Fair, Equitable, Trauma-Informed Investigation Training White Paper Available
Many colleges and universities have recognized that the quality of their sexual assault and intimate partner violence (“IPV”) investigations can be enhanced if they take into account the potential neurobiological effects of trauma. Institutions have sought and received training for their investigators and adjudicators on these issues, consistent with promising practices, general training requirements imposed by the 2013 Violence Against Women Reauthorization Act Amendments to the Clery Act, and certain state laws. Recent court decisions, a 2017 OCR Q&A document regarding Title IX, proposed regulations posted in November, 2018, and media commentary have all emphasized, however, that the content of training will be analyzed closely, and that training for investigators and adjudicators, including trauma-informed training, should be presented in a manner that is fully balanced, does not rely on sex stereotypes, and promotes fairness and equity for both complainants and respondents.
A white paper on these topics, written by Dinse Education Practice Group Chair Jeff Nolan for the University of Vermont’s 2018 Legal Issues in Higher Education Conference and updated in December, 2018 to reflect recent developments, is available here. This white paper summarizes the state of the law and some of the public and scholarly discourse on these issues, and offers suggestions for college and university administrators and counsel who are designing and/or selecting investigation training programs.
Audio of discussion regarding OCR Proposed Title IX Regulations Available for Download
On November 16, 2018, the U.S. Department of Education Office for Civil Rights’ (“OCR”) posted on its web site proposed Title IX regulations. The proposed regulations are available here: https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf. The proposed regulations, if adopted as proposed, would include many potential changes in how OCR will enforce Title IX, including changes to the definition of sexual harassment, the scope of institutional obligations to address sexual harassment, how institutions should respond to sexual harassment, and dramatically different procedural requirements for Title IX-related investigations and adjudications.
On November 19, 2018, Jeffrey J. Nolan, Chair of Dinse’s Education Practice Group, presented a webinar regarding the proposed regulations. The discussion included:
- A brief summary of the major differences between OCR’s currently-applicable guidance and regulatory approach and the approach outlined in the proposed regulations;Significant differences between the proposed regulations and the draft regulations that were “leaked” in August, 2018;
- Very significant substantive and procedural changes that colleges and universities would have to consider and/or make if the regulations are finalized in the form proposed;
- Preliminary thoughts on how colleges and universities could effectively navigate the new proposed regulatory landscape; and
- Next steps in the regulatory notice and comment process (and how members of the public and colleges and universities can participate in that process).
A recording of that webinar is available here: Part 1; Part 2; Part 3. A .pdf of the PowerPoint referred to during the webinar is available here.
Please contact Jeff Nolan at firstname.lastname@example.org if you have any follow-up questions. Thank you.
Audio of discussion regarding draft of OCR Notice of Proposed Rulemaking available for download
On September 14, 2018, the National Association of College and University Attorneys (“NACUA”) posted a draft copy of the U.S. Department of Education Office for Civil Rights’ (“OCR”) Notice of Proposed Rulemaking on Title IX of the Education Amendments of 1972. The draft Notice outlines many potential changes in how OCR will enforce Title IX, including changes to the definition of sexual harassment, the scope of institutional obligations to address sexual harassment, and how institutions should respond to sexual harassment. The draft Notice is available here: https://www.nacua.org/docs/default-source/new-cases-and-developments/2018/draft-title-ix-regulations-september-2018.pdf?sfvrsn=118374be_2. In posting the document, NACUA emphasized that: “The draft Notice is currently undergoing review in the Office of Management and Budget. This is not a final copy of the Proposed Rules, but we wanted to make the draft available to members in light of the significance of the forthcoming regulations and the expected release of the draft in various news outlets.”
On September 17, 2018, Jeffrey J. Nolan, Chair of Dinse’s Education Practice Group, presented a webinar regarding the language and implications of the draft Notice. An audio recording of that webinar is available here: Part 1; Part 2.
Please contact Jeff Nolan at email@example.com if you have any follow-up questions. Thank you.
Recent events lead us to ask: Have you developed a TAM process yet?
Jeff Nolan, Editor
Dinse, Knapp & McAndrew, P.C., Burlington
by Jeff Nolan, with contributions from Marisa Randazzo, PhD, and Gene Deisinger, PhD
Hardly a week goes by without another incident of targeted violence at a workplace, public venue, or school in the United States. Some have occurred in other parts of the country: Aurora, Colorado; Las Vegas, Nevada; Orlando, and Parkland, Florida; San Bernardino, California; and Sandy Hook, Connecticut. Some have occurred closer to home: In 2006, according to news reports, a Vermont man killed his ex-girlfriend’s mother at her home the day after the ex-girlfriend ended their abusive relationship, and then he went to the school where the ex-girlfriend worked as a teacher. He didn’t find her there, but he shot and killed a woman who was her friend and fellow teacher, and shot and wounded two other school employees before attempting suicide.
Of course, Vermonters’ attention is currently focused on the case of a young Vermont man who recently told police of his detailed plans to commit an attack on his former high school in Fair Haven. Fortunately, an acquaintance alerted police to the man’s plans, potentially averting a horrible tragedy. In response, the Vermont Legislature and Governor Phil Scott have worked together to pass unprecedented gun control and other protective legislation. In related news, the 19th anniversary of the attack at Columbine High School was observed in April, and students in Vermont and around the country continue to advocate for legislative reform.
Guns are obviously a common feature in each of these incidents or near incidents, but another common feature tends to get considerably less media coverage: Most of the shootings were preceded by a period in which the shooter carefully planned the attack and acquired weapons. Because we know that, we should be doing everything we can reasonably do to identify potential threats and intervene to prevent violence at the earliest possible stage. A process called threat assessment and management (TAM) is designed to do exactly that.
A little background
In an article published in the September 2011 issue of Vermont Employment Law Letter, I offered some suggestions to help employers perform an initial audit of their violence prevention efforts, introduced the concept of implementing TAM practices in the workplace, and set the stage for more detailed coverage of these issues in future articles (see “Smart, careful planning can reduce the threat of workplace violence” on pg. 1 of that issue).
In another article, I wrote about the October 2011 publication of an American National Standard on Workplace Violence Prevention and Intervention (WVPI Standard) by ASIS International and SHRM. That article summarized the WVPI Standard’s suggestions on developing a strong workplace violence prevention program, including a workplace TAM team (see “A New Year’s resolution worth keeping: workplace violence prevention” on pg. 1 of our December 2011 issue). This article assumes the reader’s familiarity with those previous articles.
As we have outlined in previous articles, you should initially (1) identify the members of your TAM team, (2) give it a name that works for your organization, (3) plan how you will let employees know the team exists, and (4) determine how you will train employees to report behavior or comments that suggest someone poses a risk to himself or others to a member of the team ASAP, without fear of retaliation. In conjunction with those steps, you will need to plan, in general terms, how the TAM team will respond to reports it receives.
Again, research has shown that perpetrators of serious targeted violence don’t just “snap.” Certainly, impulsive affective violence sometimes does occur in heated situations, but research and analysis have shown that targeted attacks more commonly involve advance planning by the perpetrator. Most attackers consider, plan, and prepare before engaging in violent behavior. That was true of the attacks in Aurora, Las Vegas, Orlando, Parkland, San Bernardino, and Sandy Hook. Similarly, a police affidavit supporting charges filed in connection with the Fair Haven case contains chilling details about the suspect’s meticulous planning of how he would finance his purchase of weapons and ammunition, murder the school resource police officer, carry out the attack, and then commit suicide. Suicide is also a common thread in targeted attacks: Research has shown that most perpetrators are suicidal, or at a point of desperation, before the attacks.
The research has implications for employers’ prevention efforts: Because information about a person’s ideas and plans to cause harm can be observed or discovered in advance, incidents of workplace violence can be prevented in some cases. The problem is, the available information is likely to be scattered, and “leakage” of clues may occur by various means. For example, employees of concern may talk with coworkers about their grievances, suggest that violence is a reasonable response to their circumstances, and even inform others of their acquisition of weapons and other planning steps. Therefore, your TAM team needs to act quickly after receiving an initial report from a concerned employee, determine if someone else has a piece of the puzzle, and then assemble the information to see what picture emerges. The TAM process helps structure the way in which the team does that work.
This article focuses generally on steps recommended by two sources: Dr. Marisa Randazzo and Dr. Gene Deisinger, and the ASIS/SHRM WVPI Standard. Randazzo and Deisinger outline their steps in their “Handbook for Campus Threat Assessment & Management Teams” (referred to throughout this article as the “TAM Handbook” and available at http://sigmatma.com/about/ourbooks/). Significantly, the TAM Handbook was recommended as a resource in “A Risk Analysis Standard for Natural and Man-Made Hazards to Higher Education Institutions,” published by the ASME Innovative Technologies Institute, LLC, and approved by the American National Standards Institute in 2010. While the TAM Handbook was written primarily for a higher education audience, its concepts are easily transferable to noneducational workplaces, particularly because it was intended to be used to assess potential threats posed by employees as well as students.
First things first: Is the situation an emergency?
The TAM Handbook and the WVPI Standard are consistent in recommending that a TAM team’s or management employee’s first duty after receiving information about suspicious behavior is to decide quickly whether there’s an imminent threat or emergency. Because of the urgency involved, that determination will have to be made based on readily available information, such as the initial report and any background information members of the team or other sources close to the situation have. If the situation is deemed an emergency, then law enforcement needs to be contacted and crisis management/physical safety measures must be implemented immediately.
The TAM team will eventually need to conduct a full threat assessment inquiry and take appropriate measures if the potential perpetrator is released from custody, but in an emergency or imminent threat situation, the team’s primary course of action is to notify law enforcement to ensure the situation is contained. Once the immediate risk is contained, the team can proceed with the more advanced threat assessment steps outlined below, tailored to the circumstances.
In anticipation of the potential need to involve law enforcement, you should develop or enhance your relationship with local law enforcement agencies. Let those agencies know that you are adopting a TAM process, and work with them to identify ways in which you can best interact in emergent and nonemergent (but concerning) situations. It’s important to do this as soon as possible, and not wait until a troubling situation has already arisen, because advance planning and relationship building can create trust and save valuable time when it may count most.
Second step: Perform initial data gathering and risk screening
If the TAM team determines there’s no emergency or imminent threat, it should move on to initial data gathering and risk screening. Those tasks should also be performed when the person of concern has been removed from the workplace by law enforcement through a criminal law or involuntary hospitalization process if it appears that he will be released from custody in the near future. The WVPI Standard distinguishes this step by the TAM team from “a more elaborate process performed by specifically qualified [threat assessment] personnel.” The purpose of the data gathering and risk screening is to “assist the [TAM team] in determining the general urgency of a situation and appropriate initial actions to take.”
The TAM team should seek out information from all available resources and people who may be familiar with the person of concern. This information-seeking process is crucial and distinguishes the TAM team’s work from less active HR-related workplace functions. According to the WVPI Standard, sources of initial information can include:
- Employees who reported the concerning behavior or are potential targets of the behavior;
- Current and former supervisors of an employee who is the person of concern, the HR professional most closely associated with the employee, the employee’s personnel file, and his workplace computer, e-mail account, and other electronic communications and Internet usage history (Hopefully, you have a clear policy informing employees that they have no expectation of privacy in their workplace computer activity.); • All communications by the employee that have generated concern;
- All communications received from a third party who is the person of concern as well as a criminal background check, if possible (which can be performed on anyone in Vermont through the Vermont Criminal Information Center); and
- Publicly available information about the person of concern, such as information found on Google, Facebook, and YouTube.
The TAM team’s review and analysis of social media activity has become even more crucial and potentially fruitful since the WVPI Standard was published in 2011 because the use of social media has obviously increased rapidly in the intervening period. The TAM team should work with your IT professionals ahead of time to understand how to best navigate likely sites of interest, so they can move quickly and efficiently if a threat assessment becomes necessary.
The WVPI Standard cautions that “a formal violence risk assessment shall be conducted solely by specifically qualified and credentialed personnel or outside consultants.” However, when doing the initial data gathering, a TAM team could perform its preliminary triage work and gain some insight into whether an increased risk of violence may be present by focusing on certain key questions, including:
- What appears to be motivating the person to make the concerning statements or take the concerning actions?
- What has the person communicated about her intentions? • What interest, if any, has the person shown in violence or its justification, violent perpetrators, weapons, or extremist groups?
- Has the person engaged in planning and preparation for violence, such as approaching a target or site, breaching security, or monitoring, harassing, or stalking a target?
- Does the person have a known or suspected history of a mental illness or substance abuse? Has the person exhibited symptoms of paranoia, delusions, hallucinations, extreme agitation, despondency, or suicidal tendencies (especially with any violent content)? Has he ever acted on those beliefs?
- Is there any evidence of serious oppositional or counterproductive attitudes or behavior in the workplace (e.g., unjustified blaming of others, a strong sense of entitlement, defensiveness, or intolerance of others’ rights)?
- How does the person manifest her anger, and how focused is that anger on individuals in the workplace?
- Has the person experienced (or is he likely to soon experience) any serious personal or financial stressors (e.g., loss of his job or status, divorce, a custody dispute, or a death in the family)? Does he show poor coping skills in reaction to those stressors?
- What is the person’s known history of serious interpersonal conflict, violence, or other criminal conduct in domestic or other settings?
- Is there evidence of any organizational, supervisory, or workplace problems that have contributed to or provoked the behavior/statements of concern, and how do those problems influence the individual’s perception of her circumstances?
The WVPI Standard also includes key questions aimed at disclosing factors that may lower or mitigate the risk of violence, such as:
- Does the person of concern have valued family or other positive personal attachments?
- Has the person expressed genuine remorse for making threats or engaging in the concerning behavior?
- Has the person responded positively to defusing or limit-setting efforts by others?
- Has the person engaged in appropriate problem solving or sought professional treatment or legal recourse as a way to manage a stressful situation?
- What services have been offered to the individual and accessed positively?
The WVPI Standard recognizes that answers to many of these questions may not be available initially or at all, so they should serve as suggested areas of inquiry when practical rather than a “punch list” that must be completed exhaustively in every case. The standard also cautions that the TAM team should consult with legal counsel during the information-gathering process to ensure compliance with applicable laws (and, I will add, employer policies).
Third step: Evaluate information from the initial risk screening
The WVPI Standard states that after the TAM team gathers the initial information, it should evaluate the information from a lay perspective. Questions asked at this point should include:
- Is the concern about potential violence unwarranted, meaning the individual’s behavior can be handled within normal HR, disciplinary, or employee relations protocols rather than through a TAM process?
- Is some concern about violence warranted, but not significant or urgent, so that the TAM team can continue with additional fact gathering and its incident management processes?
- Is the concern about violence high enough that consulting law enforcement personnel or a violence risk assessment professional warranted?
If the team concludes that the situation falls within categories (2) or (3), it should retain a connection to the case and initiate case/threat management efforts.
Fourth step: Begin formal threat assessment/threat management process
Very high-functioning TAM teams with access to in-house expertise in professional threat assessment may view the assessment and management activities as separate, but few Vermont employers will have that capacity. For the majority of employers, it’s fair to say that if an in-house TAM team determines that a situation falls somewhere between categories (2) and (3), the employer should engage a qualified threat assessment professional and legal counsel to guide its threat management efforts.
The WVPI Standard suggests that “immediate or early consultation with a qualified violence risk assessment professional is particularly advised when the [TAM team] feels uncertain in its ability to accurately evaluate risk even in a general or gross fashion.” The threat assessment professional will determine whether a formal threat assessment process is warranted, and the TAM team will work with the professional and legal counsel to gather information as necessary and appropriate.
In terms of threat management, the WVPI Standard suggests that in addition to retaining a threat assessment professional and legal counsel, the TAM team can:
- Continue or expand its information collection efforts.
- Assess the need for additional physical security.
- Initiate coordination with local law enforcement.
- Work with HR to implement employment actions such as discipline, suspension, termination, referral to an employee assistance program (EAP), or administrative leave (while recognizing that termination alone doesn’t guarantee safety and may actually increase the risk of violence).
- When the person of concern is an employee who appears to be suffering from a mental illness, consult with legal counsel to determine the organization’s obligations and rights under the Americans with Disabilities Act (ADA)—an issue that will be discussed in a later article.
- When the person of concern is a third party, consider professional surveillance efforts, within legal parameters.
- Work with counsel to initiate appropriate legal action (such as a restraining order, protective order, or no-trespass notice) if, after careful evaluation and consultation with a threat assessment professional, it is determined that such action will actually enhance, rather than diminish, the overall threat management efforts. If not well conceived, legal action can precipitate rather than minimize threatening behavior.
The TAM Handbook similarly states that in the threat management phase, the TAM team should develop, implement, monitor, and document a plan to intervene and reduce the threat. The plan should be customized to address the person of concern and the situation with the best resources available or accessible to the team and the organization. The goal of a threat management plan is to help shift the person of concern away from thoughts and plans for violence/suicide and get him help with addressing his problems.
Randazzo and Deisinger note that threat management plans can include any of the following options, as well as others dictated by the situation and resources:
- Monitor the situation for further developments.
- Engage with the person of concern to deescalate the situation.
- Involve an ally or trusted friend to monitor the person of concern.
- Notify the person’s family.
- Seek help from law enforcement.
- Undertake disciplinary review and action.
- Implement a behavioral contract.
- Suggest voluntary referral for mental health evaluation and/or treatment.
- Mandate a psychological assessment.
- Require involuntary hospitalization for evaluation and/or treatment. (This is difficult to obtain in Vermont, but legal counsel and/or law enforcement can be consulted on the issue.)
- Initiate leave or separation from employment (voluntary or involuntary).
- Modify the environment to mitigate the impact of contributory factors.
- Collaborate with the identified target/victim to decrease her vulnerability.
- Monitor and prepare for the impact of likely precipitating events.
The TAM Handbook emphasizes that once the TAM team has created a threat management plan, it’s just as important to document the plan, implement it, and monitor how well it is working—to make sure it’s having the intended effect and not inadvertently making the situation worse. Consulting a threat assessment professional and legal counsel during the threat management phase is therefore advised.
It’s important to note that a person can continue to pose a threat even after he is no longer connected with the organization. For instance, the suspect in the Fair Haven case left Fair Haven High School for another school but still continued to pose a threat. The TAM Handbook states that the TAM team should continue to monitor the plan and modify it as needed for as long as the person/situation reasonably poses a threat. It may be necessary for the TAM team to continue to refer the person of concern to necessary resources or take other follow- up steps as the situation and level of concern dictate.
As it considers the factors that may affect the person’s behavior in the short, mid, and long term, the TAM team should anticipate the impact of future precipitating events that could prompt the person to become an increased threat—i.e., important personal dates or anniversaries, termination of benefits, formal termination of employment, or the occurrence or anniversary of well publicized targeted attacks elsewhere. The team should develop contingency plans and take steps to reduce or mitigate the anticipated threats.
Fifth step: Close and document the case
The TAM Handbook emphasizes that cases handled by a TAM team generally remain open until the person of concern no longer appears to pose a threat. That may be well beyond when mental health services are completed or a criminal case is closed (or even dismissed, as your internal process shouldn’t depend on the outcome of the criminal justice system). Whether the case remains open or is closed, the TAM team should document how it handled the case, including the report that first came to the team’s attention, the information the team gathered, its evaluation of the information, the case management plan it developed and implemented (if necessary), and any reevaluations or monitoring after its initial evaluation and case management efforts. Such documentation is very sensitive given the potential risks involved, so the TAM team should work with legal counsel.
I hope this outline of the TAM process provides a useful perspective on how a TAM team can function internally and how it can determine when to seek the assistance of outside resources. Of course, training on TAM issues is available, so you can determine for yourself how highly you want your team to function and obtain TAM training at a level that works in your particular circumstances.
The bottom line is, the general TAM process should be in place at every workplace so the team can be mobilized quickly when necessary. The team should at least have enough training and previous work experience to understand the roles and basic functions team members will perform in the event of an emergency. Obviously, that advance work should be done long before a critical incident occurs.
Unfortunately, recent events nationally and locally emphasize how important it is for all employers, even employers in our relatively peaceful state, to do what you reasonably can to prevent workplace violence. TAM teams should be seen as a crucial component of an overall workplace violence prevention system and created, trained, and supported accordingly.
This article updates a 2015 article to provide information about recent events and a detailed outline of how the TAM process should operate in most workplace settings. In addition to citing the WVPI Standard’s discussion of the TAM process, I’ve relied on the work of Marisa Randazzo, PhD, and Gene Deisinger, PhD, with whom I work regularly through Sigma Threat Management Associates (www.SigmaTMA.com). Randazzo and Deisinger are threat assessment professionals who practice nationally. Their contributions are gratefully acknowledged.
Jeff Nolan can be reached at firstname.lastname@example.org or 802-864-5751.
Leigh Cole and Jeff Nolan Present at UVM Legal Issues Conference (October 2017)
Each fall the University of Vermont presents a popular national conference on legal issues in higher education, designed for education administrators. This year Leigh Cole and Jeff Nolan participated as speakers on topics including current legal trends in campus threat assessment, sexual assault-related litigation, and emotional support animals (Jeff) and immigration (Leigh).
Leigh Cole serves as instructor for NACUA’s online course on Immigration
Leigh Cole once again is serving as an instructor for an online course for the National Association of College and University Attorneys (NACUA). Since 2011 Ms. Cole has co-instructed NACUA’s course “Immigration Basics for Colleges and Universities” with Michael Pfahl, Associate Counsel, Kent State University. NACUA’s online courses offer in-depth coverage of important issues in the practice of higher education law, featuring pre-recorded webinars narrated by leading higher education law experts, extensive course materials, self-assessments and instructor-led conference calls.
Leigh Cole represents the firm at the annual meeting of the Employment Law Alliance in Shanghai
The Employment Law Alliance (ELA) held its 2017 annual meeting in Shanghai, bringing together representatives of ELA member firms from jurisdictions around the world. The ELA provides multi-state and multi-national companies seamless and cost-effective services worldwide. ELA membership is driven by quality – both as professionals and individuals. The ELA boasts more Chambers-ranked firms than any other law firm alliance. Firms are invited to become ELA members only after a rigorous due-diligence process, including consultation with experienced in-house counsel, judges, current members, and industry leaders. ELA leadership works hard to maintain a network of legal practitioners who are not just knowledgeable, but also genuinely dedicated to exceptional client service.
US Supreme Court will review visa/travel ban next term; students, workers and family members abroad still protected from the ban
News reports are confusing about the US Supreme Court’s per curiam decision today to uphold *in part* the visa/travel ban Executive Order (EO). The decision actually is good news for colleges and universities, US employers, and individuals from the affected countries in the United States who have relatives abroad.
The US Supreme Court granted certiorari and will review the consolidated visa/travel ban EO cases in the October term. In the meantime the Court stayed *in part* the preliminary injunctions blocking implementation of the EO. The EO now may be applied to individuals who “lack any bona fide relationship with a person or entity in the United States.” Eliminating the double negatives involved in staying an injunction barring implementation of an EO, this means the EO still does *not* apply to individuals with a bona fide relationship with a person or entity in the United States, including intending refugees who have a qualifying relationship in the United States. The decision specifies that the following parties clearly have a qualifying relationship so *remain protected* by the preliminary injunctions: those with a close family relationship with an individual in the United States, giving spouse and mother-in-law as examples; students admitted to a US college or university; those who have accepted offers of employment in the United States; and those invited to give a lecture in the United States. Three dissenters, Justices Thomas (writing), Alito and Gorsuch, concurred in part and dissented only as to continuing the preliminary injunctions to protect individuals with qualifying relationships in the United States. The court asked the parties to brief the question whether the case is moot because the 90-day duration of the EO ended on June 16, 2017 even though the Trump Administration tried to extend the effective date to the date of a court decision lifting the preliminary injunctions.
Vermont Supreme Court rejects teacher’s VFEPA discrimination claim
Jeff Nolan, Maggie Platzer, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Jeff Nolan
Sensational media reports on high-profile cases sometimes lead us to lament that “anyone can file a lawsuit” and employers will inevitably be faced with the uncertainty and expense of a jury trial. That mind-set can contribute to employers being too eager to settle even meritless employment discrimination cases, at least in some parts of the country. By contrast, it has been our experience that Vermont courts review employment-related lawsuits and other cases fairly with regard to all parties and don’t hesitate to dig in to make a determination about whether the pretrial fact-finding process really has yielded material factual disputes that require a jury trial.
A December 2016 decision from the Vermont Supreme Court is, quite literally, a case in point. While it isn’t binding precedent that must be followed by other Vermont courts because it was decided by three rather than five justices, it does provide an example of how solid documentation and apparently reasonable employment actions can prevail over discrimination claims.
According to the court’s decision, the case involved the termination of the employment of an employee who was born in the Ivory Coast and had become a U.S. citizen. He was employed by a high school in Vermont as a French teacher and a soccer coach for 25 years.
In the spring of 2014, the school received a letter from a parent asserting that “in addition to [engaging in] ongoing demeaning and abusive criticism [of a student] in front of her peers,” the teacher had told the student that “sometimes he wants to slap her.” The teacher disputed that his behavior was “demeaning and insulting” to students and disputed when the slap comment was made, but he didn’t deny making the comment, explaining that he said it in a “joking way.”
After an investigation, a school administrator gave the teacher two letters explaining that he was expected to address certain issues and that his failure to do so could result in discipline, including termination. Both letters also emphasized the school’s policy against abusive, hostile, or intimidating behavior and language.
Three weeks later, the school received a report that the teacher told a student, in class and in front of other students, that she should “go kill herself.” During the school’s investigation, the teacher admitted making the statement. In response, the school placed him on paid administrative leave, relieved him of his duties for the remainder of the school year, and informed him that his contract, a year-by-year agreement that expired in August 2014, wouldn’t be renewed. The teacher received the entire salary he was owed under the existing contract.
In the fall of 2014, the teacher filed a lawsuit against the school alleging discrimination based on his race and national origin, breach of an express or implied employment contract, and another claim that wasn’t pursued on appeal. The parties conducted discovery (i.e., they exchanged relevant documents and took depositions of witnesses). In October 2015, after a lengthy discovery period, the school filed what is known as a motion for summary judgment. In a motion for summary judgment, a party asserts that a trial isn’t necessary and the case should be resolved in its favor because, in light of facts that either are undisputed or couldn’t reasonably be disputed, the other party won’t be able to prevail at a trial on any of his claims.
The trial court granted summary judgment in favor of the school on all of the teacher’s claims. In response, the teacher claimed that the court’s adverse decision indicated that the judge was biased against him. He appealed the trial court’s ruling, and the Vermont Supreme Court affirmed the lower court’s decision to grant summary judgment in favor of the school and dismiss the case.
Discrimination claim. The teacher asserted several arguments in challenging the trial court’s decision to grant summary judgment in favor of the school on his discrimination claim. The court quickly rejected his argument that the trial court’s decision against him was itself the result of bias on the part of the judge, observing that adverse court decisions alone are insufficient to demonstrate bias.
In terms of substance, the teacher claimed that the school violated the Vermont Fair Employment Practices Act (VFEPA) by discriminating against him on the basis of his race or national origin. The court observed that to establish what is known as a prima facie (minimally sufficient) case of employment discrimination, an employee must show that (1) he is a member of a protected group, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4) the circumstances surrounding the adverse employment action permit an inference of discrimination.
The court went on to observe that once a prima facie case is established, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its adverse action against the employee. After the employer produces evidence of a legitimate nondiscriminatory reason for its action, the employee must prove that its justification is a pretext, or excuse, for discrimination. To show pretext, the employee must rebut the proffered reason with facts from which a fact finder could reasonably conclude that it is unworthy of credence. The court emphasized that pretext “may be demonstrated by evidence of unequal treatment of members of a protected class, past employer practice, or a pattern of discrimination by [the] employer.”
Applying that legal framework to the case at hand, the court focused on whether the teacher had produced material evidence sufficient to demonstrate pretext. For purposes of summary judgment, the school agreed that the teacher could support a prima facie case, but it argued that his undisputed actions—i.e., telling a student that “sometimes he wanted to slap her” and telling another student to “go kill herself” a few weeks after being warned of the consequences of such behavior—were legitimate nondiscriminatory reasons for not renewing his contract.
The teacher didn’t claim that the school’s reasons weren’t legitimate justifications for not renewing his contract. Instead, he argued that the school merely relied on those reasons as a pretext to hide its discriminatory motivations. In support of that argument, he asserted that there was evidence of past discrimination against him (i.e., he claimed the school had discriminated against him in the past by firing him as the girls’ soccer coach but rehired him after a public outcry) as well as evidence of disparate treatment (i.e., white teachers who had committed similar offenses weren’t disciplined in the same way he was). The trial court rejected both of his arguments, and the Vermont Supreme Court agreed.
First, the supreme court explained that the undisputed evidence showed that the teacher’s firing as soccer coach was based on parents’ answers in a survey about his coaching style and performance, and there was no evidence that the adverse action was otherwise motivated by his race or national origin. Second, the court rejected the teacher’s arguments that white teachers who engaged in misconduct were treated more leniently than he was because he failed to sufficiently articulate those arguments to the trial court. The court explained that arguments and facts not brought up before the trial court cannot be raised for the first time on appeal.
Contract claim. The teacher also argued that the trial court was wrong to dismiss his claim for breach of contract. He didn’t assert that the school was obligated to renew his contract but instead claimed that he was “wrongfully dismissed.” The court rejected that somewhat novel claim, noting that his “contract’s terms were limited to one year and contained no right to renewal.”
The court also emphasized that the teacher received the full payment he was owed under the contract, so he couldn’t establish one of the elements of a breach of contract claim—that there was evidence of money damages attributable to the alleged breach. St. Ambroise Azagoh- Kouadio v. Roman Catholic Diocese of Burlington, 2016 WL 7364740 (Vt. Dec. 1, 2016).
First and foremost, the court’s decision demonstrates the importance of creating and maintaining good documentation of your adverse employment decisions, even in cases in which employment is “at will.” Although you may technically refuse to state your reasons for deciding to terminate the at-will-employment relationship, it’s usually best to create and maintain documentation of all termination decisions and share your reasons for ending the relationship with the employee, at least in summary form. Comprehensive documentation will help you establish a legitimate nondiscriminatory reason for your actions if the employee later files a discrimination claim.
Remember, any employee, whether he has an atwill or “for-cause” relationship, can assert a statutory discrimination claim. Undoubtedly, the school was relieved that it could point to evidence of its nondiscriminatory reasons for the adverse actions against the teacher: its documented investigations into his allegedly inappropriate comments and, apparently, parent survey results criticizing his performance as soccer coach.
Second, the court’s decision illustrates that it’s sometimes money well spent to pay out the remainder of a contract to an employee accused of misconduct (while prohibiting him from performing any work that could jeopardize your organization during the remainder of his contract) rather than attempting to terminate his contract midterm. Such decisions will, of course, involve a case-by-case weighing of the terms of a particular contract (e.g., whether there are stated standards for early termination and how stringent those standards are), the amount of compensation at issue, and the seriousness of the misconduct.
To be clear, there’s some precedent from the Vermont Supreme Court that even term contracts without stated termination provisions can be terminated for just cause. But when you’re deciding whether to take such a tack, it is prudent to at least consider the court’s conclusion in this case that the teacher did not have a claim for wrongful dismissal or breach of contract because his contract expired of its own terms and he received all payments he was owed under the contract.
Third, it’s nice to see that both the trial court and the Vermont Supreme Court were willing, again, to dig into the evidence gathered during the discovery process and determine that there simply wasn’t sufficient proof to establish a material dispute of fact that would justify sending the case to trial. It seems that courts in some jurisdictions aren’t as willing to make that effort, so this case is a helpful reminder that good documentation and demonstrably rational decision making can carry the day, even without a full jury trial.
Jeff Nolan can be reached at email@example.com or 802-864-5751.