KBS Reference Desk: Termination of Probationary Contract While On Leave

Q:       I have a teacher on a probationary contract (new to the District) who has struggled with classroom management this year. After Spring Break, I put her on notice that I was holding her contract and would not be recommending renewal to the Board. She has since gone on Family Medical Leave and will be out through the last day of instruction. Can the Board still terminate her probationary contract even though she is out on leave?

 A:        Yes. Even though the employee is currently on medical leave, the Board can act to terminate the probationary contract at the end of the year, assuming documented performance reasons exist for termination, separate from her use of leave.

Chapter 21 of the Texas Education Code provides that a teacher’s probationary contract may be terminated at the end of the school year if it is in the “best interest of the District.” The decision of the board is final and may not be appealed.  Tex. Educ. Code §21.103. Districts often make the mistake of not properly documenting performance concerns of their probationary teachers due to the relatively low “best interest” standard and in reliance on the Education Code’s prohibition to appeal. However, this statutory bar pertains to the Commissioner’s jurisdiction under Chapter 21 only and does not prohibit a terminated teacher from claiming violation of anti-discrimination laws in federal or state district court. The scenario above is a good example of why performance documentation is critical for all employees – term, probationary and at-will.

When analyzing the Family Medical Leave Act, courts are clear that adverse action (such as termination) is permissible so long as the basis for the termination is unrelated to the leave.  As such, while common concerns, such as poor classroom management skills or weak instruction, easily meet the “best interests” standard for termination of a probationary contract at the end of the term, documentation of those “legitimate performance concerns” will be required to overcome an FMLA discrimination/retaliation claim. Ultimately, the District needs to be able to show that it would have taken the same action to terminate the teacher’s contract even if the employee had never availed herself of Family Medical Leave. Here, documentation of poor performance existing prior to the initiation of leave, such as walk-through scripting, observation summaries, parent complaints and/or formal memos should be sufficient to withstand an FMLA retaliation claim.

Ultimately, we advise calling your school district’s attorney prior to taking any adverse action against an employee who is out on leave, as the analysis is generally fact intensive and could differ based upon the type of leave or particular circumstances.

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