T



T.E.A. Docket # 025-LH-1207

Richardson Indep’t * BEFORE JAMES J. S. JOHNSON,

School District, * CERTIFIED INDEPENDENT

petitioner, * HEARING EXAMINER,

vs. *

Wanda Watkins, * for the

respondent * STATE OF TEXAS

AMENDED RECOMMENDATION,

including

Proposed Findings of Fact and Conclusions of Law

“AWOL” — “absent without leave” is a military acronym which blends concepts of unexcused insubordination, unexcused absenteeism, and unexcused neglect of assigned duties — all of which apply to the charge in this employment case: JOB ABANDONMENT.[1]

In brief, Richardson I.S.D.[2] has procedurally alleged, and proved, that Wanda Watkins[3] has committed job abandonment. Despite complicating aspects of the Family and Medical Leave Act of 1993 (“FMLA”)[4], RISD has good cause for terminating respondent’s term contract.

On January 23rd of 2008, as previously noticed,[5] a sanctions motion hearing was held, and was immediately followed by the evidentiary hearing on the merits of this Subchapter F case.[6] RISD provided live testimony and trial exhibits; respondent did not appear. This Recommendation rests on the testimony and documentary evidence which was admitted at trial.

I. RELEVANCE OF THE FAMILY & MEDICAL LEAVE ACT OF 1993

The Family and Medical Leave Act of 1993 mandates that covered employers (including RISD) provide employees with at least 12 weeks of unpaid leave each year, for family and temporary medical necessity situations, under statutorily specified circumstances. The FMLA encourages businesses to adopt more generous policies, and many employers (including RISD) have done so. RISD, in this case, has provided more than the statutorily required minimum FMLA benefits to Watkins. After Watkins consumed all of her authorized leave time, she failed to return to work. Consequently, RISD took action to have respondent’s employment contract terminated, for cause. Specifically, RISD alleges that respondent’s job abandonment is “good cause”, — as “good cause” is intended § 21.211 of the Texas Education Code, — for terminating respondent’s term contract with RISD. Failing to report for work should be a “slam–dunk” example of job abandonment, and job abandonment itself is a conceptually simple issue. But FMLA is not.

FMLA is a federal statute, defining various standards and conditions for family medical leave In FMLA, Congress has also delegated regulatory authority to the Secretary of Labor, to “prescribe such regulations as are necessary” to carry out many regulatory details of FMLA’s implementation.[7] Also, FMLA provides that an employer may formalize its own implementation of FMLA, so long as its customized FMLA process is consistent with requirements of FMLA (and regulations issued by the Secretary of Labor, pursuant to delegated FMLA authority).

Further complicating the mix of FMLA rules, regulations, and procedures, — from a compliance perspective, is the confusion caused whenever a Department of Labor–issued regulation exceeds the delegated authority, i.e., the problems caused by ultra vires regulations which federal courts strike as invalid. See, e.g., Dormeyer v. Comerica Bank – Illinois, 223 F.3d 579 (7th Ill. 2000); McQuain v. Ebner Furnaces, Inc., 55 F.SUpp.2d 763 (N.D. Ohio 1999); Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155 (2002), affirming 218 F.3d 933 (8th Cir. 2000). Since RISD’s own board policies cite to administrative regulations,[8] this “whole ball of wax” is intertwined like spaghetti, if not inextricably.

In the case at bar, respondent is accused of job abandonment. Respondent has countered by alluding to her family medical leave (rights) and to some kind of “retaliation”, thus appearing to raise the affirmative defenses of FMLA compliance and/or FMLA–based retaliation.[9] (As further fact–findings will indicate, there is a possible third defense, a different form of “retaliation” which appears to be in controversy, as trial exhibits indicate.) Therefore, because a showing of FMLA compliance (by respondent), and/or FMLA retaliation (against respondent), may defeat a prove–up of “good cause” (as “good cause” is used in Texas Education Code’s § 21.211), it is necessary to compare the admitted evidence in this case to various aspects of FMLA law.

Although federal case law provides a formal evidentiary approach to proving up a case of FMLA “retaliation”, — see, e.g., Sherry v. Tam International, Inc., 2006 WL 1492248 (S.D. Tex. 2006), — I have not been so formal in reviewing the trial evidence as it may relate to respondent’s plea of “retaliatory response”. In other words, herein, I have reviewed respondent’s notice pleadings (quoted herein), as well as all other aspects of this Subchapter F proceeding, with a quasi–judicial eye toward satisfying Due Process and “obtain[ing] a just, fair, equitable and impartial adjudication of the rights of [the] litigants under established principles of substantive law”. ( Quoting from Texas Rules of Civil Procedure, Rule 1. )

II. PROCEDURAL HISTORY, INCLUDING SANCTIONS RULING

This Recommendation, with its supporting fact-findings and legal conclusions, follows a noticed evidentiary hearing which was conducted on January 23rd – i.e., nine days ago. According to the applicable statute, this Recommendation is being issued in a timely manner.[10]

The contract in question is a Term Contract, governed by Subchapter E of the Texas Education Code.[11] In particular, the ultimate focus of this case’s fact-findings is Subchapter E’s “good cause” standard, which is indicated by the following statute:

The board of trustees may terminate a term contract and discharge a teacher at any time for: (1) good cause as determined by the board . . . .

Quoting Texas Education Code, § 21.211(a) (with emphasis added). The phrase “good cause”, in this context, does not refer to whether the district had good cause to investigate the teacher’s conduct, — nor does it refer to whether the district had good cause to give notice of its proposal to terminate the teacher’s contract.[12] Rather, the “good cause” which is denoted in § 21.211 refers to whether there is good cause to terminate the teacher’s contract, based upon the school district’s trustee board’s compliance with § 21.258 and § 21.259 of the Texas Education Code, which compliance necessarily depends upon the trustee board’s quasi-adjudicative reaction to these recommendation and fact-findings (which recommendation and fact–findings are themselves issued pursuant to § 21.257 of the Texas Education Code).

In order to address that ultimate issue, of mixed law and fact, the salient procedural history of this case will be outlined. Then, fact–findings are listed. Next follows some discussion of a few of the more complicated legal and/or evidentiary issues. Thereafter, legal conclusions are listed. Finally, a recommendation is provided.

As noted, this case is about “job abandonment”. This pivotal allegation is provided in the “notice pleading” of RISD, sometimes referred to as the “notice letter” which began this whole Subchapter F process. Specifically, Deputy Superintendent Patti Kieker verified that this case’s procedural starting–point was the letter of November 20th, 2007, from RISD’s Kim Quirk (Vice President, RISD Board of Trustees), unto respondent Watkins, i.e., RISD’s Exhibit P29.

In particular, Deputy Superintendent Kieker testified:

Q Exhibit 29 [ i.e., P29 — petitioner’s exhibit 29 ], what is that document?

A This is the document signed by the vice president of the board, on behalf of the board president, that notifies Ms. Watkins that the board will consider terminating her employment contract with the district.

Q And this is where she was noticed that she was recommended for termination, and she could ask for a hearing examiner?

A Right.

Q And all those things are set forth in Exhibit 29; is that correct?

A Right.

THE HEARING OFFICER: And I’m assuming that that is the same document as what I’ve marked as Hearing Examiner Exhibit J.

ATTORNEY EICHELBAUM: That’s correct.

WITNESS PATTI KIEKER: Yes.

(Quoting from Transcript page 39.)

Jurisdictionally speaking, the three critical events — for purposes of Subchapter F of Chapter 21 of the Texas Education Code, the statutory foundation for this quasi–judicial proceeding, — include:

1) the “notice letter” (RISD Exhibit P29) dated 11–20–2007;

2) a written request by Wanda Watkins, dated 11–28–2007 (and received by the Commissioner of Education on 12–3–2007), for a hearing examiner proceeding (judicially noticed, per Texas Evidence Rule 201); and

3) the assignment of this case to me, on 12–12–2007, as the presiding Certified Independent Hearing Examiner (CIHE Exhibit A).

The second document listed is contained within this hearing examiner’s official file of this case, having been FAXed by the Texas Education Agency (along with the third–listed document). It is proper to take judicial notice of Wanda Watkins’ letter request of 11–28–2007 (which defines some of the critical issues in this case, and thus has both immediate relevance to this case, as well as potential collateral estoppel relevance hereafter[13]) frames the , as an official filing in this case, pursuant to Texas Evidence Rule 201. See Ex parte Current, 877 S.W.2d 833, 836 (Tex. App. – Waco 1994, no writ) (“This information is contained in th ecourt’s files, and th ecourt was entitled to take judicial notice of those facts”), citing Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App. – Houston [1st Dist.] 1993, writ denied). See also, accord, Kinnett Dairies, Inc. V. Farrow, 580 F.2d 1260, 1277 (5th Cir. 1978), citing Weinstein & Berger, Weinstein’s Evidence (Supp. 1977), vol. I, page 48.

II–A. Employment Performance Issues raised in the Original Notice Letter

RISD’s Exhibit P29 provides, in pertinent part, the following allegations, as the RISD’s underlying reasons for proposing termination of respondent Wanda Watkins’ term contract:

The Superintendent recommended that your contract of employment be terminated for good cause because you failed to perform duties in the scope of your employment that a person of ordinary prudence would have done under the same or similar circumstances and your actions have been inconsistent with the continued existence of the employment relationship. More specifically, you abandoned your job by failing to report for work upon the expiration of all approved leave. Your actions are inconsistent with RISD policies and procedures.

Quoting from correspondence of Deputy Superintendent Patti Kieker to Wanda Watkins, dated November 20th, 2007 (admitted as RISD Exhibit P29, – and also as CIHE Exhibit J).

II–B. Procedural History establishing Subchapter F Jurisdiction

The “notice letter” (RISD’s Exhibit P29, cited on pages 29 & 39 of the Transcript) unlocked the statutory potential for establishing Subchapter F jurisdiction in this case.

By virtue of the respondent’s timely request[14] for a Subchapter F proceeding (on November 28th, 2007), Subchapter F became jurisdictionally applicable to this case.

Thereafter, by virtue of the TEA’s assignment of this case unto the undersigned hearing examiner,[15] on December 12th, 2007, I acquired subject–matter jurisdiction herein.

Accordingly, my subject–matter jurisdiction in this case arises from the intersection of Texas Education Code § 21.211, § 21.253(a), and § 21.254(b).

II–C. Procedural History involving Pre–Trial Discovery Sanctions (and Due Process)

Pre–trial discovery, and related Due Process concerns, triggered a need to analyze and apply provisions of the Family and Medical Leave Act of 1993, codified at 29 U.S.C. §§ 2601 et seq., for the reasons mentioned above).

In particular, some FMLA–related discovery problems arose, as is indicated in a “Show Cause Notice”, shown by CIHE Exhibit I (which was itself preceded by an earlier informal version, issued 1–16–2008, shown by CIHE Exhibit H), in response to RISD’s motion for deemed admissions and for discovery sanctions.[16]

As the transcript in this cae shows, the evidentiary hearing was immediately preceded by a pre–trial hearing regarding RISD’s Motion for Deemed Admissions and for Sanctions. (See pages 1–27 of the Transcript.)

As a result of the noticed sanctions hearing, RISD was primarily granted with the following relief, on spoliation–of–evidence logic, regarding the 28 admission requests which respondent failed to answer (or to timely object to):

The failure of Watkins to respond to the admission requests is recognized as an evasion similar to spoliation of evidence, and therefore each such evasion was accepted as a “presumed true” fact, subject to a rebuttal of every such presumption, during trial on the merits, if respondent would and could provide any such rebuttal evidence[17] (in the form of admissible trial evidence).

This paraphrases the primary aspect of the sanctions ruling. (See Transcript pages 1–27, for a fuller elaboration of the ruling and its underlying rationale, including citation to Texas case law regarding sanctionable discovery violations.)

Due to the nature of the presumption relief, not all of the requested admissions survived their “presumed true” status, once the totality of the trial evidence was considered. For instance, a requested admission regarding supposedly threatened violence (“you physically threatened . . .”[18]), when considered in light of other trial evidence, was rebutted by other documentary evidence indicating the “threat” was a stretched interpretation of non–literal (albeit crude[19]) language.

III. FINDINGS OF FACT

1. Wanda Watkins is employed by RISD via a term contract. (RISD Exhibit P1, Admision # 14; RISD Exhibit P5).

2. Wanda Watkins was given proper notice of RISD’s employee leave policy (including RISD’s FMLA–related leave policy); — moreover, Wanda Watkins (at all times relevant to this proceeding) knew, or she reasonably could have learned (if she so desired), RISD’s leave policy terms. (RISD Exhibits P6, P12, P13, P14, P20, P22, P24; P25; etc.)

3. On July 23rd of 2007, Wanda Watkins requested FMLA leave, despite Watkins’ failure to provide 30 days notice of her desire for such leave. (RISD Exhibit P1, Admission # 7.)

4. On July 25th of 2007, Wanda Watkins did not show up for work, yet she was granted approved leave for that absence, and for specific work-days thereafter, subject to some normal employee leave conditions. (RISD Exhibit P1, Admissions # 4, # 6, & # 7.)

5. The approved leave which Watkins was granted, by RISD, beginning on July 25th of 2007, was FMLA leave. (RISD Exhibit P1, Admission # 5; RISD Exhibit P19.)

6. The approved leave which Watkins was granted, by RISD, beginning on July 25th of 2007, was specifically conditioned upon Watkins providing proper medical documentation of a “serious health condition” justifying her absence to care for her adult daughter. (RISD Exhibit P1, Admission # 8; RISD Exhibits P19 & P20.)

7. Watkins was notified via RISD correspondence (dated August 13th of 2007) that, as an employee of RISD, Watkins was required[20] to notify RISD at least 30 days prior to returning to “active duty” work or as soon as the return (to “active duty”) date was foreseeable. (RISD Exhibit P1, Admission # 16; RISD Exhibit P20.)

8. RISD correspondence (dated August 13th of 2007) from Ron Parks, RISD’s executive director of human resources, notified Watkins that Watkins was only entitled to 12 workweeks of FMLA leave time, such that Watkins’ FMLA–protected approved “leave” timeframe stretched only from July 25th of 2007 unto October 19th of 2007, — and that was further subject, however, to Watkins’ continued duty to provide monthly documentation, to show that all of the “leave” timeframe was actually needed for Watkins’ personal care of her adult daughter’s “serious health condition”. (RISD Exhibit P1, Admissions # 8, # 9, & # 10; RISD Exhibit P20.)

9. Although the FMLA–protected “leave” timeframe would stretch no further that October 19th of 2007 (as indicated in the previous fact–finding), RISD’s letter date August 13th of 2007 nevertheless notified Watkins that she somehow had a little extra time beyond that, to return to work, — specifically denoting “October 22, 2007” as Wanda Watkins’ “Latest Return to Work Date”. (RISD Exhibit P1, Admission # 12; RISD Exhibit P20.)

10. In that same RISD letter dated August 13th of 2007 (indicated in the previous two fact–findings), Watkins was notified by RISD that, as a RISD employee, if she did not return to work upon the expiration of her approved leave, Watkins would then become no longer entitled to “reinstatement” to her “same position” at RISD). (RISD Exhibit P1, Admission # 13; RISD Exhibit P20.)

11. All of Wanda Watkins’ paid leave accrued from RISD expired on October 16th of 2007. (RISD Exhibit P1, Admission # 2.)

12. All of Wanda Watkins’ FMLA–based leave (which included at least 12 work-weeks of FMLA leave), as a RISD employee, expired on October 19th of 2007. (RISD Exhibit P1, Admissions # 1, # 3, # 10, & # 11.)

13. Although Watkins’ latest approved return–to–work date was October 22nd of 2007, she did not return to work at RISD on or before October 22nd of 2007. (RISD Exhibit P1, Admissions # 12, # 17, # 19, & # 27; RISD Exhibits P24 & P29.)

14. Wanda Watkins, by virtue of failing to return to work on October 22nd of 2007, was absent from work (i.e., “AWOL”) without a valid excuse for being absent. (RISD Exhibit P1, Admissions # 12, # 17, # 19, # 20, # 21, # 27; RISD Exhibit P24.)

15. As the totality of circumstances (in this Subchapter F case’s evidentiary record) shows, Wanda Watkins’ continued failures to return to work, after October 22nd of 2007, constitutes job abandonment. (RISD Exhibit P1, Admissions # 19, # 20, # 21, & # 27.)

16. Although Watkins justifies her continued absence from active duty as necessary for the care of her 28–year–old “single mother” disabled daughter, it is not RISD’s fault that Watkins’ daughter is disabled or a single mother. (RISD Exhibits P16, P19, P24, & P32; see also RISD Exhibit P1, Admission #26.)

17. RISD has carefully complied with RISD’s obligations under FMLA laws, FMLA-related regulations, and RISD’s FMLA-implementation board policies. (RISD Exhibit P1, Admissions # 24 & # 25; RISD Exhibits P20, P22, P24, & P25.)

18. Although RISD has complied with its FMLA–based obligations, as applicable to respondent’s requests for FMLA leave, respondent herself has repeatedly failed to comply with her own obligations under applicable FMLA–based laws, regulations, and board policies, such as respondent’s obligation (as an employee) to provide timely notice of her “foreseeable” requests seeking to take FMLA leave. (RISD Exhibit P1, Admissions # 6, # 7, & # 17; RISD Exhibit P24.)

19. RISD has not, in any way, “retaliated” against Wanda Watkins for any of Wanda Watkins’ FMLA-based actions, — because the RISD’s actual, legitimate, and non-discriminatory grounds for seeking to terminate respondent’s contract are job abandonment and the interrelated problems of unexcused absenteeism and unexcused insubordination. (RISD Exhibits P19, P20, & P24.)

20. RISD has not, in any way, “retaliated” against Wanda Watkins for any of Wanda Watkins’ potentially First Amendment–protected remarks, — because the RISD’s actual, legitimate, and non-discriminatory grounds for seeking to terminate respondent’s contract are job abandonment and the interrelated problems of unexcused absenteeism and unexcused insubordination. (RISD Exhibit P21.)

21. RISD has been paying Watkins at an annual rate of $80,000 as salary — presumably to work, — so it appears to be in the best interests of RISD, and of the public it serves, to have respondent replaced, employment–wise, by someone else who can and will show up for work. (RISD Exhibit P18.)

22. Good cause exists for RISD to terminate respondent’s term contract.

23. RISD’s actions of proposing to terminate respondent’s contract, and of going forward with this Subchapter F proceeding, were not caused by a motivation to “retaliate” against her for her filing a complaint (against RISD) with the EEOC. (See respondent’s letter to the Commissioner, pursuant to Texas Education Code’s § 21.253(a), quoted below in accordance with Texas Evidence Rule 201.)

24. RISD’s actions of proposing to terminate respondent’s contract, and of going forward with this Subchapter F proceeding, were not caused by a motivation to “retaliate” against her for her filing a grievance at the district level. (See RISD Exhibit P21.)

25. RISD’s actions of proposing to terminate respondent’s contract, and of going forward with this Subchapter F proceeding, were not caused by a motivation to “retaliate” against her for her exercising any remarks (regardless of whether any such remarks be regarded as “free speech” or “free exercise” of religion, or both), on the job, about her being a “Christian woman” whose potential impulse toward violence was restrained by her having “met Jesus” and /or her “having Jesus” in her heart. (See RISD Exhibit P21.)

26. Any determination expressed, or necessarily implied, within this Recommendation, which substantively constitutes (or necessarily indicates) a fact–finding (regardless of whether it is called a “conclusion of law”, or is provided within the “procedural history” or “discussion” sections, should be substantively recognized as a “finding of fact” (even if not formally listed as such).

IV. DISCUSSION REGARDING “RETALIATION”

In the substantive “notice pleadings” of respondent, which are quoted in full below, she substantively alleges that this contract–termination proceeding appears to be a “retaliatory response” by RISD. This “retaliation” is ambiguously pled at best.[21]

If there was any such “retaliatory response”, was is a reprisal against Watkins for her seeking (or taking) family medical leave (under the FMLA)?[22] Or, was it a reprisal against Watkins for her filing a complaint with the EEOC (and, if so, on what topic of illegal discrimination?)? Or, was it a reprisal against Watkins for her filing a grievance at the district level?[23]

The trial record provides some relevant information useful for answering these questions, but the starting–place is respondent’s own words. Specifically, respondent Wanda Watkins’ written request to the Commissioner of Education (dated November 28th of 2007)[24], — which written request timely satisfied the jurisdiction–securing effect of Texas Education Code’s § 21.253(a), — says the following:

Dear Commissioner:

The purpose of my writing is that I want to appeal the termination of my employment contract with the Richardson Independent School District.

According to my most recent correspondence from the district, the superintendent has recommended that my contract be terminated because I “abandoned my job.” I did not “abandon” my job. Since the start of my Family Medical Leave, I have adhered to policy. My daughter’s physician and his staff have consistently provided all necessary information in a timely fashion. Although the district informed me of my need to return to work on October 22, 07, both the physician’s office staff and I informed them of my need to continue my daughter’s care until some time in January, 2008.

It is my belief that the district’s failure to work with me toward a resolution may be a retaliatory response to both the complaint I filed with the Equal Opportunity Commission and a grievance I filed at the district level.

I appreciate your cooperation in this matter, and I certainly apologize for any inconvenience.

Sincerely,

/S/ Wanda Watkins

Wanda Watkins

C: RISD Board of Trustees

Of course, to have a suspicion or a “belief” that an illegal “retaliation” is the reason for one’s job being proposed for termination is one thing, to prove such “retaliation” by competent evidence (i.e., trial evidence admissible according to the Texas Evidence Rules) is quite another.

At trial, respondent failed to appear. Thus, at trial respondent did not proffer any evidence of illegal “retaliation”. Specifically, RISD’s trial evidence provided an initial prove–up of “good cause” (focusing mostly on Watkins abandoning her job, exhibiting insubordination, and neglecting her lawfully assigned duties). For affirmative–defense–proving purposes, the proof burden then shifted to Watkins to prove that the proposal to terminate her contract was a “retaliatory response”, but she provided no compelling proof of any such reprisal.

Moreover, respondent’s allegation of “retaliation” is punctured by her own inconsiderate and irresponsible failures[25] to fulfill the most basic of her own FMLA obligations toward RISD, the FMLA obligation of providing proper notice. See Satterfield v. Wal–Mart Stores, Inc., 135 F.3d 973, 980 (5th Cir. 1998); Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761–762, 764 (5th Cir. 1995); Hopson v. Quitman County Hospital & Nursing Homes, Inc., 126 F.3d 635, 639–640 (5th Cir. 1997). See also 29 CFR §§ 825.302 – 825.303 (FMLA regulations defining employee’s legal duty to provide employer with timely notice), published in 60 Fed. Reg. 2181 (1–6–1995, eff. 4–6–1995), implementing 29 U.S.C. § 2612(e)(2)).

Furthermore, RISD’s trial evidence provided, at a clear and convincing level, a legitimate and non–discriminatory reason for the proposal to discharge her as a district employee. See Bethel v. City of Garland, Texas, 1997 WL 325983 (N.D. Tex. 1997); Garcia v. Fulbright & Jaworski, 1996 WL 544371 (S.D. Tex. 1996).

Accordingly, insofar as “retaliation” is an “affirmative defense”, Watkins has failed to prove it by adequate evidence.[26] See . See also, accord, Henson v. Bell Helicopter Textron, Inc., 2004 WL 238063 (N.D. Tex. 2004) (the mere existence of an improper act by an employer’s administration does not expand into a permanent “blank check” for an employee failing to do his or her job). If “retaliation” is an affirmative defense, respondent has the burden of proof to prove it, once the initial prima facie proof (of “good cause” to terminate respondent’s contract) is admitted at trial.

However, most of the same evidentiary issues involved with proving “retaliation” as an affirmative defense are nevertheless also involved with analyzing “retaliation” as a potential “inferential rebuttal” of RISD’s case in chief. Why? If “retaliation” evidence is considered as an “inferential rebuttal”, respondent Watkins has no burden of proof, because an inferential rebuttal merely operates to attack the prima facie evidence offered by RISD, with the potential to reduce RISD’s evidence to a probative level below “preponderance of the evidence”:

Inferential rebuttals are defensive theories that operate to rebut an essential element of the plaintiff's case by proving the truth of certain other facts. See Erickson v. Deayala, 627 S.W.2d 475, 478-79 (Tex.App.-Corpus Christi 1981, no writ). They are distinct from affirmative defenses in that an inferential rebuttal, as the name implies, rebuts part of the plaintiff's cause of action, while an affirmative defense relieves the defendant of liability even if all the elements of the plaintiff's cause of action are established. See Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 448 (Tex.1967); see also 1 Texas Torts and Remedies: Principles of Liability § 2.12[1] (Matthew Bender & Co., July 1998 & Supp. Feb. 2000).

Quoting from Buls v. Fuselier, 55 S.W.3d 204, 211 (Tex. App. – Texarkana 2001, no writ) (differentiating between “affirmative defenses” and “inferential rebuttals”). See also, accord, American Jet, Inc. v. Leyendecker, 683 S.W.2d 121, 126 (Tex. App. – San Antonio 1984, no writ), following Scott v. Atchison, Topeka, & Santa Fe Railway Co., 572 S.W.2d 273, 279 fn. 7 (Tex. 1978); Montes v. Pendergrass, 61 S.W.2d 505, 508 (Tex. App. - San Antonio 2001, no writ); Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857, 859 (1939).

In other words, merely because respondent failed to appear at the evidentiary hearing, despite an over–abundance of notice[27] of her opportunity to appear, is not an ipso facto “slam–dunk” against the potential relevance of her “retaliatory response” allegation. Accordingly, I have carefully considered all of the admissible evidence at trial, — and I have weighed it all for relevance, credibility, and reliability, — and I have consciously considered the possibility that the “good cause” evidence proffered by RISD may “fit” an inferential–rebuttal–explanation of “retaliation”.

In particular, I have seriously considered the possibility that RISD administrators held a discriminatory (and/or retaliatory) animus against respondent Watkins, due to the grievance and its underlying controversy — which is illustrated by RISD Exhibit P21.

The controversial manner in which one job-place conversation was reacted to, if considered in a light favorable to respondent, might “open the door” (evidentiarily speaking) to wondering if some religious hostility somehow played a part in putting respondent Watkins onto the RISD administration’s “radar”. (See RISD Exhibit P21.)

Even so, even if,[28] arguendo, respondent Watkins was subjected to subsequent unfairness, and/or ongoing hostility, for her crude form of “witnessing” for Jesus, it is overwhelmingly clear to me, from the record in this case, that respondent’s job abandonment is the sole and authentic reason why RISD has proposed respondent’s contract be terminated. RISD’s reason for “firing” respondent is not a pretext, because it is really respondent’s job abandonment . See, accord, Henson v. Bell Helicopter Textron, Inc., 2004 WL 238063 (N.D. Tex. 2004) (the mere existence of an improper act by an employer’s administration does not expand into a permanent “blank check” or “free pass” for an employee to continually fail to perform his or her job).

Having done so, I have determined[29] (upon a preponderance of the evidence, as with all of my fact–findings in this case) that a “retaliation” explanation for the series of related transactions and occurrences is not a credible “fit” for the facts which were proved at trial. See, accord, Collins v. Merck–Medco RX Services, of Texas, L.L.C., 2001 WL 1142794 (N.D. Tex. 2001) (“When [the employee] failed to return to work for four weeks after her FMLA leave was denied, she was terminated pursuant to [the employer]’s attendance policy. . . . Since [the employee] was not qualified to take leave, [the employer]’s decision to terminate her [employment] does not violate the FMLA”).

In fact, I am rather moreso persuaded, by the evidence at trial (by both the highly credible testimony by RISD’s expert witness, Deputy Superintendent Patti Kieker, and by the many trial exhibits admitted, including the unanswered admission requests almost all of which I have relied upon as true[30]), that the more likely scenario is that respondent has been improperly misusing RISD’s employee leave program. See, accord, Wesley v. One Price Clothing Stores, Inc., 2003 WL 21955861 (N.D. Tex. 2003) (the good faith belief of an employer, that a FMLA–benefited employee is misusing the employer’s FMLA leave benefits program may be legal grounds for an adverse employment action, saying: “It cannot be the case that [the employee] was immunized from any and all adverse employment actions merely because he had taken FMLA leave”), citing 29 CFR § 825.216(a). See also, accord, Medley v. Polk Co., 260 F.3d 1202, 1207 (10th Cir. 2001) (saying: “an employer who discharges an employee honestly believing that the employee has abandoned her job and is otherwise not using FMLA leave [legally], . . . would not be in violation of FLMA, even if its conclusion is mistaken, since this would not be a discriminatory firing”); Kariotis v. Navistar Internat’l Transp. Corp., 131 F.3d 672, 680–681, esp. 681 (7th Cir. 1997) , cited in Wesley v. One Price Clothing Stores, Inc., 2003 WL 21955861 (N.D. Tex. 2003).

Obviously, an employer’s legal reaction to address employees’ misuse of an employer’s FMLA program is neither an illegal “retaliation” nor a form of illegal “discrimination”. See, e.g., Horelica v. Fiserv Solutions, Inc., 123 S.W.3d 492, 496 (Tex. App. – San Antonio 2003, no writ), citing 29 U.S.C. § 2612(e)(2)(B) and 29 CFR § 825.302(a).

In this case, I have determined, the trial evidence overwhelmingly showed that respondent misused RISD’s FMLA program, by her repeatedly failing to provide timely notice of her foreseeable absences, whether such foreseeable absences could be potentially approved as FMLA leave, or not. Repeated failures, to promptly call in foreseeable absences, are acts, in themselves, which buttress an ultimate fact–finding of “job abandonment”. (And as noted elsewhere herein, the overall problems of a job abandonment are intertwined with the related problems of unexcused insubordination, unexcused absenteeism, and unexcused neglect of assigned duties.[31])

Furthermore, under the totality of circumstances, RISD’s expert witness (Deputy Superintendent Patti Kieker), having considered the “big–picture” of how RISD is affected by respondent’s “AWOL” neglect–of–assigned–duties deficiencies, is of the opinion that there is “good cause” for terminating respondent’s employment contract. (Transcript pages 39–40.) In particular, I have relied on the following testimony of Patti Kieker:

Q . . . Ms. Watkins was recommended for termination for job abandonment. Did she abandon her job?

A Yes.

Q Did you give her notice and an opportunity to return to work?

A Yes.

Q Did you give her an opportunity to explain to the board why she should not be recommended for termination?

A Yes.

Q Was she treated the same as other employees who failed to return to work?

A Yes.

Q Was the decision to recommend her termination in any way based upon the fact that she chose to take leave?

A No.

Q And do you believe it is in the best interest of the district to terminate Ms. Watkins for job abandonment?

A Yes.

Q Okay. . . . And finally, do you believe it is good cause to terminate Ms. Watkins based upon the facts in this case?

A Yes.

ATTORNEY EICHELBAUM: I pass the witness at this time [i.e., 10:15 a.m.].

(Quoting from Transcript pages 40–41.) Concurring with Deputy Superintendent Kieker, I find good cause for terminating respondent’s employment contract with RISD.

V. CONCLUSIONS OF LAW

1. Pursuant to Subchapter F, and in fulfillment of Due Process standards, — as such are more fully described in the Procedural History section of this Recommendation, — I have subject–matter jurisdiction over the trial-level portion of this quasi–judicial proceeding.

2. Respondent Wanda Watkins has been provided with at least minimal Due Process in this Subchapter F proceeding. (CIHE Exhibits A, B, C, D, E, F, H, I, & J).

3. As the careful analysis[32] of this Recommendation demonstrates, respondent Watkins has been provided with at least minimal Due Process in the overall quasi–adjudication of her case, notwithstanding her own lack of appearing for her own evidentiary hearing.

4. Respondent Watkins is employed by RISD pursuant to a “term contract”, as that type of employment is defined by Subchapter E of Chapter 21 of the Texas Education Code.

5. Respondent Watkins has failed to comply with her own FMLA obligations, particularly the obligation to provide timely notice of a FMLA–qualifying “serious health condition” to potentially justify a FMLA–based excused absence (or other further accommodation).

6. Respondent Watkins has exhausted her FMLA rights as an employee of RISD.

7. Respondent Watkins was granted at least all of the proper relief legally due to her under FMLA, during the timeframe covered by her term contract and by applicable FMLA law.

8. Respondent Watkins is not entitled to reinstatement as an employee of RISD, in her same position, or in a similar position, or otherwise.

9. As a matter of proximate causation, RISD’s actions of proposing to terminate respondent’s contract, and of going forward with this Subchapter F proceeding, were not caused by a motivation to “retaliate” against her for her seeking (or receiving) employee “leave” relief under FMLA.

10. As a matter of proximate causation, RISD’s actions of proposing to terminate respondent’s contract, and of going forward with this Subchapter F proceeding, were not caused by a motivation to “retaliate” against her for her filing a complaint with the EEOC.

11. As a matter of proximate causation, RISD’s actions of proposing to terminate respondent’s contract, and of going forward with this Subchapter F proceeding, were not caused by a motivation to “retaliate” against her for her filing a grievance at the district level.

12. As a matter of proximate causation, RISD’s actions of proposing to terminate respondent’s contract, and of going forward with this Subchapter F proceeding, were not caused by a motivation to “retaliate” against her for her exercising First Amendment–protected “free speech” remarks, on the job, about her being a “Christian woman” whose potential impulse toward violence was restrained by her “having Jesus” (in her heart).

13. As a matter of proximate causation, RISD’s actions of proposing to terminate respondent’s contract, and of going forward with this Subchapter F proceeding, were not caused by a motivation to “retaliate” against her for her exercising First Amendment–protected “free exercise” remarks, on the job, about her being a “Christian woman” whose potential impulse toward violence was restrained by her “having Jesus” (in her heart)..

14. Any determination expressed, or necessarily implied, within this Recommendation, which substantively constitutes a legal conclusion (regardless of whether it is called a “finding of fact”, or is provided within the “procedural history” or “discussion” sections, should be substantively recognized as a “conclusion of law” (even if not formally listed as such).

15. Respondent has committed job abandonment.

16. RISD has not discriminated against respondent Watkins in retaliation for her usage of her FMLA rights.

17. RISD has not discriminated against respondent Watkins in retaliation for her attempts to use FMLA, because RISD’s actions in opposing Watkins’ efforts to take leave beyond that required by FMLA was not motivated aby a “retaliatory response” motive.

18. RISD has not discriminated against respondent Watkins in retaliation for her usage of the RISD grievance process.

19. RISD has not discriminated against respondent Watkins in retaliation for her exercise of free speech.

20. RISD has not discriminated against respondent Watkins in retaliation for her free exercise of religion.

21. There is “good cause”, as that term is used in § 21.211 of the Texas Education Code, to terminate the employment contract of respondent Wanda Watkins.

22. The original Transcript volume (of this case) is incorrectly captioned “Mediation”, though it is correctly dated as occurring on January 23rd of 2008, at 400 South Greenville Avenue, Richardson, Texas. However, the noticed proceeding which occurred, then and there, was actually a pre–trial discovery / sanctions hearing (see Transcript pages 1–27), — immediately followed by this case’s evidentiary hearing on the merits, pursuant the Texas Education Code’s § 21.255 (see Transcript pages 27–46).

VI. § 21.257 TIMELINE COMPLIANCE

This Recommendation is timely, because it is being issued today (February 1st of 2008), which is 60 days after the date (December 3rd of 2007) when the Commissioner of Education received respondent Watkins’ written request under Texas Education Code § 21.253(a).

VII. CONCLUSION & RECOMMENDATION

Therefore, in my official capacity as the presiding Certified Independent Hearing Examiner, assigned to this case pursuant to § 21.254 of the Texas Education Code, I hereby conclude that there is “good cause” to terminate respondent’s employment contract with RISD, based upon the foregoing fact–findings and legal conclusions.

Accordingly, I hereby RECOMMEND, that:

1) the foregoing proposed Findings of Fact be adopted;

2) the foregoing proposed Conclusions of Law be adopted; and

3) that Wanda Watkins’ term contract be TERMINATED for good cause shown.

ISSUED as AMENDED this 1st day of February, A.D. 2008.

________________________________________

Certified Independent Hearing Examiner

Copies, via U.S. mail:

Ms. Wanda Watkins

P.O. Box 550,554

Dallas, Texas 75355

Dennis J. Eichelbaum, Esq.

SCHWARTZ & EICHELBAUM, P.C.

7400 Gaylord Parkway, Suite # 200

Frisco, TX 75034

Mr. Luke Davis,

R.I.S.D. Board President

RICHARDSON I.S.D. (original transcript & exhibits already mailed)

400 S. Greenville Avenue

Richardson, Texas 75081

Mia M. Martin, Esq.

R.I.S.D. General Counsel

RICHARDSON I.S.D.

400 So. Greenville Avenue

Richardson, Texas 75081

-----------------------

[1] The phrase “absent without leave” was used by Deputy Superintendent Patti Kieker in a letter to respondent Wanda Watkins, dated October 30th, 2007 (RISD Exhibit # P25).

[2] Richardson I.S.D. is also called “petitioner” and/or “RISD” herein.

[3] Wanda Watkins is also called “Watkins” and/or “respondent” herein.

[4] This Act of Congress, herein “FMLA”, is codified at 29 U.S.C. §§ 2601 et seq.

[5] See, e.g., CIHE Exhibits A, B, C, F (at its page 4), G, H, I, & J.

[6] See Transcript pages 1–27 (sanctions hearing) & pages 27–46 (evidentiary hearing).

[7] See 29 U.S.C. § 2654, cited in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155 (2002), affirming 218 F.3d 933 (8th Cir. 2000).

[8] See, e.g., RISD Board Policy DEC (Legal), page 5 of 16, “Methods for Determining Entitlement Period [for FMLA]”, citing 29 C.F.R. § 825.200(b)(1)–(4); DEC (Legal), pages 5–6 of 16, “Serious Health Condition”, citing 29 C.F.R. § 114(a); DEC (Legal), pages 6–7 of 16, “Health Care Provider”, citing 29 C.F.R. § 118; DEC (Legal), page 7 of 16, “Failure to Return from Leave”, citing 29 C.F.R. § 825.213(a), (f); DEC (Legal), page 7 of 16, “Discrimination Prohibited”, citing 29 C.F.R. § 825.220; DEC (Legal), pages 8–9 of 16, “End–of–Term Leave”, citing 29 C.F.R. § 825.600(c), § 825.602, § 825.603(b); etc.

[9] Also considered below, in a discussion section, is the logical possibility of “retaliation” as a species of “inferential rebuttal” — which analyzes the same evidence (or lack thereof) as it applies to defending against RISD’s prove–up of its prima facie case of “good cause”, apart from the proof–burden–shifting rules applicable to affirmative defenses.

[10] See Texas Education Code § 21.257, indicating the statutory rocket–docket timeframe of 60 days, which, in this case, means February 1st (today) as the applicable § 21.257 deadline.

[11] See RISD Exhibit # P5.

[12] If it did (which it does not), this Certified Independent Hearing Examiner’s assignment would be, largely, a procedural “rubber–stamp” assignment, rather than a true Due Process– satisfying quasi–adjudication of this case’s evidentiary merits.

[13] Consider Moses v. Edwards, 2003 WL 21882047 (N.D. Tex. 2003) (school case).

[14] See Texas Education Code § 21.253(a) (defining a 15–day deadline).

[15] See Texas Education Code § 21.254(b).

[16] RISD’s “Motion to Deem Admissions and for Discovery Sanction against Wanda Watkins” was filed (and properly served) on January 11th of 2008.

[17] Technically speaking, any such rebuttal evidence need not be proffered by Watkins; if any of RISD’s trial evidence persuasively rebutted any of the 28 admissions–request allegations, the “presumed true” character of that/those rebutted allegation(s) could be thereby undone.

[18] Specifically, I do not accept as fact the 28th requested admission in RISD Exhibit P1.

[19] See RISD Exhibit P21, perhaps revealing why respondent has claimed “retaliation”.

[20] See 29 U.S.C. § 2612(e)(2)(B) (statutory source of the 30–day notice rule).

[21] Whatever kind of “retaliation” was meant by Watkins, it is her proof burden to prove it as an affirmative defense. However, “retaliation” may indicated an “inferential rebuttal” which defends against RISD’s proving RISD’s prima facie case of “good cause”. Accordingly, it is imprudent to summarily “sweep away” Watkins’ allegation of “retaliation” as if it were solely an affirmative defense. Accordingly, I have also considered the admitted evidence to see if the trial evidence is better explained as a case of administrative “retaliation” or as an administrative reaction to a clear–cut case of job abandonment.

[22] See Owalt v. Sara Lee Corp., 889 F.Supp. 253, 259 (N.D. Miss. 1995) (applying 29 U.S.C. § 2615(a)(1) to reprisal contexts involving terminations of employment contracts), affirmed in 74 F.3d 91 (5th Cir. 1996).

[23] Regarding reprisals for exercising First Amendment–protected “free speech” rights, see Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir. 2000).

[24] Literally, the letter is dated “November 28, 2007b” (but I presume it means “2007”).

[25] See RISD Exhibits P1, Admission # 7; RISD Exhibit P24.

[26] Of course, at all points in this proceeding, RISD begins and remains as the only party with the ultimate burden of proof, pursuant to Texas Education Code § 21.256(h).

[27] See, accord, CIHE Exhibits A through I; Transcript pages 1–15.

[28] The “if” here is a hypothetical “if”, and a big “if” at that.

[29] This determination, like all other fact–findings herein, has been consciously made on the preponderance of the evidence, in light of Texas Education Code § 21.256(e) & (h).

[30] The pre–trial portion of the Transcript, which deals with the unanswered admission requests (and the related issue of discovery sanctions for respondent failing to appear for an oral deposition, despite her being served with a proper Notice therefor), indicates how the logic of a “spoliation of evidence” problem provides a useful (and lesser–than–“death–penalty”–sanctions) approach for how to treat the unanswered admission requests. As above–listed fact–findings in this Recommendation indicate, I have ultimately accepted as true virtually all of the admissions which RISD requested of respondent, with the notable exception of admission request # 28.

[31] The relatedness of unexcused absenteeism and unexcused insubordination is not “new” to the world of public school law. See, accord, James J. S. Johnson & Robert C. Prather, Sr., How Texas is Addressing Administrative Law Issues in School Law Contexts (National Business Institute, 2003), page 77 & 77 fn. 53. For educational enterprises to successfully function, as with any team enterprise, “we cannot work alone” (to quote from Dr. Bill Cooper) — obviously teamwork presupposes a team, co–laborers committed to serve team’s goals.

[32] The analysis underlying this Recommendation includes due consideration of relevant statues (state and federal), FLMA–related regulations, as well as case law interpreting same.

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