Court tosses a curveball, treating “proposed” nonrenewal as nonrenewal. Go figure.

Today I will be at the Kalahari Resort (which seems to be the go-to place for educational conferences these days) at the annual ED311/TASPA Conference on personnel issues. My topic is about terminations and nonrenewals. One of the cases I will be talking about is Monte Alto ISD v. Orozco.  The decision is….let’s just say “surprising.” 

I say that because it departs from the conventional wisdom.  Ever since the legislature created a set of laws pertaining to the nonrenewal of a term contract there has been a big distinction between the PROPOSAL to nonrenew the contract and the actual DECISION to do so.  Districts that gave the employee a notice of nonrenewal that omitted the word “proposed” have found themselves in trouble.  The sequence of events for the proper nonrenewal of a term contract flows like this:

Step One: board votes to give the employee notice of proposed nonrenewal, usually based on the superintendent’s recommendation.

Step Two: the employee is given written notice of this proposed action. 

Step Three: the employee requests a hearing; or fails to do so within the timeline.

Step Four: if the employee requested a hearing, the board conducts the hearing and then decides about the nonrenewal. If the employee did not request a hearing, the board takes formal action to nonrenew the contract. 

Ask any experienced school lawyer when the employee’s contract is nonrenewed and they will tell you that this happens at Step Four.  Everything prior to Step Four is preliminary.  But that’s not how the Court of Appeals in Corpus Christi-Edinburg sees it.

The Monte Alto ISD board voted to propose the nonrenewal of Ms. Orozco’s contract on April 24, 2018 (Step One).  Written notice of this decision was given to Ms. Orozco on May 1, 2018 (Step Two).  She requested a hearing in timely fashion (Step Three). The hearing was conducted almost four months later on August 29, 2018, after which the board voted to nonrenew the contract (Step Four).  Rather than appealing this decision to TEA, Ms. Orozco filed a claim of discrimination with the Texas Workforce Commission on February 25, 2019, which was just short of 180 days later.  The timing was important.  Crucial.  Jurisdictional.   

You have to file a claim with TWC within 180 days after the act of discrimination allegedly occurred. The district argued that Ms. Orozco filed too late, and thus the court did not have jurisdiction to consider her case. The court pinpointed the issue:

Thus, as the parties correctly discern, the key inquiry in this case is whether the 180-day countdown for purposes of filing a claim with TWC began on May 1, 2018, when Orozco was notified of her proposed nonrenewal, or August 29, 2019, when the Board voted to finalize its nonrenewal decision.

Ignoring decades of decisions from TEA about how term contract nonrenewal works, the court held that the decision to “propose” nonrenewal was actually a decision to nonrenew, subject only to reconsideration upon request.  Here’s the Key Quote:

In other words, per the education code a “proposed nonrenewal” acts as a notification of the Board’s decision of nonrenewal, which may or may not be reconsidered through the relevant hearings or administrative review process if the educator seeks such a review.

This isn’t the first court to go down this road.  An earlier case applied the same logic in a case involving contract termination, Reyes v. San Felipe Del Rio CISD, 2018 WL 1176487 (Tex. App.—San Antonio, 2018).

I’m not saying the court got it wrong.  I’m just surprised, like a batter who gets a curveball when he expects a fastball. It’s Monte Alto ISD v. Orozco, decided by the Court of Appeals for Corpus Christi-Edinburg on November 4, 2021.  It’s cited at 2021 WL 5114040.


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Tomorrow: interesting application of qualified immunity.