Sub won’t be called back. Lawsuit!

If you think that federal lawsuits against school districts can only be filed by teachers with contracts, you have not been paying attention. We came across a case recently from San Antonio ISD where the suit was filed by a substitute teacher.

It seems the principal at Douglass Elementary got some complaints over Ms. Willis’s performance.  After meeting with the sub to discuss the matter, the principal informed Ms. Willis that she would not be invited back to Douglass Elementary, at least for the remainder of the school year. This happened around April 11, 2016, so there was not a whole lot of school year left.

Ms. Willis filed a federal lawsuit over this, alleging that she had been harassed and discriminated against because of a disability—her weight.  Ms. Willis tossed in other allegations as well, complaining of discrimination based on race, color, sex and age.  She also alleged that she was retaliated against for filing a grievance.

Ms. Willis struck out.  STRIKE ONE was the dismissal of the claims based on race, color, sex and age.  The court pointed out that Ms. Willis had not checked those boxes when she filed her EEOC complaint.  If you don’t bring it up to the EEOC, you can’t bring it up in court.

STRIKE TWO was the dismissal of the disability discrimination complaint.  The court held that Ms. Willis had not suffered an “adverse personnel action” because she was still on the SAISD sub list. She was only barred from one elementary school.   This was going to make things inconvenient for Ms. Willis, but the court was pretty hard hearted about that.  The court also noted that the verbal insults Ms. Willis alleged were not even close to being “severe” or “pervasive.” So there was no evidence to support a case based on disability discrimination.

STRIKE THREE was the dismissal of the retaliation claim.  The court pointed out that “The standard for an adverse action in retaliation cases is lower than for disparate treatment claims.” So when the principal took Ms. Willis off the sub list for Douglass Elementary, that may have been sufficiently “adverse” to keep the case alive. However, the court dismissed this claim for another reason—Ms. Willis filed the grievance AFTER she was taken off the list. So there was no way that the principal was “retaliating” for a grievance that had not yet been filed.

So there you have it.  But notice: the district spends time and money defending itself on a claim by a sub who was taken off the list of one school for less than two months.  The case is Willis v. San Antonio ISD, decided by the federal district court for the Western District of Texas on August 11, 2017.  We found it at 2017 WL 3470944.