Tag Archives: Reassignment

Dawg Bones

When does the grievance timeline begin?

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 Reassignment

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. 

Dawg Bones

THEY CUT MY PAY BY ALMOST $10,000. HOW CAN THIS BE LEGAL?

Assistant Principal Jamil Abdul-Jabbar was paid $76,166 in the 2013-14 school year.  The district renewed his contract for the next year, but cut his pay by almost $10,000, dropping him to $66,349.  Ouch.  Can the district do that?

It can.  The key is that the district has to give the employee notice of the drop in pay prior to the penalty-free resignation date.  The notice has to come from the proper source, and be sufficiently formal and specific so as to put the employee on notice.

Here, the district gave the man notice of the looming pay cut in February, 2014—well in advance of the 45-day penalty free resignation date. However, the letter from the superintendent did not tell Mr. Abdul-Jabbar exactly what his salary would be. It cited a potential range from $53,957 to $75,283.  Notice that the high end of that range would still be a pay cut, albeit a fairly modest one ($883).

In July, the district provided the man with a specific figure--$66,349.  This was after the penalty free resignation date, but the Commissioner ruled that the February letter from the superintendent satisfied the legal requirement. The man’s appeal was denied.

This ruling again confirms the broad authority that superintendents have to move administrative pieces around on the chess board. With timely and sufficient notice, this can even involve a cut in pay.  The case is Abdul-Jabbar v. Port Arthur ISD, Dkt. No. 017-R10-12-2014, decided by the Commissioner on July 16, 2015.

DAWG BONE:  CUTS IN PAY CAN HAPPEN FROM ONE YEAR TO THE NEXT, WITH PROPER AND TIMELY NOTICE.

Dawg Bones

CAN THE SUPERINTENDENT REASSIGN THE PRINCIPAL TO AN ASSISTANT PRINCIPAL JOB?

We all know that superintendents generally enjoy a lot of flexibility in assigning and reassigning staff.  That’s usually part of the superintendent’s job description.  Professional contracts customarily include the statement that the employee understands that he or she is “subject to assignment or reassignment.” But are there any limits on that authority?

This is being litigated in the case of Jenkins v. Crosby ISD. This case began when the superintendent moved a principal to an assistant principal position.  Ms. Jenkins objected, and challenged the authority of the superintendent to make such a move. The argument was based on the theory that “principal” and “assistant principal” are not within the same “professional capacity.”

Ms. Jenkins lost the argument at T.E.A. and appealed that decision to Travis County District Court.  Now, she has lost at that level also. The judge, without a written explanation or analysis, simply affirmed the ruling of the Commissioner.  The superintendent did not violate Texas law, did not change the “professional capacity” of Ms. Jenkins, by moving her from the principal’s job to an assistant position.  The judge affirmed the Commissioner’s ruling that the term “professional capacity” is broad enough to include both positions.  Any further appeal of this case would go to the Court of Appeals, and that would take some time.

While this case supports the notion of broad authority for the superintendent, it is always wise to talk to your school attorney before ordering a reassignment that might be legally challenged.  The legal analysis needs to take into account a number of factors that should be looked at on a case by case basis.

DAWG BONE: PRINCIPAL TODAY; ASSISTANT TOMORROW.  SAME PROFESSIONAL CAPACITY.

 

 

Dawg Bones

CAN REASSIGNMENT LEAD TO LITIGATION?

In the school setting, what do you suppose would be the equivalent of re-assigning a sheriff’s deputy from “patrol duty” to duty at the jail?  According to the 5th Circuit, the transfer of a deputy from patrol duty to the jail can be viewed as an “adverse employment action.” That means that if the boss did it with an improper motive, the boss may have some serious legal problems.

This came up in Burnside v. Kaelin, decided by the 5th Circuit on December 9, 2014.  Mr. Burnside alleges that Sheriff Kaelin punished him for not supporting him in an election.  Burnside was the chair of a law enforcement political action committee (PAC).  In his lawsuit, Burnside alleges that Sheriff Kaelin told him that the PAC ought to support him in an upcoming election.  Burnside told Kaelin that the membership would have to vote on that, and that the sheriff would be treated just the same as the other candidates. Burnside alleges that Kaelin threatened to move him to jail duty if the PAC did not come through for him, and that Kaelin followed through with that threat just three weeks later.

Normally, a job transfer (in education, we usually call this a “reassignment) does not come under the category of “adverse employment action.”  But the court held that some job transfers do fit that description.  If the new job is “objectively worse” or “markedly less prestigious and less interesting.”  Key Quote:

Here, Sheriff Kaelin took Burnside off the streets and placed him in the jail. The complaint alleges that the transfer was “typically considered by all in [Burnside’s] position to be……a demotion.” Burnside alleged that Sheriff Kaelin himself viewed the transfer as a demotion.  One reasonable inference is that Kaelin initiated the transfer to punish Burnside for not supporting Kaelin in the 2012 election….Given the facts and reasonable inferences drawn from Burnside’s complaint, his transfer alleges an adverse employing action under 42 U.S.C. Section 1983. 

And that means that Sheriff Kaelin was not entitled to qualified immunity. Thus the suit was not dismissed and will continue, giving Burnside an opportunity to prove the truth of his allegations.

Be cautious before ordering a reassignment that might be viewed as an “adverse employment action,” even when the contract and school policy give you the authority to do so.  Check your motives.  Make sure that your decision is based on job-related, non-discriminatory and non-retaliatory reasons.

DAWG BONE: A REASSIGNMENT MIGHT BE CHALLENGED AS AN “ADVERSE EMPLOYMENT ACTION”