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Unfortunately, There is More Than One Bad Apple

by Mike Leasor

The Texas Legislature passed, and the Governor recently signed, Senate Bill 7 in an attempt to address what many have come to view as an epidemic of inappropriate relationships between educators and students.  This piece of legislation, which becomes effective on September 1, 2017, is one of the most talked about coming out of this legislative session.  It is imperative that administrators pay close attention to this law and the topic it covers.  Your certificate may depend on it.

Following is a bullet point list of the significant additions to the law in this area:

  • The principal must notify the superintendent not later than the seventh business day after the date of an educator’s termination of employment or resignation following an alleged incident of misconduct or the principal knew about an educator’s criminal record.
  • The superintendent must now notify the State Board for Educator Certification (“SBEC”) by filing a report with the board not later than the seventh business day after the date the superintendent receives a report from a principal.
  • Immunity is still provided for reports made in good faith.
  • An educator is now prohibited from inappropriate behavior with any student known to be enrolled in any public or private primary or secondary school.
  • Mandatory reporting by a superintendent to SBEC under 21.006(b)(2) is now triggered by termination and evidence of wrongdoing rather than termination based on evidence of wrongdoing.
  • The superintendent must complete an investigation of any allegation involving abuse, unlawful acts, romantic relationships, or sexual contact with a student or minor and report it to SBEC even if the educator is terminated or leaves the district.
  • Requires notice to parents of a student with whom an educator is alleged to have engaged in misconduct involving abuse, an unlawful act, romantic relationship, or sexual contact.
  • Although districts currently have policies in place regarding staff/student electronic communications, the policy must now have a provision that staff personal phone numbers and email addresses are not required to be disclosed.
  • SBEC is now authorized to impose administrative penalties of up to $10,000 against principals and/or superintendents who fail to comply with the reporting requirements.
  • Failure to comply with the reporting requirements with the intent to conceal an educator’s criminal record or alleged incident of misconduct is punishable as a state jail felony.
  • Applicants must now disclose if they have even been charged with having an inappropriate relationship with a student.
  • If a certified employee assists an educator who has had an inappropriate relationship with a student in gaining employment in another district, that employee’s certificate may be revoked.
  • If an educator is convicted of a felony involving an inappropriate relationship, it prohibits TRS payments.

If you would like more information on this topic or seek a review of your district’s policies or procedures regarding this new law, please do not hesitate to contact one of the attorneys at Leasor Crass, P.C.

Baby You Can Drive My Car: How to Conduct a Sexual Harassment Investigation – Part 1

by Melissa Mozingo

This post is the first in a two-part series that will provide guidance and strategies to district and campus administration and HR personnel on conducting effective sexual harassment investigations. Although this article focuses on sexual harassment, the advice in it applies equally to racial, age-based and other types of harassment investigations.  

In February 2017, a former Uber employee published a detailed, horrific story of alleged structural sexual harassment at the company.  The article described an office culture in which members of an almost entirely male staff were routinely and openly hostile to female employees, from instances of verbal abuse and belittlement to job-based “blackmail” by HR and extensive sexual harassment.  Among other things, the author recalls being suggestively coached on her appearance by her manager, his frequent use of striking racial slurs and his disparagement of business “ethics.”  The author also described a habit among male employees of creating sexually explicit narratives about female peers and superiors in online group chats.  The author alleges that she was propositioned for sex over company chat.  When she reported the incident to Human Resources, she says, he did not lose his job because she was told the man was a “high performer” and it was his first offense.  She says she later discovered this was untrue: Other women had reported the same manager to HR for similar offenses.

Whether or not the allegations are true, this case is a perfect example of a ‘Human Resources failure’ for how to deal to harassment claims.  Here are some basics to a district’s obligations to investigate when an employee complains of harassment.

  1. Districts have a duty to conduct investigations. Districts have an affirmative duty to maintain a working environment free of harassment on the basis of a federally protected characteristic, such as race, color, or national origin, religion, sex, disability, age, or genetic information. 42 U.S.C. 1981; 42 U.S.C. 2000e et seq. (Title VII); 20 U.S.C. 1681 et seq. (Title IX); 42 U.S.C. 12111 et seq. (Americans with Disabilities Act); 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act); 29 U.S.C. 793, 794 (Rehabilitation Act); 42 U.S.C. 2000ff et seq. (Genetic Information Nondiscrimination Act); U.S. Const. Amend. I; Human Resources Code 121.003(f); Labor Code Ch. 21 (Texas Commission on Human Rights Act); Labor Code Ch. 21, Subchapter H (genetic information).  Districts can be held liable for failing to take the steps necessary to prevent such harassment from occurring or for failing to promptly correct any harassing conduct about which it knew or should have known was occurring.  29 CFR 1604.11(d), (e), (f); 1606.8(d), (e).
  2. Districts may have to take action before conducting the investigation. Based on the allegations and facts of the case, as a precautionary measure, a district should consider whether immediate action is warranted.  The EEOC set forth examples of precautionary steps that may be necessary include:  “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.”  However, districts need to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”
  3. The investigation must be immediate. How soon the investigation must start depends on the circumstances.  In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), the employer’s response was held to be prompt where it began its investigation on the day the complaint was made, conducted interviews within two (2) days, and fired the harasser within ten (10) days.  In Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after the plaintiff filed a charge with the state Fair Employment Practices agency, even though the harasser was eventually terminated.  In Saxton v. AT&T, 10 F.3d 526 (7th Cir. 1993),  the court found that the investigation was prompt when it started one (1) day after the complaint was made and a detailed report was completed two (2) weeks later.  In Nash v. Electrospace Systems, Inc., 9 F.3d 401 (5th Cir. 1993), the court held that an investigation was prompt when it was completed with one (1) week.  The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992) found that an investigation was adequate when it was completed within four (4) days.
  4. The investigator must be experienced, unbiased, and trustworthy. There is no legal prohibition that internal employees, such as Human Resources personnel, cannot conduct investigations into employee complaints.  The investigator does not have to have investigation experience or meet any certain training requirements.  However, districts should take the time to thoroughly train an in-house person who can conduct harassment investigations.  First, the person needs to be able to conduct appropriate investigations in order to limit the liability of the district.  Second, the person’s experience and training will likely be closely examined, if not challenged, by opposing counsel if the case develops into litigation.  Training for potential district investigators could include the law and district board policies regarding harassment, selecting the appropriate investigative process for different types of investigations (i.e., who to interview first), assessing credibility of witnesses, and workplace investigative techniques and report writing.

The investigator cannot have a conflict of interest or bias towards the alleged victim or alleged harasser, so it is very important to select a person who does not have any personal involvement with any of the parties who are a part of the investigation.  To avoid the appearance of any undue influence, the investigator must not be subject to any control or supervisory control of the alleged harasser.  This means that for some smaller districts or in cases where the assistant superintendent or superintendent is alleged to have harassed someone, it is recommended that an outside third-party or law firm be hired to conduct the investigation.

If you need assistance with a workplace investigation, please feel free to contact me or any other attorney at Leasor Crass, P.C.  The next post in this series will be How to Conduct a Sexual Harassment Investigation (Part 2).

 

Whistle While You Work – “Adverse Employment Action” Under the Texas Whistleblower Act

by Heather Castillo

School districts should be aware of a recent court of appeals decision concerning the Texas Whistleblower Act. In Burleson v. Collin County Community College District, the court of appeals reversed the trial court’s decision to grant the College’s plea to the jurisdiction because it found that some personnel actions might be considered “adverse personnel actions” under certain circumstances when the Texas Whistleblower Act (the “Act”) is involved. At issue were personnel actions that school districts would typically consider benign or routine. For example, changing an employee’s schedule or shift, or issuing an employee a “coaching” memo that is not typically considered formal discipline.

Texas Whistleblower Act Overview

Generally, governmental entities such as school districts and colleges are immune from suit and liability under the sovereign immunity doctrine. However, the Act waives immunity from suit to the extent that a governmental entity is liable under the Act’s provisions. See Tex. Gov’t Code § 554.0035. The Act 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.” Tex. Gov’t Code § 554.002(a). The Act prohibits retaliation by providing 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 makes such a report. Id. (emphasis added). The Act defines “personnel action” as: “an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” Tex. Gov’t Code §554.001(3). However, the Act does not define what constitutes an “adverse personnel action.

The Texas Supreme Court has adopted a test used in a United States Supreme Court decision to determine whether retaliation has occurred in violation of the Act. The test is this: for a personnel action to be adverse within the meaning of the Act, it must be material and likely to deter a reasonable, similarly situated employee from reporting a violation of the law. This test is meant to separate “petty slights” and “minor annoyances” from legitimate retaliatory actions that would be likely to deter an employee from reporting violations of law.

Burleson v. Collin County Community College District

In the recent Burleson v. Collin County Community College District case, plaintiffs Jon Mark, Craig Bennight, and Billy Burleson, are police officers working for the Collin County Community College District. All three officers sued the College alleging violations of the Whistleblower Act claiming that they suffered retaliation in the form of adverse personnel actions after they reported crimes.

In a plea to the jurisdiction, the College claimed that sovereign immunity defeated subject matter jurisdiction because the College did not take adverse personnel action against the three officers. The College also argued that two of the officers did not meet the jurisdictional prerequisites for a whistleblower grievance. The trial court granted the College’s plea, so the officers appealed.

Mark alleges that he was retaliated against after he reported illegal activity. Specifically, he reported that he was ordered to lock an intoxicated person in a closet for four hours and that such action constituted the crime of official oppression. After making this report, he received an “employee coaching” form write-up and a schedule change to “deep nights” (6 p.m.-6 a.m.) in light of “violations claimed in the coaching report.” He filed a grievance, which was denied by the College.

Bennight and Burleson had been investigating the theft of books from the College bookstore when they began to suspect a scheme to defraud the College, corruption, and a cover-up by high ranking officials. They reported violations of the law related to the bookstore, including coercion of a public servant, public corruption, tampering with evidence, and tampering with a witness to various law enforcement authorities. They also reported to the College’s police chief that employees were stealing from the bookstore, but they assert that they were then ordered to close their investigation. Bennight alleged retaliation because his schedule was changed to “deep nights” and he was assigned to another campus. Bennight asserted that he was hired to be an investigator, but that he could no longer do his normal duties on the new late night shift because he could not file cases with the district attorney when the courts are closed. Burleson also alleged retaliation because his schedule was changed from the 10 a.m.-6 p.m. shift to the 2 p.m.-10 p.m. shift and he was removed from “flex time.” Burleson asserted that the College police chief had previously allowed Burleson to work a flexible schedule because he was aware of Burleson’s “precarious” financial situation following a divorce. Further, Burleson alleged that the Chief was aware that Burleson would have even less time with his three young children under this new shift schedule. Bennight and Burleson also filed grievances, which were denied by the College.

The College argued that the above-described personnel decisions, i.e., issuing a “coaching form” and making schedule changes, were not adverse personnel actions as defined by the Act. However, the court of appeals disagreed. The court of appeals looked at the specific facts underlying the personnel actions concerning the officers. Regarding Mark, the court of appeals found that even though the “employee coaching form” stated that it was not a “formal disciplinary action,” it also warned of possible termination and “was unreasonable in a number of respects.” The court of appeals also stated that “a schedule change that affected an employee’s ability to earn extra income in other part-time jobs, and that affected the employee’s ability to spend time with his children, could constitute an adverse personnel action.”

The case is not over. The court of appeals reversed the trial court’s decision to grant the College’s plea to the jurisdiction and remanded the case back to the trial court for further proceedings.  The College will now have additional opportunities to prove its claims to the trial court.

What are the consequences for taking adverse personnel action against a whistleblower?

A plaintiff is entitled to sue for: (1) injunctive relief; (2) actual damages; (3) court costs; and (4) reasonable attorney fees. Further, a plaintiff who was suspended or terminated in violation of the Act is entitled to: (1) reinstatement to his former position or an equivalent one; (2) lost wages; and (3) reinstatement of fringe benefits and seniority rights.

If you or your staff have questions about taking personnel action against an employee who claims to be a whistleblower, or how to respond to a grievance filed by an employee who asserts whistleblower protection, or you would like training related to these issues, the attorneys at Leasor Crass stand ready to assist.

Preparing to Walk

by Bobby Padgett

As we approach the coming graduation season, we offer this Legal Blast to remind districts that students do not possess a fundamental constitutional right to participate in graduation ceremonies.  While such claims are rare, when they do arise they can cause significant difficulties for a school district because resolving the issue takes a concerted and time-consuming effort due to the timing of graduation ceremonies.

Most often, these claims arise either because a student violates the student code of conduct through their behavior at pre-graduation ceremonies, or they fail to complete all state-mandated requirements to graduate.  With either case, the central inquiry must revolve around the undeniable fact that graduation ceremonies are extra-curricular activities and, as the Texas Supreme Court has repeatedly stated, students do not possess a fundamental right to participate in extra-curricular activities.

This premise that students who do not complete all mandated requirements to graduate do not have a fundamental right to participate in graduation ceremonies was first articulated by the Texas Supreme Court in Spring Branch I.S.D. v. Stamos, 695 S.W. 2d 556 (Tex. 1985), and affirmed in NCAA v. Yeo, 171 S.W.3d 863 (Tex. 2005), where the Court stated:

 “Construing the Texas Constitution’s guarantee of due course of law, we held twenty years ago in Spring Branch I.S.D. v. Stamos, like ‘the overwhelming majority of jurisdictions’ construing other constitutional guarantees of due process, that ‘students do not possess a constitutionally protected interest in their participation in extracurricular activities.’ We have endorsed the rule in Stamos twice since. [The student] nevertheless contends that because of her unique situation as “the most decorated athlete in the history of the Republic of Singapore”, to disqualify her from participating in an intercollegiate swimming competition would deprive her of protected property and liberty interests in her reputation and existing and future financial opportunities in violation of the Texas Constitution. The lower courts agreed, distinguishing this case from Stamos. We conclude that the rule in Stamos applies and therefore reverse the judgment of the court of appeals and render judgment that [the student] take nothing.”

While the range of circumstances can vary widely, a school district can successfully resist a student’s claim that they have a right to participate in graduation ceremonies, so long as the school district’s actions are taken in accordance with school board and school district policies.

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 a student’s claim that they have a right to participate in extra-curricular activities, including graduation ceremonies, and the implications it may have for your district.

The Devilish Details on Student Prayer at Board Meetings

by Dean Micknal

The Fifth Circuit Court of Appeals issued an opinion last month that was widely reported as upholding the right to begin school board meetings with prayer.  Relying on the “legislative-prayer exception”, the Court unanimously rejected an argument by the American Humanist Association that Birdville ISD’s policy of allowing students to deliver invocations before school-board meetings ran afoul of the First Amendment’s Establishment Clause.

Headlines related to cases involving constitutional issues always give me a bit of heartburn.  This is especially true when the case delves into issues involving what is commonly referred to as the separation of church and state.  There is a good reason the Fifth Circuit has previously described this area of law as the “murky waters of the Establishment Clause.”  These types of constitutional issues are almost always incredibly fact-dependent and require careful consideration of one or more detailed legal tests.  This makes it difficult and often-times dangerous to attempt to distill a First Amendment case into a few catchy words.

This case is a perfect example of why districts should invoke the late, great Paul Harvey and make sure to consider “the rest of the story” when presented with this sort of information.  Contrary to what the headlines suggest, the Court was careful to avoid making any sweeping declarations as to the legality of prayer at school board meetings or in public schools in general.  In fact, the most telling statement can be found in the last paragraph of the last page, where the Court concludes that “[a]lthough it is possible to imagine a school-board student-expression practice that offends the Establishment Clause, this one, under its specific facts, does not.”

This parting thought is as much a warning as an approval. A careful reading of the decision shows that the Court’s application of the legislative-prayer exception was dependent on consideration of a multitude of factors, including, but not limited to:

  • The composition of the Board of Trustees;
  • The physical location of the Board meetings;
  • The roles and responsibilities of the Trustees;
  • The roles and responsibilities of any students attending Board meetings;
  • The composition of the audience attending the meetings;
  • Policies and practices regarding attendance during the ceremonial portion of a meeting;
  • Policies and practices regarding attendee participation/response to the ceremonial portion of a meeting;
  • The format/structure of the ceremonial portion of a meeting;
  • Policies and practices regarding selecting presenters for the ceremonial portion of a meeting;
  • Policies and practices regarding development and delivery of the presentation;
  • Factual characteristics regarding the actual tone of invocations given during ceremonial portion of a meeting;
  • A determination regarding who is the primary focus of invocations given during ceremonial portion of a meeting; and
  • Policies and practices regarding endorsement and/or disclaimer of viewpoint expressed during ceremonial potion of a meeting.

This does not necessarily mean that any deviation from the facts in the Birdville ISD decision would be fatal for purposes of defending a similar lawsuit.  However, each and every deviation is an opportunity for opposing counsel to distinguish a challenged policy from this narrow holding, and if successful, compel a new round of overly broad headlines.

If you have questions about how your District’s policies regarding prayer at Board meetings matches up with this ruling, please don’t hesitate to contact the school attorneys at Leasor Crass, P.C.

Teacher and Administrator Evaluations: How Confidential Are They?

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.

 

Sorry, Not Sorry

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.

[i] http://www.texaslawyer.com/id=1202779050706/In-Litigation-Sometimes-All-It-Takes-Is-Saying-Sorry

Absence Makes the Heart Grow Fonder…of Your Absence

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.

Takeaways.

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.

Exhausting Your Remedies is Exhausting!

by Mike Leasor

In Fry v. Napoleon Cmty. Sch., No. 15-497 (U.S. Feb. 22, 2017), the U.S. Supreme Court, in an 8-0 ruling, held that the exhaustion of the IDEA’s administrative remedies is unnecessary where the gravamen of the plaintiff’s lawsuit is something other than the denial of the IDEA’s core guarantee of FAPE.

E.F. suffers from cerebral palsy and was prescribed a service dog (Wonder) to assist her with everyday tasks. Her school, which provided her with a human aide as part of her Individualized Education Program (IEP) under the IDEA, refused to permit her to bring her service dog to school.

The Frys then began homeschooling E.F. and subsequently filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) under the ADA and §504 of the Rehabilitation Act. Two years later, in May 2012, OCR found that the school’s refusal to permit Wonder to attend school with E.F. was a violation of the ADA. At that time, without accepting the factual or legal conclusions of OCR, the school agreed to permit E.F. to attend school with Wonder starting in the fall 2012.  The Frys then filed suit pursuant to Title II of the ADA and §504, seeking damages for the school’s refusal to accommodate Wonder between the fall of 2009 and the spring of 2012.

The Frys alleged the following particular injuries: denial of equal access to school facilities, denial of the use of Wonder as a service dog, interference with E.F.’s ability to form a bond with Wonder, denial of the opportunity to interact with other students at Ezra Eby Elementary School, and psychological harm caused by the defendants’ refusal to accommodate E.F. as a disabled person.

The district court granted the defendants’ motion to dismiss, finding that the IDEA’s exhaustion requirements applied to the Frys’ claims and dismissed the claims. The court noted that although the Frys did not specifically allege any flaws in E.F.’s IEP, if she were permitted to attend school with Wonder, that document would almost certainly have to be modified in order to articulate the policies and practices that would apply to the dog. Therefore, the Frys’ request for permission for E.F. to attend school with Wonder “would be best dealt with through the administrative process,” and exhaustion was required. Because the Frys had not exhausted IDEA administrative remedies, the district court dismissed their suit. The Frys timely appealed.

A U.S. Court of Appeals for the Sixth Circuit panel, in a 2-1 decision, affirmed the lower court’s decision dismissing the §504 and ADA claims. The panel’s majority concluded that the IDEA’s exhaustion requirement applied to the Frys’ claims. It stated that “the nature of the Frys’ claims required them to exhaust IDEA procedures before filing suit under the ADA and the Rehabilitation Act.” Crucial to the majority’s conclusion that exhaustion of administrative remedies was required, was its determination “in effect that E.F.’s school’s decision regarding whether her service animal would be permitted at school denied her a free appropriate public education.”  Again, the Frys timely appealed.

 The Supreme Court in its decision advanced two positions: (1) To bring a suit under IDEA, the plaintiff must seek relief for the denial of FAPE because that is the only relief available under IDEA; and (2) “[I]n determining whether a suit indeed ‘seeks’ relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff’s complaint.”

According to the opinion, a determination of whether the exhaustion requirement applies must go beyond the surface of the complaint to examine the substance. The Court pointed to two “clues” to discovering whether the gravamen of a complaint concerns denial of FAPE or, instead, focuses on disability-based discrimination addressable under Title II of the ADA or §504:  First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor— have pressed essentially the same grievance?

The Court concluded that if the answer to both is yes, then it is unlikely that the complaint concerns FAPE. However, if the answer to both is no, it is probable that the complaint does concern FAPE.

The Court stated further that another sign that the gravamen of a complaint involves the denial of FAPE is when the history of the proceedings reveal that the “plaintiff … previously invoked the IDEA’s formal procedures to handle the dispute—thus starting to exhaust the Act’s remedies before switching midstream.” She noted that “prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.”

Turning to the Frys’ complaint, the Court pointed out that it might not require exhaustion, but that there was important information missing that required remanding the issue to the Sixth Circuit. It pointed out that the complaint contains no allegation about the denial of a FAPE or about any deficiency in E. F.’s IEP. The Court also noted that the complaint “does not accuse the school even in general terms of refusing to provide the educational instruction and services that E. F. needs.”  It concluded that nothing in the nature of the Frys’ suit suggests any implicit focus on the adequacy of E. F.’s education. It conjectured that “the Frys could have filed essentially the same complaint if a public library or theater had refused admittance to Wonder.”  Thus, the Supreme Court determined that administrative remedies did not need to be exhausted based on the information at hand, but then remanded the case back to the Circuit Court to determine if the Frys had ever pursued administrative remedies in the first place.

Although confusing, this case is instructive as it gives school districts guidance as to when a “failure to exhaust administrative remedies” argument might be a waste of energy and resources.  Unfortunately, the decision could also be read as providing a roadmap on how to package a claim to avoid an otherwise suitable administrative remedy.  This could have the effect of dramatically increasing the number of cases that end up being litigated in federal courts, as opposed to the (relatively) more efficient due process hearings system.  If you or your staff have additional questions on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.

U.S. Supreme Court Rejects “More than De Minimis” Standard

by Dean Micknal

The U.S. Supreme Court issued an opinion today that expressly rejects “merely more than de minimis” as the standard for measuring whether an IEP is reasonably calculated to provide FAPE under the IDEA.  Instead, the Court has held that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

In Endrew F. v. Douglas County School District, the Court overturned the 10th Circuit’s interpretations of IDEA and the Supreme Court’s previous ruling in Board of Education of Hendrick Hudson School District, Westchester City v. Rowley (“Rowley”) as only requiring an IEP to be reasonably calculated to enable a student to make some progress, as long as the progress is more than de minimis.  The leading case in the 5th Circuit, Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. applied a similar interpretation, explaining that the educational benefit to which the [IDEA] refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be “likely to produce progress, not regression or trivial educational advancement.”

While the opinion makes it clear that the “more than de minimis” standard is unacceptable, the new standard is anything but definite.  This should not be viewed as an oversight, though.  In fact, the Court expressly refused to establish a bright-line rule on what “appropriate” progress means, explaining that “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”

The frustrating reality of this ruling is that it leaves districts (and their legal counsel) in the position of knowing what FAPE isn’t, but not knowing what FAPE is.  That determination is going to have to be developed through litigation, a fact that the Court seemingly acknowledged when it cautioned future courts that “[t]his absence of a bright-line rule” should not be mistaken as “an invitation…to substitute their own notions of sound educational policy for those of the school authorities which they review.”

This affirmation that the legal presumption of appropriateness is still standing is one of the two areas in which districts might find some measured solace.  The second is that the Court flatly declined to adopt the standard asserted by the Petitioners that IDEA requires “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”

So what should districts do in response to the new ruling?  First, take a deep breath. The “more than de minimis” standard may have been the law, but in reality the overwhelming majority of districts have always committed to providing much more than the bare minimum to their special education scholars.  Next, recommit to emphasizing the importance of ensuring that an IEP is truly individualized and based on a student’s Present Level of Academic Achievement and Functional Performance (PLAAFP).  The fact that the new standard is directly tied to “the unique circumstances of the child” means that a well written PLAAFP statement is more crucial now than ever.

Finally, acknowledge that the ruling raises the bar, but stops well short of requiring the district to issue a blank check.  IEP development is a collaborative process and sometimes disagreement is inevitable. The IDEA provides parents with the right to file for a due process hearing in these instances.  When that happens, remember that the Court chose to close this decision with the following message:

The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue.  By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement.  A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.

If you should have any questions or concerns about what the new decision means for your district, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.