Houston Independent Before Todd G. Riff

Houston Independent Before Todd G. Riff

DOCKET NO. 308-LH-0511

HOUSTON INDEPENDENT§BEFORE TODD G. RIFF,

SCHOOL DISTRICT§

§TEXAS EDUCATION AGENCY

§

V.§CERTIFIED INDEPENDENT

§

SHARONGERSTACKER§HEARING EXAMINER

RECOMMENDATION OF CERTIFIED HEARING EXAMINER

STATEMENT OF THE CASE

Respondent, SharonGerstacker ("Ms.Gerstacker" or “Respondent”), appeals the recommendation of Petitioner, HoustonIndependentSchool District ("HISD" or “Petitioner”), to not renewherone year term contract of employment as a teacher.

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 August 1, 2011. Ms.Gerstacker was represented by her counsel, JasonL.Fowellof TriticoRainey, PLLC. HISD was represented by its counsel, PhilipD.Fraissinetof Thompson & Horton LLP. ToddG.Riff was the certified hearing examiner appointed by the Texas Education Agency ("TEA") to hear this matter and submit this Recommendation.

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) based on a preponderance of the evidence:

A. Procedural Facts

1. By letter dated April 15, 2011, Ms.Gerstacker received timely notice from HISD that a proposal to nonrenew her term contract was pending before the Board of Education (Pet. Ex. 3).

  1. The notice of nonrenewal letter contains one reason for proposed nonrenewal as set forth in Board Policy DFBB (Local):

(9.) Reduction in force because of financial exigency or program change (Pet. Ex. 3).

  1. By correspondence from Mr. Fowell dated May 2, 2011, Ms.Gerstacker timely requested a hearing pursuant to Chapter 21 of the Texas Education Code to challenge the proposed nonrenewal.
  2. On May 16, 2011, the undersigned was appointed as the hearing examiner in this matter.
  3. The parties agreed pursuant to Texas Education Code §21.257(c), to extend by 45 days the Hearing Examiner’s deadline for issuing a recommendation.
  4. A hearing was held on August 1, 2011 regarding the proposed nonrenewal.
  5. In addition to the testimony at the hearing on August 1, 2011, the parties requested, and the Hearing Examiner agreed, to supplement the hearing record with the testimony of Ms. Ann Best (“Best”), Chief Human Resources Officer for HISD, elicited in another matter – the case of Frances Luper (June 27 and July 7, 2011)– with issues relevant and similar to those in the Gerstacker case(Tr. p. 6; Gerstacker Tr. p. 86).
  1. General Findings of Fact
  1. Ms.Gerstacker has been teaching at HISD since 2000 (Tr. p. 150).
  2. Ms.Gerstacker was hired by HISD to teach both German and research and writing, the latter of which required an English teacher to teach the course (Tr. p. 149).
  3. Ms.Gerstacker has a master's degree in education with an ESLendorsement and a bilingual endorsement (Tr. p. 149).
  4. Ms.Gerstacker was employed as a teacher by HISD for the 2010 - 2011 school year under a one-year term contract (Pet. Ex. 1). Ms. Gerstacker was assigned to Waltrip High School (“Waltrip”), an HISD high school, for the 2010-2011 school year, and for 11 years prior thereto (Tr. p. 149).
  5. Mr.StevenSiebenaler has been employed with HISD for twenty four years, including twelve years as an HISD Principal (Tr. p. 22 – 23). Mr.Siebenaler has been the principal at Waltrip for the last eight years, including the 2010 -2011 school year (Tr. p. 23).
  6. Ms.Gerstacker has been formally appraised under the Professional Development and Appraisal System (“PDAS”) since 2000, and in each PDAS appraisal, she received scores of “exceeds expectations” and “proficient” (Resp. Ex. 1-10A; Tr. p. 64).
  7. Ms.Gerstacker is certified to teach Secondary German (Grades 6-12) and Secondary English Language Arts or “English” (Grades 6-12) (Pet. Ex. 2; Resp. Ex. 16; Trans. P. 54). Ms.Gerstacker was assigned to the German teaching position at Waltrip for the 2010-2011 school year as reflected by her job code (Ex. 8, p. HISD/SG000106; Tr. p. 38). Ms.Gerstacker was the only teacher at Waltrip who had a job code for and a description of “German”for the 2010-2011 school year (Ex. 8, p. HISD/SG000106; Tr. p. 38).
  8. An HISD high school teacher typically teaches 6 “sections” or classes each semester (Tr. p. 40).
  9. There have not always been enough students at Waltrip enrolled in German to allow Ms.Gerstacker to teach six full sections of German each year (Tr. p. 39 - 42). As such, Ms.Gerstacker has been assigned to teach other non-German classes in certain years to fill out her schedule (Tr. p. 42).
  10. During the 2010 – 2011 school year, there were approximately 68 – 70 students that signed up to take German at Waltrip. This was enough to fill 3 classes, all of which were taught by Ms.Gerstacker (Tr. p. 39 – 40). During the 2010 - 2011 school year, Ms.Gerstacker taught three senior English courses in addition to three German classes (Tr. p. 42; Resp. Ex. 29).
  11. In the 2008 - 2009 school year, Ms.Gerstacker taught International Studies in addition to her German classes (Tr. p. 161). In 2009 - 2010, Ms.Gerstacker taught all German classes (Tr. p. 161).
  12. Despite the fact that Ms.Gerstacker taught classes other than German from year to year, her job code and description remained that of the sole German teacher at WaltripHigh School (Pet. Ex. 8, p. HISD/SG000106; Resp.Exs. 1-10a).
  13. It is not unusual for a teacher who is assigned to a particular job code to teach other courses in addition to those covered by their assigned job code (Tr. p. 105). Teachers are given only one job code (Tr. p. 105 – 106). The HISD job code signifies the primary function or responsibility of the teacher and the position held by a teacher at a campus (Tr. p. 105 – 106). Two different teachers can perform the same assignment on campus but yet have different job codes (Best June Tr. p. 53). When the position represented by a particular job code is eliminated, the teacher with that job code no longer has a position (Tr. p. 106).

C. HISD’S 2011 Reduction in Force (“RIF”)

21. The State of Texas experienced a budget shortfall which has resulted in major statewide cuts to public education for the 2011-2012 school year (Pet. Ex. 8, p. HISD/HF000205).

22. A program change is one of the reasons listed in Board Policy DFF (Local) which allows the implementation of a RIF (Pet. Ex. 4, p. HISD/SG000187).

23. In accordance with Board Policy DFF (Local) the Superintendent has the authority to determine that a program change requires a RIF (Pet. Ex. 4, p. HISD/SG000188).

24. A “program change”shall mean any elimination, curtailment, or reorganization of a curriculum offering, program, school operation, or department. It is further defined in part as “a change in curriculum objectives, a modification or reorganization of staffing patterns on a particular campus or Districtwide [sic], a redirection of financial resources to meet the educational needs of the students, a lack of student response to particular course offerings, legislative revisions to programs, a reorganization, or a consolidation of two or more individual schools, administrative districts or departments” (Pet. Ex. 4, p. HISD/SG000187 - 000188 (Policy DFF (Local)). This includes elimination of a curriculum offering or program such as German.

25. In the Spring of 2011, the Superintendent of HISD, TerryGrier, determined the need for a program change due to the anticipated budgetary cuts (Pet. Ex. 6, p. HISD/SG000211).

26. Board Policy DFF (Local) requires that the Board of Education determine the employment areas that may be affected by a RIF(Pet. Ex. 4, p. HISD/SG000188). DFF (Local) provides for a non-exhaustive list of permitted employment areas subject to a RIF including secondary subjects (such as German) and individual campuses (such as Waltrip) (Pet. Ex. 4, p. HISD/SG000188). The policy also provides that the Board may combine or coordinate employment areas (Pet. Ex. 4, p. HISD/SG000188).

27. In accordance with Board Policy DFF (Local), the Board of Education approved specific employment areas that could be affected by the program change on March 10, 2011 (Pet. Ex. 6 (Consideration and Approval of Employment Areas for Reduction in Force, March 10, 2011)).

28. The Board of Education approved WaltripHigh School as well as German as employment areas subject to a RIF (Pet. Ex. 6, p.HISD/SG000213-214, 220).

29. Board Policy DFF (Local) requires the Superintendant to apply certain criteria when deciding which individual is affected by the reduction in force. There are four criteria listed in DFF (Local) that must be applied, but only to the extent necessary to determine which employees will be nonrenewed because of a RIF in a particular employment area (Pet. Ex. 4, p. HISD/SG000189).

30. According to DFF (Local), the criteria are applied sequentially only to the extent necessary to accomplish the reduction in force (Pet. Ex. 4, p. HISD/SG000189).

31. The Superintendent’s recommendation to the Board was that each individual campus be able to consider the identified employment area as needed, meaning that each campus principal could select the employment areas on the campus to be eliminated, thus combining the employment areas of a campus and subject area, and apply the criteria in Policy DFF (Local) as specified in the policy to specific employees. Principals were given extensive training to apply Policy DFF (Local) (Best June Tr. pp. 34, 35, 40, 41, 49, 50, 56, 57, 58, 59, 63, 64, 67, 68, 69, 70, 71, 213, 214, 242, 243, 244).

32. Mr. Siebenaler, along with other campus principals, was trained during the Spring of 2011 regarding the application of Board Policy DFF (Local) to his campus (Tr. p. 27 - 29; Pet. Ex. 9, pp. HISD/SG000110-134).

33. In accordance with DFF (Local) and the training he received, Mr.Siebenaler first had to determine the number of positions to eliminate given the reductions to his campus budget (Tr. p. 32; Pet. Ex. 9, HISD/SG000112). Based on the budget information for his campus, Mr.Siebenaler determined he needed to eliminate approximately 20 positions in order to save approximately $1.2 million (Tr. p. 35, 37). Approximately 10 teachers retired, so Mr.Siebenaler had to cut another 9 or 10 teachers to reach his budget (Tr. p. 37).

34. Mr. Siebenaler then determined which positions he could eliminate at Waltrip in order to make the needed budget reductions (Pet. Ex. 9, HISD/SG000112). Based on enrollment data, Mr.Siebenaler determined he needed to eliminate the German program at Waltrip (Tr. p. 37 – p. 38). In 2010-2011, German enrollment was sufficient to fill only three classes, while other foreign languages such as Spanish and French supported many more classes (Tr. p. 39 – p. 41).

35. As the campus principal, Mr.Siebenaler is responsible for making all decisions regarding reductions in force at Waltrip (Tr. p. 50). The District operates under a “decentralized” system, which allows the principals the authority to make employment decisions (Tr. pp. 70, 89).

36. Under the first criteria in DFF (Local), Ms.Gerstacker was identified as the employee subject to a RIF in the area of German, because she was the only teacher with the job code of 000015, “German” (Tr. p. 46 – 47; Pet. Ex. 8, p. HISD/SG000106). Because Ms.Gerstacker was the only teacher with the job code for German, and the only German teacher at Waltrip, DFF (Local) did not require the application of the other criteria in order to determine which employee would be subject to the RIF (Tr. p. 47 – 48).

37. Mr. Siebenaler applied the criteria as the campus principal and made a recommendation that was ultimately accepted by the HISD Superintendent (Tr. p. 50 – 51).

38. In accordance with HISD policy, Mr.Siebenaler met with administration officials to review his recommendation to nonrenew Ms.Gerstacker’s employment contract under the RIF policy (Tr. p. 51).

39. On March 28, 2011, Mr.Siebenaler held a conference for the record with Ms.Gerstacker to explain the elimination of her position and her options in applying for other positions in HISD (Tr. p. 51 - 52; Pet. Ex. 11).

40. The Board of Education approved the recommendation made by the Superintendent that Ms. Gerstacker’s contract and employment be proposed for nonrenewal as a reduction in force at the Board meeting held on April 14, 2011 (Pet. Ex. 7, p. HISD/SG000323 (Closed Session Agenda for April 14, 2011)).

41. Board Policy DFF (LOCAL) requires that an employee subject to a reduction in force shall be considered for available positions for which they are qualified until the date of their hearing requested (Pet. Ex. 4, p. HISD/SG000189).

42. Ms. Gerstacker applied for an English position that came open at Waltrip (Tr. p. 56 – 57). At least a couple of dozen individuals from inside and outside the District applied for the open English position (Tr. p. 57). Mr.Siebenalerformed a committee,of which he was a member, to interview and make recommendations regarding filling the open English position (Tr. p. 58). Ms.Gerstacker was one of approximately five individuals to be interviewed by the committee and considered for the position (Tr. p. 58 – 59). The committee recommended two other individuals over Ms.Gerstacker for the position (Tr. p. 59–60).

43. The first individual who Mr.Siebenaler offered the vacant English position to was MichaelNiggli, a non-displaced teacher currently at ReaganHigh School (Tr. p. 146 – 147). Mr.Niggli ultimately turned down the job offer because Mr.Siebenaler couldn’t guarantee him with a hundred percent certainty that he’d have a debate class like Mr.Nigglicurrently had at Reagan (Tr. p. 59 – 60).

44. The individual who was offered the English position after Mr.Niggli turned it down was Ms.LoniKielsy, a displaced HISD teacher from GradyMiddle School (Tr. p. 143).

45. Mr. Siebenaler learned of two English position openings, based on retirements, for the 2011-2012 school year as early as February or March of 2011 (Tr. p. 81). Even before he recommended Ms.Gerstacker for nonrenewal, Mr.Siebenaler knew that twoEnglish teachers were leaving Waltrip (Tr. p. 81).

46. After reviewing Resp. Ex. 22, Mr. Siebenaler initially testified that he hired two English teachers for the 2011 – 2012 school year (Tr. p. 82); however, he later corrected that testimony saying that Ms. Finberg was erroneously listed on Resp. Ex. 22 as being hired to teach English when it should have said she was hired as a science teacher (Tr. p. 143 – 144). The Hearing Examiner, over Respondent’s objection, allowed Petitioner to supplement the record with the Request to Hire/Transfer Form, completed on June 3, 2011, that confirms that Ms.Finberg was hired as a science teacher at Waltrip.

47. Question 13 within the Budget Reduction Guide for End of 2010-2011 School Year states “If I have an open position, how will I find candidates for the position?” The answer to question 13 states, in part, “All of the displaced employees will be placed in a pool and should be considered first.” (Pet.Ex. 9, HISD/SG000115).

48. Ms. Gerstacker was also considered for an open English position at NorthHoustonEarlyCollegeHigh School (Tr. p. 131 – 135). This was a dual-credit English position which required a teacher with a Master’s degree in English to ensure that students could qualify for both high school and college credit. Id.The campus principal at NorthHoustonEarlyCollegeHigh School liked Ms.Gerstacker, but ultimately determined that Ms.Gerstacker did not have the proper credential of a Master’s degree in English to satisfy that particular job position. Id.

49. Mr. Siebenaler provided a letter of recommendation for Ms. Gerstacker that states, in part, that Ms. Gerstacker “is extremely conscientious regarding her craft, be it German, her specialty, or English at the high school level” and that she “is also certified in English and can teach any level from freshman to seniors” (Resp. Ex. 30).

50. An assistant principal, Mr. Rodolfo Lertora, provided a letter of recommendation for Ms. Gerstacker that states, in part, that “[i]t is with pleasure that I recommend Sharon Gerstacker for the English position she is seeking at Sharpstown High School” (Resp. Ex. 26).

51. An assistant principal, Mr.FrankSalinas, provided a letter of recommendation for Ms.Gerstacker that states, in part, that “Ms.Gerstacker has taught English to our seniors in fine fashion.” (Resp.Ex. 25).

52.Ms. Gerstacker is qualified to teach English at WaltripHigh School and for the District.

CONCLUSIONS OF LAW

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Certified Hearing Examiner, I make the following Conclusions of Law:

  1. The Hearing Examiner has jurisdiction of this matter pursuant to Chapter 21, Subchapter F, of the Texas Education Code (“the Code”).
  2. Ms.Gerstacker is a "teacher" as defined in Chapter 21, Subchapter E, §21.201 of the Code.
  3. Ms. Gerstacker was employed as a teacher by HISD pursuant to a one-year term contract under Subchapter E, §21.204 of the Code.
  4. HISD properly notified Ms. Gerstacker of the proposed nonrenewal of Ms. Gerstacker’s term contract in accordance with the provisions of §21.211 of the Code and HISD policy.
  5. The appeal by Ms.Gerstacker was conducted pursuant to Chapter 21, Subchapter F, §21.256 of the Code, and the standard of review in determining the findings of fact was based on the "preponderance of the evidence."
  6. Under Texas law in order to nonrenew a teacher’s contract, the District does not have to satisfy the more onerous good cause threshold, but only the existence of one violation of a pre-established reason for nonrenewal. Kinnard v. Morgan I.S.D., Docket No. 177-R1-699 (Comm’r Educ 1999); Kirby v. College Station I.S.D., Docket No. 109-R1-598 (Comm’r Educ. 1998).
  7. The District proposed Ms.Gerstacker’s nonrenewal based on one of the pre-established reasons listed in Board Policy DFBB (Local).
  8. It was not disputed, and therefore the District proved by a preponderance of the evidence, that Ms.Gerstacker received appropriate notice of the proposal for nonrenewal more than 45 days before the last day of instruction for 2010-2011.
  9. It was within Mr.Siebenaler’s power, after reviewing the budget shortfall at Waltrip, to decide to RIF the German program. Once he made that decision, the only German teacher, Ms.Gerstacker, no longer had her position.
  10. The purpose of a reduction in force is to employ fewer teachers in order to conserve public monies or to promote a more efficient school system. Wassermann v. NederlandIndependentSchool District, Docket No. 171-R1-784 (Comm’r Educ. 1988). However, a nonrenewal on the basis of reduction in force is just that; it is the elimination of a position, and only if the teacher does not qualify for another available position is the nonrenewal justified(emphasis added).Id.
  11. The District did not properly apply Policy DFF (Local) when it determined that Ms.Gerstacker should be proposed for nonrenewal due to a program change requiring a reduction in force.AlthoughMr.Siebenaler decided to cut the German program at Waltrip, he knew of at least one open English position prior to or shortly after the decision to cut the German program had been made. There is absolutely no evidence that Ms.Gerstacker wasn’t qualified to fill that open vacancy. To the contrary, Mr.Siebenaler’s own letter, and that of two of his assistant principals at Waltrip, expressly state how qualified they believed Ms.Gerstacker was to teach high school English (Resp. Exs. 25, 26 and 30). Since Ms.Gerstacker was qualified to fill the open English position that existed at Waltrip at the time, she should not have been nonrenewed.
  12. Based on the foregoing, the administration for the HoustonIndependentSchool District has failed to prove by a preponderance of the evidence that Respondent’s contract should not be renewed.

PROPOSAL FOR GRANTING RELIEF

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, in my capacity as Certified Hearing Examiner, I respectfully recommend that the HISD Board of Trustees adopt the foregoing Findings of Fact and Conclusions of Law.

It is the opinion of the Hearing Examiner that this proposed RIF was handled inappropriately from the outset. Although within his power, I question the decision of the principal to end the German program at Waltrip when there were still approximately 70 students (3 classes) that wanted to take this foreign language class. Then, when the vacancy to teach English arose and it was known that Ms.Gerstacker could fill this void as well, this should have been an easy decision for Mr.Siebenalerto make. Perhaps, there could have even been a way to save the German program at the same time. To make matters worse, Mr.Siebenaler then offered the open English position to a non-displaced teacher despite the existence of other qualified displaced teachers, including Ms.Gerstacker. This would have been a clear violation of the District’s own policy. Ultimately and perhaps fortunately for Mr.Siebenaler, the non-displaced teacher turned down the job and it was given to another displaced teacher. It appears that during this process, Mr.Siebenaler lost sight of the fact that this was a RIF situation and the District has certain guidelines it must follow in order to be in compliance.

Top View