DOCKET NO



DOCKET NO. 076-LH-0406

SPRING BRANCH INDEPENDENT § BEFORE A

SCHOOL DISTRICT, §

Petitioner §

v. § CERTIFIED HEARING EXAMINER

§

RANJANA NARASIMAN, §

Respondent § FOR THE STATE OF TEXAS

WRITTEN FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER FOR THE STATE OF TEXAS

I.

STATEMENT OF THE CASE

This appeal is from the March 27, 2006, proposed contract nonrenewal of Ms. Ranjana Narasiman by the Spring Branch Independent School District (“SBISD” or “District”). At the time of the proposed nonrenewal, Ms. Narasiman was a teacher at Stratford High School on a term contract. The basis for the proposed nonrenewal is as follows:

1) failure to fulfill duties or responsibilities;

2) insubordination or failure to comply with official directives;

3) failure to comply with Board policies or administrative regulations;

4) excessive absences;

5) failure to meet the District's standards of professional conduct;

6) breach of the employment contract;

7) reasons that would constitute good cause for termination of a contract. [1]

Specifically, SBISD asserts that Ms. Narasiman failed to:

• accept a teaching position at Stratford High School in January, 2006, upon her return from a FMLA leave of absence;

• accept a teaching assignment at Northbrook High School in March, 2006; and

• follow three written directives on March 15, 21, and 22, 2006, to report to a teaching assignment at Northbrook High School.

In compliance with Tex. Ed. Code §21.251 et seq., Ms. Narasiman requested a hearing before a Certified Hearing Examiner. Ms. Thelma Elizalde was appointed by the Commissioner of Education to: 1] conduct the hearing; 2] make written Findings of Fact and Conclusions of Law, and 3] make a Recommendation to the SBISD board. Mr. Gerald Serena, Attorney at Law, represented Ms. Narasiman at the hearing conducted on July 11, 2006. Mr. Christopher Gilbert, Bracewell & Giuliani LLP, represented SBISD.

II.

FINDINGS OF FACT

After due consideration of the record and matters officially noticed, 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):

BACKGROUND

1. Ranjana Narasiman (“Ms. Narasiman”) was employed as a classroom teacher with SBISD for 12 years. [Transcript (“Tr.”), Page 272].

2. Ms. Narasiman is certified to teach secondary physics, science composite, and chemistry courses in the State of Texas. [Stipulated Exhibits (“Stip. Ex.”) 2].

3. During the 2003-2004 school year, Ms. Narasiman taught Physics GT (Gifted and Talented), AP (Advanced Placement) Physics, II Calculus, and AP Physics II. [Administration Exhibit (“Adm. Ex.”) A.].

4. A “preparation” (i.e. the preparation for a class) is designated when a teacher teaches different classes or has different levels of students within a class. An AP Physics class might contain both AP and GT students and that class would call for two preparations. [Tr. pp. 26-27].

5. Teaching higher level science classes often requires that a teacher have more than two preparations, since fewer sections of the upper level courses are offered, thereby requiring that teachers teach other courses as well. [Tr. 28-29].

6. During the 2003-2004 school year, Ms. Narasiman had three preparations. [Adm. Ex. A].

7. That same school year, two other Stratford science teachers had three preparations. Both teachers taught higher level (AP) science courses. [Adm. Ex. A].

8. It is not uncommon for teachers who teach higher level science courses to have three preparations. [Adm. Ex. A].

9. During the 2004-2005 school year, Ms. Narasiman taught Integrated Physics and Calculus (“IPC”), and had one preparation. [Tr. pp.25-26].

10. Other upper level science teachers had three preparations during the 2004-2005 school year. [Adm. Ex. A].

MS. NARASIMAN’S LEAVE

11. In November, 2004, Ms. Narasiman applied for medical leave under the Family Medical Leave Act of 1993 (“FMLA”). [Stip. Ex. 5].

12. On November 16, 2004, the SBISD Human Resources (“HR”) Department advised Ms. Narasiman that her leave of absence request was approved. [Stip. Ex. 7].

13. The first day of Ms. Narasiman's leave was November 29, 2004. [Tr. pp. 34-35].

14. Ms. Narasiman understood that she was entitled to 12 weeks of leave. [Tr. p. 273].

15. Under Board Policy DEC (Local), SBISD calculates the 12-week (60 day) period for FMLA leave from the first day that an employee starts eligible leave. [Adm. Ex. F].

16. Board policy regarding FMLA can be located in an administrator’s office, on the SBISD website, or in the employee’s handbook. [Tr. pp. 247-248].

17. Not counting holidays, the 60th day of Ms. Narasiman's FMLA leave was March 15, 2005. [Tr. pp. 35-37; Adm. Ex. B].

18. On March 7, 2006, Ms. Narasiman notified her principal, Ann Kucera, that she would return to work on April 1, 2006. [Stip. Ex. 8]. However, Ms. Narasiman’s doctor recommended that she return to work on a part-time basis. [Tr. pp. 40-41; Stip. Ex. 10].

19. On March 29, 2006, Ms. Narasiman and Principal Kucera met to discuss Ms. Narasiman’s medical leave. [Tr. 43].

20. During the meeting, Principal Kucera stated that she did not have any part-time positions available and did not know if the District’s FMLA return to work policy allowed for a part-time return to work. Although she believed that a release for full-time work was necessary, she stated she would check with the HR department and let Ms. Narasiman know. [Tr. pp. 43-45; Stip. Ex. 14 ].

21. Since school was nearing the end of the fifth six weeks and TAKS testing was about be begin, both educators agreed that displacement of any science teachers at this time would be disruptive to the students and would not be in the student’s best interests. [Tr. 44; Stip. Ex. 11].

22. Therefore, Ms. Narasiman stated she would speak with her doctor and determine when she would be cleared for full-time work before seeking an assignment. [Stip. Ex. 11, 12].

23. According to the SBISD HR department, because Ms. Narasiman was a full-time teacher when she left to go out on leave, she needed a full-time return to work release from her doctor before she could return. [Tr. pp. 45-46; 100-01].

24. On April 12, 2005, the HR department notified Ms. Narasiman that her FMLA leave had extended past 60 days and she would be placed on “To Be Assigned” (“TBA”) status. This letter informed Ms. Narasiman that:

• her present teaching position would not be held open for her;

• upon her return, effort would be made to place her in a similar position within her area of qualification, if available;

• her intent to return from leave must be in writing and received 30 days before her desired date of return. [Stip. Ex. 13].

25. Ms. Narasiman responded to the April 12, 2005, letter by stating that her medical leave had not exceeded 60 days and that according to the FMLA act, she was entitled to her same position. [Stip. Ex. 14]. Ms. Narasiman indicated that she was still awaiting a response from Principal Kucera re District policies. [Stip. Ex. 14].

26. Ms. Narasiman was flexible about returning to work in the fall of 2005; she would return on a part-time basis even if she was cleared to return to work full-time. [Stip. Ex. 17].

27. Ms. Narasiman received a release from her doctor on April 29, 2005 (“April 29th Release”), advising that she was able to return to work full-time on June 1, 2005. [Tr. 295; Stip. Ex. 15].

28. Ms. Narasiman mailed the April 29th Release to Principal Kucera in June, 2005, at the Stratford High School address. [Tr. p. 295; 325].

29. Ms. Narasiman did not provide a copy of the April 29th Release to anyone else at Spring Branch ISD. [Tr. p. 326].

30. Principal Kucera never saw the April 29th Release. [Tr. pp. 47-48; Stip. Ex. 15].

31. The HR Department had no record indicating receipt of the April 29th Release. [Tr. pp. 192-93].

32. By April 2005, because Ms. Narasiman had been out on leave over 60 days, she was removed from the Stratford teaching roster and placed on the TBA list. [Tr. p. 48; 104-105; Stip. Ex. 13].

33. Once teachers are placed on the TBA list, they are no longer assigned to their original campus and whether the campus keeps track of them from that point on varies. [Tr. p. 217].

34. Once a teacher is on the TBA list, the HR department, not their original campus, handles reinstatement of the teacher. [Tr. pp. 223-24].

2005-2006 SCHOOL YEAR

35. Ms. Narasiman did not follow-up with the District to ensure the receipt of the Return to Work Certificate that cleared her for full-time work from the time she mailed it in June, 2005 until July 31, 2005.

36. The HR department did not place Ms. Narasiman in a science position over the summer of 2005 because they did not have a full-time release from Ms. Narasiman’s doctor. [Tr. pp. 230-31].

37. Ms. Narasiman knew of an available physics position at Stratford but she did not contact anyone at the District to inquire into the possibility of taking over that position. [Tr. p. 299-300; 328-29].

38. When Principal Kucera heard from Ms. Narasiman on August 1, 2005, the open physics position at Stratford was filled and there were no other science openings at Stratford. [Tr. p. 49]. School was scheduled to begin on August 11, 2005.

39. Principal Kucera did not know the status of Ms. Narasiman’s availability on or before August 1, 2005. [Tr. pp.49-50].

40. On or around August 8, 2005, Ms. Narasiman wrote the HR department and advised that she wanted to be considered for a part-time or full-time position at Stratford. [Stip. Ex. 18]. She included previous correspondence but did not include the Return to Work Certificate.

41. By August 15, 2006, Ms. Narasiman received notice that the HR department still did not have a full-time medical release form from her doctor. [Stip. Ex. 25].

42. On August 24, 2005, Ms. Narasiman provided Melvin Eldridge with a second release form from her doctor, dated August 23, 2005. [Tr. p. 297; Stip. Ex. 27]. This form indicated that Ms. Narasiman was able to return to work on July 1, 2005. [Stip. Ex. 27].

43. Ms. Narasiman did not contact Principal Kucera during the fall of 2005 to talk to her about returning to Stratford. [Tr. p. 50; 327-28].

44. From August 24, 2005 to November 8, 2005, Ms. Narasiman did not attempt to contact anyone at Spring Branch ISD to discuss returning to work. [Tr. pp. 330-31].

45. Marianne Cribbin, Acting Executive Director of the HR department, first learned that Ms. Narasiman was trying to return from leave around Thanksgiving, 2005. [Tr. p. 143].

46. HR Director Cribbin and Ms. Narasiman exchanged phone messages during December, and finally agreed to meet on January 4, 2006. [Tr. p. 145].

47. On December 16, 2005, which was the last day of the fall semester, Tina Roger – one of the Stratford physics teachers, abruptly quit without any prior warning. [Tr. pp. 50-51].

48. Principal Kucera needed to find a teacher who could teach Physics II during the two-week Christmas break. [Tr. p. 51]. She was unable to involve the HR department, since they were all on break. [Tr. p. 52].

49. Using an on-line application system, Principal Kucera located Sean Kaden, a certified science teacher who could teach Biology and the lower level Physics courses. [Tr. pp. 52-53].

50. Principal Kucera was not comfortable assigning the Physics II courses to Mr. Kaden because his experience was mostly in biology. [Tr. p. 52]. Therefore, she changed teaching responsibilities and schedules to accommodate the needs of the students. [Tr. pp. 52-54].

51. The schedule changes were very complicated and affected multiple teachers and hundreds of students. [Tr. pp. 54-57].

52. When Principal Kucera made the changes to the science schedules during the Christmas break, she was unaware that Ms. Narasiman was still looking for a position. [Tr. p. 54].

53. Principal Kucera learned that Ms. Narasiman was looking for a position after all the schedule changes had occurred and the students had returned for the spring semester. [Tr. pp. 54-55].

54. On January 4, 2006, HR Director Cribbin told Ms. Narasiman that the District was ready and willing to bring her back to a teaching position, but that she would need to check and see what vacancies they had. [Tr. p. 148].

55. During this meeting, Ms. Narasiman stated that she had not contacted the District from August to November of 2005 about possible positions, because she was still recovering and she was "waiting for the right position to come open." [Tr. p. 150].

56. HR Director Cribbin told Ms. Narasiman that they would place her in a position for which she was certified, but that she was not entitled to simply wait around for the "right position" to open up. Ms. Cribbin told her that she would be expected to take a position or resign from the District. [Tr. p. 150].

57. When HR Director Cribbin researched available science positions, she discovered that the only science vacancy was the position at Stratford for which Principal Kucera was trying to hire Sean Kaden. [Tr. p. 151].

58. HR Director Cribbin thought this was the perfect position, because it was Ms. Narasiman's previous school and it involved teaching at least some Physics. [Tr. pp. 151-52].

59. HR Director Cribbin asked Principal Kucera to consider Ms. Narasiman for the open position at Stratford. [Tr. pp. 54-55].

60. The District held Mr. Kaden’s paperwork while Principal Kucera met with Ms. Narasiman on January 5, 2006. [Tr. pp. 54-57; 150-52; 238].

61. At their January 5, 2006 meeting, Principal Kucera offered Ms. Narasiman the position that had been created for Mr. Kaden, i.e. teaching Biology, Physics Academics and Physics pre-AP. [Tr. p. 57].

62. Ms. Narasiman had taught the Physics Academics and Physics pre-AP classes many times before, and was certified to teach biology. [Tr. p. 65; Stip. Ex. 2; Adm. Ex. B].

63. Ms. Narasiman turned down the position because she did not want three preparations. [Tr. pp. 58-59; Stip. Ex. 31].

64. At the time Ms. Narasiman turned down the Stratford position, there were no other science openings at any other high schools or middle schools. [Tr. p. 152-53].

65. HR Director Cribbin agreed to meet with Ms. Narasiman again on January 31, 2006, to discuss possible positions. [Tr. p. 156-157].

66. As of January 31, 2006, there were no science openings at any of the high schools or middle schools. [Tr. p.157].

67. The only open positions for which Ms. Narasiman was certified were at the District's Alternative Education Placement Center, which HR Director Cribbin considered an inappropriate placement because of the high stress levels, or an In-School Suspension ("ISS") position at Northbrook High School. [Tr. p. 157].

68. HR Director Cribbin discussed the ISS position with Ms. Narasiman at the January 31, 2006 meeting. Ms. Cribbin intended to assign Ms. Narasiman to the Northbrook ISS position because it was the only position Ms. Narasiman's certification would allow her to teach. [Tr. p. 158-159].

69. On March 2, 2006, HR Director Cribbin assigned Ms. Narasiman to the ISS teaching position at Northbrook High School and directed her to report there on March 15, 2006. [Tr. p. 159; Stip. Ex. 35].

70. On March 9, 2006, Ms. Narasiman informed HR Director Cribbin that "without the details of the assignment, I am unable to decide whether or not I can accept the offer and report to duty on the 15th of March." [Tr. p. 160; Stip. Ex. 36 & 37].

71. HR Director Cribbin told Ms. Narasiman that the Northbrook position was not an "offer," but an assignment that Ms. Narasiman was required to accept. She informed Ms. Narasiman of such by e-mail on March 14, 2006, and directed her to report to Northbrook on the 15th. [Tr. pp. 161-162; Stip. Ex. 38].

72. Ms. Narasiman did not report to Northbrook on March 15, 2006, as she was directed to do. [Tr. p. 162; 253].

73. On March 16, 2006, Ms. Narasiman informed HR Director Cribbin for the first time that she was unable to report on March 15, 2006, due to “short notice and prior commitments." Ms. Narasiman was willing, however, to report for duty on March 20, 2006. [Tr. pp. 162-163; Stip. Ex. 39].

74. Ms. Narasiman reported to Northbrook on March 20, 2006, and met with Principal Ara Adami. At that meeting, she rejected her assignment of the ISS position. [Tr., p. 164-165; 256-257; Stip. Ex. 45].

75. Principal Adami and Ms. Narasiman also discussed a more recent teacher vacancy, an Integrated Physics and Chemistry ("IPC") position. Ms. Narasiman indicated an interest in this position and Principal Adami was willing to give the position to her. [Tr. pp. 165-166; 253-254].

76. Ms. Narasiman then informed Principal Adami that she would need to be absent March 24 to March 30, 2006, and again from May 12 to May 19, 2006, due to prior commitments. [Tr., pp. 165-166; 254-256; Stip. Ex. 45 & 46].

77. Principal Adami believed that the timing of the absences would be disruptive to students preparing for their science TAKS test in April – and then again in May – when the students are preparing for finals. Therefore, he did not place Ms. Narasiman in the IPC position. [Tr., pp. 254-56].

78. Ms. Narasiman left the Northbrook campus after her meeting with Principal Adami. [Tr. p. 164].

79. By e-mail on March 20, 2006, HR Director Cribbin informed Ms. Narasiman that she had been expected to remain on duty at Northbrook. She directed Ms. Narasiman to return to duty at Northbrook on March 21, 2006. HR Director Cribbin warned Ms. Narasiman that "failure to report to duty tomorrow, and to remain on duty, will constitute abandonment of your contract." [Tr., p. 166; Stip. Ex. 47].

80. Ms. Narasiman did not report to duty at Northbrook on March 21, 2006. [Tr., p. 167].

81. By e-mail on March 21, 2006, HR Director Cribbin informed Ms. Narasiman that she failed to follow a directive by failing to report to duty at Northbrook on March 21, 2006. HR Director Cribbin gave Ms. Narasiman a second chance, and directed her to report to duty at Northbrook on March 22, 2006. [Tr., p. 167; Stip. Ex. 49].

82. Ms. Narasiman did not report to duty at Northbrook on March 22, 2006. [Tr., p. 167.)

83. HR Director Cribbin considered Ms. Narasiman's failure to report to duty at Northbrook on March 22, 2006 to be insubordination and a failure to comply with an official directive. [Tr., p. 167-68].

84. Based on Ms. Narasiman’s actions, HR Director Cribbin recommended to the superintendent that Ms. Narasiman's contract be nonrenewed. [Tr., p. 168].

85. Ms. Narasiman’s contract was set to expire by its own terms on June 30, 2006. [Stip. Ex. 1].

III.

DISCUSSION

There are two issues in this case: (1) did Ms. Narasiman fail to comply with administrative directives and school board policy during the 2005-2006 school year; and 2) is Ms. Narasiman entitled to reinstatement of her teaching position pursuant to FMLA policies.

I. Repeated Failure to Comply with Administrative Directives and School Board Policy.

On January 5, 2006, Principal Kucera offered Ms. Narasiman a teaching position at Stratford High School teaching classes that she was certified to teach and had taught before. Ms. Narasiman rejected the position because it had more preparations than she wanted to handle. [Stip. Ex. 31]. At the time, there were no other science openings at any of the high schools or middle schools.

However, because HR Director Cribbin was interested in getting Ms. Narasiman back to work, on March 2, 2005, she assigned Ms. Narasiman to an ISS teaching position, for which she was certified, at Northbrook High School. [Stip. Ex. 35]. HR Director Cribben explained to Ms. Narasiman that this was an assignment and not a job offer. [Stip. Ex. 38]. She also explained to Ms. Narasiman that she was expected to accept the assignment and did not have the option of waiting for a teaching position that suited her. [Tr., p. 161; Stip. Ex. 38]. Although Ms. Narasiman was given a two week notice before she was expected to report for work, Ms. Narasiman claimed it was short notice and did not report to work on March 15, 2006, as directed. [Tr. pp. 159-160].

When Ms. Narasiman finally arrived on the Northbrook campus on March 20, 2006, she met with Principal Adami who was willing to offer her an IPC teaching position as an alternative to the ISS teaching position. However, because she conditioned her acceptance on being able to take two weeks of personal leave that had not been previously approved, Northbrook Principal Adami reconsidered his offer because the amount of personal leave requested would have been too disruptive on the students. [Stip. Ex. 46]. Although Principal Adami considered that Ms. Narasiman was still assigned to his campus as the ISS teacher, she left the campus after their meeting and did not return. Ms. Narasiman rejected the ISS assignment because she did not consider it appropriate nor in the area of her expertise. [Stip. Ex. 37, 45].

SBISD DK (LOCAL) states that all personnel are employed subject to assignment and reassignment by the District. [Adm. Ex. D]. More specifically, the provisions of Ms. Narasiman’s contract indicate that she is subject to the assignment and reassignment of position, duties, and responsibilities by the District at any time during the contract term. [Stip. Ex. 1].

When Ms. Narasiman did not accept the teaching position at Stratford High School on January 5, 2006, she violated the terms of her contract. When she did not accept the ISS assignment at Northbrook and failed to report to work on March 15, 21, and 22 as directed, she again violated the terms of her contract. Although it is clear that Ms. Narasiman did not consider the assignments she received to be commensurate with her experience and level of expertise, she was obligated to accept whatever positions were available at the time.

Therefore, her failure to accept two teaching positions and follow multiple administrative directives and school board policy are sufficient reasons for the District’s decision to nonrenew her contract.

II. Reinstatement Under FMLA.

Ms. Narasiman began a 12 week (60-day) leave of absence under the FMLA beginning November 29, 2004. Under the FMLA, “an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12 month period.” 29 U.S.C. § 2612(a)(1). The employer may choose from several different methods for calculating the appropriate “12 month period”. Ibid. For example, one method calculates the 12 week (60-day) period for FMLA leave from the first day that an employee starts their eligible leave. 28 C.F.R. § 825.200(b). This is the method of calculation used by SBISD. [Adm. Ex. F]. Applying this method, Ms. Narasiman’s 12 weeks (60 days) of FMLA leave, not counting holidays, expired on March 15, 2005. [Tr., pp. 35-37; Adm. Ex. B].

According to Ms. Narasiman’s Return to Work Certificate, her doctor determined that she was medically able to return to work part-time on April 1, 2005. [Stip. Ex. 10]. SBISD argues that on April 1, 2005, Ms. Narasiman was no longer afforded protection by the FMLA because 1) the return to work date was outside the 60-day leave period, and 2) she was not able to perform the essential functions of her job. Alternatively, Ms. Narasiman argues that she would have complied with the 60-day leave period if SBISD had given her adequate notice of the type of calculation it was using to determine her last day of medical leave, thus entitling her to return to her teaching position.

The regulations implementing the FMLA state:

If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. 29 C.F.R. § 825.214(b).

A number of courts have interpreted 29 C.F.R. § 825.214(b) to mean that the right to reinstatement expires at the end of the 12 week period. For example, in Edgar v. JAC Products, Inc., 443 F.3d 501 (6th Cir. 2006), the court held that an employee on leave for stress-related reasons whose doctors had not released her to return to work at the end of 12 weeks was not entitled to reinstatement under the FMLA. Id. at 506 (quoting 29 C.F.R. § 825.214(b)). Likewise, in Slentz v. City of Republic, Missouri, __ F.3d ___, 2006 WL 1300591 (8th Cir. 2006), the court held that a police officer whose doctors would not certify him to return to work until several weeks after the expiration of his FMLA leave could not bring action under the FMLA. The court also noted that “under the FMLA, twelve weeks of leave is both the minimum the employer must provide and the maximum that the statute requires.” Id.

Ms. Narasiman argues, however, that SBISD did not comply with the notice requirements of the FMLA, and is, therefore estopped from taking any adverse action against her (e.g. the nonrenewal of her contract). Ms. Narasiman relies on 29 C.F.R. § 825.301 (f), which provides that:

If the employee fails to provide notice in accordance with the provisions of this section, the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice.

More specifically, Ms. Narasiman contends that the District did not provide her with adequate information concerning her FMLA leave, mainly a date certain for her return to work. The evidence, however, does not support this contention. The District provided notice of its FMLA policies on its website, in its employee handbook, and in the principal’s office. [Tr. pp. 247-248]. It is the District’s expectation that employees read their handbook if they are unclear as to policy. [Tr. p. 248].

During her testimony, Ms. Narasiman did not claim that she was confused about the length of her leave or her understanding that she was getting 12 weeks of leave. [Tr. 273]. Quite frankly, if Ms. Narasiman had read her employee handbook, used her school academic calendar for 2004-2005, and completed a simple calculation, she would have known, with certainty, the date she was due to return from the FMLA leave. If she was not confident of her calculation, she could have sought clarification from the District regarding her return to work date.

Given that it was Ms. Narasiman who requested the FMLA leave of absence, she carried a responsibility to know how the FMLA parameters might impact her teaching position. Her insistence that the District did not provide adequate notice of FMLA timeframes does not alleviate her own responsibility to know crucial deadlines.

As for her argument that she would have complied with the 60-day leave period if SBISD had calculated it for her, Ms. Narasiman seems to forget that she was on medical leave and that her return to work was subject to a doctor’s release. Without any concrete evidence to support her contention that she could have returned to work by March 15, 2005, (other than her doctor’s written statement that he might have considered such a request), this hearing examiner cannot base her decision on mere speculation. Further, Ms. Narasiman’s argument is inconsistent with her testimony that she intended to come back to work within the FMLA time period, “if my health permitted.” [Tr. 275]. Clearly, Ms. Narasiman’s top priority was her health, and the status of her medical condition would dictate when she returned to work.

Even if Ms. Narasiman still possessed a right to reinstatement under the FMLA, the District satisfied that right by offering her the science position at Stratford High School. Under the FMLA:

[A]ny eligible employee who takes leave under section 2612 of this title [the FMLA] for the intended purpose of the leave shall be entitled, on return from such leave—

(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or

(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

29 U.S.C. § 2614(a)(1). Under the implementing regulations:

An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

29 C.F.R. § 825.215(a). In this case, Ms. Narasiman was offered a teaching position at her same school, making the same salary, with the same benefits. She would have been teaching science classes that she had taught before. The only difference would have been in the number of preparations necessary to fulfill her duties and responsibilities. In the year that Ms. Narasiman took medical leave, she had one preparation. [Adm. Ex. A]. The new assignment at Stratford required three preparations. However, for the three school years prior to her taking leave, Ms. Narasiman had three preparations. [Adm. Ex. A]. In fact, for the previous five school years, the majority of science teachers at Stratford maintained three preparations during the school year. [Adm. Ex. A]. This was the norm at Stratford, not the exception. Therefore, Ms. Narasiman’s argument that she was not offered an “equivalent position” based solely on the number of preparations is not convincing.

For the foregoing reasons, FMLA is not applicable to this dispute and Ms. Narasiman is not entitled to reinstatement thereunder.

The evidence in this case supports a finding that there are sufficient facts and reasons to nonrenew Ms. Narasiman’s employment contract with SBISD. [2]

IV.

CONCLUSIONS OF LAW

1. The Certified Hearing Examiner has jurisdiction to hear this issue under Texas Education Code § 21.251(a)(1).

2. Ms. Narasiman was afforded a fair and impartial hearing as prescribed in the Texas Education Code § 21.253.

3. Ms. Narasiman had a valid and existing term contract with SBISD.

4. Ms. Narasiman’s return to work certificate was dated more than 60 days (12 weeks) after she began her leave. Thus, she is not entitled to reinstatement of her teaching position under the FMLA.

5. The Stratford High School science position, offered to Ms. Narasiman upon her return from leave, was an equivalent teaching position.

6. Ms. Narasiman violated the terms of her contract by failing to accept the teaching assignments at Stratford and Northbrook High Schools.

7. Ms. Narasiman failed to comply with multiple administrative directives to report to work.

8. Ms. Narasiman failed to comply with board policy DFBB (Local) when she failed to accept assigned teaching positions and follow multiple administrative directives to report to work.

9. The District relied on sufficient facts and reasons to support its decision to nonrenew Ms. Narasiman’s employment contract

10. Any conclusions of law deemed to be finding of facts are hereby adopted as such.

V.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is the recommendation of the Certified Hearing Examiner that SBISD has sufficient reasons to nonrenew Ms. Ranjana Narasiman’s employment and that Ms. Ranjana Narasiman’s appeal of such nonrenewal should be DENIED.

SIGNED this ___day of July, 2006.

____________________________

Thelma Elizalde,

Certified Hearing Examiner

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[1] Good cause 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 employer-employee relationship. Lee-Wright, Inc. v. Hall, 840 S.W. 2nd 572, 580 (Tex. App.-Houston [1st Dist.] 1992, no writ.

2 The standard of review for contract nonrenewals is that a "…district does not need to show good cause to non-renew a teacher. What is required is the violation of a pre-established reason for non-renewal.” Kirby v. College Station ISD, Docket No. 109-R1-598 (Comm.’r Educ. 1998); Kinnard v. Morgan ISD, 177-R1-699 (Comm’r Educ. 1999). § 21.203(b) of the Tex. Ed. Code states that employment policies must include reasons for not renewing a teacher’s contract at the end of a school year.

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