How bad is it to get a TINA in your file?

I’ve always thought that Teacher in Need of Assistance (TINA) is a term that applies to every single teacher.  Really…have you tried to teach a roomful of children, many of whom don’t want to be there?  Have you tried to do that all day long?  Day after day??? 

I know that most of the readers of the Daily Dawg have indeed had that experience. Thus you probably agree with me, that every single public school teacher needs all of the assistance we can provide.  Nevertheless, teachers don’t like it when “teacher in need of assistance” is capitalized and acronymized to TINA.  A TINA is a growth plan.  It indicates there is something wrong, or at least, something that needs improvement. 

But according to the 5th Circuit, “an employer’s decision to place an employee on a performance improvement plan is not an adverse employment action.”  That pretty well shot down Guadalupe Welsh’s lawsuit alleging discrimination based on age, sex, and national origin.  To prevail on a discrimination case, the plaintiff has to prove that she suffered an “adverse employment action.”  Ms. Welsh’s employer, a Texas school district, did not fire her, did not nonrenew her contract, did not demote her.  It kept her employed and raised her salary.  However, an associate principal put Ms. Welsh on a TINA. She successfully fulfilled the requirements of the TINA and thus it was lifted after just one month. Then she asked the district to remove any reference to the TINA, but the district declined to do so. 

Here’s the hair-splitting part of this decision.  The court had no problem in determining that the discrimination claims failed from the get-go because there was no “adverse employment action.”  Previous decisions had made it clear that the term “adverse employment action” applies only to “ultimate employment decisions” like firing.  But that’s in the context of a discrimination claim. 

Ms. Welsh also brought a claim of retaliation, claiming that she was punished for making and pursuing claims of discrimination.  A retaliation claim also requires proof of an “adverse employment action,” but the Supreme Court has interpreted that term “slightly more broadly [on a retaliation claim] than the term is defined in the employment discrimination context.” 

Sidebar: that’s law practice for you.  You might think that words always mean the same thing.  You might think that an “adverse employment action” means the same thing regardless of context.  You might think that. But if you do, you are not thinking like a lawyer.

So here we have a case where the TINA is not an “adverse employment action” for purposes of a discrimination claim.  Might it qualify in the “retaliation” context?  The 5th Circuit avoided the issue by concluding that Ms. Welsh had another problem: causation.  Key Quote:

We need not decide whether the TINA was a retaliatory adverse employment action because there is no causal relationship between the TINA and Welsh’s protected activities. This court has repeatedly held that gaps of eight to ten months between the protected activity and the alleged adverse employment action break a causal chain.

There are a couple of other interesting aspects to this story, which we will save for tomorrow.  The case is Welsh v. Fort Bend ISD, decided by the 5th Circuit on October 30, 2019. We found it at 2019 WL 5588992.


Tomorrow: Ms. Welsh, you need to take care of your fish….