Alex D. Ivan
Education Law Attorney
Kennedy & Graven, Chartered

Math teachers often challenge students to show their work. School districts should apply that mantra when considering whether to discharge probationary teachers.

School districts have considerable latitude with respect to the employment of new teachers who have not yet obtained continuing contract status. Minnesota law at Section 122A.40 establishes a probationary period for teachers (including principals, teachers, and other professionals required to hold a license from the Minnesota Department of Education). Because continuing contract teachers enjoy substantial due process protection from adverse employment actions like discipline or discharge, the legislature gave districts the authority to renew a probationary teacher’s annual contract “as the school board shall see fit.” This language essentially renders probationary teachers at-will employees, subject to release for any reason (or no reason).

Supervisors often incorrectly assume that, because a teacher is probationary, the teacher has no legal rights and may be summarily released from employment without legal recourse. While probationary teachers (and other probationary employees) do have greatly reduced protections and rights compared to continuing contract teachers, any reason or no reason does not mean an unlawful reason. A litany of state and federal antidiscrimination and antiretaliation laws apply to all employees, including those in their probationary period, and school districts should be cognizant of potential legal claims by former probationary teachers.

State and federal laws prohibit districts from taking adverse employment action (including discharge) against an employee based on the employee’s protected class. For example, the Minnesota Human Rights Act (“MHRA”) prohibits discrimination in the workplace, and broadly defines “protected classes” as any one or more of the following: an individual’s race or color; national origin; religion or creed; age; disability; marital status; sexual orientation; status with regard to public assistance; or membership on a local human rights commission. Similarly, Title VII prohibits discrimination based on an employee’s race, color, religion, sex, or national origin. Lastly, the Americans with Disabilities Act (“ADA”) prohibits discrimination based on physical or mental disability and requires a “reasonable accommodation” to remove barriers to an employee’s ability to perform the essential functions of the employee’s position.

A variety of laws also prohibit retaliation against an employee based on the employee’s status or exercise of rights under the law. Potential retaliation claims may arise under the MHRA, Title VII, the ADA, the Family Medical Leave Act (“FMLA”), Minnesota’s Parenting Leave and Accommodations Act (“MMPLA”), workers’ compensation law, protection of military personnel, an employee’s whistleblower status, wage and hour (“FLSA”) claims, and the Public Employees Labor Relations Act (“PELRA”).

Before nonrenewing a probationary teacher or other probationary employee for that matter, school districts should evaluate whether there is sufficient documentation supporting the contemplated discharge. Documentation is especially important in the context of release because if a probationary teacher requests the reason(s) for nonrenewal, Section 122A.40 requires the district to “give the teacher its reason[s] in writing, including a statement that appropriate supervision was furnished describing the nature and the extent of such supervision furnished the teacher during the employment by the board, within ten days after receiving such request.” (Under Section 181.933, any employee who has been involuntarily terminated is entitled to be informed by an employer of “the truthful reason for the termination.”)

A written record supporting the release is important for yet another reason. Since it is relatively easy for a plaintiff to establish a prima facie (i.e., an initial) case of discrimination or retaliation, a school district must be prepared to articulate a legitimate, nondiscriminatory, nonretaliatory reason for the release and show that the reason is not a pretext for unlawful conduct. Courts typically judge whether an employer’s proffered reason for adverse action is a pretext by evaluating the following factors: (1) shifting reasons for the discharge, (2) a departure from policy, (3) papering of the employee’s file, (4) statistical evidence, and (5) differential treatment of similarly situated employees.

When there is no documentation of a supervisor’s coaching sessions with a probationary employee or when the employee’s performance evaluations and prior disciplinary documents do not clearly establish the reason(s) for nonrenewal, a district is left to rely heavily on witness testimony. Witnesses’ memories fade over time and fading memories often create an appearance of shifting reasons, undermining rebuttals to the allegation that the articulated reason is a ruse. Subjective generalizations about an employee’s performance or conduct like, “She didn’t get along well with others,” “He didn’t fit in well here,” or “She couldn’t meet our needs” are inherently suspect and provide insufficient detail in defense of discrimination and retaliation claims. District witnesses can also expect challenging, uncomfortable examination by a plaintiff’s lawyer in response to those kinds of ambiguous statements. Courts and juries reasonably expect that a school district has specific documented examples of an employee’s misconduct or performance deficiencies, and that the employee had an opportunity to correct them before discharge.

While probationary teachers may be released from employment “as the school board sees fit,” school districts should consider adopting the math teacher mantra and show their work by developing a clear, written objective record establishing the legitimate, nondiscriminatory and nonretaliatory reasons for an adverse employment action. 

This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.

Alex D. Ivan is an attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9304 or

© Alex D. Ivan (2021). Used with permission.

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