Labor & Employment Law Daily Teacher’s placement on improvement plan, other petty slights, not Title VII adverse actions
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Monday, November 4, 2019

Teacher’s placement on improvement plan, other petty slights, not Title VII adverse actions

By Wayne D. Garris Jr., J.D.

The high school teacher’s problems began when she was placed on an improvement plan after failing to provide necessary accommodations for a special needs student, but she claimed she was never informed of the student’s IEP.

Affirming summary judgment for a Texas school district, the Fifth Circuit held a high school teacher failed to show that she was subjected to any adverse actions, which was ultimately fatal to her discrimination claims. While her placement on an improvement plan could damage her future career prospects, the plan did not change the terms of her employment and was not considered a disciplinary action. Other incidents that the teacher raised were mere annoyances and inadvertent slights that were not actionable adverse employment actions (Welsh v. Fort Bend Independent School, October 30, 2019, Higginson, S.).

Background. The high school aquatic science teacher filed an EEOC charge alleging discrimination based on national origin, sex, and age, and retaliation. After a complicated procedural history, a district court reached the merits of her claims and granted summary judgment to the school district, finding that the teacher did not suffer any adverse actions. The teacher appealed.

TINA Plan. The teacher alleged that the first incident of discrimination occurred when she was placed on a Teacher in Need of Assistance (TINA) plan for failing to properly document a special education student’s accommodation needs after the student’s parents complained. The teacher claimed that she never received notice of the student’s IEP and therefore need for accommodations. The TINA Plan required the teacher to attend training, which she completed in one month. The employer noted her completion of the TINA in the teacher’s annual review, but the teacher filed a grievance, which was denied, requesting that the reference to the TINA be removed.

Letter of recommendation. In addition, the teacher alleged that she requested a recommendation letter from the school principal during a conversation in the hallway and followed up with a written request, but the principal never provided the letter or otherwise responded to the teacher’s request, which the teacher contended was intentional, discriminatory, and retaliatory.

Humiliation. Part of the teacher’s job duties as an aquatic science teacher were to maintain 14 to 15 tanks of fish in her classroom. The teacher alleged that an associate principal told her, in front of her colleagues, “you need to take care of your fish,” which the teacher characterized as an attempt to humiliate her by criticizing her work ethic.

Adverse action. Granting summary judgment on the teacher’s discrimination claim, the court concluded the teacher was never subjected to an adverse action. The TINA Plan was simply a “growth plan that sought to improve upon her weaknesses.” Further, the Fifth Circuit has previously held that placement on an improvement plan is not an adverse action, so even if the TINA was considered a marker of poor performance, it would not be actionable. Lastly, the TINA did not result in any change in her job duties, title, hours, salary, or benefits.

Recommendation letter. Failure to provide a recommendation letter also was not an adverse action. The teacher attempted to argue that recommendation letters are necessary for advancement and that the principal intentionally refused to respond to her request. The court dismissed this argument as speculative, noting that the lack of response could have also been an inadvertent oversight.

Retaliation. Turning to the teacher’s retaliation claim, the court declined to decide whether the TINA plan was retaliatory; there was no causal connection because 19 months had passed between the teacher’s protected activity and the employer placing her on the TINA plan.

Additional allegations of retaliation. Relying on its analysis of the discrimination claim, the court reiterated that the failure to respond to the teacher’s recommendation letter request, the vice principal’s command that the teacher feed her fish, and the refusal to remove the TINA plan from her personnel file were not adverse actions for purposes of her retaliation claim either.

Changing curriculum. In her appeal, the teacher alleged, for the first time, that the employer changed her curriculum and assigned her to classes with special needs students in retaliation for her EEOC charge. The teacher forfeited this argument, but the court noted that curriculum changes are a “reality of being a teacher” and the teacher provided no explanation as to why working with special needs students is an adverse action.

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