Just How Hard is it to Prove Pretext? SDTX Holds that EEOC “Cause” Finding and Allegations of Falsified Evidence are Not Enough

On August 30, 2022, the Southern District of Texas issued its opinion in Love v. University of St. Thomas, a case that highlights the significant burden that employees must overcome in the burden shifting analysis used by courts in employment discrimination and retaliation claims.  In the absence of direct evidence of discrimination or retaliation, courts follow the United States Supreme Court’s McDonnell-Douglas framework to determine whether an employer engaged in illegal conduct.  Under this framework, an employee challenging an adverse employment action must first establish a prima facie case of discrimination or retaliation before the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action taken.  Once the employer proffers such a reason, the burden shifts back to the employee to show that the stated reason is a pretext for discrimination or retaliation.

Misbehaving Teachers: Do We Really Have to Pay Them?

While we hope it never happens, sooner or later you may be faced with a situation in which a teacher, or other Chapter 21 contract employee, engages in behavior that warrants the employee being placed on administrative leave. Most school districts have adopted Board Policy DFBA (Local), which allows a term contract employee to be suspended with pay and placed on administrative leave by the Superintendent during an investigation of alleged misconduct by the employee or at any time the Superintendent determines that the district’s best interest will be served by the suspension. Often, however, it is hard for administrators, employees, or others to understand why the school must continue to pay a misbehaving employee. Under § 21.211 of the Texas Education Code, an employee who is under a Chapter 21 contract must be paid while on administrative leave unless the Board of Trustees has determined good cause exists to suspend the employee without pay pending discharge or in lieu of termination. This provision has been interpreted by the Commissioner to require districts to follow the termination procedures prior to suspending without pay. What this means in practical terms is that most school districts do not seek to suspend without pay due to this procedural burden and instead move forward with either the termination or nonrenewal process if it is determined that the employee has engaged in the misconduct. This often results in the district having to pay the employee for a lengthy amount of time while the legal processes are pursued. Recently, this process has been challenged and districts have attempted to place a Chapter 21 employee on leave without pay prior to the completion of a hearing. So far, districts have been unsuccessful in their attempts.