As a practitioner who has spent most of his legal career as a school board attorney serving as general or labor counsel to boards of education, I address a trend that seems to be on the rise – litigation brought for employment discrimination in the wake of a non-tenured teacher being non-renewed at the conclusion of the teacher’s annual employment contract.
In the world of school law, a “non-renewal” is distinct from a “termination,” “discharge,” or “firing” in both the legal and practical sense. The latter tend to occur upon notice, and, in the public school context, almost always with cause. A “non-renewal,” however, can be with or without cause. All non-tenured teachers are entitled to written notice by May 15 each year about whether they will be renewed or not for the next succeeding school year. N.J.S.A. 18A:27-10. If a teacher is non-renewed, he or she has a right to request a written statement of reasons and appear before the Board of Education for an informal hearing known as a Donaldson hearing, the purpose of which is to attempt to convince the Board to offer reemployment notwithstanding the Superintendent’s failure to recommend renewal. The case law of the Commissioner of Education has, for decades, made it absolutely clear that a non-tenured teacher can be non-renewed for any reason or no reason at all, so long as it is not a reason that would be “arbitrary, capricious, or unreasonable,” such as, for example, discrimination or unlawful retaliation.
Indeed, the ability of the school district to sever ties with a teacher through this quick and relatively painless process is precisely what delineates the difference in legal rights between a tenured teacher and a non-tenured teacher. Once a teacher fulfills the statutory requirements and obtains tenure, the process for removal becomes significantly more difficult. Tenured teachers are legally entitled to new contracts each year, and they can only be removed upon the filing of tenure charges and a statement of evidence with the Board of Education, which are then referred for Board approval, followed by a “sufficiency determination” on the charges from the Commissioner. Only if the charges are deemed sufficient to warrant removal is the matter then referred for an expedited arbitration hearing by one of 50 arbitrators who are maintained on a panel by the Commissioner for hearing such tenure cases. Grounds for appeal are extremely limited. As a result, tenure charges tend to be filed in only the most serious cases of employee misconduct or inability, or in cases of documented inefficiency.
This distinction between tenured employees and non-tenured employees has led to an interesting, and somewhat paradoxical, phenomenon when it comes to the types of employment litigation brought against local school districts, in general, and in terms of which employees are likely to bring it, in particular. To put it bluntly, a school district is far more likely to be sued in court under a statutory cause of action with fee-shifting by a non-tenured teacher who was non-renewed than by a tenured teacher who was subject to tenure charges.
By way of example, recently, I successfully defended a case against a charter school brought under the New Jersey Law Against Discrimination (“NJLAD”). The plaintiff was a teacher/learning specialist who was employed for just over a semester and a few months before she was granted an extended medical leave of absence, followed by a maternity leave, under the Family Medical Leave Act (“FMLA”). The employee had significant performance and disciplinary issues since beginning her employment the previous January and working the second semester of her first school year. Just two months into the new school year, she unexpectedly went out on disability leave in October due to a high-risk pregnancy. The following May, the employee was non-renewed by reason of her performance issues. She never requested a statement of reasons or a Donaldson hearing.
The employee brought disparate treatment theory claims under the NJLAD, alleging that her non-renewal was based on gender, pregnancy, and disability discrimination. Her performance evaluations had been mediocre at best. Within the first two months of her employment, the charter school had found her classroom management skills to be so poor that it assigned her a teacher-mentor to coach her and “reset” her classroom culture, which had become toxic. The teacher had initially shown some promise, but soon, these performance issues caused her supervisors to reconsider promoting her. She had been absent from her classroom without explanation. Her fellow teachers indicated she was warehousing difficult students in the back of their rooms with “time-outs” nearly every day.
After almost 2 years of discovery painstakingly documenting the performance deficiencies, the case was ultimately dismissed and summary judgment was granted in favor of the charter school, with the trial judge finding (1) that the Plaintiff failed to set forth sufficient evidence from which a reasonable jury could conclude she had satisfied the prima facie elements of discriminatory intent, or that she was performing the functions of her position at a level that met the school’s legitimate expectations; and (2) that the charter school had numerous legitimate, non-discriminatory reasons for non-renewing her employment, including below proficient evaluation scores, improper use of “time-outs,” and poor classroom management skills.
If it were a tenured teacher, such a case could never have occurred. The tenure arbitration process would have decided threshold legal issues, such as whether the employee was performing her functions in a manner that met with the school’s legitimate expectations, or whether there were adequate non-discriminatory reasons to terminate the employee in the very first instance. Knowing this, the school district would have taken great pains to ensure significant documentation of the employee’s misconduct or inefficiency long before undertaking to bring tenure charges. In this case, the evidence was there in the minds of the teacher’s colleagues and supervisors, but it was not documented. The oversight was a simple one, oft-repeated in the world of public education. Sometimes, the feeling that a school district can non-renew any non-tenured teacher painlessly and without consequences is so well-known it can lead to a false sense of security. Things that would have been documented in uncomfortable meetings, letters of reprimand, or “evaluative memoranda” in the personnel file fail to be documented.
The takeaway for public school employers: Any time you are considering non-renewing a non-tenured employee who is a member of a protected class, or who has complained of the employer’s practices or policies, recognize that the district is potentially vulnerable to litigation under the NJLAD, the Conscientious Employee Protection Act (“CEPA”), or other statutory remedies, and document, document, document. . . . If the employee has done something serious enough to warrant termination, discuss the situation with legal counsel and consider terminating rather than non-renewing them, even though it risks a labor arbitration over whether the termination was “for just cause.” Better to have an arbitrator cheaply decide a termination case than to find the school district enmeshed for years in sticky employment litigation in Superior Court with a hungry Plaintiff’s attorney trying to leverage fee-shifting to the tune of hundreds of thousands. Sometimes, the “easy way out” isn’t always….