Most of the districts in Texas have adopted some form of Policy DGBA (Local) with regard to employee grievances. Those policies call for employees to file a grievance within 15 days of the date when they know, or should know, that they have something to gripe about. There has been considerable litigation over exactly when that 15-day timeline begins. We now have a decision from the Commissioner that makes some key points.
This case is about the reassignment of an administrator to a new position that paid less. Thus the employee had two possible gripes: first, the reassignment; second, the pay cut. The decision treats these as separate events with separate timelines.
The superintendent gave the employee written notice of the reassignment in August, 2013. The district’s policy “encouraged” employees to use informal means of addressing concerns prior to initiating a grievance. In this case, the employee did that. She promptly wrote a letter to the HR Director in which she expressed her disappointment in what she viewed as a demotion. One week later, the HR Director responded, in writing, explaining that the reassignment was not a demotion.
When does the grievance timeline begin? Is it when the employee got the superintendent’s letter? Or the HR Director’s letter? The Commissioner held that the timeline began upon receipt of the HR Director’s letter. In accordance with an earlier decision, the Commissioner held that the timeline did not begin until the “informal process” was complete. The HR Director’s letter ended the “informal process.”
As a practical matter, it made little difference. All this correspondence took place in August, 2013. The employee filed the grievance in July of the next year—way past either deadline. Nevertheless, the Commissioner’s decision is important because it shows us how the “informal process” affects grievance timelines. But note: many districts have now adopted a version of DGBA (Local) that specifically says that the “informal process” does not extend grievance timelines. In fact, this district has now adopted that policy, but it was not in effect at the time of this grievance.
The Pay Cut
What about the pay cut? The letter from the superintendent in August, 2013, warned of a pay cut to take place the following school year. Another letter, in February, 2014, was explicit: she was told that her salary for the next year would be somewhere between $53,957 and $75,283. Even that higher figure was a pay cut. Then in July, 2014, the superintendent sent a third letter that advised that he would recommend to the board that the employee’s salary be $64,620 with no more car allowance. Big pay cut.
The employee filed her grievance after receipt of that third letter, but the Commissioner held that she was actually premature. She did not have a final decision to complain of until the board met and adopted the superintendent’s recommendation. That did not happen until August 21, 2014. Her grievance was timely as long as it was filed within 15 days of that date—which pushes us into September. So the grievance about the pay cut was timely.
The Resignation Deadline
Sharp readers (and that’s about 96.2% of you) are now thinking: “She’s going to win!” After all, the final decision to cut her pay happened way past the penalty-free resignation date. Schools can cut an employee’s pay from one year to the next, but only if they give the employee fair notice prior to the date when they can resign without penalty. That date is 45 days prior to the first day of instruction, so it’s usually in the first half of July. This lady got word of the final decision in August, and filed a timely grievance over it. So she wins….right?
Wrong. The Commissioner said that the grievance timeline was triggered by the final action of the board. But that February letter from the superintendent gave the employee fair notice well before the penalty free date. In accordance with earlier decisions, the Commissioner held that “fair notice” means that the notice must be “formal” and “specific.”
The February letter from the superintendent met both of those standards. Since it came from the superintendent, and was in writing, it was “formal.” And since it included a specific number that the salary might be reduced to, it was “specific.” The act that it did not specify her salary, and only provide a range (and a pretty big one) was inconsequential. The Commissioner: “Thus, the fact that Respondent only gave Petitioner a $21,326 range that her salary could be within does not render the notice too vague” to meet the legal standard.
Management triumphs once again. The case is Worthy v. Port Arthur ISD, decided by the Commissioner on September 29, 2015. The Docket Number is 016-R10-12-2014.
DAWG BONE: LOTS TO LEARN FROM THIS ONE.