DOCKET NO. 163-LH-0411

HOUSTON INDEPENDENT§BEFORE KYLE FRAZIER,

SCHOOL DISTRICT§

§TEXAS EDUCATION AGENCY

§

V.§CERTIFIED INDEPENDENT

§

DYANE AWOFESO§HEARING EXAMINER

RECOMMENDATION OF CERTIFIED HEARING EXAMINER

STATEMENT OF THE CASE

Ms. Dyane Awofeso ("Ms. Awofeso"), appeals the recommendation of Petitioner, Houston Independent School District ("HISD"), to nonrenew her 2010-2011 one-year term contract of employment as a teacher for the 2011-2012 school year.

The following Findings of Fact and Conclusions of Law are based on the testimony heard and the exhibits presented during the administrative hearing conducted on July 14, 2011. Ms. Awofeso was represented by Larry Watts and Susan Herbst Soto. HISD was represented by Miles T. Bradshaw with Karczewski ❘ Bradshaw L.L.P. Kyle Frazier was the certified hearing examiner appointed by the Texas Education Agency ("TEA") to hear this matter and submit this Recommendation.

The issue presented in this case is whether HISD established sufficient reasons for the nonrenewal of Ms. Awofeso’s one-year term contract (the “Contract”) pursuant to Section 12 of the Contract and in accordance with Section 21.206(a) of the Texas Education Code (the “Code”).

FINDINGS OF FACT

After due consideration of the evidence and matters officially noticed, in my capacity as the Certified Hearing Examiner, I make the following Findings of Fact (citations to evidence are not exhaustive but are intended to indicate some of the basis for the particular Finding of Fact):

A. Procedural Facts

  1. Ms. Awofeso was employed by HISD as a teacher pursuant to a one-year term contract of employment for the 2010-2011 school year dated May 14, 2010. [HISD Ex. 2]. Ms. Awofeso worked as a Business Information Management teacher in the business education area of the Career and Technology Education Program (“CATE”) at Madison High School (“Madison HS”) during the 2010-2011 school year. [Tr. 192: 7-16].
  2. Texas Education Code Section 21.203(b) provides that the Board shall establish by policy reasons for nonrenewal of term contracts at the end of the school year. Tex. Educ. Code § 21.203(b). HISD’s Board of Education has established and adopted HISD Board Policy DFBB (Local) which lists the specific reasons for nonrenewal of an employee’s term contract. [HISD Ex. 18A].
  3. By letter dated April 8, 2011, HISD proposed the nonrenewal of Ms. Awofeso’s term contract because of a “reduction in force because of financial exingency or program change.” [HISD Ex. 17], which is listed in HISD Board Policy DFBB (Local) as a reason for the nonrenewal of a term contract. [HISD Ex. 18B].
  4. On April 15, 2011, Ms. Awofeso properly notified the TEA that she wished to appeal the decision by the HISD Board of Education to nonrenew her contract.
  5. On April 29, 2011, Aundie Lawton was appointed as the hearing examiner in this matter.
  6. HISD proposed to nonrenew the 2010-2011 one-year teacher term contracts of two similarly situated teachers from Madison HS, Ms. Awofeso and Ms. Cassandra Reynolds (“Ms. Reynolds”). By a joint motion to the Texas Education Agency, Ms. Awofeso and Ms. Reynolds requested that their cases be consolidated. TEA granted the request and Ms. Awofeso’s case was assigned to the undersigned hearing examiner, who conducted a single consolidated hearing for both teachers.

B. Background information on Ms. Awofeso’s employment with HISD

  1. Ms. Awofeso’s began her teaching career with HISD at Madison HS twelve years ago. She taught Keyboarding, then Business Computer Information System, and then four years ago moved to Business Information Management (“BIM”), which class she has taught since then. [Tr. 192:15 - 193:7].
  2. The principal at Madison HS during the 2010-2011 school year was Sonja Williams. [Tr. 26: 13-15]. The 2010-2011 school year was Ms. Williams’ first year as a head principal at any school and it was her first year at Madison HS.
  3. Ms. Awofeso was assigned to Madison HS as a teacher in the position “CATE - Office Education.” The “job code” assigned by HISD to this position was 746. [HISD Exhs.4,8; Tr. 31: 8-14].
  4. The position held by Ms. Awofeso was part of Madison HS’s business education career and technology “CATE” program (Career and Technology Education aka CTE or CATE). [HISD Exhs. 4,8; Tr. 31: 8-14;, 46:23-47:1].
  5. Madison HS has one of the largest CATE programs for students in HISD. During the 2010-2011 school year, Madison HS had about 28 CATE teachers in various fields from business education to welding to pre-employment child care. [HISD Exh. 3; Tr. 28:17-25, 29:18-20].
  6. BIM was one class taught in the CATE - Office Education program at Madison HS.
  7. There were eight teachers at Madison HS that taught BIM in the 2010-2011 school year, including Ms. Awofeso. The teachers who taught BIM in the 2010-2011 school year had at least three different job codes. [Tr. 193: 14-16].
  8. Several different office education or business education classes were taught by various CATE teachers and the classes they taught were not limited by their position title or job code. For example, Ms. Reynolds taught classes in Principles of Marketing & Finance. [Tr. 40: 9-11]. Ms. Awofeso taught BIM. [Tr. 40:15-18; 192:15-25] The other two teachers within the 746 job code taught different business education courses, but they were all part of the CATE Office Education program [Tr. 40-41] Conversely, some teachers whose official position titles were “CATE – Business Education,” “CATE – General Business,” and “CATE – Basic Business,” each of which had different job codes, taught some of the same classes or subjects as Ms. Awofeso at Madison HS. [HISD Exh. 3; Tr. 123-125; 126:11-15; 134:8-18; 193:14-21]
  9. In order to best meet the needs of students at her campus and to address the reduction in force declared by the HISD Board of Education, Ms. Williams identified the CATE - Office Education program as an area where she could eliminate positions as part of the reduction in force. Ms. Williams determined that she had to eliminate six (6) teaching positions within the CATE program alone to balance her budget for the 2011-2012 school year. [Tr. 30:11-17; 38:24-25, 39:1-13], including two (2) positions within the CATE Office Education program. [Tr. 42:14- 43:2]. She had already cut 22 non-contract positions at her campus. [Tr. 44:13-21].
  10. More specifically, within the CATE business education program, Ms. Williams chose job code 746 -- CATE - Office Education – as the code where she could eliminate teachers. There were four teachers in this job code and she determined that she could still provide an adequate program by cutting that number in half. Ms. Williams selected that particular job code in the CATE teaching area in order “to maintain the diversity and options of that particular area on our campus.” There is no other evidence in the record why she chose this particular job code instead of other job codes with the CATE business education program.
  11. Ms. Williams selected Ms. Awofeso’s and Ms. Reynolds’ job code – 746 – for elimination, rather than the other job codes that were assigned to teachers who also taught CATE - Office Education classes.
  12. HISD assigns job codes to teachers based on their teaching assignments.
  13. Upon Ms. Williams arrival at Madison HS, the job codes did not align with the teaching assignments for the teachers. Ms. Williams did not adjust the improperly assigned job codes at any time during the 2010-2011 school year.

C. HISD’s decision to implement a Reduction in Force for the 2010-2011 school year

  1. The State of Texas is currently experiencing a budget shortfall which will result in HISD receiving significantly less state funding for the 2011-2012 school year than in the last biennium. [HISD Exh. 18F].
  2. HISD is a “decentralized” district, meaning that funding is allocated to campuses on the basis of student enrollment (“per unit allocation” or “PUA”) and principals are afforded wide discretion in distributing the funding received by their campus. [HISD Exh. 22 (Ann Best Depo) at Tr. 143-145 (decentralization)].
  3. HISD board policy DFF (Local) governs implementation of a reduction in force and provides that “[a] reduction in force may take place when … the Superintendent determines that a reorganization or program change is required.” [HISD Exh. 18A].
  4. According to board policy DFF (Local), a program change may be implemented upon a determination by the superintendent that a program change is required, without the need for the Board to determine or declare that a program change is required. Pursuant to board policy DFF (Local), a program change determination “constitutes sufficient cause for discharge or nonrenewal.” [HISD Exh. 18A].
  5. The superintendent may assist the Board by making recommendations to the Board regarding the employment areas to be affected by a reduction in force (“RIF”). By its own terms in board policy DFF (Local), the employment areas affected by the RIF may be district-wide, by campus, by department, or even via a single position. In determining affected employment areas, the Board may combine or coordinate employment areas, which may include, but are not limited to:

(1)Elementary grades, levels, subjects, departments, or programs;

(2)Secondary grades, levels, subjects, departments, or programs;

(3)Special programs, such as gifted and talented, career and technology education, bilingual/ESL programs, special education, compensatory education, and migrant education. Each special program is a separate employment area;

(4) Counseling programs;

(5) Library programs;

(6) Nursing and other health services programs;

(7) An educational support program that does not provide direct instruction to students;

(8) Other District-wide programs;

(9) An individual campus;

(10) Any administrative position(s), unit, or department;

(11) Other contractual position(s).

[HISD Exh. 18A].

  1. On March 10, 2011, at a properly called meeting of the HISD Board of Education, the superintendent determined that a reorganization and/or program change was required to meet the needs of students on each campus and department, and employment areas were approved by the Board as recommended by the superintendent. One of the approved employment areas was “Madison High School, Career and Technology Education Programs: Business Education.” [HISD Exh. 18F].
  2. One of the forms of guidance issued and provided by HISD to its campus principals on the implementation of a reduction in force under HISD board policy DFF (Local) was the Budget Reduction Guide. The guide is consistent with HISD board policy DFF (Local). [HISD Exh. 19A; Tr. 89:1-18].
  3. The Budget Reduction Guide provided guidance to principals in complying with District policies, including the proper consideration and application of the criteria for decision in board policy DFF (Local), which was used to identify the teachers who least satisfied the criteria and were therefore subject to the reduction in force. The relevant considerations for principals to make their recommendations for reduction in force are:

(1)Determine the number of positions desired to be eliminated to best meet the needs of students on their campus;

(2)Determine the type of contract employees hold;

(3)Identify the appropriate employment area approved by the Board that will include the positions desired to be eliminated – this established the campus pool of RIF candidates within an approved employment area;

(4)Consider the type of contracts held by the candidates (for example, DFF (Local) does not apply to continuing contracts and end of the year terminations of probationary contracts – a continuing contract P.E. teacher would remain; a probationary contract teacher could remain or could be recommended for termination based on the best interests of the District outside the application of DFF (Local); term contract teachers are included in the campus candidate pool for possible RIF); [HISD Exh. 19A; Tr. 92:3-6];

(5)Apply the RIF criteria stated in DFF (Local) to the RIF candidates “sequentially to the extent necessary to identify the employees who least satisfy the criteria and are therefore subject to the reduction in force.” (emphasis added). The four criteria in DFF (Local) are:

a.Job Code: the code that designates a specific title for a position.

b.Performance: effectiveness as reflected by appraisal records and other written evaluative information, including but not limited to value added scores (EVAAS), other measures of student performance (including TAKS passing and commended, Stanford/Apprenda scores), teacher appraisals (PDAS/MPDAS), walkthroughs and other memoranda or documented job-related issues.

c.Seniority: Length of continuous service in the District (an authorized leave is not a break in service).

d.Professional background: Professional education and work experience related to the current assignment.

(6)Issue notification to the teacher in the form of a notice of conference for the record that the principal intends to recommend their position for elimination under reduction in force, and thereby recommend the proposed nonrenewal of the contract, and ultimately to provide that recommendation up the chain of command to Ms. Ann Best, Chief Human Resources Officer, who then forwards the recommendation to the superintendent and to the Board for consideration as to whether to approve the recommendation and propose nonrenewal of the teacher’s contract.

[HISD Exhs. 18A-B, 19A-B, 15 (Ann Best Depo) at Tr. 143-145 (decentralization); 149-156, 162-175 (steps for principals); 175-200 (RIF criteria, conference for the record)].

  1. Board policy DFF (Local) applies only to reductions in force of probationary contracts during the contract term, term contracts during the contract period, or term contracts at the end of the contract period. [HISD Exh. 18A].

D. Application of HISD Board Policy DFF (Local) to Ms. Awofeso

  1. Ms. Williams sequentially applied the RIF criteria in DFF (Local) to the teachers within the CATE - Office Education program at Madison HS. Applying the first criteria, job code, to the CATE - Office Education program narrowed the pool of RIF candidates to four.
  2. Under Step 4 in the Budget Reduction Guide and based on the first criteria in DFF (Local) – job code – under HISD board policy DFF (Local), a principal is directed to select the most appropriate job code for his or her campus to narrow the pool, consider the types of contracts of the teachers within that pool, and proceed through the criteria until the number of desired RIF candidates was reached. [HISD Exh. 19A at p. 3; HISD Exh. 18A, pp. 1-4; Tr. 46-60; HISD Exh. 22 (Ann Best Depo) at Tr. 153-161; 178-186; 415-424].
  3. For the 2010-2011 school year, Madison had four (4) teachers within “job code 746, CATE – Office Education.” The four teachers and their respective type of contract were as follows:

Dyane Awofesoone year term contract

Cassandra Reynoldsone year term contract

Shirleyelaine Grayone year term contract

Brenda Brazielcontinuing contract

[HISD Exh. 3; Tr. 32-33, 41-42].

  1. Since DFF (Local) is inapplicable to a continuing contract, and in accordance with the Budget Reduction Guidance, Ms. Braziel remains in her position and the other three continue through the application of the RIF criteria. [HISD Exh. 19A; HISD Exh. 18A; Tr. 41-42].
  2. The second criteria, performance, is defined by DFF Local as “effectiveness as reflected by appraisal records and other written evaluative information,” and further clarified by the District as including PDAS/MDAS rating, value-added data, TAKS passing scores, TAKS commended data, or other employment related data, and other memoranda documenting performance issues. [HISD Exh. 18A; HISD Exh. 19A; HISD Exhs. 5-7; Tr. 46-57].
  3. Principals have the discretion to select the time period of performance documentation they will consider. [HISD Exh. 22 [Ann Best Depo] at Tr. 189:2-18]. Ms. Williams has been the principal at Madison High School for only the 2010-2011 school year. [Tr. 26:15-20]. Ms. Williams reasonably determined that she would consider only performance documentation during the time she was principal - the 2010-2011 school year. [Tr. 26:15-20; 57-58; HISD Exhs. 5-7].
  4. In applying the performance criteria, Ms. Williams considered PDAS/MPDAS teacher appraisals, walkthrough observations, and other memos documenting performance issues. None of the “CATE – Office Education” teachers had value added EVAAS scores, TAKS scores or similar student scores to consider. [Tr. 47-60; HISD Exhs. 5-7].
  5. Ms. Williams applied the performance criteria and first identified Ms. Reynolds as least satisfying the criteria. While Ms. Reynold’s performance was “proficient” and even “exceeds” in some areas of her MPDAS summative appraisal, her appraisals were lower than both Ms. Awofeso and Ms. Gray. In addition, the written evaluative information available to the principal concerning Ms. Reynolds included (1) a written classroom walkthrough observation with 7 areas of “below expectations” and an overall rating of below expectations; (2) two memos regarding high student failure rate (44% failure in two different time periods); and (3) a memo regarding her leaving her class unattended. [HISD Exh. 5; Tr. 47-52].
  6. Ms. Awofeso had “exceeds” on all 8 domains of her MPDAS appraisal and no memos of any employment issues. Among two written classroom observations, the only concerns noted were “limited teacher-student interaction” and overall were scored “proficient.” [HISD Exh. 6; Tr. 53-55].
  7. Ms. Gray’s performance was very similar to Ms. Awofeso. Ms. Gray had “exceeds’ on all domains of her MPDAS appraisal except for “proficient” in Domain VII – Compliance.” However, Ms. Grays’ one written classroom observation was scored “exceeds.” Ms. Gray and Ms. Awofeso had different appraisers. [HISD Exh. 6-7; Tr. 53-57].
  8. Ms. Williams determined that, based on the written evaluative information, Ms. Gray had better overall performance ratings than Ms. Awofeso. As a result, Ms. Awofeso was the second position that she recommended for RIF. [HISD Exhs. 6-7; Tr. 57-58].
  9. Applying the next criteria – seniority – would result in Ms. Reynolds and Ms. Awofeso least meeting the RIF criteria. The respective time of continuous service in the district for the three teachers was:

Dyane Awofesocontinuous since 8/14/96

Cassandra Reynoldscontinuous since 8/12/07

Shirleyelaine Graycontinuous since 4/5/89

[HISD Exh. 8; Tr. 58-60].

  1. It was not arbitrary or capricious for Ms. Williams to determine that, based on her evaluation of the available performance data, Ms. Awofeso least satisfied the RIF criteria after applying the criteria sequentially to the extent necessary to identify her as one of the two employees subject to RIF. Had Ms. Williams determined that the performance between the two was “too insubstantial to rely upon” as allowed by DFF (Local), the result would have been the same based on seniority because Ms. Gray had 22 years continuous service compared to 15 years continuous service for Ms. Awofeso. [HISD Exhs. 6-7; Tr. 57-60].
  2. On March 10, 2011, at a properly called meeting of the HISD Board of Education, the Board accepted the superintendent’s recommendation to propose nonrenewal of Ms. Awofeso’s term contract for reduction in force because of program change. [HISD Exhs. 2, 17, 18J]. On April 14, 2011, Ms. Awofeso received notice of the Board of Education’s action to propose nonrenewal of her term contract. [HISD Exh. 11].
  3. After sending notice of the proposed nonrenewal to Respondent, HISD assisted Ms. Awofeso in seeking another district position and considered Ms. Awofeso for other vacancies for which she was qualified up to the date of this hearing. Unfortunately during that time, no vacancies for which Ms. Awofeso was qualified came up in HISD. Ms. Williams told all employees who were subject to RIF that she would provide a positive written letter of recommendation. [Tr. 60:4-17, 61-62; HISD Exhs. 19C, 20, 22 (Ann Best Depo) at Tr. 213-215l; Tr. 197:3-25, 198-199; 213:15-23].
  4. Ms. Awofeso has made extensive efforts to assist HISD in matching her to another position. Ms. Awofeso attended all four job fairs that HISD has offered. While she is not required to do so, she has done a great deal to ensure that HISD knows what her qualifications are and that it knows that she is interested in securing another position within the district.
  5. On June 29, 2011, there were approximately 185 teaching vacancies in HISD. On July 7, 2011, there were approximately 122 teaching vacancies in HISD. The number of vacancies in HISD is constantly changing. HISD is continuing to try to hire back teachers who lost their jobs through the RIF. [HISD Exh. 22].

DISCUSSION