A former teacher sued Houston ISD, claiming that she was not hired for any of the 14 jobs she applied for because the district was retaliating against her. The decision by the Texas Court of Appeals provides a good framework for analyzing retaliation cases.
Let’s put it in baseball terms. To score with a retaliation case, you first have to get to first base. To do that, you have to allege, and later prove, that you engaged in “protected activity.” Here, the plaintiff alleged that when she worked for HISD as a coordinator at a magnet school, she tried to recruit a student with a disability. When the school denied admission to the student, the plaintiff facilitated the mother’s complaint against the district. The court held that this would probably suffice as “protected activity.” The plaintiff was now on first base.
To get to second base, the plaintiff has to prove that the employer took “adverse action” against her. Here, the case was a little complicated. In 2011, the district non-renewed the plaintiff’s employment with the district. However, this was not the alleged “adverse action.” There had been previous litigation over that issue, which the plaintiff lost. So she could not allege that the nonrenewal was the “adverse action.” But after her nonrenewal, she applied for 14 different jobs with the district. She got none of them. So she alleged that the failure to hire was an “adverse action.” At this early stage of the proceedings, ruling on the district’s Motion to Dismiss the whole case, the court gave the benefit of the doubt to the plaintiff on this. In accordance with earlier court rulings, the court held that a failure to hire could amount to an “adverse action.” The plaintiff now stands on second base.
To get around third base and score, you have to connect these two events. This is the hardest part of a retaliation case. You have to allege, and later prove, that the reason you suffered an “adverse action” was because of the “protected activity.” This is where the plaintiff’s case faltered. The court held that there was no evidence of retaliation presented—just subjective opinion. Moreover, the court noted that the protected activity occurred in 2010. The adverse action was in 2013. The court considered this too long of a gap to show a causal connection.
Retaliation cases are increasingly common. In part, this is because it’s not too hard to get to second base. But getting home with that run is another matter, as the case of Rose v. Houston ISD illustrates. The case was decided by the Court of Appeals for the 14th District in Houston on October 19, 2017. We found it at 2017 WL 4697889.
DAWG BONE: YOU MAY THINK BASEBALL SEASON IS OVER. NEVER.