Sue Ann Easterling had experience coaching gymnastics, softball, basketball, volleyball and track.  Then she applied for a job as head football coach/athletic director.  She had never coached football and never served as A.D.

She didn’t get the job.  In fact, she didn’t get an interview.  The school district offered the job to one guy, who turned it down at the last minute, and then they promoted their interim coach to the job.

Ms. Easterling sued and took it all the way to the 5^th Circuit. But she lost her case. The district offered several good reasons for its decision not to hire her. The district saved money by hiring the interim guy who was already an employee. Plus, this contributed to continuity in the football program. But I suspect that the main reason they passed on Ms. Easterling was because of her lack of experience as either a football coach, or an A.D.

What’s noteworthy about this very simple case is how the district did not muck it up by saying things that, perhaps, some of the people in the district thought.  Apparently, nobody said things like:

*But you are a woman—you can’t coach football.

**Hah!! Are you crazy?!?!

***Our boosters would never accept a woman in that position.

****There are no female football coaches in Louisiana and we don’t want to be first.

Nope. They stuck to the basics. We want someone who has some experience, and you don’t have it.

The case of Easterling v. Tensas Parish School Board was decided by the 5^th Circuit on March 20, 2017.  We found it at 2017 WL 1065531.

DAWG BONE: JUST WONDERING: DO WE HAVE FEMALE FOOTBALL COACHES IN TEXAS?  FLORIDA HAS ONE.  SO DO THE ARIZONA CARDINALS.

 File this one under: LABOR AND EMPLOYMENT

Tomorrow: Toolbox Tuesday and a new piece of legislation!

We can learn four things about teacher termination cases from the Commissioner’s decision in Timmons v. Killeen ISD. 

1. The quality of the school’s internal investigation of an incident doesn’t matter much if the case is ultimately heard by an independent hearing examiner. Here, the teacher argued that the investigation was poorly done and even biased. The Commissioner blew that off:

The results of an investigation have no inherent weight. Just like every other piece of evidence, the results of an investigation, assuming they are properly admitted into evidence, are weighed by the independent hearing examiner.

2. The Commissioner is not going to determine how the case should have been decided.  He is going to determine if there is “substantial evidence” in the record to support the decision made by the school board.

3. The deadline for filing the Petition for Review does not end at the close of business. Here the Petition arrived after hours on the deadline day, (9:56p.m. by FAX), but the Commissioner ruled that it was timely.

4. Principals may be overworked and underpaid, but can take comfort in the fact that getting physically assaulted by a teacher might result in the teacher getting fired. No one disputed that basic proposition in this case.

Kudos to my long time law partner, Mark Goulet, for guiding the district through this one. The independent hearing examiner found good cause for the teacher’s termination; the board approved that recommendation; and the Commissioner has affirmed the decision.

The case of Timmons v. Killeen ISD was decided by Commissioner Morath on May 1, 2017.  Docket No. 019-R1-03-2017.

DAWG BONE: MEMO TO TEACHERS: DON’T BEAT UP THE PRINCIPAL.

File this one under: LABOR AND EMPLOYMENT

Tomorrow: When you go to the Immunity Store, be sure you know what you are getting….

Cynthia Jackson was the principal of an elementary school in Port Arthur ISD until the superintendent reassigned her to assistant principal at the high school.  Ms. Jackson challenged the reassignment in court, alleging that the superintendent and district had violated her rights to due process, and retaliated against her for the exercise of free speech.

The court tossed the case out.  Much of the legal analysis was based on the straightforward language in the contract that gave the superintendent authority to “assign and reassign.”  Moreover, there was no cut in pay.

As far as “due process” the court pointed out that Ms. Jackson had not been deprived of a “property” or “liberty” interest.  “Due Process” is afforded only when process is due.  Process is not due unless the government is taking away a person’s life, liberty or property.  Moving from principal to A.P. does not involve a loss of any of that. So much for that issue.

The free speech analysis is a bit more involved.  The court held that “a person does not engage in constitutionally protected speech when speaking with other individuals in the organization that employs her about matters concerning the duties of her employment.” Key Quote:

As the principal of an elementary school, providing [the superintendent] and her coworkers with her view about the strengths or weaknesses of the school’s programs and staff were matters that were encompassed within her duties as the school’s principal.  Moreover, Jackson failed to allege that she ever discussed these matters outside the circle of the District and its employees.

We take that to mean that the court was unwilling to grant constitutional protection to every gossipy conversation in the teacher’s lounge, or even to more serious conversations among co-workers about how things are going in the school.  So Ms. Jackson’s First Amendment claim also failed.

For the lawyers, this case is worth reading for the court’s discussion how a Plea to the Jurisdiction can be used.  The court was OK with a Plea to the Jurisdiction in this case, noting that “Texas courts have recognized that a governmental unit may use a plea to the jurisdiction to challenge the validity of the plaintiff’s claims.”

The case is Jackson v. Port Arthur ISD, decided by the Court of Appeals for the 9^th District (Beaumont) on April 20, 2017.  We found it at 2017 WL 1425589.

DAWG BONE: THOSE CONTRACTS DO SAY “ASSIGN AND REASSIGN.” READ CAREFULLY.

File this one under: LABOR AND EMPLOYMENT

Tomorrow: It’s Toolbox Tuesday!! Let’s talk about that pre-graduation prank!

Just suppose that you have a serious illness that causes you to use up all of your paid leave.  After all paid leave is exhausted, you are still not able to return to work.  You can then go on unpaid leave due to the Family and Medical Leave Act.   This will keep your job available for you when you recover.  And the employer will keep paying the employer’s share of the health insurance premiums.

You are relieved that the insurance will stay in effect, but you are no longer receiving a paycheck. So you go to the Texas Workforce Commission (TWC) and apply for unemployment benefits. Can you get unemployment benefits while you are still listed as an employee on “unpaid FMLA Leave”?

Not according to the Court of Appeals in Fort Worth.

The issue came up in the case of Julia White, an employee of Wichita County.  The TWC granted her request for unemployment benefits. The standard is that a person can get unemployment benefits if that person is not performing “services for wages.”  Texas law defines “wages” to mean pay for your personal services, but it does not include the employer’s payment of your insurance premiums. So according to the Texas definition of “unemployed” Ms. White was unemployed, and should be allowed to receive unemployment benefits.  So said the TWC.

Her employer, Wichita County, objected.  The County argued: how can a person be “employed” for purposes of FMLA and “unemployed” for purposes of unemployment benefits?

The Court of Appeals held that such a person cannot do that.  In other words, the employee would have to choose. Go on FMLA, keep your insurance in place and your job open for you; or leave the job and go on unemployment benefits while you look for a new job.  Key Quote:

In other words, the federal and state statutes generally apply to distinct groups of people: those who cannot perform existing jobs on a temporary basis, desire to return to those jobs, and need protection for the jobs until the reason for leave resolves (FMLA) as opposed to those who desire new jobs and are ready and willing to perform them and need temporary income benefits in the meantime (unemployment under the labor code). We cannot fathom that either Congress or our state legislature intended for a person to be able to proceed down both paths and receive both benefits at the same time.

The court described this as a “case of first impression” meaning that this is the first appellate court to wrestle with this specific issue. As such, it will carry a lot of weight as the issue comes up elsewhere.

The case of Texas Workforce Commission v. Wichita County, Texas was decided by the Court of Appeals for the Second District of Texas in Fort Worth on December 8, 2016.  You can find it at 507 S.W.3d 919.  A Petition for Rehearing is pending.

DAWG BONE: COURT SAYS YOU CAN’T BE ON FMLA AND UNEMPLOYMENT AT THE SAME TIME.

 File this one under: LABOR AND EMPLOYMENT

Tomorrow: We offer some laughs, and a book to recommend.

Is it illegal for an employer to discriminate against a person because he is gay or she is lesbian?  After the Supreme Court’s decision in the same-sex marriage case, you would think that the answer would be an obvious “yes.” But it’s not that simple. In fact, until very recently almost all of the Circuit Courts that have considered the issue have held that discrimination based on sexual orientation does not violate Title VII, which is part of the 1964 Civil Rights Act. Title VII prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.”  So if Mr. Smith is fired because he is gay, has he been discriminated on the basis of “sex”?

This was the issue before the 7^th Circuit, sitting en banc in a recent case.  Kimberly Hively alleged in her suit that she was passed over for promotion, and later terminated by Ivy Tech Community College for the sole reason that she was openly lesbian.  By a vote of 8-3, the court held that discrimination based on sexual orientation is a form of sex discrimination.   The opinions of the judges, both majority and dissent, make for interesting reading.

The majority opinion is written by Judge Diane Wood, who I knew when she and I were both undergrads at UT Austin.  She points out in her opinion the weirdness of the current legal landscape whereby a gay person “can be married on Saturday and then fired on Monday for just that act.”  Citing the same-sex marriage case and other Supreme Court cases on analogous topics, the majority concludes that discrimination based on sexual orientation is a subset of sex discrimination and, therefore, equally illegal.

Judge Posner’s erudite concurring opinion overtly embraces the idea that judges can, and should, re-interpret statutes as the culture changes.  He cites his own life experience:

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII. I had graduated from law school two years before the law was enacted.  Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of A la recherche du temps perdu.”  [Remembrance of Things Past by Marcel Proust].  Homosexuality was almost invisible in the 1960s.  It became visible in the 1980s as a consequence of the AIDS epidemic; today it is regarded by a large swathe of the American population as normal.

The three dissenting judges were equally eloquent in urging the court not to do for Congress what Congress should do for itself:

It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act.  Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation, a wholly different kind of discrimination.

This case may end up before the Supreme Court. If it gets there, it will have implications not only for gay and lesbian employees, but also transgender employees and students.

The case is Hively v. Ivy Tech Community College, decided by the 7^th Circuit on April 4, 2017.  We found it at 2017 WL 1230393.

DAWG BONE: AS THE CULTURE CHANGES, THE LAW FOLLOWS….EVENTUALLY.

File this one under: LABOR AND EMPLOYMENT

Tomorrow: a radical idea for your consideration….

The issue of secret recording came up in a Commissioner’s decision from 2000.  Robstown ISD terminated the employment of Mr. Alejandro. The decision tells us that Mr. Alejandro had a “non-teaching contract” but does not specify what his position was.  Even though he was not on a teaching contract he was on a contract. Thus the district was required to provide a due process hearing prior to terminating his employment, which the district did.

There were several reasons for the proposed termination. One of them was that the man had installed a recording device in his office whereby he recorded telephone calls, without telling the other party to the call about this.  (Nixonian!)  The Commissioner (Jim Nelson) addressed this succinctly:

Taping one’s calls and not telling the other party to the call is not illegal in Texas, but it is not a professional act.  Making unauthorized recordings of conversations constitutes good cause for terminating Petitioner’s contract.

This is something that could be addressed in your policies, procedures or employee handbooks.  With recording devices so readily available these days, it would be wise to make sure that staff members know what the expectations are.

This Golden Oldie is Alejandro v. Robstown ISD, Docket No. 053-R2-1199.   Commissioner Nelson signed off on it September 5, 2000.

DAWG BONE: GOOD RULE FOR RECORDING: NO SECRETS, NO SURPRISES

 File this one under: LABOR AND EMPLOYMENT

Tomorrow: Can we pray for the kids to do well on the STAAR test?

Dear Dawg: I am proud to report that when the Chicago Cubs ended 108 years of suffering by winning the World Series for the first time since 1908, I was present.  My grandfather was a Cubs fan. He taught me to love the game. Taught me to keep score.  So I kept score of that extra-inning victory, and the next day, left that scoresheet on Granddad’s tombstone.  May he Rest in Peace, right alongside Ernie Banks.  Of course, I had to take some personal leave days to do this.

So imagine my shock when I get back to school and find that I’ve been written up for violating our personal leave policy!  There is another teacher down the hall from me who missed a couple of days that same week to go to a NASCAR event in Tennessee.  NASCAR!!  A bunch of rednecks drinking beer, waving Confederate flags and watching loud motor vehicles turn left!  I, on the other hand, was witnessing an iconic moment in the long history of our National Pastime.  I feel sure my rights have been violated, Dawg. Set ‘em straight!  CUBS WIN! CUBS WIN!! CUBS WIN!!!

DEAR CUBS WIN!:  We honor your devotion to baseball, your grandfather and the Cubs. But you got your facts wrong.  The school did not measure the relative merits of the World Series v. NASCAR. If they had, they would have violated the law. Teachers can take personal leave for personal reasons, and it’s improper for the school to distinguish between the “worthy” and the “unworthy.” For a recent illustration of this, see Houston v. Point Isabel ISD, Docket No. 014-R10-01-2016 (August 25, 2016).

No, my friend, it was a lot simpler than that.  As you stated, your fellow teacher took “a couple of days,” (i.e., two days).  You took three.  Your school’s policy allows teachers to take personal leave for any reason, but not for more than two days in a row. That’s a valid policy.  So to put this in terms you will understand, the official scorer is giving you the E on this play.  Take it like a man and consider….it’s a small price to pay to witness the end of more than a century of suffering.

DAWG BONE: LEAVE POLICIES CANNOT DISTINGUISH BETWEEN THE “WORTHY” AND THE “UNWORTHY.”

 File this one under: LABOR AND EMPLOYMENT

 Dear Dawg: We are trying to encourage our teachers to be present as much as possible. We know that they get five days of personal leave, and we don’t punish them for taking those days. But we do make note of it in the Appraisal.  We have an indicator in Domain IV on “Attendance.” You get marked as “Distinguished” if you have zero absences.  If you have two absences, you get marked down to “Accomplished.”  If you have five, you are merely “Proficient.”  Is there any problem with this?  SHOWING UP IS HALF THE BATTLE.

DEAR SHOWING UP: Yes, there is a problem.  You say that you are not punishing the teacher, but the Commissioner thinks that you are.  This is what Point Isabel ISD was doing and the Commissioner flat out said it was illegal.   Key Quote from the decision:

Most importantly for this case, a district cannot adopt a policy that makes it difficult to take leave.  Since appraisals have a significant impact on teachers, marking a teacher’s appraisal down for taking leave that a teacher is statutorily allowed to take is found to make taking leave more difficult. For this reason, it cannot be done.

The case is Houston v. Point Isabel ISD, Docket No. 014-R10-01-2016, decided by Commissioner Morath on August 25, 2016.

DAWG BONE: YOU CAN REWARD TEACHERS FOR NOT TAKING LEAVE, BUT YOU CANNOT PUNISH THEM FOR TAKING IT.

File this one under: LABOR AND EMPLOYMENT