October 2009
Was that a whistle I heard?

"Document, document, document.” How often have you heard the lawyers issue that refrain? Well, you’re about to read of one more example making the case for good documentation to support your personnel decisions.

In the 2004-2005 school year, Dale Dardeau was the principal of West Orange Stark Middle School. In August of 2005, the superintendent reassigned Dardeau to an assistant principal’s position at an elementary school. Dardeau filed a lawsuit over this, claiming that he had been demoted in retaliation for “blowing the whistle” on some illegal activities in the district. He sued the district, the superintendent and four board members.

The trial court granted a summary judgment in favor of all of the defendants, thus tossing out Dardeau’s whistle-blower lawsuit. This past July 30, the Court of Appeals in Beaumont affirmed that decision.

Those are the bare facts, but let’s talk of what we can learn from this case. Keep in mind that lawsuits over personnel decisions in school districts almost always hinge on the motivation behind the decision. The decision here was made by the superintendent. The crucial issue was: why?

Dardeau claimed that he was reassigned because he had called the Texas Education Agency and reported his suspicion that the district was socially promoting kids who had failed the TAKS test. There was conflicting evidence as to whether the superintendent even knew about that phone call to the TEA. But the court concluded that it didn’t matter. Whether he heard the whistle blow or not, the superintendent had good reasons to reassign Dardeau.

Documentation? Let’s start with a source outside of the district: a TEA report that the middle school was the only school in the district rated “academically unacceptable.” TEA issued its preliminary ratings in May 2005 and made it official on Aug. 1. The next day the superintendent met with his executive director of human resources and made the decision to reassign Dardeau. Dardeau placed his phone call to the agency on Aug. 3. The superintendent informed Dardeau of the reassignment on Aug. 4, citing the campus’ rating as the primary reason for the move.

Handwritten notes made by the district’s human resources director at her meeting with the superintendent on Aug. 2 confirmed this. Her notes read: “Move Dale to AP-Anderson, demotion – unacceptable rating.” That evidence was further bolstered by the superintendent’s affidavit to the effect that he had been contemplating Dardeau’s move since May. He had discussed the possibility with the board president over the summer. Moreover, there was the memorandum the superintendent sent to the local newspaper in May 2005. It cited math and science scores as “dismal and unacceptable,” with the middle school’s math scores being “emblematic of the problem.” The superintendent specifically cited the “moral tragedy” indicated by the low passage rate of African-American students at the middle school and promised “swift, protracted and research-based actions … to right this great wrong.”

Timing is always important in these cases. When the adverse personnel action comes shortly after the whistle is blown, the law presumes that the employee is the victim of retaliation. However, this presumption is “rebuttable” if the employer can muster the evidence to do so. Here, the employee was informed of the reassignment exactly one day after his report to TEA. Thus, the presumption favored Dardeau. However, the district’s evidence of independent reasons for the superintendent’s decision was sufficient to prove the “affirmative defense” that the law allows — proof that the employer would have made the decision based “solely on information, observation or evidence” that is unrelated to the blowing of the whistle.

So, add the case of Dardeau v. West Orange-Cove CISD to your list of examples that contemporaneous documentation puts you in the best possible legal position if you have to defend your personnel decisions.

JIM WALSH is editor in chief of Texas School Business and the managing editor of Texas School Administrators’ Legal Digest. Also a school attorney, he co-founded the firm of Walsh, Anderson, Brown, Gallegos & Green, P.C. He can be reached at jwalsh@wabsa.com or by visiting www.walshanderson.com.