By Kevin Lungwitz
You might serve your entire career without handling a grievance. Other people seem to be grievance magnets. No matter which you are, this may or may not reflect on your abilities. Grievances can be filed regarding any working condition, not just on illegalities. A grievance can be used not only as a problem-solving device, but also as a megaphone by Texas school employees who have no collective bargaining rights. Remember this: A grievance is not a lawsuit. It is an opportunity for others to express a conflict and an opportunity for you to address it before it escalates. Whatever your experience, it helps to understand the working mechanics of the grievance system and the role played by the campus principal.
Policy DGBA (Local)
Your school board policy DGBA (local) is your road map to the grievance system. If a grievance is filed on your campus, study this policy very carefully. This policy will state important timelines and duties which can vary from district to district. Most grievances begin at level one, and most level one grievances are heard by the campus principal. There are exceptions. If, for example, the grievance is against the principal, the grievant may opt to present the level one to a designee. If I am advising an employee against a principal, I usually encourage my client to present the grievance to the principal as a meaningful opportunity to be heard and to possibly resolve the matter at the lowest level. Always feel free to ask for assistance from HR or other administrators if you get confused by the policy.
Scheduling the Level One Conference
Once a grievance has been filed on the school district form or a substantially similar form, check for timeliness. If you think the grievance is untimely filed, consult with HR about how to draft a response. If it is timely, you usually have seven to 10 business days (check your policy) from the date of filing to hold a level one conference. Document your attempts to hold this meeting or the parties’ agreement to extend the timeline for the conference. I am rarely able to meet for the level one conference in seven to 10 days because I am usually waiting on my client’s records requested from the district, which can take anywhere from a week to a month to receive. It is common to agree to postpone the level one conference, but do so by email or other writing.
Holding the Level One Conference
Hearing a complaint about yourself can be unnerving. It is time to put on your most pleasant game face and pretend you are listening to Neil Diamond’s “Sweet Caroline” (unless you do not like that song, in which case pick another song). You should listen attentively without arguing, audibly sighing or visibly wincing. You are the administrator conducting business, and the grievant has the right to be there and to tell his/her story. The most important rule is to be super professional. While the grievant needs plenty of space to tell his/her story, he/she should also behave professionally. If not, you can suspend the meeting.
Your school district probably has a script for you to read which will guide you through the meeting. If not, give the grievant a reasonable amount of time to make their presentation (usually 20-30 minutes); take professional notes (assume the employee may request a copy of your notes); and do way more listening than talking. This is the grievant’s time to lay out their case without fear of reprisal. Do not allow yourself to be cross-examined. If the grievant tries to draw you in or ask you questions (especially if it is a lawyer or other representative), calmly reply, “I am here today to hear your concerns, not to be questioned. I will provide you with a written response according to the policy.” When the grievant has finished the presentation, ask clarifying questions if needed, and make sure you have all the documents he/she has tendered. Keep careful track of these documents. They will become the grievance record.
What if They Bring a Lawyer?
A grievant may use a representative of choice.1 It may be a teacher-representative or a lawyer. There is usually a place on the grievance form to note whether a representative will be used, so you should know in advance. If a representative is named, you should let HR know so the school can get its lawyer to assist you. If you are surprised by a lawyer or other representative at the meeting, you can postpone the meeting until the school district can summon its lawyer. In the vast majority of cases, a representative on the other side is not a problem and could be a good thing as it provides a buffer between you and the grievant.
What if the Representative Wants to Phone It In?
State law allows a grievant representative to participate by phone.2 This is good for everyone. If their lawyer phones it in, it is normal for the school district to have their lawyer also on the phone. This keeps expenses down. It also keeps their lawyer from staring at you across the table while you audibly hum “Sweet Caroline,” which you should not do.
Should I Record the Meeting?
The grievant has a right to record it, so if he/she does, you should as well. Otherwise, it may not be worth recording the level one conference since it will just be another thing to keep track of. If no one records, the parties may be able to speak more frankly and creatively about a resolution, instead of posturing for the recorder.
Writing the Level One Decision
Maybe the case can be resolved. If so, that should be documented. If not, you have to write a level one decision within the timelines provided by policy DGBA (local). Before you do so, you might need to look into matters on your own, by reviewing other documents or talking to other people. You are allowed to do this. If you need more time than the policy allows, ask the grievant and get the agreement in writing or by email.
There is no template for a level one decision. You will actually have to write one from scratch or have HR or the district lawyer assist. Generally, you should touch on these points: Recap the time and date of the level one conference, the names of the attendees, and how much time was allotted for the presentation. If easily done, summarize or restate the basis for the complaint, as written in the grievance and as presented. Briefly respond to the basis for the complaint. Describe the information you relied upon and the reason for your ruling. If you used documentation beyond what they provided, attach it to the response. State what remedy you are providing, if any, and tell them to refer to policy DGBA (local) for rules on how to appeal to level two.
While handling a grievance may be somewhat daunting, think of it as a risk-free opportunity to hear what is on someone’s mind and to possibly right a wrong, before it goes to the school board or before a lawsuit is filed. Otherwise, stand firm, let them appeal and let the process play out.
Kevin Lungwitz is TEPSA’s Outside General Counsel.
1Texas Government Code §617.005.
2Tex. Educ. Code Section 11.171 (c)
TEPSA News, May/June 2019, Vol 76, No 3
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Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.