We can’t accurately describe all the comments allegedly made by Coach Anne Monterrubio to Coach Catherine Clark at Alamo Heights Junior High.  It would never get past your school district’s filter. Suffice it to say that there was a good deal of vulgarity, some of it focused on Coach Clark’s female parts.  Coach Clark complained about this to the Athletic Coordinator and later to the principal.  Coach Clark eventually filed a lawsuit alleging sexual harassment and retaliation.  In the suit, she alleges that the district did not respond much, and did not follow its own policies. The district tried to get the case tossed out, asserting that Coach Clark had not properly alleged a genuine cause of action. The Court of Appeals refused to dismiss the case.

That does not mean that Coach Clark has a good case—it just means that she alleged facts that, if proven true, could amount to a legitimate cause of action.  The court was ruling on a preliminary matter—a “Plea to the Jurisdiction.”  That means the court has to give the benefit of every doubt to the plaintiff. Keep that in mind as you read on.  This case has a long way to go.  In fact, the district has filed a Motion for En Banc Reconsideration.  That Motion primarily argues that the court erred in seeing these facts as harassment “because of sex.”  The Motion asserts that Coach Monterrubio dispensed inappropriate remarks to male and female coaches alike.  Behavior like that might be called bullying, but the Motion asserts that is it not “based on sex” and therefore, is not sexual harassment.

We shall see what the court does about that, but in the meantime, we think the case is worth your attention because of the court’s interpretation of a TASB-promulgated local policy that has been adopted by many districts.

The lawsuit alleges that Coach Clark first reported that she was being harassed to the Athletic Coordinator.  The suit alleges that “[The Athletic Coordinator]…failed to report Clark’s complaint to any member of the administration as required by district policy.” (Emphasis added).

Later, Coach Clark reported harassment to the principal.  The principal did exactly what you would expect a principal to do. She investigated the matter by interviewing the key players;  she made a decision; she communicated that decision.   So how did she supposedly fail to follow policy?  The court put it this way:

Instead of reporting Clark’s complaint to the appropriate district official, [the principal] conducted her own investigation….”

After the investigation was complete, the principal sent a letter to Clark including her findings, but the court noted that “[the principal’s] report was not filed with a district official as required by district policy.”  (Emphasis added).

Where does the court get the idea that sexual harassment has to be reported to someone other than the principal?  From Policy DIA (Local). In a footnote, the court notes that this policy in AHISD required that employees should report sexual harassment to the employee’s immediate supervisor or the principal. But it goes on to say that “Any district supervisor who receives a report of prohibited conduct shall immediately notify a District official, including the Title IX coordinator….or the Superintendent.”

The court reads this policy as requiring the principal or supervisor who receives a report to also notify the Title IX coordinator or the superintendent.  When all the evidence is presented, the court may find that the proper parties were, in fact, notified.  But the allegation of a failure to follow policy was sufficient to create a “prima facie” case for the plaintiff.

So take a look at your DIA Local.  We looked up two districts’ policies. They both included the following language:

NOTICE OF REPORT:

Any district supervisor who receives a report of prohibited conduct shall immediately notify the appropriate District official listed above and take any other steps required by this policy.

In both districts the term “District official” was defined to include the Title IX Coordinator, the ADA/504 Coordinator and the superintendent.

The case is Clark v. Alamo Heights ISD, decided by the Court of Civil Appeals in San Antonio on October 21, 2015. We found it at 2015 WL 6163252.

DAWG BONE: MAKE SURE YOUR ADMINISTRATORS REVIEW POLICY DIA (LOCAL).