DOCKET NO. 301-LH-0511
HOUSTON INDEPENDENT SCHOOL / § /

BEFORE AUDRIE LAWTON

DISTRICT / § / INDEPENDENT HEARING EXAMINER
§
§
vs. / §
§ / TEXAS EDUCATION AGENCY
ANDREW MIDDLEMAN / §

RECOMMENDATION OF THE INDEPENDENT HEARING EXAMINER

Houston Independent School District (HISD), Petitioner, has proposed the nonrenewal of Andrew Middleman, Respondent, underSection 12 of his one-year term contract, HISD Board Policy Sections DFBB (LEGAL and LOCAL), and the Texas Education Code, Section 21.206(a).

Petitioner is represented by Ms. Kelli Karczewski, Karczewski Bradshaw, LLP.

Respondent is represented byMr. James Fallon, III, Attorney at Law.

Findings of Fact

After due consideration of the evidence and matters officially noticed, the following Findings of Fact have been proven by a preponderance of the evidence:

  1. Respondent is employed by Petitioner as a history teacher at Ortiz Middle School in Houston, Texas, pursuant to a term contract executed on May 18, 2010, by the Respondent for the school year 2010-2011.(Pet. Ex.1) The term of the contract was for one (1) year. (Pet., Ex. 1)
  1. Petitioner sent notice of the proposed nonrenewal to Respondent on April 8, 2011. (Pet. Ex. 44).
  1. Petitioner proposed Respondent’s nonrenewal of his contract due to the following reasons: (Pet. Ex 44)

No. 1.Deficiencies pointed out in observation reports, appraisals, memoranda, and other communications;

No. 2Failure to fulfill duties or responsibilities;

No. 6Failure to comply with Board policies or administrative regulations;

No. 14Failure to meet the District’s standards of professional conduct;

No. 21A significant lack of student progress attributable to the educator;

No. 24Use of profanity in the course of performing any duties of employment whether on or off school premises, in the presence of students, staff, or members of the public, if reasonably characterized as unprofessional; or

No. 33Insufficient student academic growth as reflected by value added scores; [or]

No. 34Any reason constituting good cause for terminating the contract during its term.

  1. On December 14, 2010, Respondent was directed to attend a conference for the record on December 16, 2010 to discuss “repeated concerns of professional communication with students and parents.” The conference was rescheduled to January 11, 2011. (Pet. Ex. 28; Tr. 312:18-25; 313; 1-18.)
  1. On January 11, 2011, Petitioner held a conference with Respondent to discuss his use of unprofessional language in the classroom, showing favoritism to female students, placing students in his lap, and putting a student outside the classroom and telling him he is not to enter until he brings a parent in. Respondent denied the allegations. The conference was summarized in writing and Respondent was directed to not use profanity, not place students outside the classroom, and not have any physical contact with students. Respondent acknowledged receipt of this memo and directives by his signature. Pet. Ex. 31; (Tr. 314:13-25; 215:10-25; 216:1-25; 217:1-24; Tr. 534:11-25; 535:1-8.)
  1. On March 2, 2011, Petitioner had a Conference for the Record with Respondent to discuss his performance during the 2010-2011 school year. (Pet. Ex. 41; Tr. 160:7-25; 161:1-2) Respondent’s representative, Kimble Urritia was present.
  1. Petitioner recommended the nonrenewal of Respondent’s term. Respondent signed a copy of the Conference Summary on March 3, 2011.(Pet. Ex. 42; Trans. 161:12-25; 162:1-25; 163:1-14.)
  1. At the April 7, 2011 meeting of the HISD Board of Education, HISD Superintendent Terry Grier recommended the proposed nonrenewal of Respondent’s term contract. The Board of Education accepted the Superintendent’s recommendation to propose nonrenewal of Respondent’s term contract. (Pet. Ex. 44.)
  1. Respondent timely requested a hearing pursuant to Chapter 21 of the Texas Education Code to challenge the proposed nonrenewal.
  1. The parties agreed, pursuant to Tex. Educ. Code §21.257(c), to extend by 45 days the Hearing Examiner’s deadline for issuing a recommendation.
  1. A hearing was held on July 27, 29, & August 8, 2011 regarding the proposed nonrenewal.

Issue 1.-Whether Petitioner had valid reasons for nonrenewal of Respondent’s one year term contractbased on the Petitioner’s Established DFBB (LOCAL and LEGAL) Policy

  1. The first issue in this case is whether Petitioner’s reasons for nonrenewal are based on its established policies for the nonrenewal of Respondent’s term contract. In order to make this determination, this Examiner has applied a two part analysis of the facts and evidence in this case. First it is necessary to determine if Petitioner’s reasons were founded in established policy. Second, whether there is evidence to support the proposed reasons for nonrenewal of Respondent’s term contract.“A district does not need to show good cause to nonrenew a teacher. What is required is the violation of a pre-established reason for nonrenewal.”Grounds v. Tolar Independent School District, 856 S.W.2d 417 (Tex. 1993).
  1. In their case in chief, Petitioner presented Noela Longoria, Carletha Jackson, Student B, Parent B and Student D, as witnesses. Ms. Longoria testified in her capacity as the principal of Ortiz Middle School. Ms. Carletha Jackson testified in her capacity as a former assistant principal at Ortiz Middle School. Student B, Parent B and Student D testified as to their personal knowledge of the events that form the basis of this suit.
  1. Ms. Longoria testified that during the 2010- 2011 school year Respondent’s primary teaching assignment was sixth grade social studies. (Tr. 142:21-22)
  1. Longoria further testified at the beginning of the 2010-11 school year and after reviewing Respondent’s EVAAS, he was identified as a “low performing” by his supervisors and requiring intervention and support. (Tr. 339:13-25; Pet. Ex. 53.)
  1. Longoria also testified regarding her involvement in an investigation of Respondent’s conduct stemming from alleged use of profanity and inappropriate behavior with female students. Ms. Longoria reviewed all student statements and considered all information provided to her in her meetings with the students. Ms. Longoria considered the students credible and determined that Respondent used profanity in the classroom, including the words “shut your ass up,” “you are pissing me off,” “Fuck” and “shit.” She also determined that Respondent placed students in his lap, tickled students and wrote on a student’s paper “I love you too.” (Tr. 557:8-25; 558:1-13; Pet. Ex. 31)
  1. The next witness offered by Petitioner was Ms. Carletha Jackson. Ms. Jackson testified that she was Petitioner’s appraiser in previous years as well as the 2010-11 school year. A complete version of Ms. Jackson’s testimony is included in the record. However, Ms. Jackson’s testimony was not considered at all by this Examiner due to major inconsistencies in her testimony, thus discussion of her testimony is not warranted. This Examiner finds that Ms. Jackson’s entire testimony is NOT credible and has given NO weight to the same.
  1. Next, Student B, a student in Respondent’s class, testified that Respondent

stated “Y’all are really pissing me off” in class. (Tr. 52:1-15; 53:1-19).Student B testified that Respondent, for “most of the year” was not fair in that he treated female students more favorably than male students. For example, if a male student and female student were both “being bad,” the male student would be the one in trouble. Additionally, if female students were talking during class, they would receive a warning while male students would receive a call home. (Tr. 54:9-25; 55:1-11.)

  1. Student B testified as to other incidents alleged to have occurred in Respondent’s class; however, this Examiner did not find this portion of Student B’s testimony credible in that there were inconsistencies between his written statement and testimony at the hearing. This examiner did not consider any other alleged incidents in forming the recommendation in this case, thus, these other allegations will not be discussed. A full version of Student B’s testimony is included in the record.
  1. Student D, a student in another one of Respondent’s classes, reported to Ms. Jackson that Respondent stated in class that the students “were pissing him off.” (Tr. 223:8-16; Pet. Ex. 20.)
  1. Student D also testified that she witnessed Respondent make a mistake on the board in class and exclaim “fuck.” (Tr. 224:16-25; 225:1-25; 226:1-9; Tr. 244:13-25; 245:1-17; Pet. Ex. 20; Pet. Ex. 54.)
  1. In addition Student D testified regarding an incident that occurred while she was in Respondent’s class. In the most pertinent part of her testimony, Student D testified that after returning from the restroom, Student D approached Respondent at his desk and asked a question regarding the assignment. Respondent grabbed Student D’s arm and sat Student D on his lap. (Tr. 227:10-25; 228:1-6; 232:22-25; 233:1-6; Pet. Ex. 20). This made student D feel “uncomfortable.” (Tr. 226:13-25; 227:1-25; 278:1-3.)
  1. Student D further testified that she witnessed Respondent pull other girls down on his lap and tickle other female students in the hallways. (Tr. 228:7-9,Tr. 228:10-19. Pet. Ex. 20.)
  1. Respondent presented testimony on his own behalf and he vehemently denies that any of the above alleged incidents took place. Respondent also testified as to his successful completion of his intervention plan and responses he provided during the investigation. In sum, this Hearing Examiner considered Respondent’s testimony credible in regards to the allegations set forth in sections (1), (2), (16), (21) and (33).
  1. Next, Respondent argued that Petitioner did not meet is burden of proof in regards to their reasons for nonrenewal of his contract This Examiner agrees with Respondent as to sections (1), (2), (16), (21) and (33). The preponderance of the evidence does not support a finding of the under these provisions.
  1. However, this Examiner, after a review of the entire record, consideration of witness testimony and review of all applicable Board policies and procedures finds that a preponderance of the evidence does support a finding under sections (6),(14), (24) and (34) of DFBB (Local and Legal). For the above reasons, Petitioner has properly enumerated sections (6),(14), (24) and (34)of DFBB (Local and Legal) as reasons for the nonrenewal of Respondent’s one year term contract.

Issue 2.-Whether Petitioner’s Recommendation to Nonrenew Respondent’s One-Year Term Contract was arbitrary and capricious.

  1. A nonrenewal needs to be based on a school board’s pre-established policy reasons. Tex. Educ. Code §21.203(b)See alsoGrounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 418 (Tex. 1993) (holding a decision of a school district to non-renew must be "predicated on one or more of the previously established reasons.) A pre-established policy reason is valid as long as it is not arbitrary and capricious. Tarrant v. Clear Creek ISD, 238 S.W. 3d 445, 451 (Tex. App.-Houston [1st Dist.] 2007 (no pet.)A decision that is not supported by substantial evidence is deemed arbitraryandcapricious. Id.(Citing Weslaco Fed'n of Teachers v. Tex. Educ. Agency,27 S.W.3d 258, 266 (Tex. App.-Austin 2000, no pet.) (citing Pub. Util. Comm'n v. Gulf States Utils. Co.,809 S.W.2d 201, 211 (Tex. 1991)).
  1. In the final analysis, looking at the entire record before me, the actions of the Petitioner were not arbitrary and capricious as applied to sections (6), (14), (24) and (34). First, the Petitioner had a pre-established policy, DFBB (Local and Legal) for reasons for nonrenewal which were the basis of the Petitioner’s recommendation for nonrenewal. (P Ex. 47-51) Second, there was substantial evidence to support the nonrenewal of the Respondent’s term contract. More, specifically, sections (6), (14), (24) and (34)of DFBB (Local and Legal) are the valid reasons for the nonrenewal which are supported by the evidence. See Paragraphs 12-22 above.

Conclusions of Law

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

  1. The Hearing Examiner has jurisdiction of this subject matter pursuant to Chapter 21, Subchapter F, §21.251 of the Texas Education Code;
  1. Respondent, is a “teacher” as defined in Sub-chapter E, §21. 201 of the Texas Education Code;
  1. Respondent, was employed by Houston Independent School District pursuant to a term contract as defined in Sub-chapter E, §21.201 of the Texas Education Code;
  1. Petitioner proposed the nonrenewal of Respondent’s one year term contract pursuant to the authority in Sub-chapter E, §21.206 (a) of the Texas Education Code and Board policy DFBB (LOCAL and LEGAL);
  1. Section 12 of Respondent’s one year contract provides that renewal or nonrenewal will be in accordance with Board Policies, ARs and state law (Chapter 21, Subchapter E of the Texas Education Code);
  1. Section 13 of Respondent’s term contract provides that “This contract shall not grant or create any contractual or other expectancy of continued employment or claim of entitlement to employment beyond the term of this contract.
  1. Sub-Chapter E,Section 21.206(a) provides that “Not later than the 45th day before the last day of instruction in a school year, the board of trustees shall notify in writing each teacher whose contract is about to expire whether the board proposes to renew or not renew the contract;
  1. Board Policy DFBB (LOCAL and LEGAL) provides that “The Superintendent shall identify employees whose contracts are recommended for renewal or proposed nonrenewal by the Board. The Board shall consider the reasons in support of the proposed nonrenewal and shall then act on all recommendations.”
  1. Board Policy DFBB (LOCAL and LEGAL) provides that “An eligible employee who desires a hearing after receiving the notice of proposed nonrenewal shall notify the Board in writing not later than the 15th day after the date the employee received the notice of proposed nonrenewal.”
  1. The appeal by the Respondent, Mr. Middleman, was conducted pursuant to the Texas Education Code, Subchapter F, §21.256.
  1. HISD's Board policy DFBB Local provides: “Reasons for proposed nonrenewal of an employee’s term contract shall be: (1) Deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda, or other communications; (2) Failure to fulfill duties or responsibilities; … (6) Failure to comply with Board policies or administrative regulations; … (14) Failure to meet the District’s standards of professional conduct; … (16) Failure to comply with reasonable District requirements regarding advanced coursework or professional improvement and growth; … (21) A significant lack of student progress attributable to the educator; … (24) Use of profanity in the course of performing any duties of employment, whether on or off school premises, in the presence of students, staff, or members of the public, if reasonably characterized as unprofessional; … (33) Insufficient student academic growth as reflected by value-added scores; [or] (34) Any reason constituting good cause for terminating the contract during its term.” (Pet. Ex. 48.)
  1. The Ortiz Middle School Teacher Handbook provides that corporal punishment is strictly forbidden, and prohibits abusive language, sexual impropriety, and unreasonable force. The Teacher Handbook provides that staff members are expected to follow the Code of Ethics and Standard Practices for Texas Educators. Pet. Ex. 46. Respondent received a copy of the Teacher Handbook. (Tr. 436:21-25; 437:1-2; 566:16-25; 567:1-25; 568:1-25; 567:1-5.)
  1. Use of inappropriate language with students, making disparaging statements to students, and verbally berating students, singularly and collectively, constitutes good cause for termination. Ballesteros v. Conroe ISD, Dkt. No 092-R1-500 (Comm’r Educ. 2000).
  1. To support nonrenewal of Respondent’s term contract, only one of the reasons for proposed nonrenewal must be supported by substantial evidence. Lyman v. Blooming Grove Indep. Sch. Dist.,Dkt No. 046-R1-0508 (Comm’r Educ. 2008); and Peterson v. Texas City Indep. Sch. Dist., Dkt. No. 052-R1-0509 (Comm’r Educ. 2009).
  1. HISD Board policy DH (Legal) provides that “educators shall comply with standard practices and ethical conduct toward students, professional colleagues, school officials, parents, and members of the community.” (Pet. Ex. 49; Tr. 562:4-18.)
  1. HISD Board policy DH (Local) provides that “employees shall be courteous to one another and the public, working together in a cooperative spirit to serve the best interests of the District;” that each employee is responsible for “relating to colleagues and supervisors with respect, courtesy and in a professional manner,” “following the established rules of behavior for the District,” “conducting their duties in a safe manner;” that “violation of any policies, regulations, or guidelines may result in disciplinary action, including termination of employment;” and “employees shall not engage in prohibited harassment, including sexual harassment, of … students.” (Pet. Ex. 50; Tr. 562:19-25; 563:1-23.)
  1. The District has proven by a preponderance of the evidence that, in accordance with HISD Board Policy DFBB (Local), the following nonrenewal reason exists: Failure to meet the District’s standards of professional conduct.
  1. The District has proven by a preponderance of the evidence that, in accordance with HISD Board Policy DFBB (Local), the following nonrenewal reason exists: Use of profanity in the course of performing any duties of employment, whether on or off school premises, in the presence of students, staff, or members of the public, if reasonably characterized as unprofessional.
  1. The District has proven by a preponderance of the evidence that, in accordance with HISD Board Policy DFBB (Local), the following nonrenewal reason exists: Any reason constituting good cause for terminating the contract during its term.
  1. Any conclusion of law deemed to be a finding of fact is so adopted.

Recommendation

After due consideration of the record, matters officially noticed, and the foregoing Findings and Conclusions of Law, in my capacity as Independent Hearing Examiner, it is hereby determined that:

Petitioner’s had valid reasons for the Nonrenewal of Respondent’s One Year Term Contract pursuant terms of the contract, Chapter 21, Subchapter E of the Texas Education Code and Board policies DFBB (Local and Legal).

Petitioner’s Recommendation of non-renewal of the Respondent’s One Year Term Contract was Not arbitrary or capricious. Petitioner’s recommendation is sustained.

RECOMMENDED that the board of trustees of the Houston Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.

SIGNED AND ISSUED this___12th______day of August_____, 2011.

_AUDRIE LAWTON__

Audrie Lawton

INDEPENDENT HEARING EXAMINER

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