DOCKET NO. 056-LH-1108
FORT BEND INDEPENDENT § BEFORE THE
SCHOOL DISTRICT §
§
Petitioner § INDEPENDENT
§ HEARING EXAMINER
v. § EMMETT STERLING HUFF
§
DERRICK EARTHLY § FOR THE
§ TEXAS EDUCATION
Respondent § AGENCY
INDEPENDENT HEARING EXAMINER’S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
On the 6th day of January, 2009, the above styled and numbered case in the matter of the proposed termination of DERRICK EARTHLY came on to be heard before the Independent Hearing Examiner of the Commission of Education of the State of Texas, at the Fort Bend Independent School District’s Administrative Annex, 3119 Sweetwater, Sugar Land, Texas 77479.
Emmett Sterling Huff, Attorney at Law, is the Independent Hearing Examiner appointed by the State Commissioner of Education. Petitioner, Fort Bend Independent School District is represented by Ms. Sarah Langlois, McGinnis, Lochridge & Kilgore, L.L.P, 3200 One Houston Center, 1221 McKinney Street, Houston, Texas 77010. Respondent, DERRICK EARTHLY, appeared and is represented by Mr. Dwight Harris, The Fort Bend Employee Federation, 341 Southwestern Blvd., Sugar Land, Texas 77478.
The Hearing Examiner having examined the papers of the case and heard the evidence and argument of counsel finds that he has jurisdiction of the case and the parties pursuant to Section 21.251 of the Texas Education Code. The parties have not agreed in writing to waive the right to a recommendation by the date prescribed by Section 21.257(a) of the Texas Education Code. No written request for an open hearing having been received, the hearing was a closed hearing. After a full hearing on the merits on the 6th and 7th of January, 2009, and after due consideration of the evidence and matters officially noticed, the Hearing Examiner makes the following findings of fact and Conclusions of Law by a preponderance of the evidence.
Findings of Fact
1. DERRICK EARTHLY is employed by Fort Bend Independent School District (FBISD), for the 2008-2009 school year under a one-year term contract executed April 12, 2008.
2. DERRICK EARTHLY is employed as a Physical Education teacher and coach at Christa McAuliffe Middle School.
3. DERRICK EARTHLY was aware that, pursuant to the express terms of his contract, his employment at FBISD could be terminated for violations of the law or of FBISD policies, procedures, rules, regulations, and administrative directives.
4. The principal at McAuliffe Middle School, and DERRICK EARTHLY’s direct supervisor is Sharon Delesbore.
5. On September 24, 2008 Rhonda Mc Williams, FBISD Chief Human Resources Officer, sent a letter to Mr. Earthly informing him that he was being placed on administrative leave pending an investigation of an incident in which Mr. Earthly allegedly inappropriately touched a student in violation of policies and procedures of FBISD.
6. On October 16, 2008, Rhonda Mc Williams sent a letter to Mr. Earthly informing him of Dr. Timothy Jenney’s, Superintendent of FBISD, intention to recommend that the FBISD Board of Trustees terminate his employment at its October 27, 2008 meeting.
7. On October 30, 2008, Dr. Jenney sent Mr. Earthly a letter informing him that the Board of Trustees voted to propose termination from the District under Section 21.211 of the Texas Education Code and Section 6 of his term contract. The October 30, 2008 letter informed Mr. Earthly of the specific factual conduct supporting his proposed termination, including allegations that he “engaged in appropriate physical contact with a student-causing him injury-and refused to let him go after three administrators directed him to do so.”
8. Mr. Earthly requested a hearing regarding the proposed termination of his contract.
9. A hearing on the merits before Lt. Col. Emmett Sterling Huff USMC (Ret.), Independent Hearing Examiner, was held on January 6-7, 2009. Mr. Earthly was represented by Mr. Dwight Harris of The Fort Bend Teacher’s Federation.
10. FBISD was represented by Mrs. Sarah Langlois of the law firm Mc Ginnis, Lochridge & Kilgore, L.L.P.
11. McAuliffe Middle School sustained extensive damage during Hurricane Ike on September 12-12, 2008. Because of the extensive damage, McAuliffe students and staff were housed in a wing of Willowridge High School.
12. At the time of the incident, M.H. was a student at Willowridge High School.
13. Mr. Earthly has been a teacher for six (6) years.
14. Mr. Earthly taught M.H. in the sixth (6th) grade in middle school.
15. Prior to working as a teacher, Mr. Earthly was employed as an institutional officer for the Harris County Juvenile Probation Department. 16. Mr. Earthly is 6' 1", and weighs 245 pounds. M.H. is approximately 5' 6", and weighs approximately 140-155 pounds.
16. On September 24, 2008, at approximately 2:40 p.m., Mr. Earthly walked his middle school students down a hallway to the gym at Willowridge High School.
17. M.H. and a few other Willowridge High School students were in the hallway when Mr. Earthly arrived with his students.
18. Mr. Earthly observed M.H. step toward, go after, and swing his fist toward one of his students. Mr. Earthly blocked the swing of M.H. with his arm.
19. Mr. Earthly then pulled M.H. away from his student by pulling on M.H.’s backpack and telling M.H. to leave the building.
20. A surveillance camera was functioning in the hallway, and its recorded content was viewed at the hearing of January 6-7, 2009.
21. M.H. did not leave the building but instead challenged Mr. Earthly verbally, began intentionally bumping into him, and physically pushing Mr. Earthly toward an intersecting hallway which was out of the view of the surveillance camera.
22. Mr. Earthly then struggled with and restrained M.H., who physically fought Mr. Earthly, moving the two into a side hallway out of the view of the camera.
23. Ms. Dee De Burke, a teacher at Willowbridge High School, states that she observed Mr. Earthly attempting to get M.H. under control. Her testimony confirms that Mr. Earthly was not violent and was attempting to get M.H. under control.
24. The testimony of Ms. Mary Ayers, a teacher at Willowbridge High School, is not believable and of little probative value to establish that the force used by Mr. Earthly was not reasonable force.
25. The testimony of Ms. Alonie Carol Moncriffe, a teacher at Willowbridge High School, is not believable and of little probative value to establish that the force used by Mr. Earthly was not reasonable force.
26. The testimony of Mr. George long, Assistant Principal at Willowbridge High School, is misleading, contradicting, and of no probative value to establish that the force used by Mr. Earthly was not reasonable force.
27. The testimony of Mr. Brian Lovetinsky, Assistant Principal at Willowbridge High School, is misleading, contradicting, and is of no probative value to establish that the force used by Mr. Earthly was not reasonable force.
28. The testimony of Ms. Claudia taylor, School Nurse at Willowbridge High School, establishes that she has no basis in fact or belief that Mr. Earthly injured the student M.H.
29. The testimony of Mr. Ronnie Edward Adams, Associate Principal at Willowbridge High School, is misleading, contradicting, and of no probative value to establish that the force used by Mr. Earthly was not reasonable force.
30. The testimony of Ms. Sharon Delesbore, Principal of Christa MC Auliffe Middle School, has no basis in fact, and is of no probative value to establish that the force used by Mr. Earthly was not reasonable force.
31. The testimony of Mr. Lawrence A. Hindt, Assistant Superintendent of Fort Bend Independent School District, has no basis in fact, and is of no probative value to establish that the force used by Mr. Earthly was not reasonable force.
32. The video tape and testimony of Mr Earthly establishes that the time lapse from the time adminstrators approached Mr. Earthly until M.H. was released from restraint by Mr. Earthly, could not have been more than twenty-seven (27) seconds.
33. Section 22.0512 of the Texas Education Code prohibits a school district from bringing disciplinary proceedings against a professional employee for the employee’s use of physical force against a student to the extent justified under the Texas Penal Code Section 9.62. Disciplinary proceedings include the termination of the employee’s contract.
34. The Penal Code stipulates when the use of force is justified. Force, but not deadly force is justified if the actor (teacher) is entrusted with the care, supervision, or administration of the person for a special purpose and when and to the degree the actor (teacher) reasonably believes the force necessary to further the special purpose or to maintain discipline in a group.
Conclusions of Law
1. The Hearing Examiner has jurisdiction under Section 21.251 of the Texas Education Code.
2. Pursuant to the Texas Education Code Section 21.154(4), Fort Bend Independent School District Board of Trustees may terminate the contract of DERRICK EARTHLY only for good cause as determined by the board and defined by Section 21.156.
3. Section 21.211(a) of the Texas Education Code provides “a term contract may be terminated at any time for good cause as determined by the Board of Trustees.”
4. Fort Bend Independent School District Board of Trustees has no good cause to terminate the term contract with DERRICK EARTHLY pursuant to Sections 21.154(4), and 21.156(a), of the Texas Education Code, and Section 5 of the contract.
5. DERRICK EARTHLY, as a matter of law, has not failed to meet accepted standards of conduct for the teaching profession as adopted by Fort Bend Independent School District, and as generally recognized and applied in similarly situated school districts in Texas which would warrant his termination
Proposal for Granting Relief
Based on the foregoing Findings of Fact and Conclusions of Law, pursuant to Section 21.257(a)(2) of the Texas Education Code, the Hearing Examiner respectfully recommends that the Board of Trustees of the Fort Bend Independent School District deny the recommendation of the District’s administration to terminate the employment of DERRICK EARTHLY, reinstate him to his teaching position, and restore pay and benefits lost as a result of this proposed termination, if any.
SIGNED this ______day of January, 2009
______
EMMETT STERLING HUFF
Independent Hearing Examiner
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