts have disagreed about the use of Section 1983 as a vehicle to remedy alleged violations of IDEA. The court’s reference to “current” Fifth Circuit precedent is perhaps an acknowledgement of that fact and an invitation to the court to take another look at that issue.

STUDENT ISSUES Discrimination DID THE DESEGREGATION ORDER IMPOSING MONITORING REQUIREMENTS ON TEA APPLY STATEWIDE OR ONLY TO THE NINE SCHOOL DISTRICT DEFENDANTS ORIGINALLY NAMED IN THE 1970 DESEGREGATION SUIT? Case citation: United States of America v. The State of Texas, Dkt. No. 6:71-CV5281 WWJ (E.D. Tex. 2008). Editor’s Note: This is a continuation of ongoing litigation in a desegregation lawsuit that began in 1970. Details of the underlying issues in this litigation were reported in the Texas School Administrators’ Legal Digest, October 2008 issue. Essentially, the trial court had determined that the Texas Education Agency’s failure to monitor the progress of limited English proficient (LEP) students violated the Equal Education Opportunity Act and the U.S. Constitution. The trial court ordered that the judgment be modified so that, by the 2009-10 school year, the State of Texas would establish a monitoring system and a language program that fulfilled the requirements of the EEOA and the Constitution. The only issue below is whether the order applied only to the original nine school districts or whether the monitoring requirements applied statewide. Summary: This desegregation lawsuit was filed in 1970, by the United States against nine all-black Texas school districts in the Eastern District of Texas. The lawsuit led to a comprehensive permanent injunctive order (the “Modified

Order”) directed at the Texas Education Agency (TEA), among other things, to ensure that no child would be “effectively denied equal educational opportunities on account of race, color or national origin.” In 2006, GI Forum and LULAC, which had long been parties to the lawsuit asserting rights on behalf of MexicanAmerican students, filed a motion for further relief under the Modified Order. The motion alleged the continued denial of equal educational opportunities to Mexican-American students in Texas public schools in violation of the Modified Order and of the Equal Education Opportunity Act (EEOA). According to the trial court, TEA’s failure to uphold its duties under the Modified Order and the EEOA resulted in continued poor achievement, excessive retention rates, and excessive drop-out rates of LEP students, particularly at the secondary level. The trial court granted the plaintiffs’ motion for further relief and ordered that, by the 2009-10 school year, the State of Texas establish a monitoring system and a language program that fulfill the requirements of the EEOA. TEA then requested that the trial court’s most recent order be modified so that it only applied to the nine school districts that were the subject of the original 1970 desegregation lawsuit. TEA cited the 5th Circuit’s recent decision in Samnorwood Independent School District v. TEA to support its argument. [See Texas School Administrators’ Legal Digest, Sept. 2008]. Samnorwood also grew out of the 1970 desegregation litigation. In the original desegregation order, the trial court determined that certain school districts were responsible for creating and maintaining dual school systems and that “the vestiges of racially segregated public education” had not been eliminated. The order, which remains in effect and is commonly referred to as Court Order 5281, prohibits the State of Texas and the TEA from allowing student transfers between school districts when the cumulative effect, in either the sending or receiving school district, will be to impede desegregation. In order to comply with its obligations under that desegregation order, TEA developed an automated transfer reporting system, the Student Transfer System (STS). Under that system, Samnorwood Independent School District and Harrold Independent School District each lost funding due to TEA’s transfer rules. The school districts intervened in the pending lawsuit challenging TEA’s policies that were designed to comply with the 1970 desegregation order. The 5th Circuit ultimately concluded that TEA did not have the power to impose sanctions against Samnorwood ISD or Harrold ISD. The record showed that those districts had desegregated by a vote of their respective school boards well before the 1970 desegregation order was issued. Further, neither district was ever a party to a desegregation order or had ever been shown to have acted with segregative intent in accepting transfer students. Absent a showing that the districts had either attempted to segregate or accepted student transfers with discriminatory intent, the trial court and TEA did not have the authority to monitor transfers involving Samnorwood ISD and Harrold ISD. The two districts would no longer be subject to the 1970 order’s transfer provisions or TEA’s regulations designed to enforce those provisions.


Student Issues, continued In this case, the TEA asserted that the reasoning in Samnorwood applied here so that TEA’s authority to enforce the Modified Order was limited to the nine original school districts at issue. According to TEA, just like in Samnorwood, school districts other than the original nine were not parties to the original lawsuit and had never been declared segregated or found to have intentionally discriminated on the basis of race. Thus, the remedies set out in the Modified Order should apply only to the original nine school districts. Ruling: The trial court held that the Modified Order in this case was not limited to the original nine school districts. Significantly, in holding that the TEA did not have the authority to monitor Samnorwood ISD and Harrold ISD, the Samnorwood court focused on the fact that the two school districts were unitary prior to the 1970 litigation. On the other hand, school districts that were not unitary prior to the 1970 litigation were part of the dual-school system in Texas and, therefore, properly subject to the desegregation order and TEA’s monitoring requirements. The trial court’s original order in this case, first, required TEA to collaborate with the original nine districts to ensure that the districts operated in accordance with Title VI of the Civil Rights Act and the Fourteenth Amendment. The second part of the order was directed at TEA and had a statewide effect. Specifically, it required TEA to reevaluate desegregation within the State in the areas of student transfer and assignment, faculty, transportation, curriculum, and extra-curricular activities. According to the trial court, although the original order has been modified over the years, it continues to have a statewide effect and the Samnorwood decision did not alter that generally. What Samnorwood made clear, however, is that school districts that had been unitary prior to the initiation of the 1970 lawsuit no longer should be subject to the TEA’s monitoring requirements. Thus, the trial court held that “TEA shall no longer be required to enforce the provisions of the Modified Order against school districts similarly-situated to those in Samnorwood – that is, school districts that: (1) were not parties to the original 1970 litigation; (2) were unitary prior to the commencement of the 1970 litigation; and (3) have never since been shown to have attempted to resegregate or act with segregative intent.” The trial court stated further that it was open to holding further proceedings to determine which school districts were similarly-situated to those in Samnorwood. Things to Remember: Districts that satisfy the court’s three criteria may consider seeking release from the statewide decree, as Samnorwood and Harrold ISD have done.

MISC. Detachment and Annexation DID THE SCHOOL DISTRICT EXHAUST ADMINISTRATIVE REMEDIES IN ITS LAWSUIT SEEKING JUDICIAL REVIEW OF THE COMMISSIONER’S DECISION? Case citation: Marble Falls v. Scott, Dkt. No. 03-07-00576CV (Tex. App. – Austin 2008). Summary: Several citizens living in the Paleface Ranch subdivision in Travis County, Texas sought detachment and annexation from the Marble Falls Independent School District so that the 783 acres located in that subdivision would become a part of the Lake Travis Independent School District. The Marble Falls Independent School District denied the request for detachment and annexation and the citizens appealed to the Commissioner of Education. Taking into consideration the educational, social, and economic interests of each school district, the Commissioner concluded that those interests strongly favored the proposed detachment and annexation. [See, Keel v. Marble Falls ISD, Dkt. No. 053-R6-0506 (Comm’r Educ. April 19, 2007); Texas School Administrators’ Legal Digest, June 2007]. Marble Falls ISD filed a motion for rehearing with the Commissioner on May 11, 2007. On May 15, 2007, before the Commissioner ruled on the motion for rehearing, Marble Falls filed a lawsuit in state court appealing the Commissioner’s decision. In response, the Commissioner and the citizen plaintiffs (collectively “the Commissioner”) filed motions challenging the trial court’s jurisdiction. The Commissioner argued that Marble Falls ISD failed to exhaust administrative remedies before filing suit because the Commissioner had not yet ruled on its motion for rehearing when the lawsuit was filed. Marble Falls ISD, in response, first argued that it did not have to exhaust administrative remedies. Second, even if exhaustion was required, the case was properly before the trial court because the Commissioner ruled on the motion for rehearing two days after the lawsuit was filed. Ruling: The trial court ruled that it did not have jurisdiction over the appeal. Because Marble Falls ISD filed suit before the Commissioner ruled on its motion for rehearing, it failed to exhaust administrative remedies. Thus, the trial court did not have jurisdiction over the appeal, even though the Commissioner ruled on the district’s motion for rehearing two days after the appeal was filed.


Misc., continued According to the trial court, detachment and annexation cases are governed by a comprehensive scheme set out in Chapter 13 of the Texas Education Code. Under that scheme, the Commissioner of Education has the sole authority to make an initial decision in a disputed petition to detach from one district and annex to another. The Texas Supreme Court has held that when an agency has exclusive jurisdiction over such matters, a party seeking judicial review of the agency’s decision must exhaust all available administrative remedies. Exhaustion is also required under the Administrative Procedure Act (APA), which applies to the review of detachment and annexation cases. The Texas Supreme Court, in an analogous case, held that an agency’s decision is not final until a party’s motion for rehearing has been overruled. Further, a trial court will not have jurisdiction over a lawsuit seeking judicial review of the agency’s decision if the lawsuit is filed prematurely. Thus, awaiting a final decision from the agency is a jurisdictional prerequisite to judicial review by the district court and cannot be waived. The appeals court upheld the dismissal of Marble Fall ISD’s lawsuit.

Retirement Benefits WAS THE RETIRED TEACHER ENTITLED TO JUDICIAL REVIEW OF THE TRS’S DENIAL OF BENEFITS? Case citation: Foster v. Teacher Retirement System, Dkt. No. 03-05-00837 (Tex. App. – Austin 2008). Summary: Diana Foster was a retired teacher insured through the Teacher Retirement System of Texas (TRS). The insurance plan was administered by Aetna Life Insurance Company and Aetna Health Management, LLC (Aetna). In late 2003 and early 2004, Foster was prescribed intravenous immune globulin infusion therapy (IVIG). She received the services from Quality

1601 Rio Grande, Ste. 441 Austin, TX 78701

Infusion Services. When Quality Infusion Services billed Aetna for the treatment, Aetna denied the claims. Foster and Quality Infusion sued the TRS and Aetna for breach of contract, breach of good faith and fair dealing, and violations of the insurance code and Deceptive Trade Practices Act. TRS, in response, requested dismissal of the suit arguing that the claims were barred by sovereign immunity. The trial court granted the district’s motion and dismissed the suit. Ruling: The appeals court affirmed the trial court decision that Foster’s claims were barred by sovereign immunity. Foster claimed that TRS’s immunity was waived by chapter 1575 of the Insurance Code, which allows TRS to adopt rules and procedures necessary to implement insurance coverage for retired school employees. The trial court disagreed, observing that a waiver of immunity must be expressed in “clear and unambiguous language.” The statutory language in the insurance code cited by Foster did not waive TRS’s immunity. Contrary to Foster’s assertions, she did not have the right to judicial review of TRS’s denial of benefits. The trial court observed that there is no right to judicial review of an administrative order unless (1) a statute provides the right, (2) the order adversely affects a vested property right, or (3) the order otherwise violates some constitutional right. In this case, the TRS plan for retired teachers, TRS-CARE, did not allow for judicial appeals from denial of claims. The plan provided, instead, that a complaint regarding services may be submitted to a designated TRS complaint officer. Foster did not allege that there were any constitutional violations in the denial of benefits. Foster simply failed to show that she was entitled to judicial review of the TRS’s decision to deny benefits. The trial court determined that Aetna also was entitled to sovereign immunity even though it was a private company. Under its contract with TRS, Aetna simply provided administrative services to facilitate the provision of health care to retirees covered by TRS. The insurance plan was fully funded by the state and Aetna had no financial stake in the approval or denial of a claim. Aetna functioned simply as an agent for TRS and, as a result, was protected by TRS’s immunity. TRS and Aetna were entitled to dismissal of Foster’s claims. PRSRT STD U.S. Postage PAI D Denton, TX Permit No. 438

February, 2009