A Dose of Good Advice

Threat had Implications for Entire Staff; Board of Education Rescinds Reprimand

Admonished and reprimanded last spring for allegedly exceeding her allowed number of leave days, resource teacher Janet Henne did what any little sister might do.

She called her big sister.

Big sister is Bobbi Isom, the vice president of the North Platte Education Association. Isom provided Henne with sound advice: talk to NPEA President Michelle Strickland, who would quickly provide a direct line to NSEA.

That’s exactly what happened. Nine months later, the North Platte Board of Education approved a settlement acknowledging that Henne had not exceeded her allotted days of leave. The board further acknowledged that a May 2018 verbal reprimand and a memorandum threatening further employment-related discipline, including termination, were improper.

The board’s action came after NSEA filed a lawsuit in U.S. District Court on Henne’s behalf, contending that the district intentionally interfered with and denied her request for leave under the federal Family and Medical Leave Act (FMLA). The district’s verbal and written actions were intended to “chill and intimidate” Henne, as well as other district employees who might make future requests for FMLA leave, said attorney Nick Welding.

The settlement language also included a statement that the board “supports the statutory and contractual rights of its employees to use leave for appropriate purposes.”

Most important to Henne, the written memorandum was withdrawn from her employment file. The memo alleged Henne’s absences were detrimental to student learning as well as a burden to both the school district and her co-workers.

“The letter was very personal, very intimidating,” she said. “I didn’t want it in my file. I didn’t feel it was fair.”

“The language really bothered her,” said Welding. “It really bothered me, too.”

Welding said the settlement sends a message that NSEA “is willing to go as far as we need to go on behalf of our members.”

Wrongly Denied Medical Leave

Given the root cause of Henne’s absences, it’s a wonder that she is still teaching. Her continued service is a testament to her love for her students and dedication to her work.

On three occasions between October 2006 and September 2014, Henne was physically assaulted by a severely autistic fourth grader who stood at about 5-7 and 200 pounds at the time.Henne places no blame on the student.

“He sees people as objects, and I was an object in his way. He came up behind me, lifted me up and threw me against the wall,” said Henne of the first assault, which took place in an elementary school setting.

When she moved to the high school, she worked with the now older student again. There were two more incidents in two years. In the first, Henne was leading the Pledge of Allegiance when the boy rushed and shoved her. She landed on the floor behind her desk.

The second time, he shoved her hard enough that her chair broke and her head hit the wall.

“He just went through me. I hit my head and ended up in the emergency room,” she said.

Those injuries cumulatively resulted in several shoulder surgeries, a neck fusion and ongoing evaluation and therapy sessions with a specialist in Kearney, 100 miles east of North Platte. The frequency of those sessions eats up contractual sick leave and eats into FMLA leave each year. 

On March 21, 2018, Henne and her husband were driving when a car blew through a red light and slammed into their vehicle. She was taken to the emergency room by ambulance. She was released and went to work the following day and saw her physician that afternoon. Concerned that the accident had exacerbated the medical issues associated with the assaults, the doctor ordered her not to return to work until cleared by her specialist.

On March 29, Henne’s request for FMLA leave for absences resulting from the accident was denied.  Then, in early May, district administrators verbally reprimanded Henne. She was also handed the distressing memorandum that said the district had worked extensively with her on attendance-related issues over the past five years. The memo threatened further employment-related discipline, including possible termination, for further absences.

To that point, Henne said, she had never been disciplined, admonished or even approached about her absences.

“I was mad, deflated,” said Henne. 

Henne called her sister and was eventually put in touch with the NSEA-retained law firm of Norby and Welding, LLP. Three months later, Welding filed the lawsuit.

Counting All the Hours Worked

The lawsuit contended that the school district’s decision to deny Henne’s FMLA leave was based on the incorrect conclusion that Henne had not worked the minimum 1,250 hours needed during the previous 12 months to qualify for FMLA leave.

“Neither the district’s administration nor its third-party administrator responsible for managing FMLA leave for district employees made an effort to investigate Henne’s workload to confirm her FMLA eligibility,” wrote Welding in the complaint.

Welding believes the third-party administrator used eight-hour days to calculate Henne’s 12-month body of work, and in doing so fell a paltry 18 hours short of the 1,250-hour mark. Henne found the calculation did not include six paid workdays the previous summer, easily surpassing the 18 hours. Further investigation found the time counted did not include her work on lesson plans, conferences, individual educational plans, multidisciplinary team reports and a myriad of other after-hours work completed – and recorded – by Henne.

“We found that, like most teachers, she worked – excuse the language – a helluva lot more than 1,250 hours in those 12 months,” said Welding.

Not that it mattered. Welding said federal law clearly indicates that it is the employer’s obligation to show whether the employee worked the required hours. There is a presumption under Federal law that full-time teachers work  at least 1,250 hours annually, said Welding.

Membership Matters

Henne’s lawsuit was unique. She had not been economically damaged and sought no money.

“She was not asking for money. She was asking to remove a reprimand from her file,” said Welding.

There is another point to be made, he said. The average citizen – or educator – could not get such results alone.

“You’re not going to see this type of litigation by any private citizen, by a lone teacher, or by the counsel from an ‘alternative’ association,” he said. “The only way you could bring this kind of lawsuit would be as a member of this association, and with full association support.”

Henne had the full support of her NPEA colleagues.

“Members of the North Platte Education Association have always sought what is best for all North Platte children: a quality education,” said NPEA President Michelle Strickland. “Janet Henne has been a part of our district’s success for the past 13-plus years and has taken a courageous step.

We believe the district erred in this process and erred with this memo.”

That support works both ways.

“I’ve always been a member – since I was a student in college,” said Henne. “Especially being in special education, my instructors always preached that we should never be without the Association’s backing. NSEA has always been worth being a part of.”