CAUSE NO.: 026-LH-1110
NEW CANEY INDEPENDENT§BEFORE A CERTIFIED
SCHOOL DISTRICT§HEARING EXAMINER
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V.§OF THE
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SAMUEL PAPA§STATE OF TEXAS
RECOMMENDATION OF THE HEARING EXAMINER
STATEMENT OF THE CASE
Petitioner New Caney Independent School District seeks to terminate the employment of
Respondent, Samuel Papa.
A hearing was held before the undersigned Hearing Examiner; Petitioner, represented by counsel Erik Nichols and Jonathan Brush of Houston, Texas, announced ready, and Respondent, represented by counsel Richard L. Arnett of Austin, Texas, announced ready.
References to the pages of the record of the hearing will be referred to as “R” plus page number; references to Petitioner’s exhibits will be referred to as “PX” and Respondent’s exhibits as “RX”.
FINDINGS OF FACT
Following review of the record, the undersigned Hearing Examiner makes the following findings of fact:
1.Respondent was an eighth grade speech communication and Texas history teacher at White Oak Middle School in NCISD in the 2009-2010 school year. R22.
2.Respondent is a certified teacher in the State of Texas, and has been for 19 years. RX 1, R321.
3.Respondent was employed with Petitioner pursuant to a one year term contract. PX 12.
4.Respondent met or exceeded proficiency ratings with Petitioner during his employment. RX2.
5.Respondent’s annual appraisal, dated March 24, 2010 (signed by Respondent on May 25, 2010), for the 2009-2010 school year, showed that he met proficiency requirements. RX2.
6.The principal of White Oak Middle School for the 2009-2010 school year was Ms. Paula Burk. R21.
7.Student E.B. was in the eighth grade at White Oak Middle School for the 2009-2010 school year. R132.
8.Student L.R. was in the eighth grade at White Oak Middle School for the 2009-2010 school year. R171.
9.Student K.A. was in the eighth grade at White Oak Middle School for the 2009-2010 school year. R289.
10.On April 16, 2010, a disagreement occurred between E.B. and Respondent regarding the type and manner of teaching by Respondent in the classroom. E.B. was openly defiant and disrupted the classroom setting. e.g., R143; R334.
11.On April 16, 2010, E.B. was advised to move to the front of her classroom as a form of discipline by Respondent. The student resisted but an agreement was reached whereby the student would move to the front of the room the following week. R. 336; R172, R290.
12.Respondent had, prior to April 16, 2010, been advised to not send or refer students to the office without contacting the parents and assigning detentions. RX3; R325.
13.Respondent had further been advised to not place students in the hallway for disciplinary reasons as students may roam freely, unattended. R326.
14.Between April 16, 2010 and Monday, April 19, 2010, Respondent made no attempts to contact the parents of E.B. The Petitioner provided no evidence that Respondent should have contacted E.B.’s parents between April 16, 2010 and April 19, 2010.
15.Between Friday, April 16, 2010 and Monday, April 19, 2010, Respondent became quite ill, and although he made an attempt to retain a substitute for April 19, 2010, he was unsuccessful. R338, PX22-23.
16.On Monday April 19, 2010, Respondent made a decision to teach class despite his illness. Respondent’s illness would not excuse him of any violation by him of school or district policy.
17.On Monday, April 19, 2010, student E.B. failed to sit in the front of the class despite the agreement to do so the previous Friday. R343, R177, R295. This was due to a desire of the student to remain with her friends in the back of the class, so she could talk with them. R144.
18.Respondent assigned her to a detention to which E.B. responded “do what you want, I’m not serving it.” RX6; R347, R309.
19.Respondent attempted to contact the office regarding the behavior of E.B., but no one answered the phone. R345; PX21.
20.E.B. eventually relented and moved to the front of the class. Almost immediately she began talking to other students and moved her new desk from its original position. R345.
21.E.B. advised Respondent that she was uncomfortable with being moved to the front of the room. R346, R144, R178. The term “uncomfortable” from a student does not justify the elimination of appropriate discipline from a teacher. R92.
22.Respondent placed his stool directly in front of E.B.’s desk, and used his legs to secure the desk of E.B. in a fixed position, to which the student advised Respondent that she was uncomfortable. R346. Respondent remained in this position for approximately 4.5 minutes. R375. Respondent never physically touched E.B. and there was an open row next to E.B.’s seat. R375.
23.Other students confirmed that all E.B. said to Respondent was that she was uncomfortable and that she was going to tell her mother. R174, R182, R293, R301. E.B. was angry about being moved to the front of the class. R187, R195, R301.
24.E.B. admitted that she was not so much scared as she was angry and admitted that she was arguing with him. R308.
25.Had the student simply acted appropriately in class, it is very clear the incident would not have occurred. R185, R352.
26.E.B. claimed that Respondent violated her personal space. R135. However, no part of Respondent’s body was ever any closer to E.B. than other teachers normally get during normal classroom activities. R299, R306, R307, R349, R148. While E.B. may have felt her personal space violated, there was nothing unreasonable about Respondent’s actions in relation to normal classroom activities in terms of distance from E.B. In light of E.B.’s activities stemming from April 16th, 2010 through the time of the incident, including repeatedly talking, moving around, engaging other students in discussions and disrespecting the teacher’s reasonable directives to be quiet and remain in place, the actions of Respondent were reasonable, and resulted in the student’s compliance with Respondent’s repeated directive to E.B. to remain quiet and in place. R90, e.g.
27.E.B., by her own admission, did not lose her desire to be in school because of the actions of Respondent, and E.B. did not miss out on “anything” as a result of the incident. R142.
28.Respondent did not base any of his actions on the student’s sex nor could any reasonable person construe his actions as being sexual in nature. R222[1], R351. None of Respondent’s actions rise to any level of sexual harassment. The mere fact that Respondent is male and E.B. is female is not indicative of any harassment in and of itself.
29.Respondent did not have actual knowledge that his behavior was causing E.B. any harm. R351. Respondent believed at all times that his actions on April 19, 2010 were reasonable in order to maintain discipline and perform his duties as an educator to have a non-disruptive learning environment. R352. Respondent took no knowingly harmful action against E.B.
30.Respondent admitted the following facts pursuant to Requests for Admission exchanged in the discovery process:
1.The authenticity of a statement provided on July 15, 2010;
2.That he failed to “zip the fly” of his pants upon returning to the classroom on April 19, 2010;
3.That Respondent seated himself in a stool in close proximity to E.B.’s desk on April 19, 2010; and
4.That E.B. indicated she was uncomfortable with his sitting in the stool.
PX18.
31.The issue raised in the admissions related to the zipping of the Respondent’s fly has no relation to the claims made regarding termination by the Petitioner, and no student saw the unzipped “fly.” R260-261.
32.Despite having actual knowledge of the incident the day the incident occurred (April 19, 2010), the school administration took no real action to investigate until E.B.’s mother approached the school the next day and the school principal began an investigation thereafter. R25-26; R138. The assistant principal’s office, with actual knowledge of the incident, took little to no action on the complaint. R24. While the Principal indicated a wish that the report of the incident had found its way to her sooner, the reality is that the information was not given to her by the assistant principal. R24.
33.The lack of initial reaction to the incident by the school’s administration is indicative of an initial feeling that the incident did not warrant further investigation or at least it was considered a minor issue upon initial receipt of same.
34.E.B.’s emotional response to the actions of April 19, 2010, are not consistent with the evidence of the actual event involving Respondent restraining E.B.’s desk. This finding is not to be construed that E.B. was falsifying her emotion in any way but rather said emotion arose from something other than the actual holding of the desk in place by Respondent (i.e., response to discipline, attention to the situation by her family and the school).
35.Following the incident, E.B. went to the office to provide a complaint, however, when given the choice of returning to class or waiting in the office, E.B. chose to return to class. PX37.
36.The Petitioner waited in excess of five months to propose a termination for Respondent. PX17. No explanation of the length of time it took to investigate the rather simple fact pattern is presented by Petitioner.
DISCUSSION
The difficulty that arises in this matter relates to the wide ranging allegations and defenses arising from a single incident that lasted somewhere between 4-5 minutes. The District, for example, from the onset asserted claims ranging from harassment, to sexual harassment to a myriad of ethical violations. However, there is absolutely no evidence of sexual harassment and the District’s own expert confirmed this in her testimony. Respondent, on his part, seeks immunity under Texas Education Code 22.0512; however, based upon the facts presented, this provision does not provide immunity in this matter. The District attempts to rely heavily on (6) requests for admissions in proving a violation of District policy. PX18. However, at least one admission (with regard to the “unzipped fly”) is a non-issue as no evidence was admitted even suggesting that a student saw it or that it was anything other than an accident. Another admission seeks to authenticate a statement made by Respondent (PX18); the District asserts that the statement somehow is an admission of violation of District policy. However, based upon the testimony and the statement itself, Respondent’s version is consistent with the other evidence, and on its face, the statement does not demonstrate any violation of District policy. Thus, the admissions are not conclusive of a final decision in this matter.
Every case is an onion waiting to be peeled, and once it is done, what is left is where the decision must arise. After peeling away any and all sexually oriented claims related to Respondent’s actions, as there simply is no evidence of same, a very simple fact pattern remains. Namely, Respondent and E.B. had engaged in a dispute on the previous Friday due to E.B.’s inability to stay quiet in class and her obvious dislike for the Respondent. A reasonable solution was worked out whereby E.B. would move to the front of the classroom the following week. On Monday, Respondent instructed the student to move to the front per the agreement; she continued to defy him and disrupt class. Respondent moved E.B. to the front in a reasonable manner, and E.B. continued her disruption by moving about and talking. Respondent, in plain sight of several students in the classroom, moved his stool to be directly in front of E.B.’s desk in an effort to keep her from moving the desk and conversing. It is difficult to imagine how Respondent could have effectively taught the class had E.B. been allowed to continue moving her desk (now in the front of the class, in everyone’s view) and talking. Again, there is not one scintilla of evidence that this action was based on E.B.’s sex. For 4-5 minutes, Respondent taught the entire class from the stool, holding E.B.s desk in a still position, without making any contact with her physically. The testimony is clear that Respondent was never any closer to E.B. than teachers are in a normal classroom setting. It was verified that other teachers get closer to their students and have even touched students on the shoulder, for example.
E.B. was angry when she was moved to the front and there is no reason to believe that state of mind changed at any point during this incident. With little alternative available, Respondent took what appears to be a reasonable course of action. Previous directives from administration showed that sending the student to the office was not possible; calls to the office were often unanswered. He was also not allowed to put students in the hall, and there were no nearby teachers to provide assistance. Every action Respondent took was in full and plain sight of the rest of the class.
E.B. is admittedly upset about the incident, but it remains unproven to any degree that the distress was caused by the incident itself or something else; e.g., embarrassment, response to discipline or the attention paid to the incident by the process and events following the incident. However, as E.B. admits, even though the incident does cause her to be upset, she has not lost any benefit from school as a result, and still enjoys school.
The 4-5 minutes of a teacher sitting at the front of one’s desk to make sure a student behaves, in full view of all classmates, without making any physical contact with the student, simply seems reasonable in the context of the evidence of this matter.
In conclusion, peeling away the onion in this case leads to the necessary conclusion that the Petitioner has failed to establish any good cause for the termination of Respondent.
CONCLUSIONS OF LAW
1.The Certified Hearing Examiner has jurisdiction to hear this issue under Texas Education Code § 21.251(a)(1).
2.Respondent was afforded a fair and impartial hearing as prescribed in the Texas Education Code § 21.253.
3. Respondent is not immune pursuant to Section 22.0512 of the Texas Education Code.
4.Petitioner sought termination, for good cause, of Respondent for “Failure to properly manage students, properly discipline students, and provide proper classroom instruction.” PX17. The evidence does not support this basis for termination.
5.Petitioner sought termination, for good cause, of Respondent for “Inappropriate or harassing behavior.” PX17. The evidence does not support this basis for termination.
6.Petitioner sought termination, based upon the April 19th, 2010 incident, for good cause based upon alleged “Physical or verbal abuse of students, parents and/or co-workers.” PX17. The evidence does not support this basis for termination.
7.Petitioner sought termination, based upon the April 19th, 2010 incident, for good cause based upon alleged “Conduct or behavior that could cause the public, students, or employees to lose confidence in the integrity of the District and/or you as a teacher.” PX17. The evidence does not support this basis for termination.
8.Petitioner sought termination, based upon the April 19th, 2010 incident, for good cause based upon alleged “Behavior that by itself constituted harassing, degrading, or sexually charged environment which is completely inappropriate in a NCISD classroom/teaching environment.” PX17. The evidence does not support this basis for termination.
9.Petitioner sought termination, based upon the April 19th, 2010 incident, for good cause based upon alleged “Failure to comply with the Code of Ethics and Standard Practices for Texas Educators.” PX 17. The evidence does not support this basis for termination.
10.The District has not met its burden to show by a preponderance of the evidence that there is good cause for the termination of Mr. Papa’s contract or that he violated any applicable policy of the District.
RECOMMENDATION
It is therefore the recommendation of the undersigned Certified Hearing Examiner that the NCISD Board of Trustees disapprove of the Administration’s proposal to terminate, that the letter recommending termination dated October 26, 2010 be vacated, and the Respondent be afforded all of the rights and benefits he would be entitled to but for this pending action.
/s/
KEVIN A. FORSBERG
CERTIFIED HEARING EXAMINER
Date: 2-18-11
[1]In fact, Petitioner’s expert witness confirms the absence of any evidence suggesting any sex discrimination.