May 2015 Court Report: Breach of Contract, FMLA, Nepotism, Open Records, AAA & Trespassing Parents
Read the May 2015 issue of Court Report, which includes such topics as breach of contract, FMLA, nepotism, open records, AAA & trespassing parents. This newsletter is an ACSBA member benefit.
May 2015 Issue of Court Report
Alabama Court of Civil Appeals
- Breach of Contract
Burch v. Birdsong, -- So.3d --, 2015 WL 1877678 (Ala.Civ.App. Apr. 24, 2015)
The CSFO, a longtime employee, entered into a one-year contract as CSFO, but days later, the board voted to rescind the contract and terminate the CSFO. The CSFO filed a declaratory judgment and writ of mandamus against the superintendent and Board members in their official capacities.
The defendants moved to dismiss the complaint on the grounds of absolute immunity. The superintendent also moved to dismiss on the grounds that she could not provide the relief the CSFO sought in light of the lack of superintendent recommendation required under the School Fiscal Accountability Act. The board members additionally argued that no valid contract existed, the hiring of employees was discretionary, not ministerial, and that the CSFO’s suit did not fall within one of the exceptions to absolute immunity. After the trial court dismissed the Complaint and the CSFO’s attempts to amend failed, she appealed.
The CSFO argued on appeal that the defendants were not entitled to absolute immunity because she was not seeking damages, but performance of the contract. The Court first considered the superintendent’s argument that she could not provide the CSFO relief. It held that the provisions of the School Fiscal Accountability Act gave the board sole authority over the CSFO, so the superintendent was not a proper party and she was properly dismissed. Board of School Commissioners of Mobile County v. Weaver, 99 So.3d 1210 (Ala. 2012). After reviewing the law regarding absolute immunity and the exceptions thereto, the Court noted that “an action seeking prospective relief like the enforcement of a salary policy or reinstatement, unlike an action seeking monetary damages like backpay” is not barred by absolute immunity. Accordingly, the CSFO’s suit was not barred by absolute immunity. The trial court was reversed and the case was remanded for further proceedings against the board members.
- Family Medical Leave Act-Retaliation
Caldwell v. Clayton County School District, -- Fed.Appx. --, 2015 WL 1285778 (11th Cir. Mar. 23, 2015)
This case involved an assistant principal working at a Georgia elementary school. In the fall of her fourth year, the assistant principal took FMLA leave for two months before returning to her position. Upon her return to work, the assistant principal received a Professional Development Plan and a Performance Enhancement Process from her principal which noted multiple deficiencies she needed to correct and triggered a monitoring process.
A few months later in the spring, the principal gave the assistant principal an unsatisfactory evaluation and then recommended that her contract not be renewed for multiple tardiness and performance issues. The recommendation did not reference the FMLA leave. The superintendent ultimately recommended and the board approved the nonrenewal. The board then offered the assistant principal a teaching position, but she refused, ending her employment with the district.
The employee sued the board claiming the nonrenewal was in retaliation for taking FMLA leave. The board moved for summary judgment on the grounds that the employee’s nonrenewal was unrelated to her leave, that several months passed between the time of her leave and the decision to nonrenew her and that she was nonrenewed for performance issues and repeated tardiness. The employee argued that those reasons were pretextual because the principal retaliated against other employees who took FMLA leave, failed to comply with state regulations and lied about the timing of her decision to recommend the employee’s nonrenewal.
The trial court rejected the employee’s arguments and found that she had failed to establish a causal connection between the nonrenewal and her FMLA leave and there was no evidence that the actual and final decisionmakers, the board members, were aware of the leave. Further, the trial court noted that the employee had failed to make a “cat’s paw” argument in support of her claim and entered judgment in favor of the board. The employee appealed.The Eleventh Circuit noted two types of FMLA claims: interference and retaliation. Since there was no direct evidence of retaliation, the Court analyzed the circumstantial evidence under theMcDonnell Douglas burden shifting framework. In order to establish her claim, the employee had to show that she engaged in activity protected by the FMLA, that she suffered an adverse employment action and the action was related to the protected activity. If the employee can establish these elements, the board must then state legitimate, nondiscriminatory reasons for its decision. The employee must then show that the offered reasons are merely a pretext for discrimination.
The Court found that too much time passed between the leave and the nonrenewal decision to suggest a connection and there was no evidence that the board was even aware of her leave, rendering it legally incapable of retaliating against her for it. The Court noted that if “a decisionmaker followed a biased recommendation from a non-decisionmaker without independently investigating the” circumstances, known as “cat’s paw”, causation can be established, but the employee failed to raise that theory before the trial court.
The Court also rejected the employee’s claim that two other teachers had been retaliated against by the principal, finding that it was not probative that the principal did so against the employee here. Finally, the Court noted that while deviation from standard practice can sometimes suggest pretext, the minor discrepancies in the principal’s documentation were insufficient to do so here. The Eleventh Circuit ruled in favor of the board and affirmed the trial court’s decision.
Attorney General’s Opinions
A.G. Op. 2015-041 (Apr. 22, 2015)
This opinion was requested by a board seeking guidance on the 2013 amendment to the nepotism law. A husband and wife were employees of the board prior to the 2013 amendment. The husband wished to be promoted to an open principal position at the school where his wife was a teacher. The 2013 amendment appeared to prohibit such a promotion because the husband would be the immediate supervisor of his wife, be in the chain of command of his wife and would require the husband to participate in personnel actions regarding his wife. The board asked whether the grandfather provision would allow the promotion or whether the promotion would be considered “normal promotional advancement” allowable by the law.
The opinion noted that Ala. Code §41-1-5(c)—the grandfather clause which was designed to maintain the status quo—provides an exception for those who were employed by the board as of August 1, 2013, the effective date of the amendment. The opinion states, “[t]his exception permits the continued employment of employees in their current positions as of the effective date of the amendment.” The Attorney General determined that once a current employee is promoted, or is otherwise subject to a new contract and/or new duties, they are subject to the entirety of the law, including the immediate supervisor and chain of command prohibitions.
- Open Records Act-Salaries
A.G. Op. 2015-037 (Apr. 3, 2015)
This opinion was requested by a board that asked whether it was required to disclose both the names and salaries of its employees upon request. A citizen requested the payroll records of all board employees, but multiple employees objected to the release of the information. In response, the board released the salaries, but did not indicate the names of the individual’s earning each listed salary. The requesting citizen rejected this approach which prompted the board to seek an opinion from the Attorney General’s Office. The opinion concluded that both the names and salary amounts were subject to disclosure. The opinion further concluded that providing the salary without specific identification of the subject employee was insufficient to comply with the law.
Matters of Interest
- Alabama Accountability Act
Magee v. Boyd, -- So.3d --, 2015 WL 867926 (Ala. Mar. 2, 2015)
Following the May 2014 Montgomery Circuit Court decision that held the Accountability Act violated the Alabama Constitution, the state Defendants appealed to the Alabama Supreme Court. On March 2, 2015, the Supreme Court reversed the trial court’s decision and held that the Act did not violate the Constitution.
- First Amendment-Trespassing Parents
Cyr v. Addison Rutland Supervisory Union, 2014 WL 4925102 (D.Vt. Sept. 30, 2014)
This case filed in Vermont federal court and may be of interest to your school system. The plaintiff parents had two children in the school system, one of whom was autistic. The parents and school were routinely engaged in disagreements which resulted in extensive complaints, meetings and other negative interactions at both the school and during board meetings.
After multiple incidents of reported intimidation, the superintendent issued a no-trespass order against the father barring him from district property, including school board meetings. The father sued arguing that the order violated his First Amendment right of access to information and free expression and his right to due process. The district argued that it did not restrict the father’s speech based on his viewpoint, but in an effort to ensure the safety of its staff, and therefore did not violate his First Amendment rights. The court agreed that the restriction was content-neutral, but noted that any restriction must be “narrowly tailored to serve the governmental interest and leave open ample alternative channels of communications.”
The court recognized that the government has a significant interest in protecting the school staff, but found that the categorical ban on the father was not narrowly tailored and did not leave alternative methods of communication open. The court suggested that the district could have hired law enforcement for its meetings or moved the meetings to a safer location. The court also found a Fourteenth Amendment violation because the trespass notice was not issued according to any protocol, did not provide a means to contest the notice and did not provide the factual allegations which led to the notice. The district did not appeal the decision, ultimately entering into a settlement with the parents for nearly $150,000. If you are interested in reading the opinion, click here.
Jayne is General Counsel & Director of Legal Advocacy for the Alabama Association of School Boards