LABOR & EMPLOYMENT
Discrimination
DID THE SUPERINTENDENT CANDIDATE HAVE A VALID DISCRIMINATION CLAIM AGAINST THE SCHOOL BOARD?
Case citation: Roque v. Natchitoches Parish School Bd., __ Fed. Appx.__, 2014 WL 5659387 (5th Cir. 2014) (unpublished).
Summary: Thomas E. Roque was a candidate for the position of Superintendent of Schools for Natchitoches Parish in Louisiana. The school board received nine applications for the position after posting the opening in the local newspaper. Following an April 9, 2009 meeting, the school board voted to re-open the application period for the Superintendent position for two additional weeks. As a result of this extended application period, the board received eight more applicants for the position.
The board ultimately selected Dr. Derwood Duke after he received the majority of board votes. Roque later filed suit alleging that the decision constituted race-based discrimination in violation of Title VII of the Civil Rights Act of 1964. Specifically, Roque claimed that he was denied the position of Superintendent because of his identity as a black male. He asserted further that, although he possessed “outstanding and exemplary qualifications for the position,” a white male, Dr. Duke, was chosen based on race.
The school board sought judgment in its favor prior to trial and the trial court granted the request. [See, Roque v. Natchitoches Parish School Bd., 2013 WL 6816376 (W.D.La. Dec 19, 2013) (unpublished)]. The school board asserted that its decision to hire Dr. Duke was based solely on Dr. Duke’s superior qualifications for the job. Dr. Duke was the only finalist with a doctoral degree and the only finalist with previous experience as a superintendent. Roque, on the other hand, claimed that the school board’s proffered reason for selecting Dr. Duke was merely pretext for impermissible racial discrimination. Included in Roque’s evidence were comments Ms. Hildebrand, the chairperson of the search committee, made to board members Ralph Wilson and Joella Wilson that she “[didn’t] feel that the community was ready for a minority Superintendent.” Hildebrand made a motion, seconded by another board member, to reopen the application deadline for an additional two weeks after the first application period produced a field of predominantly African–American candidates. The trial court concluded that, despite this evidence, Roque had not overcome the school board’s request for pretrial judgment. After the trial court entered judgment in favor of the school board, Roque appealed to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit reversed the trial court judgment in favor of the school board and returned the case to the trial court for further proceedings. After reviewing the parties’ briefs, oral argument, and the record, including the evidence of Hildebrand’s comment that the school district was not ready for a minority superintendent, her alleged influence over the selection process, and her role in reopening the applications period for additional candidates, the Fifth Circuit concluded that Roque had produced sufficient evidence to defeat summary judgment. The judgment in favor of the school board, therefore, was reversed.
Comments: This would be an interesting case to review with school board members when engaged in a search for a new superintendent. There is a “concurring” opinion written by Judge Jolly which points out the difficult burden of proof the plaintiff still bears in this case. Nevertheless the single comment of one board member was enough for the 5th Circuit to refuse to dismiss this case. Mr. Roque may or may not prevail if this case goes to trial. But this decision will make it more difficult and/or costly for the district to settle the case.
DID THE UNIVERSITY DISCRIMINATE WHEN IT DENIED TENURE TO THE PROFESSOR?
Case citation: Chu v. Mississippi State University, __ Fed. Appx. __, 2014 WL 6306689 (5th Cir. 2014) (unpublished).
Summary: Mississippi State University (MSU) and its Board of Trustees hired Yul Chu, a native of South Korea, in 2001 as a tenure-track assistant professor in the electrical and computer engineering department. After working under a series of one-year contracts, he submitted a tenure application in 2006. Following university procedures, the application was reviewed by a departmental committee, the head of Chu’s department, the college’s tenure and promotion committee, the college dean, and the university provost. Each recommended against granting tenure to Chu, and MSU’s president declined to recommend Chu to the board for tenure.
Chu appealed, and the tenure and promotion committee reconsidered the application with further investigation. The committee did not change its recommendation, and the provost and president again declined to recommend Chu, who appealed directly to the board, which declined to hold a hearing on the application. After the denial, Chu signed a final one-year contract for the 2007–2008 school year.
Chu filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). Once he received a right-to-sue letter from the EEOC, Chu sued MSU, the board, and several university officials, personally and officially, for employment discrimination under Title VII. He also sued for constitutional violations under 42 U.S.C. § 1983 and for breach of contract under state law. The defendants requested judgment in their favor prior to trial and the trial court granted the requests.
Chu appealed, challenging the trial court’s dismissal of his Title VII claims against MSU and the board and the dismissal of claims against the university officials personally and in their official capacities for violations of due process and equal protection. As a result, Chu waived any appeal of the Title VII claims against the individual defendants, the § 1983 claims against MSU and the board, and the breach-of-contract claims.
Ruling: The Fifth Circuit affirmed the judgment dismissing Chu’s suit. As direct evidence of discrimination, Chu pointed to his deposition testimony that members of his department mocked his accent at different times. The Fifth Circuit explained that for workplace comments to provide sufficient direct evidence of discrimination, they must be related to the plaintiff’s protected status; proximate in time to the adverse employment action; made by an individual with authority over the employment decision at issue; and related to the employment decision at issue. The court of appeals held that Chu’s deposition testimony was insufficient to meet that standard.
In the absence of direct evidence of discrimination, Chu was required to establish a prima facie case of discrimination under Title VII. To do so in the context of a denial of tenure, he had to show that: (1) he belonged to a protected group, (2) he was qualified for tenure, and (3) he was denied tenure in circumstances permitting an inference of discrimination. Evidence that supports a prima facie case includes departures from university procedures, conventional evidence of bias against the plaintiff, and evidence that the plaintiff is found to be qualified for tenure by some significant portion of the departmental faculty.
It was undisputed, in this case, that Chu was a member of a protected group under Title VII. MSU and the board contended, however, that he was not qualified for tenure because he did not perform satisfactorily in research and did not excel in any of the areas considered for tenure decisions. The record showed that, in addition to other requirements, a tenure candidate at MSU must sufficiently perform in the areas of teaching, research, and service, and must excel in one of those areas. At every level, those who reviewed Chu’s application recommended against granting tenure, finding that he had failed to complete sufficient research as a professor. In reaching that conclusion, the decision makers looked at a number of factors related to research, including the number of articles Chu published, the quality and prestige of the publishing journals, and the amount of outside research funding he secured.
Chu failed to publish any articles during his first five years at MSU. When he applied for tenure, he had published only three, with several others accepted for publication, but the publishing journals were not highly regarded. Finally, Chu had secured only $26,000 in research funding, which was far below average for his department. Those deficiencies in Chu’s research were pointed out in his annual performance reviews. Based on this and other evidence, the tenure reviewers determined that Chu did not meet the research requirements for tenure and did not excel in any of the three relevant areas. Finding insufficient evidence of discrimination, the Fifth Circuit agreed that Chu failed to make out a prima facie case of discrimination under Title VII.
The court of appeals also upheld the dismissal of Chu’s equal protection and due process claims. He simply failed to state sufficient facts in his suit, making only conclusory assertions without supporting facts. He also failed to point to any constitutionally-protected property interest in continued employment to support his due process claims. Because Chu failed to allege sufficient facts showing that the university officials purposefully singled him out for disparate treatment based on race, or that any of the defendants deprived him of a constitutionally-protected liberty or property interest, the court of appeals affirmed the dismissal of his § 1983 claims.
Comments: This is an interesting peek at the inner workings of the tenure decision at the university level. Publish or perish, as they say. Or bring in some cash.
Nonrenewal
THE TEACHER DID NOT RAISE VALID CLAIMS STEMMING FROM HIS NONRENEWAL
Case citation: Moreno v. Donna ISD, __Fed. Appx. __, 2014 WL 5317881 (5th Cir. 2014) (unpublished).
Summary: Silvestre Moreno was a sixth grade social studies teacher at Veteran’s Middle School in the Donna Independent School District. Moreno claimed that a student poured a chemical liquid into his coffee, causing him to become ill. The student was not criminally prosecuted. In a second incident, Moreno punched and kicked a misbehaving student. Following the second incident, Donna ISD suspended Moreno from his teaching position, with pay. He then participated in Donna ISD’s three-level grievance process, which included a hearing at which Moreno was afforded an opportunity to present his version of the incident. The suspension was upheld. Donna ISD later notified Moreno that it would not renew his teaching contract. At Moreno’s request, the district held a nonrenewal hearing. Following an adverse ruling, Moreno appealed to the Texas Commissioner of Education. The Commissioner upheld the decision, and Moreno did not file further appeals.
Moreno then sent correspondence to Donald O. Crist, Chief of Police of the Donna ISD, asking Crist to investigate alleged criminal infractions committed by Debbie O. Rodriguez, Assistant Superintendent of Human Resources for Donna ISD, and Mary Morales, a police officer in the Donna ISD. Moreno later sent correspondence to Rene Alfonso Guerra, the Criminal District Attorney of the County, requesting a criminal investigation into Crist’s failure to conduct the requested criminal investigations of Rodriguez and Morales.
Moreno also filed suit alleging multiple constitutional violations against the Hidalgo County, Donna ISD, the State Bar of Texas, the State Bar’s Office of Chief Disciplinary Counsel (CDC), the Texas Education Agency (TEA), TEA investigator Michael Franks, and numerous employees and trustees of the County and Donna ISD, in their individual and official capacities. In separate orders, the trial court dismissed the claims against the State Bar of Texas, the CDC, the TEA, and Franks as barred by Eleventh Amendment immunity. Moreno did not appeal those rulings. The district court also dismissed claims against the County and Guerra for failure to state a claim upon which relief can be granted, dismissed claims against Morales for insufficient service of process, and granted summary judgment in favor of all other defendants. Plaintiff appealed each of these three orders.
Ruling: The Fifth Circuit affirmed the dismissal of Moreno’s suit. Moreno first alleged that Guerra’s decision not to investigate his complaints against Crist violated his rights to due process and equal protection. The Fifth Circuit, however, agreed with the district court that the Eleventh Amendment shielded Guerra from official-capacity liability. Moreno’s complaints about Defendant Morales stemmed from her investigation of the above-described incidents. The trial court never addressed the merits of those claims, instead dismissing them, with prejudice, for insufficient service of process. The court of appeals concluded that the district court properly dismissed the claims against Morales. Attempted service on Morales was invalid for two separate reasons. First, Moreno himself sent summons to Morales via certified mail, but the Texas Rules of Civil Procedure require that service be made by a “sheriff or constable or other person authorized by law.” Second, Morales never signed the certified mail receipt, rendering proof of service invalid under Texas Rule of Civil Procedure 107, which requires that the return of service contain the return receipt with the addressee’s signature. The record also showed a pattern of delay in service of Morales. Moreno filed his lawsuit on April 24, 2012. On December 18, 2012, the district court ruled that Moreno had not properly served Morales and directed him do so within thirty days. Over a year later, on January 31, 2014, when Morales still had not been served, the district court dismissed the claims. In light of this “clear record of delay,” the dismissal with prejudice was warranted.
Moreno alleged that Donna ISD and several of its employees violated his rights to due process and equal protection by declining to renew his contract. The district court granted summary judgment to the defendants, ruling that Moreno was afforded due process and that he failed to allege or establish that he was treated differently than others who were similarly situated. The appeals court observed that an essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for a hearing appropriate to the nature of the case. The Fifth Circuit agreed with the trial court that the nonrenewal hearing—at which Moreno was afforded the opportunity to present his own version of the relevant events—satisfied the requirements of due process. Therefore, the due process claims failed as a matter of law. Judgment in favor of the defendants was upheld by the court of appeals.
THE TRIAL COURT UPHELD THE TEACHER’S NONRENEWAL
Case citation: Black v. Williams, 2014 WL 5422974 (Tex. App. – Amarillo 2014).
Summary: Dana Black was employed by the Hart Independent School District as a teacher/coach pursuant to a term contract. On March 27, 2012, Black received notice that her employment contract would not be renewed for the succeeding school year. The notice listed thirteen reasons in support of her nonrenewal, including: (1) deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda or other communications, (2) failure to fulfill duties or responsibilities, (3) incompetency or inefficiency in the performance of duties, (4) inability to maintain discipline in any situation in which the employee is responsible for the oversight and supervision of students, (5) insubordination, (6) failure to follow official directives, (7) failure to comply with Board Policies or administrative regulations, (8) failure to meet the District’s standards of professional conduct, (9) any activity, school-connected or otherwise, that, because of publicity given it, or knowledge of it among students, faculty, and community, impairs or diminishes the employee’s effectiveness in the District, (10) failure to maintain an effective working relationship, or maintain good rapport, with parents, the community, or colleagues, (11) behavior that presents a danger of physical harm to a student or to other individuals, (12) assault on a person on school property or at a school-related function, or on an employee, student, or student’s parent regardless of time or place and/or (13) misrepresentation of facts to a supervisor or other District official in the conduct of District business. At Black’s request, a nonrenewal hearing was scheduled before the board of trustees.
By letter dated May 7, 2012, Hart ISD’s attorney specifically informed Black’s attorney of her actions leading to the recommendation, directives she failed to comply with, policies she failed to satisfy and ethical codes and state laws she had allegedly violated. In his letter, Hart ISD’s attorney explained that her alleged misconduct encompassed (1) improper physical contact and disrespecting students for which she received a reprimand on September 23, 2011, (2) similar improper conduct on February 7, 2012, (3) being untruthful with her supervisors during a subsequent investigation of her conduct, and (4) smoking on school property.
At the May 17 hearing, the district presented witnesses and evidence in support of Black’s nonrenewal. Alex Salazar, the superintendent, specifically explained the allegations and incidents underlying each of the thirteen bullet points in his recommendation for nonrenewal. Black testified in response to the district’s evidence. At the hearing’s conclusion, the board voted to not renew her contract.
On June 1, Black appealed to the Commissioner of Education, arguing that her nonrenewal could not be based on using force against students because she reasonably believed that the force used was the amount necessary to get the students to absorb the lesson she was teaching them that day. In his decision, the Commissioner determined that Black failed to contest the board’s findings regarding smoking and being untruthful to her supervisors and, therefore, waived her right to contest these bases for nonrenewal. As a result, he reasoned her failure to exhaust her administrative remedies alone was sufficient to uphold the district’s decision. Alternatively, however, he went on to find substantial evidence supported all the bases for nonrenewal stated in the notice of nonrenewal. The Commissioner then dismissed and, alternatively, denied her appeal. Black appealed the decision to state district court. After the trial court upheld the nonrenewal, Black appealed.
Ruling: The court of appeals affirmed. The district argued that, because Black failed to address two of the three reasons why her contract was not renewed in her appeal of the board’s decision to the Commissioner of Education (i.e., being untruthful with her supervisors and smoking on school property), she failed to exhaust her administrative remedies and the trial court was without jurisdiction in this case.
The appeals court observed that, by the Term Contract Renewal Act, (normally referred to as the Term Contract NONRENEWAL Act) the Legislature created an administrative procedure by which a teacher employed under a term contract may seek judicial review of a district’s decision not to renew a contract. Because a district’s decision whether to renew an employee’s term contract concerns the administration of school laws and involves questions of fact, an aggrieved party must follow the administrative procedures prescribed by the Act before filing suit in district court. This procedure includes appealing to the Commissioner for review of a board’s nonrenewal decision.
Here, the board’s decision to not renew was based on at least three independent grounds. However, Black only asserted one ground in her petition to the Commissioner—improper physical contact. Accordingly, Black failed to exhaust the administrative remedies available to her before filing suit in court and neither the trial court nor the appeals court had jurisdiction over her claims. Black argued that her allegation that the Board unlawfully failed to renew her contract for having improper physical contact with students was sufficient in itself to exhaust her administrative remedies even though there were other independent bases for nonrenewal. In support, she cited Texas Education Code § 21.209, which states, in part, “The commissioner may not substitute the commissioner’s judgment for that of the board of trustees unless the board’s decision was arbitrary, capricious, unlawful, or not supported by substantial evidence.”
According to the appeals court, Black’s interpretation of Education Code § 21.209 would permit multiple independent appeals on a single nonrenewal. “This would lead to absurd, nonsensical results by requiring the commissioner, district courts and this Court to conduct proceedings and issue advisory opinions without any legal effect when there are independent bases to not renew a contract,” according to the court of appeals. The court held that, because Black failed to exhaust the administrative remedies available to her before filing suit, the court did not have jurisdiction over her claims.
Comments: Notice that even though the teacher pursued a hearing before the board, and an appeal to T.E.A., she failed to “exhaust administrative remedies” because she failed to appeal two of the three grounds for her nonrenewal.
Termination
THE APPEALS COURT UPHELD DISMISSAL OF THE SUBSTITUTE CUSTODIAN’S SUIT
Case citation: Chhim v. Aldine ISD, __Fed. Appx. __, 2014 WL 5139286 (5th Cir. 2014) (unpublished).
Summary: Joseph Chhim filed suit against the Aldine Independent School District under Title VII of the Civil Rights Act of 1964 for discrimination on the basis of race, color, and national origin. Chhim, an Asian male originally from Cambodia, alleged that he was dismissed from his work as a substitute custodian with the Aldine ISD after he advised a supervisor that he did not know how to operate a weed eater and that other substitute custodians outside his protected class were treated more favorably than he was treated. Chhim also complained about the district’s opposition to his receipt of unemployment benefits through the Texas Workforce Commission, and he made a hostile work environment claim. The trial court dismissed the complaint for failure to state a claim. Chhim appealed to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit affirmed the dismissal of Chhim’s suit, finding the case to be frivolous. Chhim first complained that his due process rights were violated when the trial court dismissed his case with prejudice without allowing any discovery regarding his factual allegations. The appeals court disagreed and observed that a suit is subject to dismissal if it does not “state a claim to relief that is plausible on its face.” Chhim failed to state a claim for disparate treatment under Title VII. His complaint and amended complaint did not allege any facts, direct or circumstantial, that would suggest Aldine ISD’s actions were based on Chhim’s race, color, or national origin or that Aldine treated similarly situated employees of other races or national origin more favorably. Instead, for the first time on appeal, he alleged that two other substitute custodians—a Hispanic female and a black male—were assigned to “inside only” work to support his claim that he was subjected to disparate treatment. However, the Fifth Circuit generally does not review arguments raised for the first time on appeal. Similarly, Chhim failed to state a claim that the district’s alleged discrimination against him created a hostile work environment, as he did not allege any facts linking alleged harassment with his race or national origin. Because Chhim did not raise any right to relief “above the speculative level,” the trial court properly dismissed Chhim’s suit.
Comments: We did not know that there was such a position as “substitute custodian.”