SFDRCISD v. Reyes

Docket No. 011-LH-0911

DOCKET NO. 011-LH-0911
SAN FELIPE-DELRIO CISD,§ BEFORE SANDRAGARCIAHUHN
PETITIONER§
§
v. § CERTIFIED INDEPENDENT
§
§
ELSA DENISE REYES,§
RESPONDENT § HEARING EXAMINER

RECOMMENDATION OF THE CERTIFIED HEARING OFFICER

San Felipe Del Rio Consolidated Independent School District (“SFDRCISD”) or the (“District”) is the Petitioner herein and has proposed the termination of Elsa Denise Reyes’ (“Respondent”) employment contract during the term of the contract for good cause pursuant to Section 21.211 of the Texas Education Code and Board Policy DFBA (LEGAL).

SFDRCISD is represented by Robert A. Schulman, with the law firm of Schulman, Lopez & Hoffer, L.L.P., in San Antonio, Texas. Respondent is represented by Jefferson K. Brim, III, with the law firm of Brim, Arnett, Robinett, Conners & McCormick, P.C., in Austin, Texas.

Respondent was employed by SFDRCISD under a term contract for the 2010-2011 school year as the principal of North Heights Elementary School (“North Heights”). In early April of 2011, Natalie Ochoa (“Ochoa”) an employee of North Heights resigned abruptly and made a report to District Superintendent, Kelt Cooper (“Cooper”) alleging Respondent engaged in unprofessional behavior. Based on the information received by Cooper, on April 11, 2011, Respondent was placed on administrative leave with pay pending the outcome of the District’s investigation into this report. On August 25, 2011, the Board of Trustees of SFDRCISD accepted Cooper’s recommendation to propose the termination of Respondent’s employment contract. The notice letter listed seven generally-stated reasons for the proposal. Those reasons were: 1) insubordination regarding the hiring, assignment and transfer of employees; 2) insubordination regarding public and third-party use of District facilities; 3) failure to comply with District policies and federal and state regulations with regard to: a) conducting criminal background checks on all applicants for employment and all program volunteers; b) improper documentation and/or falsification of student attendance records and reports; c) improper management and use of student activity and funds produced from campus fundraisers; d) improper methods of hiring, assignment and transfer of employees; e) repeated improper documentation of leave; f) engaging in the prohibited harassment of other employees; g) improper student grade assignment and improper implementation of special education and/or Section 504 services; and h) improper implementation of TAKS testing procedures; 4) unprofessional conduct in violation of ten standards in the Code of Ethics, including Standards 1.1, 1.2, 1.4, 1.6, 1.7, 1.8, 2.3, 2.5, 3.2, and 3.3; 5) incompetence in the performance of duties; 6)inappropriate verbal and written communications and other egregious unprofessional conduct, including excessive, offensive and disrespectful use of profanity; and 7) false statement and misrepresentation in an attempt to conceal facts during an official investigation.

Respondent denies the District’s allegations and timely contested the proposed termination and a certified independent hearing examiner was assigned to this matter pursuant to §21.251 et seq. of the Texas Education Code.

Good Cause

A term contract may be terminated during the contract’s term for good cause as determined by the board,TEX EDUC.CODE § 21.211(a). The term “good cause” for terminating a term contract is not defined in statue. Therefore, the Commissioner has used the definition of “good cause” found in case law. Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship. Tave v. Alanis, 109 S. W.3rd 890 ( Tex. App.- Dallas 2003, not pet.) citing Lee- Wright, Inc v. Hall 840 S. W. 2d 572, 580 ( Tex. App.- Houston [1st Dist.] 1992 no writ). This common law definition of “good cause” is in some ways similar and in some ways dissimilar to the statutory definition of good cause that only applies to continuing and probationary contracts.

Findings of Fact

After due consideration of the evidence submitted by the parties, stipulations agreed upon by the parties, the record and matters officially noticed, in my capacity as Certified Independent Hearing Examiner, I make the following Findings of Fact which have been proven by a preponderance of the evidence (citations to evidence are not exhaustive but are intended to indicate some of the basis for the particular Finding of Fact):

  1. Respondent was employed by SFDRCISD under a term contract for the 2010-2011 school year as the principal of North Heights. [Petitioner’s Exhibit 28]
  2. Respondent’s contract with SFDRCISD states that “[t]he Board may terminate this Contract and discharge Employee or suspend Employee without pay during the term of the Contract for good cause as determined by the Board.” [Respondent’s Exhibit 23]
  3. SFDRCISD Board Policy DFBA (LEGAL) states that “[t]he Board may terminate a term contract and discharge a term contract employee at any time for good cause as determined by the Board” Education Code 21.211(a), .212(d). [Petitioner’s Exhibit 89]
  4. The Board provided Respondent with a letter on or about August 31, 2011, giving her written notice of the proposed termination of her employment contract. [Petitioner’s Exhibit 7]
  5. On September 13, 2011, Respondent requested a hearing by an independent hearing examiner pursuant to Section 21.253 of the Texas Education Code. [Judicial Notice of the request for assignment of a certified hearing examiner as received by TEA]
  6. The parties agreed to an extension of time to reach a decision in this case. [Judicial Notice of the Agreed Extension of Sixty Day Timeline signed by the parties and signed by the Certified Hearing Examiner. The deadline to complete the decision was extended to, December 27, 2011.]
  7. Respondent did not file special exceptions claiming that the notice of proposed termination failed to place her on sufficient notice of the charges against her. [Judicial Notice]
  8. An evidentiary hearing was held on December 12, 13, and 14, 2011, at the offices of SFDRCISD, 205 Memorial Drive, Del Rio, Val Verde County, Texas 78840. [LocalHrg. Trans., Volumes 1, 2, 3, 4, 5, and 6]
  9. Respondent is employed by SFDRCISD, where she has served as principal of North Heights for the past seven years. [Local Hrg. Trans. Vol. 1, p. 59, lines 3-12.]
  10. On March 21, 2011, the Board of Trustees authorized the offer of a new three year contract toRespondent[Local Hrg. Trans., Vol. 2, pp. 274-275, lines 21-25, 1-2; Resp. Exhibit 2] and on April 4, 2011, the president of the Board of Trustees signed that contract. [Resp. Exhibit 22] On December 13, 2011, a copy of that contract signed by Respondent was identified by Dr. Patricia McNamara, (“McNamara”) the Assistant Superintendent for Personnel, and placed in the record as Respondent’s Exhibit 23. [Resp. Exhibit 23]
  11. Kelt Cooperis the Superintendent of Schools for SFDRCSD. [Local Hrg. Trans., Vol.2 p. 216lines19-21]
  12. In the spring semester of 2011, Ochoawas employed with SFDRCISD as a paraprofessional assigned to North Heights[ Local Hrg. Trans., Vol.2 p. 251lines 4-7]
  13. On or about April 1, 2011, Ochoa came to Cooper’s office and told him that she had an argument with Respondent concerning her participation at a school carnival. Ochoa asked Cooper for assurance that she would not be blackballed and her future employment with the District jeopardized because of the fight or issues with Respondent. [ Local Hrg. Trans.,Vol. 2 p. 253 lines 6-22]
  14. Ochoa providedCooper with the names of two teachers who had knowledge of the conflict between her and Respondent. [ Local Hrg. Trans., Vol.2p. 256, line 23-25]
  15. Cooper met with the teachers and they provided testimony to him that corroborated the information Ochoa provided. [ Local Hrg. Trans.,Vol.2 p.257 lines 1-3]
  16. Cooper contacted Mc Namara and informed her of his intention to place Respondent on administrative leave with pay and instructed her to conduct an administrative review of the situation to determine what was fact and what was fiction. [ Local Hrg. Trans., Vol. 2 p. 258, lines 5-15]
  17. Respondent was placed on administrative leave with pay on April 11, 2011, when Deputy Superintendent, Jon Orozco, (“Orozco”) and McNamara delivered written notice of that fact to Respondent on the North Heights campus. [Local Hrg. Trans. Vol. 3, p. 353, lines 13-24]
  18. That same morning, prior to his meeting with Ochoa, Cooperhad a meeting with Respondent where he asked Respondent among other things, “what’s going on with Natalie Ochoa”. [Local Hrg. Trans., Vol.2 p. 287, lines 8-10;Hrg. Trans., Vol. 2 p.288, lines 15-16]
  19. Respondent and Ochoa provided different versions of what happened between them to Cooper. [ Local Hrg. Trans., Vol. 2 p. 289, lines20-25 and p. 290, line 1-2]
  20. After her meeting withCooper, Respondent returns to her campus and calls a meeting in the TAKS vault. In the meeting were Respondent, Dr. Roxanne Linan (“Linan”), Assistant Principal, North Heights, Patricia Rodriguez (“Rodriguez”) and Munylda Musquiz-Ortiz (“Musquiz-Ortiz”), teachers at North Heights and Lucy Reyna (“Reyna”),principal’s secretary, North Heights.[Local Hrg. Trans., Vol. 1 p. 31 lines 24-25 andp. 32 lines1-12].
  21. During this meeting Respondent informs the group that she has just come from a meeting with Cooper. Respondent is upset and expresses concern with comments being made by Ochoa to the superintendent and school board members.[LocalHrg. Trans., Vol. 5 p. 69, lines 8-25;Local Hrg. Trans., Vol. 4 p. 543 line 10 through 544, lines 25].
  22. During the meeting Respondentproceeds to discuss Ochoa’s sex life. Respondent continues by staying Ochoa has sex for money and Linan’s ex-boy friend paid her (Ochoa) $5,000 for sex. She also stated Ochoa was trying to recruit Respondent’s help to convince Linan to have a ménage a trois with her ex-boyfriend and Ochoa for $10,000 [Local Hrg. Trans Vol. 5 p. 49 line 11 through p. 50 lines 3; Local Hrg. Trans. Vol.5 p. 50 lines 1-3, p. 70 lines 1-10; and Local Hrg. Trans. Vol. 4 p. 544, lines 17-23]
  23. Over a period of two to three years Respondent commented to Andrea Kjolhede, (“Kjolhede”) former counselor at North Heights, that she (Kjolhede)“needed to get laid” and that she (Kjolhede) “had the cleanest vagina in Del Rio”.Kjolhede was offended by the comments and believed the comment about “the cleanest vagina in Del Rio” was also madeat a cluster meeting in front of teachers. [ Local Hrg. Trans., Vol. 5 p. 109 lines5, 10-13, p.110 lines 2-5,12]
  24. During a meeting in her conference room, Respondent passed around her cell phoneshowing sexually explicit photos of a penis stuck in a toilet seat to staff including Rodriguez, Musquiz-Ortiz and Kjolhede. Staff wasoffended by the picture. [ Local Hrg. Trans., Vol.5 p. 67 lines 22 through p.68 line 5; Vol. 5 p. 118 lines 11- 20;Local Hrg. Trans; Vol. 4 p. 539 lines 7-18]
  25. In the presence of Respondent and Linan, Kjolhede was shown a photograph,saved to a cell phone,of a penis in a shoe. [ Local Hrg. Trans. Vol. 5, p. 118, lines11-25, p. 119, lines 1-2]
  26. Respondent commentedto her entire staff during a meeting that she wished to see male teacher Cardenas wearing a thong. [ Local Hrg. Tr. Vol. 5, p. 85, lines 5-7; Local Hrg. Trans. Vol. 4, p. 538, lines 4-21]
  27. Respondent told a staff member that Cooper should wear longer shorts because “nobody wanted to see his balls.” [ Local Hrg. Trans. Vol. 5, p. 85, lines 8-12]
  28. Respondent frequently used profanity at staff meetings and cluster meetings with North Heights teachers and staff, including frequent use of the word “fuck.” [ Local Hrg. Trans. Vol. 5, p. 67, lines 1-21 p. 86, lines 4-7, p. 117, lines 18-25]
  29. SFDRCISD Board Policy DIA (LOCAL) “prohibits discrimination, including harassment, against any employee on the basis of […] gender.” Prohibited harassment is defined to include verbal and nonverbal conduct which “[c]reates an intimidating, threatening, hostile, or offensive work environment.” Examples of sexual harassment are given, including “jokes or conversations of a sexual nature.” Furthermore, under this policy, “the term ‘prohibited conduct’ includes discrimination, harassment, and retaliation as defined by this policy, even if the behavior does not rise to the level of unlawful conduct.” [Petitioner’s Exhibit 89]
  30. Respondent’s conduct was a violation of SFDRCISD Board Policy DIA (LOCAL).
  31. Violation of SFDRCISD Board Policy DIA (LOCAL) constitutes good cause for termination.

Discussion

In this action the District listed seven reasons for the proposed termination of Respondent’s employment contract. The District has the burden of proving good cause but failed to do so in all but one proposed reason for termination. The only allegation proven by a preponderance of credible evidence and rising to the level of good cause is the “use of inappropriate verbal and written communications and other egregious unprofessional conduct, including excessive, offensive and disrespectful use of profanity.”

Respondent’s unprofessional conduct included making inappropriate, disparaging and embarrassing statements about an employee’s sex life to co-workers which created an offensive work environment. Respondent also created an offensive work environment when she made jokes and engaged in conversations of a sexual nature with and in front of her staff.Additionally, Respondentshowed offensive images to her staff that were sexual in nature and made offensive sexual comments about members of her staff. Further, Respondent frequently used profanity in the workplace; that alone would not be good cause for termination, but considered in light of other inappropriateconducted contributed to an offensive and hostile work environment.

Respondent’s actions were disrespectful, offensive and were contrary to the accepted standards of conduct for the profession generally recognized and applied. Respondent failed to perform her duties in the scope of her employment as a person of ordinary prudence would have done under the same or similar circumstances.Respondent’s actions were detrimental to the goal of maintaining a professional working environment free from harassment. Respondent’s inappropriate actions were a clear violation of District Policy DIA (Local).Respondent’s actions not only affect those who were directly impacted butalso reflect poorly on the District as a whole and as such destroyed the legitimate expectations of the employer-employee relationship.

Petitioner also identified several other allegations which it considered to constitute good cause for the proposed termination of Respondent’s contract. Petitioner has not met its burden of proof in regards to those allegations. Most of the testimony provided to meet its burden, was confusing and allegations were made but no follow up was conducted to confirm the reliability of the information that was gathered during the investigation. In many instances the testimony relied on was hearsay testimony where it would have been more appropriate to have presented expert testimony or testimony from an individual similarly situated to show what the appropriate practice should have been and how Respondent’s actions were contrary to that practice. Lastly, documents were introduced into the record buttheir relevance was not explained.

Conclusions of Law

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

  1. Jurisdiction to hear this cause is proper under Tex. Educ. Code §21.251.
  2. The Commissioner of Education has jurisdiction over this case under Tex. Educ. Code §21.301.
  3. A term contract may be terminated during the contract’s term for good cause as determined by the Board. [Tex. Educ. Code §21.211(a)].
  4. Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.Tave v. Alanis, 109 S. W.3rd 890 ( Tex. App.- Dallas 2003, not pet.) citing Lee- Wright, Inc v. Hall 840 S. W. 2d 572, 580 ( Tex. App.- Houston [1st Dist.] 1992 no writ).
  5. Board Policy DFBA (Legal) allows for termination during the contract period for good cause as determined by the Board.
  6. SFDRCISD Board Policy DIA (LOCAL) “prohibits discrimination, including harassment, against any employee on the basis of […] gender.” Prohibited harassment is defined to include verbal and nonverbal conduct which “[c]reates an intimidating, threatening, hostile, or offensive work environment.” Examples of sexual harassment are given, including “jokes or conversations of a sexual nature.” Furthermore, under this policy, “the term ‘prohibited conduct’ includes discrimination, harassment, and retaliation as defined by this policy, even if the behavior does not rise to the level of unlawful conduct.”
  7. A violation of SFDRCISD Board policy DIA (LOCAL) is good cause for termination.
  8. Respondent’s frequent use of profanity, offensive comments to staff of a sexual nature, displaying of inappropriate photographs and inappropriate comments of a sexual nature regarding Ochoa, are all violations of SFDRCISD Board Policy DIA (LOCAL) and constitute good cause for termination.
  9. Respondent’s frequent use of profanity, offensivecomments to staff of a sexual nature, displaying of inappropriate photographs and inappropriate comments of a sexual nature regarding Ochoa, are serious infractions and are contrary to the conduct expected of an ordinary and prudent principal under the same or similar circumstances. Respondent’s actions constitute good cause for termination.
  10. Respondent’s frequent use of profanity,offensive comments to staff of a sexual nature, displaying of inappropriate photographs and inappropriate comments of a sexual nature regarding Ochoa, are serious infractions, constitute good cause for the proposed termination of Respondent’s employment contract, and are inconsistent with the continued existence of the employer-employee relationship.
  11. Petitioner has the burden of proof by a preponderance of the evidence. [Tex. Educ. Code §21.256(h)].
  12. Petitioner has met its burden of proof.
  13. Good cause exists to support the proposed termination of Respondent's employment contract.

Recommendation

After due consideration of the record, matters officially noticed and the foregoing Findings of Fact and Conclusions of Law, in my capacity as Certified Hearings Examiner it is hereby

RECCOMMENDED that the Board of Trustees of SFDRCISD adopts the foregoing Findings of Fact and Conclusions of Law and enters an Order consistent therewith.

SIGNED AND ISSUED this 27th day of December 2011.

Sandra Garcia Huhn, Certified HearingExaminer

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