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 Heather Castillo
Have you ever been involved in a Board-level grievance hearing and wondered, “How in the world did it get to this point?” It began with a simple mistake, a misunderstanding, or a less-than-respectful interaction, and then grew and festered into a grievance that went on for months. If the “offending party” had just promptly apologized or respectfully acknowledged his mistake, the grievance might have been resolved at the campus level or might not have been filed at all. The Administration finds itself in front of the Board at 10:00 p.m. (or later) because the “offending party” refused to apologize or acknowledge a mistake, or worse, attempted to justify it or shift the blame to someone else. In some cases, the “offending party” is not even present at the Board hearing.
Who is this “offending party”? It could be any employee. Here’s an example: A teacher who inadvertently miscalculates a grade. When a parent or the student questions the grade, the teacher responds in a condescending way and is slow to correct the grade.
Many grievances include a request (or demand) for an apology as part of the requested relief. Are these requests reasonable? Not usually, but in some cases, yes. Can a school district or one of its employees apologize or admit a mistake without creating legal liability? In some cases, yes. It depends on the specific facts of each case.
There are multiple legal articles that analyze the potential legal consequences for apologizing, the potential of apologies to avoid litigation, and the laws of various states that address the admissibility of apologies in court. For example, Texas Civil Practice & Remedies Code § 18.061 provides that a court in a civil case cannot admit evidence of a communication made to an accident victim or his family that “expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident” if it is offered to prove liability. However, a communication which also includes a statement concerning negligence or culpable conduct pertaining to an accident or event is admissible to prove liability.
A March 1, 2017, article written by John Council for Texas Lawyer magazine, entitled “In Litigation, Sometimes All It Takes Is Saying ‘Sorry’” discusses how apologies, while rare, sometimes assist in the settlement of lawsuits.[i] An interesting point in this article comes from Mark Lanier, a successful Houston plaintiffs’ attorney. He says he never asks the defendants he sues (drug manufacturers and medical devices companies) for an apology for fear that they will actually offer one. He wants juries to hear that no one ever offered his client an apology. Lanier says: “I’d hate for a witness to say ‘I’m sorry this happened.’ That takes the sting away from the jury. We live in a society that grants repentance and I want [the defendant] to be punished. I’ll only ask for an apology if they’re not going to apologize.”
Granted, school district grievances usually pale in comparison to lawsuits involving serious personal injuries and claims for millions in damages. But think of the Board of Trustees as the jury – a jury who can overturn the Administration’s grievance decisions or craft any other relief for the grievant that they see fit. A Board of Trustees generally expects the Administration to do all that it reasonably can to resolve grievances. The Administration will probably be in a better position before the Board if it can provide evidence that some type of apology was offered (if one was clearly due), or that a mistake was acknowledged and corrected.
Of course, some grievances cannot be avoided. Some grievants are unreasonable. And, some will simply not stop until they get a Board hearing. As stated above, offering an apology or admitting wrongdoing can be complicated. It is always best to seek legal advice before doing so, especially if you might do so in writing, e.g., in a grievance decision letter.
If you or your staff have questions about a grievance, need assistance with responding to a parent or employee concern before a grievance is filed, or would like training related to any of these issues, the attorneys at Leasor Crass stand ready to assist.
by Melissa Mozingo
The Americans with Disabilities Act (ADA) compels employers to be accommodating and flexible, but the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do. When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable accommodation, the ADA allows the employer to terminate her. Although this rule might be more easily applied when dealing with a physical disability that prevents an employee from completing critical tasks, it also holds true for an employee with a mental or emotional disability, particularly one that prevents her from working at all. The Sixth Circuit made this crystal clear in Williams v. AT&T Mobility Services LLC.
The Williams case involved an AT&T customer service representative (CSR) who suffered from depression and anxiety attacks that caused her to frequently miss work. Because of her excessive absenteeism, AT&T terminated Williams for job abandonment and violating the attendance policy. Williams sued AT&T under the ADA for failing to provide a reasonable accommodation, failing to engage in the interactive process, and terminating her based on her disability. The U.S. District Court for the Western District of Tennessee granted summary judgment to AT&T as to all of Williams’s claims. Williams appealed, arguing that she could have performed her job despite her depression and anxiety attacks if AT&T had given her leave from work for treatment, flexible scheduling, and additional breaks during her shifts. The Sixth Circuit disagreed.
Regular Attendance Was an Essential Job Function.
Citing EEOC v. Ford Motor Co., the Sixth Circuit first explained that regular attendance qualified as an essential job function, so employees with excessive absences were not qualified individuals under the ADA because they failed to perform that essential function (i.e., regularly attend their jobs). Considering AT&T’s strict Attendance Guidelines and declarations from two AT&T managers regarding the CSR position, the Sixth Circuit held that regular attendance was an essential function of the CSR position. The court noted Williams’s poor attendance record, including being absent from work for entire months in two different years, taking a six-month leave and nearly three-month leave, and not getting her unscheduled absences approved for short-term disability leave. Given this record, the Sixth Circuit held that Williams could not perform the essential function of regularly attending her job and was not qualified to be a CSR without a reasonable accommodation.
Williams Did Not Request Reasonable Accommodations.
Because Williams failed to show how her proposed accommodations would have enabled her to perform the essential functions of a CSR, the Sixth Circuit also found that AT&T did not fail to accommodate her. Williams admitted that her anxiety attacks were unpredictable, she could not perform her job duties during her attacks, she could not function in a call center environment, and she could not focus due to her mental illness. Importantly, neither Williams nor her health care providers explained how flexible scheduling and additional breaks would have mitigated these issues and enabled Williams to do her job. Furthermore, the Sixth Circuit held that requiring AT&T to grant Williams additional leave was an unreasonable accommodation because Williams had a history of taking leaves, her condition never improved during those leaves, and she repeatedly failed to return to work when her health care providers estimated that she would be able to return.
After reiterating that an employer’s failure to engage in the interactive process is only actionable if the employee can demonstrate that she was qualified for the position, the Sixth Circuit stated that it was unnecessary to consider whether AT&T failed to engage in the interactive process because Williams was unqualified for her position with or without a reasonable accommodation. The court also agreed with the district court that Williams failed to establish a prima facie case of disability discrimination or retaliation and affirmed the district court’s summary judgment ruling in favor of AT&T.
So, what is the Sixth Circuit telling us about how to deal with a mental disability that prevents an employee from coming to work? First, clearly articulate the essential functions of an employee’s job, preferably in writing (e.g., job description, employee handbook), and be sure to mention attendance is essential. Second, assess whether the employee is performing the essential functions of her job (including coming to work), being sure to document and promptly inform the employee about deficiencies. Third, discuss whether there are any reasonable accommodations available that would allow the employee to do her job. Ask for recommendations from the employee’s health care providers during this interactive process. If you and the employee (and the employee’s doctor) cannot come up with a reasonable accommodation that does not eliminate an essential job function of the position (i.e., coming to work), and you do not have a vacant position in which you can reasonably accommodate her, you may have to terminate the employee. Although handling this type of issue may take some time, in this case the Sixth Circuit declared that AT&T did all that the ADA required. Employers should follow its example.
If you or your staff would like training on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.
by Bobby Padgett
A Texas Court of Appeals has found that a former school employee reported suspected law violations to an appropriate law enforcement authority when she reported Penal Code violations to district police officers. As such, the Court overturned the dismissal of her lawsuit and sent it back to the trial court for appropriate disposition. This case is important because it delineates the type of authority and sufficiency of reporting necessary for a Whistleblower claim to proceed.
The former employee was the Director of Compliance for a Texas school district. Her job required her to oversee compliance with UIL rules, identify problems that might affect UIL compliance, and provide training, ongoing support, and communication to district staff concerning compliance and eligibility requirements for all UIL activities. The employee uncovered what she believed were serious problems related to the residency of student-athletes and potential falsification by coaches of Prior Athletic Participation Forms, which are required to ensure student-athletes that transfer to new high schools actually live within the new school’s attendance zone. She reported her suspicions of wrongdoing to three departments within the district: the Office of Professional Responsibility; the Internal Audit Department; and the Professional Standards Office (PSO). All of these departments were responsible for internal, administrative investigations of employee wrongdoing. Additionally, the employee made reports of wrongdoing to the Chief and Assistant Chief of the district police department. The PSO investigated the allegations and released a report confirming virtually all of her reports of wrongdoing. The day after the PSO released their report, the district terminated the employee.
While the district argued that the informal report to the district police department was insufficient to substantiate a Whistleblower claim, the court concluded that the employee’s conversations with district police officers sufficiently apprised them of her suspicion that district athletic personnel were tampering with governmental records in violation of the Texas Penal Code. As the district police department had the authority to investigate such an offense, the court concluded that the employee had sufficiently reported criminal violations within the meaning of the Whistleblower Act and remanded that claim to the trial court.
The lessons here are those which should be carefully heeded. First, before a district seeks to take employment action against an employee who has made reports of law violations to any district departments or individuals, an analysis should be conducted to find out if these departments or individuals qualify as appropriate law enforcement agencies to sustain a Whistleblower claim. Second, before taking employment action against a district employee, an analysis should also be conducted to ensure that the employee cannot file a retaliation claim for engaging in a protected activity, such as reporting criminal law violations to appropriate authorities.
Leasor Crass, P.C. will continue to monitor these issues and provide guidance as new information becomes available. In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding existing Whistleblower and/or retaliation issues and the implications they may have for your district.
by Heather Castillo
The Fair Labor Standards Act (“FLSA”) and its implementing regulations provide minimum wage and overtime standards and protections. Workers are exempt from the FLSA minimum wage and overtime standards if they are employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in the Department of Labor’s (“DOL”) regulations at 29 CFR part 541. This exemption from the FLSA is sometimes referred to as the “white collar” or “EAP” (executive, administrative, or professional) exemption.
In March 2014, President Obama signed a Presidential Memorandum directing the DOL to update regulations defining which workers are protected by the FLSA’s minimum wage and overtime standards. The regulations have not been updated since 2004.
The DOL went through the rule-making process and in May 2016, published the Final Rule updating the overtime regulations. The Final Rule was to become effective on December 1, 2016. The Final Rule would, among other things, increase the salary requirement for employees that are exempt from overtime, from $23,660 annually to $47,476. This was anticipated to make overtime available to an additional 4 million workers. Employers all over the country, including school districts in Texas, took action to prepare for the December 1, 2016, effective date by identifying employees who would be affected by the Final Rule and by making changes, or at least announcing changes to come, either by raising some employees’ salaries and/or by preparing some salaried employees to become hourly employees who would now be eligible for overtime.
However, prior to the December 1 effective date, numerous states filed a lawsuit to block the Final Rule from going into effect. On November 22, 2016, a U.S. District Court in Texas granted an Emergency Motion for Preliminary Injunction and enjoined the DOL from implementing and enforcing the Final Rule. (State of Nevada, et al. v. United States Department of Labor, et al.; No: 4:16-CV-00731, in the United States District Court, Eastern District of Texas, Sherman Division).
On December 1, 2016, the Department of Justice, on behalf of the DOL, filed a notice to appeal the preliminary injunction to the U.S. Circuit Court of Appeals for the Fifth Circuit. The Department has moved to expedite the appeal, which was approved by the Court.
The 5th Circuit will soon hear the expedited appeal of the preliminary injunction and briefs are due on January 31, 2017. Meanwhile, the original case continues in the U.S. District Court, which is considering a plaintiffs’ motion to end the Final Rule immediately, without a trial, and a motion by the Texas AFL-CIO to intervene in the lawsuit if the Department of Justice and DOL under President Trump’s new administration decide not to defend the Final Rule.
Until these legal challenges are resolved, the 2004 regulations remain in effect. We will keep you updated on the Final Rule on overtime and the 5th Circuit’s handling of the appeal of the preliminary injunction.
If you or your staff have questions about overtime, the Fair Labor Standards Act, the status of the Final Rule, or would like training related to these issues, the attorneys at Leasor Crass stand ready to assist.
by Melissa Mozingo
Then presidential nominee Donald Trump’s 2005 ‘locker room talk’ video, which was leaked in October 2016, sparked an intense dialogue among voters about what constitutes sexual harassment. Sexually suggestive comments, inappropriate touching, and sexual innuendos can all be construed as sexual harassment. However, there should be no confusion in the workplace as to what is inappropriate.
Sexual harassment is the subject of more than 20 percent of the enforcement actions pursued by the Equal Employment Opportunity Commission (EEOC) every year. Not all inappropriate behavior is actionable. Under Title VII of the United States Civil Rights Act and its construing case law, sexual harassment occurs:
- When a work-related benefit is conditioned on the granting of a sexual favor;
- An employee or co-worker is subjected to unwanted sexual advances;
- Where hostile conduct is based on the victim’s gender; or
- When there is offensive, sexually charged workplace behavior.
Generally, one offensive comment or an isolated incident alone will not support a claim of sexual harassment. However, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature rise to the level of sexual harassment when the conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Courts typically consider several factors to determine whether an environment is hostile, including:
- Whether the conduct was verbal, physical, or both;
- How frequently it was repeated;
- Whether the conduct was hostile or patently offensive;
- Whether the alleged harasser was a co-worker or supervisor;
- Whether others joined in perpetrating the harassment; and
- Whether the harassment was directed at more than one individual.
The key to a sexual harassment claim is whether the actions were severe and pervasive so as to change the conditions of employment and create an abusive environment, judged either by an objective standard (in other words, any reasonable person would find the conduct abusive); and a subjective standard (in other words, the employee in question found the conduct abusive).
The 1982 landmark case Henson vs. Dundee, 682 F.2d 897 (11th Circuit 1982) established two different sets of legal grounds for claiming sexual harassment under Title VII:
- “Harassment in which a supervisor demands sexual consideration in exchange for job benefits (quid pro quo);” and
- “Harassment that creates and offensive environment.”
This ruling established that a plaintiff must also show some tangible job detriment in addition to the hostile work environment created by sexual harassment.
Sexual harassment at work is not limited to men harassing women. The federal courts have also determined that workplace harassment can be applied to incidents in which the discrimination or harassment was between members of the same sex, incidents in which the employer or harasser has engaged in gender stereotyping, and incidents based on perceived or actual sexual orientation.
Any one comment can lead to a sexual harassment claim being made against the employer and often results in demoralized employees and possibly litigation. If an employer does not promptly begin an investigation after any sexual harassment complaint is made (which may uncover a pattern of such comments), the employer may be regarded as not sufficiently concerned about or endorsing inappropriate conduct in the workplace.
As with other workplace issues, it is not effective to simply have policies and procedures in place. One of the best ways to maintain a respectful and compliant workplace is ensure documentation is kept to show supervisors and employees have been trained about what constitutes sexual harassment, how to report conduct believed to be sexual harassment, and each employee’s obligation to promote respect and civility in the workplace.
In addition, it goes without saying that workplace culture usually has a “trickle-down” effect. Therefore, it is the responsibility of administration at all levels to set the right tone for ending workplace harassment. This includes avoiding conduct that may be construed as sexually harassing and keeping in mind that supervisors serve as a role model for employees. Consequently, administration should never ignore “locker room talk,” even if no one complains.
If you have questions or would like training for your employees on this or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.
by Mike Leasor
The Tenth District Court of Appeals in Waco issued a very important decision in December that should make coaches and sponsors take note regarding summer camps and activities. In McPherson and Langston v. Wylie, the student argued that, while McPherson and Langston may have been school employees, the incident took place over the summer, was not part of the school curriculum, and McPherson and Langston’s negligence as individuals was the sole cause of the injury. The Waco Court of Appeals agreed and concluded that McPherson and Langston were sued only in their individual capacities, not their official capacities.
In the underlying facts of this case, the student, through his parents, sued McPherson and Langston, both teachers and coaches, alleging that the student sustained injuries as a result of the coaches’ negligence. On June 18, 2013, the student attended a “summer athletic program” being held in Blum ISD’s “old gym,” but the program was not part of Blum ISD’s curriculum. McPherson supervised and directed the program’s activities and, at some point, directed the student to line up at a bench to perform “plyometric exercises” or “jump training.” Langston was supervising the athletic drill, and, while the student was performing the exercises, he “ordered” her to “jump faster.” As the student was trying to comply, she severely injured her left leg. Before this incident, Wylie and his wife had “had a conference that included McPherson” to discuss a previous injury the student had suffered while performing “jump training.” At the conference, Wylie had presented a doctor’s note and requested that the student not perform the “jump training” anymore.
The coaches claimed that they have statutory immunity under Texas Education Code §22.0511(a), which states that:
A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.
The coaches further claimed that common law official and governmental immunity from the student’s claims could be derived from Texas Education Code §22.051, which provides that the statutory immunity provided above is in addition to and does not preempt the common law doctrine of official and governmental immunity. The coaches relied on these statutes in their effort to seek relief from the court and have the suit dismissed.
The court however, had other ideas. As a general rule, employees of the State or its political subdivisions may be sued in their official capacities as representatives of the government, in their individual capacities, or in both capacities. When sued in their official capacities, employees enjoy the same immunities as the school district. However in this case, the court concluded that the coaches were being sued in their individual capacities and not as an employee or volunteer of the school district. It was determined that the summer program was not a part of the school curriculum and that the incident that occurred during this program was the sole negligence of the coaches as individuals. Thus, the coaches actions did not meet the requirement of §22.0211(a), found above.
Finally, the court ruled that immunity from liability and immunity from suit are two distinct principles. Immunity from suit is a jurisdictional issue and prevents a plaintiff from bringing suit unless immunity is waived. In contrast, immunity from liability prevents the recovery of damages even when immunity from suit is waived. Furthermore, unlike immunity from suit, immunity from liability does not affect a court’s jurisdiction to hear a case and cannot be raised in a plea to the jurisdiction. Thus, this case will go to trial unless settlement occurs, which is a dangerous proposition.
The lesson here is to be knowledgeable regarding the liability of the district’s coaches and teachers who are involved in summer activities. If those activities are not a part of the employee’s job duties, then they are not immune from suit in their individual capacity. This means that any lawsuit may go to trial, which is a risky proposition at best.
If you or your staff would like training on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.
by Melissa Mozingo
The Texas Education Agency adopted new rules for all administrator appraisals, including superintendents, on July 1, 2016, which are set out in Title 19 of the Texas Administrative Code, sections 150.1021-150.1028. The new rules should be read in conjunction with Texas Education Code §§21.354 and 21.3541.
Under Texas Education Code §21.354(c), a school district has two options for the annual appraisal of school administrators, including superintendents:
1. the commissioner’s recommended appraisal process and performance criteria; or
2. an appraisal process and performance criteria must be:
A. developed by the district in consultation with the district- and campus-level committees established under §11.251; and
B. adopted by the board of trustees.
Under the first option, §21.354(c)(1), a district “may use the commissioner’s recommended process and performance criteria” for the annual appraisals for administrators (excluding principals). Under the former rules, the commissioner provided a recommended appraisal process and performance criteria for superintendents. With the repeal of the previous rules, however, TEA only provided new appraisal rules for principals and other campus administrators, not superintendents. Until the commissioner has proposed new rules for a recommended process for superintendent appraisals, the first option under §21.354(c)(1) is no longer available for use by school districts.
At this time, the only administrator appraisal option available to school districts for superintendents is §21.354(c)(2), which has two (2) requirements. The appraisal process and performance criteria must be: “(A) developed by the district in consultation with the district- and campus-level committees established under §11.251; and (B) adopted by the board of trustees.”
Neither the new rules nor Texas Education Code §21.354 prohibits the use of the previous superintendent appraisal process and performance criteria. However, if a school district chooses to use the superintendent appraisal that is the same or similar to the former commissioner recommended process, it must do so in compliance with §21.354(c)(2) by consulting with the district-level committee and submitting the process and criteria to the board of trustees for adoption.
Texas Education Code §21.354(d) states that, “[f]unds of a school district may not be used to pay an administrator who has not been appraised in the preceding 15 months.” Should a district fail to comply with both requirements of §21.354(c)(2), then the administrator has not been properly evaluated and district funds may not be used to compensate the administrator.
For superintendent appraisals (and all other administrator appraisals in which the district has chosen to develop its own policy), it is recommended to:
- Call district- and campus –level meetings as soon as possible to discuss and develop the appraisal process and performance criteria for the evaluation instrument. For superintendents, the appraisal process and performance criteria should be developed in consultation with the district-level committee only.
- Have the Board of Trustees adopt the new appraisal process and performance criteria.
- Conduct the appraisal. Board approval and the appraisal may happen at the same meeting.
If you have questions about this or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.
by Melissa Mozingo
Most people who read this article will wonder how any court could not find a hostile work environment claim to have merit when a noose is discovered in the workplace by an African-American employee. Under existing case law, one or two isolated incidents is generally not enough to constitute a hostile work environment. As this recent case highlights, plaintiffs in discrimination, harassment and hostile work environment cases, have very difficult burdens to meet.
The plaintiff, Jerome Cole, an African-American, had worked for Northern Illinois University in the Building Services Department since 1998. Cole alleged that, beginning in 2009, he experienced race discrimination, retaliation, and a hostile work environment based on his race. In mid-November 2012, Cole discovered a hangman’s noose in his work area. Cole threw the noose away, but the next day he discovered another noose outside the building. Cole emailed one of his supervisors and told her that he had found a noose and taken it to the police. The supervisor took Cole’s email to the police station, turned it in to the acting superintendent, and spoke to two other university officials about the incident. By February 2013, the university police had begun an investigation. A detective interviewed Cole, but was then told by his supervisor to stop the investigation. The person who left the noose was never identified. The police investigation was the only substantial step the university took after the noose incident. There was no evidence that the noose incident was repeated after that.
7th Circuit Finds No Hostile Work Environment
The district court rejected the hostile work environment claim, holding that (1) most of the hostile events were not based on Cole’s race; (2) Cole had not produced evidence that the noose was intentionally left for him to find; and (3) Cole had not shown a basis for employer liability.
Harassment sufficiently severe or pervasive to alter the terms and conditions of employment is actionable under Title VII as a claim of hostile work environment. To prove a claim for hostile work environment based on race, an employee must show: (1) he/she was subject to unwelcome harassment; (2) the harassment was based on his/her race; (3) the harassment was severe or pervasive so as to alter the conditions of the employee’s work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. A plaintiff has a large burden to meet and a lot of things to prove to meet their burden.
The crux of Cole’s hostile work environment claim was the discovery of the noose. The 7th Circuit found that the first and second prongs were easily met as the noose undoubtedly qualifies as “unwelcome harassment” and that given its status as a symbol of racial terror, the Court had no difficulty assuming that the harassment could be treated as based on race. However, the Court found that the record in the case did not support a reasonable inference that most of the hostility Cole encountered was connected to his race as there was almost no evidence of racial animus in the record. There were no reported hostile or ambiguous remarks, no racial slurs, nothing beyond the noose itself and the later secondhand report of a racist sign posted somewhere, at some unknown time by some unknown person.
With respect to the third prong, the 7th Circuit held that they were hesitant to agree with the district court when they found that Cole could not produce evidence that the noose had been displayed or intentionally left for him to find. The Court noted that a noose on display is generally likely to have more of an impact on employees than one hidden away in a co-worker’s desk. Thus, the Court did not lay firm rules for when a noose in the workplace is or is not severe enough to be actionable.
The Court ruled, however, that Cole failed to present evidence to support the basis for employer liability, the fourth element of his claim. Employers are strictly liable for supervisor harassment, but when a plaintiff claims that co-workers are responsible for the harassment, “he must show that his employer has ‘been negligent either in discovering or remedying the harassment.'” There was no evidence that a supervisor was involved in leaving the noose, so Cole had to present evidence allowing a reasonable jury to find that the university was negligent, meaning that it failed to take “prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.” A prompt investigation is the first step toward a reasonable corrective action. The undisputed facts in this case, the Court held, showed that Cole notified a supervisor of the discovery of the noose, the supervisor spoke to him about it, and delivered her notes of the incident to the university police. The supervisor also reported the incident to a couple of university officials. The Court held that in these circumstances, it was reasonable for the administration, having involved the university police, to leave the investigation to them. However, the Court was careful to make clear that they were not holding that an employer necessarily fulfills its responsibility to take appropriate corrective action if it has reported an incident to some other party–such as university police. The question is whether the employer took corrective action “reasonably likely” to prevent harassment from recurring. The Court stated that, “bad ‘joke’ or not, the presence of a hangman’s noose in the workplace is not acceptable. But based on the circumstances here, including Cole’s reaction and the fact that the Building Services Department turned the matter over to the police for investigation…we see no basis for employer liability in this case.”
Finally, the 7th Circuit found that Cole presented no direct or circumstantial evidence of disparate treatment based on race and that Cole had not engaged in protected activity to survive a retaliation claim. While these claims were not the highlight of this case, it is important to note that this decision cited another significant case, Ortiz v. Werner Enterprises, Inc., No. 15-2574, – F.3d -, -, 2016WL 4411434, at *4 (7th Cir. Aug. 19, 2016), which is a case that held that “evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself–or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.”
The case is Jerome Cole v. Board of Trustees of Northern Illinois University, et al., No. 15-2305 (7th Cir. Sept. 27. 2016).
Discipline for Inappropriate Racial Remarks
Although there is rule as to how much racist rhetoric, or how many comments or “jokes” can create a winning hostile work environment suit, any incident can create a hostile work environment. Some federal courts have found that even a single racial slur can make an employer liable for discrimination under state and federal laws.
Employers can shield themselves from this kind of litigation by ensuring that all established policies and procedures are followed once any allegation of racism has been received. All incident(s) should be investigated promptly and thoroughly. Everything related to the investigation and the discipline process should be documented, including the initial complaint, employee interviews, and any disciplinary action taken (including the reasoning for the discipline).
As always, if you have any additional questions about this topic or any other school law topic, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.
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.