by Tommy Fisher
The Texas Education Code 21.355 is simple and straightforward:
A document evaluating the performance of a teacher or administrator is confidential.
Tex. Ed. Code § 21.355(a).
What exactly is covered by the words “document evaluating the performance” and whether the documents are actually privileged has been left to courts to decide.
There are very few cases that deal with § 21.355. The two most recent, North East ISD v. Greg Abbott and Fairchild v. Liberty ISD show that the confidentiality of the evaluations may depend on the court from which the subpoena originated.
Abbott v. N. E. Indep. Sch. Dist., 212 S.W.3d 364, (Tex. App. Austin 2006) was filed in the 345th District Court of Travis County. North East ISD received a request for records regarding a teacher. It sought guidance from the Attorney General, Greg Abbott. Attorney General Abbott ruled that one document, a memorandum from the school principal memorializing a meeting with the teacher concerning performance issues, was not privileged. The District filed suit seeking a declaration that the document was confidential and exempt from disclosure. The District Court granted summary judgment in favor of the District finding that the memorandum was “a document evaluating the performance of a teacher”. On appeal, the Third Circuit Court of Appeals in Austin found that the memorandum evaluates the teacher because it reflects the principal’s judgment regarding her actions, gives corrective direction and provides for further review. As a result, the memorandum was confidential under TEC 21.355. Similarly, other evaluative documents will likely be confidential as well.
However, if the reviewing court is a Federal District Court, the result will likely be different. In Fairchild v. Liberty Indep. Sch. Dist., 466 F. Supp. 2d 817, (E.D. Tex. 2006), affirmed on other grounds, the U.S. Eastern District Court, Beaumont Division, found that the state law privilege set forth in TEC 21.355 does not protect the performance evaluations of a defendant teacher. Julia Fairchild was a former teacher’s aide who filed an action against the District and the teacher in charge of her classroom, Jessica Lanier, alleging that she was fired in retaliation for complaining about Lanier’s dereliction of duty. During discovery, Fairchild sought performance evaluations of Lanier. The district argued that the evaluations were privileged under TEC 21.355. Following a lengthy analysis of process by which state law privileges are applied by the Federal Court, the Federal District Court found that the evaluations were not privileged and that any privacy concerns can be preserved by entry of an appropriate protective order limiting further disclosure.
What does this mean for a District that receives a PIA request for teacher evaluations? In Texas State Court and at the Attorney General’s Office, the TEC § 21.355 privilege will be recognized. However, in Federal Court, there is a substantial risk that the evaluation will be produced. A District producing such a report should seek to have a protective order entered by the Court that restricts the use and distribution of the report by those receiving it.
If you have questions about the release of evaluative documents, the attorneys at Leasor Crass stand ready to assist.
by Melissa Mozingo
One of the toughest issues school districts face is how to handle an employee with a medical condition. A recent case, Capps v. Mondelez Global LLC, posed this very interesting question.
Mr. Capps was a mixing technician for Mondelez International, a food and beverage company (makers of Oreos and Chips Ahoy!). He was diagnosed with Avascular Necrosis, a degenerative bone disease. He requested intermittent leave for flare-ups that limited his ability to walk, sit, stand, and work. The company granted Mr. Capps at least (3) six-month periods of intermittent leave. However, when Mr. Capps was arrested for driving under the influence of alcohol while he was out on a sick day, they became skeptical.
Mondelez International later fired Mr. Capps and he sued, asserting claims under the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”), which included a claim that Mondelez violated the ADA when it did not consider his leave request as a plea for reasonable accommodations. The U.S. District Court for the Eastern District of Pennsylvania granted summary judgment to the company. It rejected Mr. Capps’s ADA failure-to-accommodate claim on the grounds that he never actually requested accommodations from Mondelez. Ultimately, the trial court rejected Mr. Capps’s ADA claim, finding that a request for FMLA is not a request for a reasonable accommodation under the ADA.
Capps has appealed the dismissal of his claims, and the case is pending in the 3rd Circuit Court of Appeals. The EEOC, which has consistently maintained this position for many years, and most recently in the May 9, 2016 resource document, filed an amicus brief in the case, supporting its own interpretation of the ADA, as well as the Department of Labor regulations interpreting FMLA. Both the EEOC and the Department of Labor assert that the ADA and FMLA are complementary, and that an employer covered by the statutes has the affirmative duty to “determine an employee’s rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.”
The EEOC’s FMLA/ADA Fact Sheet explains that a covered employee’s time-off request for a reason potentially related to a disability requires the employer to treat that request as one “for ADA reasonable accommodation as well as FMLA leave.” Likewise, the Department of Labor’s regulations interpreting the FMLA make clear that FMLA leave may simultaneously be treated as a reasonable accommodation under the ADA. Several federal courts of appeals have accepted this interpretation and acknowledged that a request for leave can implicate both the FMLA and ADA.
Unfortunately, there is no hard and fast rule about whether or not a request for leave also doubles as a request for an accommodation. However, from a practical standpoint, when an employee requests FMLA leave, Human Resources should use it as an opportunity to learn the basics about the employee’s medical condition and how it will affect his/her ability to do the job. The district should review any medical information submitted by the employee for FMLA leave and ask general questions about possible limitations. With this information, the district can then engage the employee in a more informed dialogue about temporary or permanent adjustments that can be made once the employee returns to work. When an accommodation has been requested or the need for an accommodation is obvious, the employer should initiate an interactive process with the employee. Courts generally have held that the ADA interactive process requires employers to (1) analyze job functions to establish the essential and nonessential job tasks; (2) identify the barriers to job performance by consulting with the employee to learn the employee’s precise limitations; and (3) explore the types of accommodations that would be most effective. Employers can demonstrate a good-faith attempt to accommodate by meeting with the employee, requesting additional information about the limitations, considering the employee’s requests, and discussing alternatives if a request is unreasonable.
If you have additional questions about this topic or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.
by Melissa Mozingo
Earlier this year, the U.S. Equal Employment Opportunity Commission (EEOC) filed two unrelated lawsuits alleging that employers violated Title VII by discriminating against employees based on sexual orientation. On June 28, 2016, the EEOC announced that one of those suits had settled. Without admitting liability, IFCO Systems (IFCO) agreed to pay $7,200 in back pay with interest, $175,000 in nonpecuniary compensatory damages, and make two $10,000 contributions to the Human Rights Campaign Foundation. The agreed settlement marks the EEOC’s first resolution of a lawsuit challenging discrimination based on sexual orientation under Title VII and represents an important development in this area of the law.
In its suit against IFCO, the EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. According to the suit, her supervisor made numerous comments to her regarding her appearance and her sexual orientation, such as, “I want to turn you back into a woman” and “You would look good in a dress.” The EEOC charged that the supervisor also made sexually suggestive gestures to her. IFCO retaliated against the female employee by terminating her after she complained to management and called the employee hotline to report the harassment.
Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex and retaliation. However, Title VII does not explicitly cover sexual orientation. Still the EEOC brought the case, relying on the only authority that it could marshal — its own interpretation of Title VII. As the federal law enforcement agency charged with interpreting and enforcing Title VII, the EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. Federal courts generally defer to federal agencies when those agencies interpret statutes that they implement or enforce, unless Congress has already resolved the issue at hand.
To date, no federal circuit courts have adopted the EEOC’s expansive interpretation of Title VII regarding sexual orientation discrimination, although a case which may provide some judicial guidance on this interpretation, Kimberly Hively v. Ivy Tech Community College, No. 3:14-CV-1791 (N.D. Ind. 2015), is currently pending before the Seventh Circuit. The filing of these two suits, however, demonstrates that the EEOC intends to aggressively litigate its theory of Title VII.
The EEOC’s willingness to file lawsuits based on alleged sexual orientation discrimination is anchored on the rationale of its prior administrative decision in Baldwin v. Foxx, Appeal No. 0120133080 (EEOC July 15, 2015). There, the EEOC found sexual orientation discrimination to be sex discrimination, as it relies on gender stereotypes as to how “real men” and “real women” should behave, and in so doing seeks to “enforce heterosexuality defined gender norms.” Id. at 3. The EEOC further found it to be per se sex discrimination in that it involves treating an employee who has a same-sex partner differently than how the employer would treat an employee who has an opposite sex-partner.
Whether or not the federal district and circuit courts agree with the EEOC, employers should be aware that the EEOC is actively watching for potential discrimination cases on the basis of both sexual orientation and gender identity. While many states and cities have laws and ordinances in place prohibiting sexual orientation and gender discrimination in employment, Texas does not. The EEOC is apt to target employers located in jurisdictions where the question of sexual orientation discrimination is not yet settled. Even absent judicial authority, in light of EEOC guidance and legal actions regarding sexual orientation, employers should evaluate their policies, practices, and litigation risks.
If you have additional questions about this topic or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.
by Mike Leasor
As principals and other administrators who appraise teachers return from summer vacation, it is important to remember that the appraisal process starts the first day teachers return to work. Administrators can take valuable guidance from a recent decision by the Texas Education Commissioner, Camara v. Dallas ISD, Tex. Comm’r of Educ. Decision No. 003-R10-09-2012 (2015).
In Camara, the teacher claimed that the appraiser improperly relied on a parent complaint and student statements without sharing the statements with her. However, the administration documented the complaints as part of a reprimand issued to the teacher within 10 days of the complaints during the school year. As a part of the annual summative appraisal, the appraiser relied on the letter of reprimand to support the below expectations ratings in the teacher’s summative annual appraisal report. The teacher complained that the appraiser erred in failing to share the actual documentation behind the reprimand.
Regulations state that:
Any third-party information from a source other than the certified appraiser that the certified appraiser wishes to include as cumulative data shall be verified and documented by the certified appraiser. Any documentation that will influence the teacher’s summative annual appraisal report must be shared in writing with the teacher within ten working days of the certified appraiser’s knowledge of the occurrence.
19 Texas Administrative Code section 150.1003(f). Thus, not only must third-party claims be verified, they must also be documented by the appraiser. However, the regulation does not require the appraiser to share with Petitioner the underlying documentation.
The Commissioner states that the requirement for verification is an important requirement. An appraiser cannot just document that a parent, student, or staff member said that a teacher did something wrong. The appraiser is required to verify that the claim is true. If an appraiser cannot verify that a claim is true, the appraiser cannot mark down a teacher based on a third-party claim. Further, the Commissioner has held that “Cumulative data will be found to be verified if substantial evidence indicates that the appraiser attempted to establish the truth, accuracy, or reality of the data.” Martinez v. Mission Consolidated ISD, Docket No. 004-R10-0907 (2010).
In Camara, the Commissioner reiterates that cumulative data needs to be documented. If information comes from a third party, the appraiser is required to verify and document the information. If documentation will influence a summative annual appraisal report, the documentation must be shared with the teacher within 10 working days of the appraiser’s knowledge of the occurrence. The dispute in the present case is over just what sort of documentation needs to be shared with a teacher. The teacher contends that appraiser was required to share a written parent complaint and written student statements. The District, on behalf of the appraiser, argues that a reprimand is the only document that is required to be timely given to the teacher because the reprimand describes the incidents in the parent complaint and the student statements.
The Commissioner ruled that when an appraiser documents and verifies information that was first provided by a third party in writing, the appraiser is not required to share with the teacher the writing provided to the appraiser by the third party. The appraiser did not violate regulations when the appraiser relied on the letter of reprimand to support the below expectation ratings in the Summative Annual Appraisal Report. Underlying documentation is not required to be provided to a teacher. See Camara v. Dallas ISD.
To summarize, the Commissioner ruled that third-party claims or other cumulative data that is to be used as a part of the appraisal process must meet these requirements:
- The claims must be verified;
- The data must be presented to the teacher within 10 working days;
- The issue must be shared in writing;
- The summative annual appraisal report is to be based on incidents that occurred during the school year in question, per 19 TAC §150.1003(a); and
- The appraiser does not have to share the underlying documentation, but a written reprimand or summary may be relied upon as part of the Summative Conference.
If you should have additional questions about the appraisal process or would like to schedule a training on evaluation and documentation, please contact any of the attorneys at Leasor Crass, P.C.
by Christie Hobbs
As December melts away like marshmallows in a mug of hot cocoa, our thoughts turn to snow, presents, and holiday vacations. Educators across the state are looking forward to two weeks of hard-earned vacation, and many of them plan to travel out of state and unwind. In all of the merriment of the holiday season, educators should keep in mind that their vacation activities can still impact their effectiveness in the classroom.
Activities that are legal in other states and countries may violate the Texas Educator Code of Ethics and put an educator’s job at risk. For example, the state of Colorado legalized the use of recreational marijuana, giving visitors a new entertainment option after a day on the ski slopes. While it may be legal to get high in the Mile-High City, educators doing so may risk serious consequences back in Texas.
Because educators hold a unique position of trust and responsibility in the community, they are held to a higher standard than most professionals. The Texas Educator Code of Ethics states that an educator “shall be of good moral character and be worthy to instruct or supervise the youth of this state.” See 19 Tex. Admin. Code § 247.2. Likewise, Board Policy DFBB (Local) lists many reasons for which a teacher’s contract may be nonrenewed, including “any activity, school-connected or otherwise, that, because of the publicity given it, or knowledge of it among students, faculty, and community, impairs or diminishes the employee’s effectiveness in the District.”
Now that so many people share their vacation activities on social media, what happens in Vegas (or Colorado) doesn’t always stay there. It wouldn’t take long for a teacher’s smoky status update to be broadcast to her colleagues, students, and parents. Widespread knowledge of an educator’s recreational drug use (even if it was done legally while on vacation) may impair an educator’s effectiveness so much that serious disciplinary consequences, including nonrenewal or termination, may be justified.
The attorneys at Leasor Crass are available to help you navigate issues arising from employee conduct, whether it’s done on or off campus. We wish you a safe and happy holiday season.