What Happened to that New Overtime Rule?

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.

Joking in the Boys’ Room: An Extreme Guide to a Hostile Work Environment (Pt. 2)

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.

But I Thought I Was Immune!

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.

Appraisal Hoops

by Melissa Mozingo

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:

  1. 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.
  2. Have the Board of Trustees adopt the new appraisal process and performance criteria.
  3. 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.

More than Words: An Extreme Guide to a Hostile Work Environment (Pt. 1)

by Melissa Mozingo

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.

Proper Investigation Matters: Student’s Sexual Abuse Claims Fail

by Bobby Padgett

by Bobby Padgett

A federal district court dismissed all claims filed by McAllen ISD parents alleging that a teacher engaged in sexual contact with their child during a school trip and on the high school campus. In Moreno v. McAllen Independent School District, the parents asserted causes of action under Section 1983, Section 1985, and Title IX, in addition to state law claims of assault and battery, negligence, negligence per se, and intentional infliction of emotional distress.  The district court dismissed the state law claims for failure to state a claim, and granted summary judgment on the federal claims.

Before moving to a discussion regarding the District’s investigation, a brief overview of each claim is as follows:

  • Section 1983 Claims: The Court found the Section 1983 claim was meritless because there was no showing that a state action had deprived the child of federal rights.
  • Fourteenth Amendment Claims: The Court found meritless the claim that the child was to be free from state-caused damage to his bodily integrity noting there was no evidence showing the presence or absence of any District training programs and how they were defective.  Furthermore, there was no evidence that the Board knew of any violations, or received complaints about a District employee and deliberately chose to do nothing.
  • Section 1985 Claim: The Court found the Section 1985 claim for conspiracy meritless based on a determination that a school board and its employees constitute a single entity, and as such cannot be co-conspirators.
  • Title IX Claim: While the court noted that sexual abuse of a student by a teacher of the same sex constituted discrimination under Title IX, the claimant failed to show that a school employee with supervisory authority over the accused employee had actual notice of the abuse.

Regarding the District’s investigation into this matter, the Court found that one teacher in the District had complained about the accused employee’s behavior with male students to a principal, but that the conduct described in the complaints was susceptible to multiple interpretations and would not have given the principal actual notice that the accused employee was sexually harassing or abusing students.

Furthermore, and most important, the Court could not find that the District was deliberately indifferent to the abuse. After the District received the allegations, it swiftly initiated an investigation, notified the McAllen Police Department and Child Protective Services, and placed the accused employee on paid leave.  In sum, because the family had not shown that any supervisor in the District had actual knowledge that the accused employee posed a substantial risk of abusing students and responded with deliberate indifference, the Court granted the District summary judgment and dismissed the claims.

The lesson here is one which should be carefully heeded.  If, at any time, a student makes a claim of any type of harassment against a district employee, that district should immediately begin its investigation to ensure it either proves the allegation false or roots out and remedies the discrimination.

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 discrimination law and the implications it may have for your district.

Good News. Bad News. AG Releases Opinion Regarding Video Surveillance

by Dean Micknal

by Dean Micknal

The Attorney General has finally responded to TEA’s March 11, 2016 request for an expedited opinion regarding the construction of Texas Education Code section 29.022.  Unfortunately, it is not the response most Districts (or TEA) were wanting.  A copy of the opinion is available here.

Back in March, Commissioner Morath asked the AG four questions:

  1. Whether TEC 29.022(a) could be interpreted to only require video surveillance in one self-contained instructional setting;
  2. Whether TEC 29.022(a) could be interpreted to allow a requestor to limit a request for video surveillance to one or more specific instructional settings;
  3. Whether the term “staff member” as used in TEC 29.022(a) could be construed to mean only a campus employee who is assigned to a self-contained instructional setting subject to surveillance and certain campus supervisors; and
  4. Whether TEC 29.022(b) allows a district to discontinue video surveillance if the circumstances surrounding the request have changed substantially.

The Attorney General emphatically disagreed with the suggested interpretations…stating that “[t]he plain language of the statute does not allow for the reasonable limitation that you suggest, and this office cannot rewrite the statute.”

What does this mean for districts?  Prior to yesterday’s Opinion, there was a sliver of hope that the AG would interpret the statute so as to allow TEA to revise the rules it adopted last month to limit the scope of a request and/or allow for surveillance to be discontinued.  This Opinion would seem to firmly shut that door.  Consequently, with respect to questions 1, 2, and 4, the current Rules will probably remain in effect. Specifically:

  • TAC 103.1301(a) requires cameras to be placed, operated and maintained in self-contained classrooms or other special education settings in accordance with TEC 29.022, which has been interpreted to mean all qualifying self-contained classrooms and other special education settings;
  • TAC 103.1301 does not include any provision allowing a Requestor to limit a request to one or more specific settings; and
  • TAC 103.1301(g)(6) requires campuses to “continue to operate and maintain any video camera…for as long as the classroom or setting continues to satisfy the requirements in TEC §29.022(a).”

However, TEA may end up having to change the definition of “staff member” set out in TAC 103.1301(b)(2).  In the AG’s opinion, TEA “exceeded its rulemaking authority by adopting a definition more restrictive than the plain language of the statute.”  In other words, the AG believes that if the Rules were challenged, a court would likely conclude that the statute allows any staff member to request video surveillance.  That being said, the current, narrower definition of “staff member” remains in force until TAC 103.1301(b)(2) is revised or overturned in court.

Ultimately, this means that any hope for “reasonable limitations” to TEC 29.022 will most likely require action on the part of the Legislature.  As many districts have warned, and the AG explicitly acknowledged, as currently written, the statute “could create significant costs for school districts.”  We now know that relief from those costs won’t be coming from Ken Paxton’s office.  At best, the AG’s explicit admonishment of the authors of SB 507 for believing that “TEA can clarify these concerns through rulemaking” and pointed reference to the Texas Supreme Court’s holding that “reasonableness is not the standard for eschewing plain statutory language” will be received as a call to legislative action.

Leasor Crass, P.C. will continue to monitor this issue 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 the existing law and the implications it may have for your district.


Clash of the Titans: Does a Request for FMLA Leave Double as a Request for a Reasonable Accommodat

by Melissa Mozingo

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.

Court Tells OCR to Hold It: Legal Update on Transgender Restroom Access

by Christie Hobbs

by Christie Hobbs

On August 21, 2016, the federal court in Wichita Falls issued a nationwide injunction in a lawsuit over federal guidance on transgender student rights in schools.  In the lawsuit, Harrold ISD, the State of Texas, and eight other states sued the federal government to dispute guidance that tells schools to allow transgender students to use restrooms, locker rooms, housing, and overnight accommodations consistent with their gender identity.  The guidance and lawsuit were summarized in a previous post here.

The preliminary injunction prevents the United States Department of Education, the United States Department of Justice, and other federal agencies from:

  • enforcing the guidance against the Plaintiffs and other public schools;
  • initiating or continuing any investigation on the interpretation of sex and gender identity set out in the guidance; and
  • using the guidance in litigation or asserting that the guidance carries weight in any litigation filed after August 21.

The injunction extends nationwide until the court rules on the lawsuit or the Fifth Circuit Court of Appeals issues “further direction.”  Notably, the injunction doesn’t require schools to take any specific action or refrain from taking action.  You can read the injunction order here.

For now, OCR’s guidance is on hold.  The injunction will likely be challenged, and our firm will continue to update our clients as this develops.  In the meantime, schools should work closely with legal counsel as questions arise over these issues.




OSERS Takes Aim at Exclusionary Discipline

by Dean Micknal

by Dean Micknal

It may be hard to believe, but summer is almost over.  This means that students will soon be returning to classrooms, which, according to the Department of Education, is where they need to stay.

Earlier this month, the Office of Special Education and Rehabilitative Services (OSERS) issued a strongly worded “Dear Colleague Letter” addressing concerns regarding the use of short-term removals as a disciplinary measure for children with disabilities.  A copy of the guidance can be accessed here.

The guidance states that recent data regarding short-term disciplinary removals “strongly suggest” that IEPs aren’t being implemented appropriately.  In response, OSERS is reminding schools that IDEA requires the provision of appropriate behavioral supports to children with disabilities who require such supports.  Failure to do so could result in violating the Least Restrictive Environment mandate and/or denying such students a free, appropriate public education.

What does this mean for the upcoming school year?  Districts should anticipate that the use of any exclusionary disciplinary measures involving students with IEPs may come under greater scrutiny than before.  While this doesn’t mean that disciplinary removals cannot be used, it is imperative that districts document the consideration, development, and implementation of positive behavioral interventions and supports in response to behavior that may otherwise be subject to disciplinary consequence.

The guidance raises two other important points for consideration.  First, districts are expected to understand that the obligation to provide positive behavioral interventions and supports extends to any student with an IEP, regardless of whether the behavior is a manifestation of the student’s disability.  For example, a student with a hearing impairment has the same right to receive positive behavioral interventions and supports as a student with an emotional disturbance.

Second, OSERS is openly questioning the legitimacy of what is commonly referred to as the “10 FAPE Free Days” rule.  The DCL does not explicitly contradict the authority to impose short-term removals for code of conduct violations that is found at 34 CFR §300.530.  However, OSERS is expressing concern that characterizing that authority as providing 10 “free days” may “discourage school personnel from considering whether behavioral supports are needed to address or improve patterns of behavior that impede learning before, during, or after short-term disciplinary removals are implemented.”  In other words, short-term disciplinary removals may not constitute denials of FAPE, but they still require the behavioral interventions provided by the IEP to be reviewed and/or revised as necessary.

As a practical matter, the guidance does not impose any new laws or requirements.  However, it does suggest that current disciplinary practices are going to be facing increasing scrutiny.  Administrators should be aware of this fact and take steps to ensure disciplinary procedures are properly followed and documented.  If you have questions about the new guidance, or student discipline in general, the attorneys at Leasor Crass, P.C. are ready to help.