Category Archives: Dawg Bones

Dawg Bones

WHEN THE DOCTORS DISAGREE…

We suspect that no one was acting in bad faith. The teacher in Palo Alto, California, faced a dilemma.  She knew that a child in her class had cystic fibrosis (CF).  Then she found out that another child in the same school—the court calls him C.C.--also had CF.  Or at least that’s what the teacher thought she heard.  So in a parent teacher conference, she told the other parents about C.C.’s condition. She did not have permission from C.C.’s parents to disclose this sensitive information.

On September 11, 2012, school officials told the Chadams, C.C.’s parents, that another child’s parents had “discovered C.C.’s condition.” But the Chadams denied that their son had CF.  Genetic screening that had been done when C.C. was a newborn indicated that he had the “genetic markers” for CF, but he did not have the actual disease.  However, two days later the school received a letter from a doctor recommending that C.C. be removed from the school for the protection of the child who did have CF.

It didn’t take long for the Chadams to produce their own doctor’s letter, which stated that C.C. had never had CF and posed no health risk whatsoever.

Hmmmm. We are educators, not doctors.  The docs disagree.  What to do?

On October 10 the school made its decision, removing C.C. from Jordan Middle School.  The Chadams promptly filed for an injunction to get him back to Jordan. The case settled before going to court and C.C. returned to Jordan Middle School just two weeks later.

But a year later, the parents filed another suit, this time alleging, among other things, that the school district violated the ADA and Section 504.

To win, the parents had to prove that 1) C.C. was a qualified individual with a disability; 2) he was excluded from, or denied the benefits of services or programs, or otherwise discriminated against; and 3) this exclusion, denial or discrimination was based on his disability.   In yesterday’s entry, we explained how the parents were able to establish that C.C. qualified as a person with a disability, even though he was not impaired.  Nevertheless, the court ended up ruling for the school district, based on its conclusion that the district acted on its effort to preserve the safe operation of the school.

ADA regulations specifically allow governmental entities to “impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities.” This has to be based on “actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”

This case presents an interesting scenario because it looks like the school acted on incorrect information. It turned out that C.C. did not have CF.  However, the school did have recommendations from a doctor that it relied on. Moreover, the “exclusion” was not an exclusion from educational services, but only from Jordan Middle School for a brief period--two weeks.

The court seemed to apply the sometimes uncommon tool of common sense.  The school was caught in a dilemma. There was clearly no intent to discriminate against anyone, just a desire to make sure that all parties were kept safe.  And no doubt, the fact that the exclusion was of short duration, and only to another middle school, factored in.

The case is Chadam v. Palo Alto USD, decided by the federal court for the Northern District of California on November 4, 2014.

DAWG BONE: WHEN THE DOCTORS DISAGREE, CALL YOUR LAWYER.

 

 

Dawg Bones

WHAT DOES IT MEAN TO BE “REGARDED AS” HAVING A DISABILITY?

We have an interesting case from California in which the court wrestled with the notion of “regarded as” having a disability.  As you well informed readers already know, both Section 504 and the ADA define people as having a disability if they 1) actually have one; 2) have a record of one; or 3) are regarded as having one.  Litigation over that third prong in the definition is rare, so let’s take a look at this case.

The case involves a boy named C.C., who had genetic screening done on him as a newborn.  The screening showed that he had the “genetic markers” for cystic fibrosis (CF).  He didn’t actually have CF, but he had the markers.

Fast forward to when C.C. is at Jordan Middle School in Palo Alto.  Somehow, one of the teachers gets hold of C.C.’s medical records, and sees some reference to CF. She is concerned.  There is another child in the school who has CF.  What to do?

The teacher decides to tell the parents of the other kid about C.C.  The court did not rule on the FERPA aspect of this, so let’s just set that aside for today. What the court addressed was the suit by C.C.’s parents, claiming disability discrimination after he was involuntarily transferred out of Jordan Middle School for two weeks.

The court ruled in favor of the school district, for reasons we will explain tomorrow. But for today, let’s look at what the court said about C.C.’s status as an individual with a disability.  He didn’t actually have cystic fibrosis. Does he qualify as an individual with a disability?  The court ruled that he did.

To meet the definition of a person who is “regarded as” having a disability you must show that you suffered discrimination because of an actual or perceived impairment, whether or not that impairment limits or is perceived to limit a major life activity. As you can see, much of this lies in the perception.

Here, the court concluded that C.C. made a good start in his lawsuit. He alleged facts that would show that the school district “acted on the basis of a mistaken belief about C.C.’s status as a genetic carrier for CF and, hence, regarded him as disabled.”

Nevertheless, the school district prevailed in this case. We will talk about that tomorrow. The case is Chadam v. Palo Alto USD, decided by the federal court for the Northern District of California on November 4, 2014.

DAWG BONE: YOU CAN SUE UNDER THE ADA AND 504 BASED ON AN ERRONEOUS PERCEPTION OF YOU THAT LEADS TO DISCRIMINATION.

 

 

Dawg Bones

FAITH AND BEGORRAH!  IT’S ST. PATTY’S DAY!!

Many have asked what breed of dog the Dawg is.  The Dawg is 100% Irish, so he must be an Irish Setter.  Which means he does not work on St. Patrick’s Day.  So go home.  Celebrate your ethnic heritage.  See you tomorrow.

DAWG BONE:  MY FATHER TOLD ME THERE WERE ONLY TWO KINDS OF PEOPLE IN THE WORLD. THOSE WHO ARE IRISH, AND THOSE WHO WISH THEY WERE.  THE DAWG IS OF THE FIRST KIND.

IrishSetter

Dawg Bones

SAME SEX MARRIAGE AND FMLA

DEAR DAWG: JOE AND BOB SAY THEY ARE MARRIED.  TO EACH OTHER.  BOB WORKS FOR US, AND WANTS FMLA LEAVE.  WHAT DO WE DO?

This is just about to change.  On February 25th of this year the Department of Labor issued a new rule, re-defining the term “spouse” for purposes of leave under the Family and Medical Leave Act.

Background: in 2013, the U.S. Supreme Court struck down the federal Defense of Marriage Act.  The case involved a same sex couple who were legally married under the laws of Canada.  The issue was whether or not they were entitled to be treated as a married couple under U.S. federal law. The Court held that they were.

In response to that, the U.S. Department of Labor announced that couples in a same sex marriage would be recognized as spouses if they resided in a state that recognized a same sex marriage.  Thus, Texas school districts would not be required to grant benefits to a same sex couple, since Texas does not recognize same sex marriages.

But on February 25th of this year, the Department of Labor announced a change to this rule. Henceforth, the validity of the marriage will be determined by where it occurred, rather than where the couple lives.  The DOL describes this as a change from a “state of residence” rule to a “place of celebration” rule.

Does this matter in Texas?  Sure it does.  Even though Texas does not recognize same sex marriages (a matter currently the subject of spirited litigation), other states do.  Most states do, as do many other countries.  So if Joe and Bob were lawfully married in a state where such marriages are permitted, and Bob otherwise qualifies for FMLA benefits, he would be entitled to them.  That’s as of March 27, 2015, when the new rule goes into effect.  You can learn more about this at www.dol.gov/whd/fmla/spouse/factsheet.htm.

DAWG BONE: DYLAN HAD IT RIGHT.  THE TIMES THEY ARE A-CHANGIN’. 

 

 

Dawg Bones

WHAT DO YOU DO WITH A HORRENDOUS WEATHER FORECAST?

DEAR DAWG,

The five superintendents in our county agreed to a solemn pact. On days when the weather was an issue, we would get together on a conference call at 5:00 a.m. and we would make a collective decision. Either we all shut down, or we all go to school—but we all do the same thing. Well! Last week we had our early morning call and we all agreed—we ALL agreed, Dawg—that we would shut it down for the day. The forecast was horrendous. So I put the word out to my schools and expected the others to do the same. Well, it turns out that the supe at Wayabovenormal ISD reneged. They had school that day. And as it turns out, our weather forecast was way off base. The sleet and ice never came, and by noon it was 55 degrees. We could have had school, should have had school, and didn’t need to cancel the track meet.   Bottom line: their superintendent looks like a genius while the other four of us look like the Marx Brothers. We got bombarded with angry phone calls and emails from parents who had to take off work or pay a sitter to watch the kids.

So we are wondering what we can do about our lying, two-faced, hypocritical colleague who went back on his word. We don’t like the guy anyway, Dawg, we never did. He keeps throwing his PhD in our face, like this makes him superior to us. It doesn’t help that his school outperforms all of us in athletics and academics. We know that’s true, but we think it has a whole lot more to do with the income level in that district rather than his so-called “leadership.” What can we do? We went to the media with this, but that didn’t turn out so well. Mr. “I Have a PhD. and You Don’t” released a statement in response: “In Wayabovenormal ISD we rely on the latest and most accurate weather forecasts so that we can ensure student safety and cancel classes only when necessary. We are aware of the hardship last minute cancellations can cause and we care too much about our parents and students to impose any unnecessary hardships. If the other districts in the county had followed our lead, as they do in all other matters, we would not be having this conversation. Unfortunately, my colleagues in the other districts relied on groupthink and fear, rather than science.” So what other recourse do we have here?
--NOT TOO HAPPY WITH THE WEATHER MAN EITHER.

DEAR NOT TOO HAPPY: Well, you can kick the guy out of your group. You can organize a guerrilla campaign of PIA requests that will tie up his staff’s time. But your best option is to get a better football coach and beat them next year—there’s nothing like a smackdown on the gridiron to cause a superintendent’s leadership skills to be called into question. Best of luck, and let’s hope for good weather the rest of the year.

DAWG BONES: SOME PEOPLE JUST CAN’T BE TRUSTED.

 HEY READERS! MOST OF YOU ARE ON SPRING BREAK NEXT WEEK, BUT THE DAWG WILL STILL BE AT WORK. CHECK IN WITH US, AND OTHER THAN THAT—ENJOY YOUR BREAK!

 

 

 

 

Dawg Bones

CAN A TEACHER GIVE UP PLANNING AND PREP TIME IN EXCHANGE FOR MORE MONEY?

Mr. Chips agrees to take on an additional class instead of having a planning and prep period. Thus, for the seven class periods during the day, our man Chips is in the classroom every minute.   He’s a diligent and dedicated chap, Chips is. And so he gets his planning and prep time done outside of school hours. He is an excellent teacher. Of course, for taking on this additional load, he receives some additional compensation.

Fair enough? Well, of course, arrangements like this never become legal issues until someone gets unhappy with the arrangement. This arrangement might go on for years, and as long as Chips and the district are happy with the agreement, the legal issues are never addressed.

But the Commissioner has stated, in no uncertain terms, that teachers may not “contract away” their planning and prep time. This came up in Bledsoe v. Huntington ISD, Dkt. No. 033-R10-1103, decided on September 18, 2014. Here is the key language:

A teacher and a school district cannot contract so that a teacher will not have planning and preparation time. Texas Education Code section 21.404 requires teachers to have a minimum amount of time for planning and preparation. This is not a suggestion. It is a mandate.

Why this mattered is a bit complicated. Mr. Bledsoe argued that the district paid him less in Year Two than he got in Year One, and that the cut occurred after the penalty free resignation date. It’s true that he was paid less in the second year, but the district argued that the money he got for teaching during P&P time did not count. It was addressed in a separate “Memorandum of Understanding” rather than his teaching contract. The Commissioner rejected that argument, and in the course of the opinion, stated flatly that you can’t contract away your P&P time.

DAWG BONES: A TEACHER AND A SCHOOL DISTRICT CANNOT CONTRACT SO THAT THE TEACHER WILL NOT HAVE PLANNING AND PREP TIME.

 

 

Dawg Bones

HOW LONG DOES THE BOARD HAVE TO “DELIBERATE” AFTER A NONRENEWAL HEARING?

The school board in Sinton ISD conducted a hearing to consider the possible nonrenewal of teacher Mark Kellogg. After four hours of testimony and the introduction of 500 pages of exhibits (!), the board went behind closed doors to consider the matter. A mere 20 minutes later, they came out into open session and voted to nonrenew Mr. Kellogg’s contract.

Mr. Kellogg appealed to T.E.A., arguing, among other things, that the decision was “arbitrary and capricious” because the board spent such a short time in deliberations. After all, 20 minutes is barely enough time for the board members to eat the cookies and cake that are waiting for them in closed session.

But the Commissioner ruled in favor of the district, wasting few words disposing of Mr. Kellogg’s argument: “The amount of deliberation does not show that the board’s decision was arbitrary and capricious.” Appeal denied.

This decision makes sense. If the decision had gone the other way, we would all have to try to figure out how long the board has to deliberate to get past the “arbitrary and capricious” concern. Board members would decide the case, and then sit there for an hour or so telling jokes. Not good. And the longer you are in closed session, the more likely you are to violate the Open Meetings Act. So it’s a good thing that the Commissioner was OK with the board getting its work done efficiently.

The case is Kellogg v. Sinton ISD, Dkt. No. 077-R1-07-2014. It was decided by the Commissioner on August 29, 2014.

DAWG BONES: AFTER FOUR HOURS OF TESTIMONY, YOU PROBABLY HAVE YOUR MIND MADE UP.

 

 

Dawg Bones

YOU CAN LEARN A LOT BY STUDYING THE EEOC “CHARGE STATISTICS.”

The EEOC puts out a chart that quantifies the “charge statistics” for each fiscal year. You can find it at: http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.   The statistics tell us how many complaints of discrimination they have received, and what categories of discrimination are cited. Here are some interesting nuggets.

*The total number of complaints held steady from 1997 to 2007, and then jumped up in 2008. During those first ten years, the numbers ranged from 75,428 in 2005 to 84,442 in 2002. In 2008, the numbers jumped into the 90,000s, and went over 99,000 for three years in a row from 2010 to 2012. In the latest year, 2014, they dropped back down to 88,778.

*In 2010, the number of “retaliation” claims exceeded claims of race discrimination for the first time. This was the first year that racial complaints were not the most frequently cited form of discrimination.   Retaliation complaints have remained “number one” in every subsequent year.

*In 1997, retaliation claims were cited in 22.6% of all complaints. In 2014, it was 42.8%.

*The percentage of complaints of sex discrimination has remained remarkably consistent—right around 30%.

*As the boomers age and develop physical problems, the number of age and disability complaints has gone up.

*For the most recent fiscal year, 2014, the numbers are as follows:

Retaliation:                      42.8%
Race:                                    35.0
Sex:                                       29.3
Disability:                         28.6
Age:                                      23.2
National origin:             10.8
Religion:                               4.0
Color:                                     3.1
Equal Pay Act:                  1.1
Genetic Information:   0.4

These numbers exceed 100% because many people cite multiple factors.

DAWG BONES: DON’T BE A STATISTIC! MAKE ALL OF YOUR PERSONNEL DECISIONS ON THE BASIS OF JOB RELATED, NON-DISCRIMINATORY, NON-RETALIATORY FACTORS.

 

 

Dawg Bones

YOU ARE ACCUSED OF RETALIATION OR DISCRIMINATION: NOW WHAT?

We continue with our Dawg Bones about good documentation practices. Last Friday we offered a sample memo that bluntly expressed dissatisfaction with the performance of the custodian, and gave clear directives designed to improve performance. The custodian responds by claiming retaliation. He is being picked on unfairly. No one else is treated the same way. This must be about his race, age, bad knee, or political or religious beliefs. How do you respond?

Retaliation claims are on the rise across the country. From 1997 to 2014, claims of some sort of “retaliation” doubled with the EEOC. This is now the most common form of complaint, comprising over 42% of the EEOC complaints in 2014. Up until a few years ago, race was always the number one complaint. Not anymore.

So anyone in a position of supervision of others needs to be prepared for the charge that you retaliated against someone. In essence, a “retaliation” or “discrimination” complaint alleges that you are not acting on the basis of the employee’s performance—you are acting on the basis of the employee’s race, sex, age, disability, religion, or to punish the employee for the exercise of free speech rights.

The best defense to such a charge is to show that you have treated people equally. In fact, that’s really the only defense. But keep in mind that “equal” does not mean the same. You can, and should, treat different employees differently based on legitimate, job related circumstances.

I once defended a principal who was accused of discrimination when she recommended the nonrenewal of a teacher—let’s call the teacher Ms. Jones--who had been at the school a lot longer than the principal. Ms. Jones claimed that this new principal had “written her up” more frequently than anyone else. This was true. But the principal had a perfectly adequate explanation. Ms. Jones singled herself out through her own performance.

For example, one issue involved the “Drop Everything and Read” initiative. All classroom teachers in the elementary school were to “Drop Everything and Read” to their classes for the last 15 minutes of the school day. All teachers were reminded of this at the start of the school year. Three weeks in, the principal, assistant and counselor “blitzed” every classroom during the final 15 minutes. Five teachers, one of whom was Ms. Jones, were not reading to the kids. All five got a friendly written reminder the next day.

Two weeks later another blitz was conducted. Again, EVERY classroom was visited. This time there was only one teacher not reading to the kids.   You guessed it: Ms. Jones. She got a sterner warning.

It went on that way for the rest of the year. The principal treated people the same, until they gave her reason not to.

DAWG BONE: TREAT EMPLOYEES EQUALLY. THIS DOES NOT MEAN “THE SAME.”

 

 

Dawg Bones

THE ART OF THE CORRECTIVE MEMO

A GOOD CORRECTIVE MEMO IS LIKE A GOOD NEWSPAPER EDITORIAL—FIRST THE FACTS, THEN THE CONCLUSIONS.

A custodian who works under your supervision is not doing a good job. You have discussed the matter with the employee, heard his side of the story, and come to the conclusion that corrective action is called for. You are going to write a corrective memo, setting out your conclusions and your expectations for the future.

Don’t lead off with the conclusions. The opening sentence should not be: “Your performance as a custodian is unacceptable and needs to change.” Rather, come to your conclusions only after laying the groundwork with a recitation of facts. Like a good editorial in the newspaper, the conclusions should rest comfortably on a firm foundation of facts. A third party reading the memo later (like a judge, your school board, or an EEOC investigator) should be able to see that the conclusions you reached were only logical, given the facts.

For example, your memo to the custodian should reflect that 1) numerous teachers have complained about the condition of their classrooms in the morning; 2) you have personally looked into this, and found that the classrooms are not being properly prepared; 3) you cite specific examples of problems; and 4) you have discussed this matter with the custodian (and give the date for that conversation).

With that factual foundation, you are ready to issue your conclusions and your directives, e.g.:

Your performance as a custodian is unacceptable and needs to change. I am directing you to have each classroom on your wing properly prepared for class the next morning. Since most of the problems have been in Mr. Jones’s class and Ms. White’s class, I am directing you to personally meet with those two teachers to be sure that you are aware of their expectations. I will review your performance again in three weeks, and hope to find a significant improvement.

So what are you going to do if our custodian now claims that you are picking on him unfairly? We will take that up on Monday. Enjoy the weekend!

DAWG BONE: CORRECTIVE MEMOS LEAD OFF WITH FACTS BEFORE COMING TO CONCLUSIONS.