DOCKET NO. 023-R3-993
CAROLYN HASSELBACK§BEFORE THE STATE
§
§
V.§ COMMISSIONER OF EDUCATION
§
DALLAS INDEPENDENT§
SCHOOL DISTRICT§THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner Carolyn Hasselback appeals the decision of the Dallas Independent School District board of trustees, Respondent, to uphold her transfer.
On January 25, 1995 a hearing was held before Christopher Maska, the Administrative Law Judge appointed by the State Commissioner of Education to hear this cause. Petitioner is represented by Mr. Dennis J. Eichelbaum, Attorney at Law, Dallas, Texas. Respondent is represented by Ms. Dianne E. Doggett, Attorney at Law, Austin, Texas.
On April 25, 1995, the Administrative Law Judge issued a Proposal for Decision recommending that Petitioner’s appeal be granted. Exceptions and replies were filed and considered.
Findings of Fact
After due consideration of the evidence and matters officially noticed, in my capacity as State Commissioner of Education, I make the following Findings of Fact:
1.During all relevant times, Petitioner, Carolyn Hasselback, was employed by Respondent, Dallas Independent School District, as a teacher. Petitioner’s contract specified that she may be assigned or reassigned.
2.Petitioner was assigned to Respondent’s Anson Jones Elementary School as a kindergarten teacher for seventeen years, ending with the 1991-1992 school year.
3.Petitioner was employed for the 1991-1992 through the 1995-1996 school years pursuant to a five-year non-probationary term contract.
4.During Petitioner’s assignment to Anson Jones Elementary School, she received consistently excellent performance evaluations from six different principals.
5.Petitioner was nominated for many awards, including Teacher of the Year for her school.
6.Petitioner moved onto levels II and III of the career ladder as soon as they were available.
7.Petitioner is an excellent and dedicated teacher.
8.The principal of Anson Jones Elementary School during the 1990-1991 and 1991-1992 school years was Ms. Helen Escamilla. Ms. Escamilla had never been a principal prior to the 1990-1991 school year.
9.During the period 1990-1992, Ms. Escamilla’s actions caused low staff morale. Many teachers were rightly concerned with the direction of the school.
10.For fifteen years, ending with the 1991-1992 school year, Petitioner was elected by the Texas State Teacher’s Association (“TSTA”) members on her campus to be Association Representative (“AR”). AR’s serve as liaisons between TSTA and the members at their school in resolving disputes with the district.
11.Teachers at Anson Jones Elementary School asked Petitioner to help them resolve their problems with Ms. Escamilla. Petitioner in turn contacted TSTA staff person Ms. Mary Hepp for advice on how to help the teachers. Ms. Hepp suggested that a meeting be held to find out what the teachers’ concerns were, and to discuss possible ways of resolving them.
12.On or about December 19, 1991, Petitioner organized a meeting at the home of Mary Reeder, a teacher at the school, to discuss what teachers could do to build morale and stop mistreatment by Ms. Escamilla. A large number of teachers chose to attend the meeting. The possibility of bringing a class action grievance was discussed.
13.On January 7, 1992, the TSTA members voted overwhelmingly to bring a class action grievance against Ms. Escamilla.
14.Area Director Mr. Richard Marquez was Ms. Escamilla’s immediate supervisor. On January 8 or 9, 1992, Mr. Marquez and his assistant Michael Stiles, met with Petitioner at the school at Mr. Marquez’s request. During the meeting, Mr. Marquez told Petitioner not to go through with the class action grievance.
15.In January 1992, Petitioner organized another meeting at a local pizza restaurant to talk about the content of the class action grievance against Ms. Escamilla. Many teachers attended.
16.On January 25, 1992, Petitioner filed a class action grievance on behalf of TSTA members at Anson Jones Elementary School. The concerns raised in the grievance were not Petitioner’s personal concerns but the concerns of the class. The grievance alleges both violations of law and the creation of an unhealthy environment. The grievance bore Petitioner’s name as the representative of the class.
17.Upon receipt of the grievance, Respondent’s Director of Personnel, Governmental, and Internal Relations, Mr. Robby Collins, directed Mr. Marquez to contact Ms. Hepp to resolve the teachers’ concerns informally. This attempt was not successful.
18.The class action grievance was heard at level II of Respondent’s grievance procedure before Hearing Officer Ms. Mary Roberts on April 22, 1992. Petitioner and Ms. Hepp represented the teachers, and Mr. Marquez represented Ms. Escamilla. Mr. Marquez did not allege any inappropriate conduct by Petitioner at the hearing, and the only relief he requested was that Ms. Escamilla get some help with her duties.
19.The level II decision was issued by Deputy Superintendent Chad Woolery on May 5, 1992. This decision found that it was not appropriate for the grievance to be a class action grievance because the teachers’ concerns were too varied. He did, however, make suggestions as to how the teachers and Ms. Escamilla could resolve their disputes. The decision was comprehensive and addressed all necessary aspects of the grievance. If the level II grievance had been implemented, it would have resolved all disputes at the school. Ms. Escamilla failed to implement the level II decision.
20.The class action grievance was heard at level III of Respondent’s grievance procedure by Hearing Officer Don Smith on June 2 and 9, 1992. Mr. Marquez represented Ms. Escamilla at the hearing, and Ms. Hepp represented the teachers. Nineteen teachers testified in support of the grievance including Petitioner.
21.Mr. Marquez defended Ms. Escamilla by attacking Petitioner’s role in the grievance. In particular, Mr. Marquez presented a bizarre argument that Petitioner was involved in a conspiracy first to keep Ms. Escamilla at Anson Jones Elementary School then to destroy her by criticizing her every decision. Mr. Marquez believed that Petitioner’s role as AR made her an individual with a dangerous amount of power, that she would destroy any new principal. He predicted that if the class action grievance was granted that every principal in the district would soon face a similar class action grievance. Mr. Marquez’s theories were not supported by the evidence. However, based on these reasons, Mr. Marquez, at the level III hearing, requested that Petitioner be assigned to another school.
22.Petitioner and the other teachers at Anson Jones Elementary School had to resort to the grievance system to attempt to correct serious management problems caused by Ms. Escamilla. Ms. Escamilla’s deficiencies, including violations of law, ultimately led to her demotion to assistant principal and her transfer away from Anson Jones Elementary School.
23.Petitioner properly followed the grievance procedure to resolve the class’ grievances with Ms. Escamilla. Petitioner properly fulfilled her roles as AR and teacher. Petitioner’s relationship with the staff of Anson Jones Elementary School was at all times good.
24.Mr. Smith rendered the level III decision on June 30, 1992. The decision found that the dispute was moot because Ms. Escamilla had left her position of principal at Anson Jones Elementary School. The decision also found that a proper class did not exist because of Petitioner’s “unusual relationship with the PTA and its newly elected president.” The decision states, “[d]ue to the adverse relationship between the grievant and the principal, and the subsequent relationship between the grievant and the remainder of the staff, it is the hearing officer’s opinion that both the principal and the grievant’s effectiveness as educators would be impaired if either were to return to Anson Jones Elementary School.” The decision ordered Mr. Marquez to consider transferring Petitioner. It did not order him to transfer her. Nonetheless, Mr. Marquez did transfer Petitioner.
25.Petitioner’s activity in assisting and representing herself and other employees in the class action grievance against Ms. Escamilla was a substantial or motivating factor in Respondent’s decision to transfer Petitioner.
26.But for Petitioner’s activity in assisting and representing herself and other employees in the class action grievance against Ms. Escamilla, Respondent would not have transferred Petitioner.
27.Petitioner’s transfer had a chilling effect on the associational activities of the teachers at Anson Jones Elementary School.
28.Petitioner has taken a diminished role in TSTA since her transfer. Her transfer has been the cause of much embarrassment.
29.Petitioner’s involuntary transfer has not caused Petitioner to lose either salary or benefits.
30.Petitioner was an active member of the PTA at Anson Jones Elementary School.
Discussion
Both parties conceded that the standards set out in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct 568, 50 L.Ed. 471 (1977) apply to this case. Petitioner has the burden to show that her conduct was protected, and that this conduct was a substantial or motivating factor in the decision to transfer her. If Petitioner carries that burden, the Respondent has to show by a preponderance of evidence that it would have reached the same decision as to Petitioner’s transfer even in the absence of the protected conduct.
The first question is whether Petitioner’s conduct is protected. The conduct in question is serving as Association Representative for a teacher’s association and being the named party in a class action grievance. Petitioner’s conduct is protected conduct.
The second question is whether that conduct was a substantial or motivating factor to transfer her. Respondent argues that Mr. Smith, the level III hearing officer, made the decision after impartially reviewing the hearing testimony and the decision was not based upon Petitioner’s conduct as a union representative. This argument fails for a number of reasons. The decision to transfer Petitioner was made by Mr. Marquez, not Mr. Smith. The level III decision drafted by Mr. Smith orders “that the Area Director consider the option of reassigning the grievant pursuant to this decision.” The level III decision gave Mr. Marquez the option of transferring Petitioner. The decision to transfer Petitioner was made by Mr. Marquez. Mr. Marquez’s responsibility is even greater because he represented Ms. Escamilla at the level III hearing and specifically requested that Petitioner be transferred.
Both Mr. Smith’s level III decision and Mr. Marquez’s decision to transfer Petitioner were motivated by Petitioner’s protected activity. The level III decision talks about the unusual relationship between Petitioner and the PTA and its President. However, the evidence at the level III hearing only shows the Petitioner was an active and involved member of the PTA. There was nothing sinister about Petitioner’s dealing with the PTA. But what is most disconcerting about the level III decision is the statement, “Due to the adverse relationship between grievant and principal, the subsequent relationship between the grievant and the remainder of the staff, it is the hearing officer’s opinion that both the principal’s and grievant’s effectiveness as educators would be impaired if either were to return to Anson Jones Elementary School.” Petitioner was in an adverse relationship with the principal only in the sense that Petitioner was the class representative in a grievance that sought to improve matters at the elementary school. But Petitioner’s relationship with Ms. Escamilla could not provide justification for Petitioner’s transfer because Ms. Escamilla had already left Anson Jones Elementary School. In fact, Respondent found that the class action grievance was moot for this reason. Further, Petitioner’s relationship to the remainder of the school staff was good. Petitioner’s relationship to the rest of the staff in regards to the grievance was primarily as Association Representative (“A.R.”) and class representative. These are clearly protected activities.
Mr. Marquez’s reason’s for transferring Petitioner were made clear in the arguments he made at the level III hearing. Mr. Marquez believed that Petitioner had too much power as evidenced by the class action grievance. He claimed Petitioner sought to keep Ms. Escamilla at Anson Jones Elementary School and then set out to destroy her by objecting to her every decision. He claimed Petitioner would destroy any new principal at Anson Jones Elementary School. He saw the class action grievance as a test case that would be used against every principal in the district if it were successful. Mr. Marquez saw Petitioner’s union role as the justification for transferring her. The transfer was based in substantial part on protective activity.
If Mr. Marquez was correct that Petitioner was involved in a conspiracy to control the Dallas Independent School District, the fact Petitioner was also engaged in protected activity would not prevent her transfer. However, Petitioner was not engaged in a conspiracy. As AR, Petitioner received many legitimate complaints from many teachers concerning Ms. Escamilla. Petitioner sought to address these complaints through the proper channels. While the class action grievance did not seek to have Ms. Escamilla demoted or transferred, Respondent in an independent action both transferred and demoted Ms. Escamilla for the very conduct that was the subject of the class action grievance. Petitioner did not set-up Ms. Escamilla. Mr. Marquez, who warned Petitioner not to file a class action grievance, did not have a permissible independent reason for transferring Petitioner. Respondent would not have reached the decision to transfer Petitioner in the absence of protected conduct. Petitioner is an excellent teacher who was compelled to be the class representative in a class action grievance against her principal because that principal was hurting the school.
Petitioner’s Whistle Blower claim is also meritorious since Petitioner was discriminated against for pointing out violations of law in the class action grievance.
Response to Respondent’s Exception’s to the Proposal for Decision
The purpose of exceptions to a proposal for decision is to point out any alleged errors in the proposal for decision so that the administrative agency has an opportunity to correct any errors before issuing a final order. Respondent raises three objections to the proposal for decision warranting a response: an allegation that there is no way to determine why Petitioner was reassigned because the individual who ordered the reassignment did not testify; an assertion that the statute of limitations has run on the Whistle Blower claims; and a claim that there is no recourse if one is transferred to another job in retaliation for engaging in protected conduct[1].
The motivation for Petitioner’s transfer is an important issue in this case. Respondent asserts that there is no evidence as to motivation. Respondent writes, “The only person who could bring forth evidence as to the motivation behind the transfer was Richard Marquez, the person transferred by petitioner.” (Emphasis in the original). Respondent offers no citation for this proposition. Determining motivation is often difficult. The only way to determine another’s motivation is to examine the other’s actions, the effects of the other’s actions, and the other’s words. In this case, there is evidence concerning each of the methods of determining Mr. Marquez’s motivation. Of note, there are several hours of tape recordings of the level III grievance, which were admitted into evidence and which were reviewed by the Administrative Law Judge, where Mr. Marquez represented Ms. Escamilla and argued that disciplinary action should be taken against Petitioner. Respondent is simply incorrect when it asserts, “Respondent is being punished for having the wisdom of not providing petitioner with witnesses that could, theoretically, damage its case.”(Emphasis in the original).
Respondent’s contention that the statute of limitations has run on the Whistle Blower claim is not persuasive. Petitioner has met all timelines necessary to maintain her cause of action as pled before the Commissioner of Education. It should be noted that the Whistle Blower Act is not a part of the school law of Texas. However, the Commissioner of Education has jurisdiction to hear cases where persons are “aggrieved ...by actions or decisions of any board of trustees.” Tex. Educ. Code § 11.13. Here the Commissioner’s jurisdiction is based on Petitioner being aggrieved by the decision of a school board. The decision of a board of trustees can be reversed by the Commissioner if there has been a violation of law. Texas Education Agency v. Cypress-Fairbanks, 830 S.W. 2d 88, 91 (Tex. 1992). If the statute of limitations had run prior to Petitioner bringing a grievance before Respondent, an interesting question would be raised. But as a practical matter, it is highly unlikely that a statute of limitations will expire before a claim is extinguished for failure to exhaust administrative remedies.
Respondent’s claim that there is no recourse when an individual receives a transfer in retaliation for protected conduct is contrary to settled law. In the case of Jett v. Dallas Independent School District, the Fifth Circuit was confronted with a situation where a coach was transferred in retaliation for protected conduct. The coach, among other causes of action, asserted a Mt. Healthy claim and a constructive discharge claim. The court ruled that the transfer, which involved a change to a position with no coaching duties, but did not involve any economic loss, was not a constructive discharge. Jett v. Dallas Independent School District, 798 F.2d 748, 755-756 (5th Cir. 1986). As to the First Amendment claims, the court ruled:
Jett may recover for resulting injuries if he was reassigned in retaliation for protected speech even though he does not have a protected property interest in his former position.
Id. at 757. Even when there is no loss of salary or benefits, there can be recovery. Jett is not an isolated case. See Reeves v. Claiborne County Board of Education, 828 F.2d 1096 (5th Cir. 1987); Thompson v. City of Starkville, Mississippi, 901 F.2d 456 (5th Cir. 1990); and Professional Association of College Educators, TSTA/NEA v. El Paso Community College District, 730 F.2d 258 (5th Cir. 1984). Additionally, several Commissioner’s decisions affirm the principle espoused in Jett. Zortman v. Ysleta ISD, No. 197-R3-489 (Comm’r Educ., Oct. 1991); DeLeon v. Del Valle ISD, 044-R2-1089 (Comm’r Educ., May 1993); Flores v. Edinburg ISD, No. 017-R8-991 (Comm’r Educ., April 1992).
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as State Commissioner of Education, I make the following Conclusions of Law: