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Navigating the Hearing Process

by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry

Have you ever noticed that Human Resources seems to always be putting out new, and/or updated, rules and policies on what must happen if you want to contest an adverse employment action that was taken against you? The truth is that most colleges and universities have large staff committed full-time to writing policies and procedures with the aim of ensuring that some measure of due process happens when an adverse employment action is taken against a faculty member. I have written before about what it is that due process requires, and like most legal concepts, this one - due process - is difficult to explain just how much anyone should get out of it. The best rule of thumb to understanding this concept is this: the faculty member who wants it will never feel that they got enough due process, and the administration who is providing it feels they have given way too much of it! The person who wants/needs to tell her/his “story” and right a wrong - nearly always ends up feeling that no one really listened. And sometimes it is true that the administration doesn’t really listen - all some want to do is check the box that they provided it.

So, why all the fuss? Well, if you have ever been accused of wrongdoing, all you want to do is have sufficient time, and resources, to explain what really happened. If you are the victim of some act, you want a forum in which you have a fair opportunity to explain what happened - and to point out who did it to you. The accused will want to confront her/his accuser. The victim will want protection from the accused. Everyone has a “stake” in the outcome. Depending on whether you are the accused or the accuser, your view of due process and how much of it should be given, will necessarily differ. One thing is clear about all of this - our courts, both state and federal will require that you exhaust {completely go through} whatever your remedy is {that your employer gives you} BEFORE filing your lawsuit. This is called the Abstention Doctrine. Courts uniformly require you to give your employer the chance to get it right or make it right before coming into court. Jumping into court prematurely {before exhausting the administrative remedies your employer has laid out for you} will end up having your lawsuit dismissed, with you likely having to pay the attorney’s fees for whoever it was you dragged into court!

Oh, if I could only stop here - without more warnings - but I cannot. If you truly have a claim for whatever it was that was done to you, our Legislature, and in some situations the U.S. Congress, has limited the time period in which you may complain about what was done to you. If you miss those deadlines you won’t be able to complain at all. We commonly refer to this as the “statute of limitations” or limitations period. Complaining about what happened after the limitations period expires will also result in your lawsuit being dismissed.

So, while you MUST exhaust the remedies provided you by your employer before filing suit, you MUST ALSO keep your “eye” on the limitations period for the claim you want to make. AND also please KNOW that filing your “claim” with HR won’t stop the limitations period from running. In some cases you MUST file a claim with the Texas Workforce Commission-Human Rights Division - TWC-CRD {before 180 days expires from the complained of discriminatory conduct} or the Equal Opportunity Employment Commission - EEOC {before 300 days expires from the complained of discriminatory conduct} in order to stop the limitations period from running. As a result you may have a situation arise, which is often the case, in which the administrative process is far from complete, but the 180/300 day limitation period is about to run out. In this instance, you have to file your claim with the TWC-CRD or EEOCC {the claim will be kept in abeyance} until the administrative process is complete. Also, for a claim {only} in Texas state court, even if the administrative procedure/process is still ongoing, but you have stopped the limitations period from initially running by filing your complaint with the TWC-CRD, you must file your lawsuit before the two year general statute of limitations runs out or risk losing all your claims.

This sounds hard to do - but it really isn’t - you just need to know what you need to do and when you need to do it. There are many “mine fields” for the uninformed. I recommend contacting an experienced lawyer who regularly represents faculty {staff and students} in Higher Education so that you can understand how to avoid these traps.

Remember, litigation isn’t for the faint hearted. There are no guarantees and it’s expensive. I often equate it to playing the thousand dollar slot machines in Las Vegas! Some conclude they have no remedy and the system is slanted or rigged against them from the start. I remind clients who make such comments that our system of righting wrongs is far from perfect, but it is way far ahead of what is available to others similarly situated anyplace else in our world! We can make claims, we can make a difference and we can right wrongs. But, be sure not to jump into deep water unless you know how to swim. Or, at least if you do - have a lifeguard close by!

“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”

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