DOCKET NO .tx.us



DOCKET NO. 32-H-1205

DALLAS INDEPENDENT SCHOOL § BEFORE THE CERTIFIED

DISTRICT § HEARING EXAMINER

§

vs. §

§ THE STATE OF TEXAS

KAY LYNN LYON §

RECOMMENDED DECISION OF THE CERTIFIED HEARING EXAMINER

DATE FILED: 11/29/05

DATE OF HEARING: CLOSED: 02/24/06

60-DAY WAIVER TO: 03/16/06

PRE-HEARING: 12/09/05

BRIEFS: 3/7/06

CERTIFIED HEARING EXAMINER: Robert C. Prather, Sr.

HEARING LOCATION: Dallas Independent School District

Administration Building

3807 Ross Avenue

Dallas, Texas 75204

Ph: 972-925-3719

Fax: 972-925-3712

DALLAS ISD: By: Paul Zevallos

DISD ATTORNEY: Veretta L. Frazier

320 So. R.L. Thornton #300

Dallas, Texas 75203

Ph: 214-941-1881

Fax: 214-941-1399

TEACHER: KAY LYNN LYON

TEACHER'S ATTORNEY: Daniel Ortiz

715 West Abrams

Arlington, Texas 76013

Ph. (817) 861-7984

Fx. (817) 861-8909

COURT REPORTER: Rachel Chavez, CSR#2610, Ph: 972-221-0331

BASIS OF HEARING: Appeal of Recommendation of Termination of

Teacher Contract

RECOMMENDATION: DALLAS ISD should NOT terminate LYON’S contract.

PROCEDURAL MATTERS

At the beginning of the hearing, Counsel for Respondent filed Respondent's Objections to Petitioner's Proposed Witnesses and Exhibits. Respondent, during argument, withdrew her objection to the Exhibits, only. After considering the arguments of counsel, it was determined that the Respondent’s objections to Petitioner's proposed witnesses and witness list was reserved. Respondent’s objections to the witnesses and witness list are now overruled.

FINDINGS OF FACT

References are to the transcript which consists of multiple volumes, for example, “TR P/L.“ The Hearing was held on 2/24/06.

D = DISD Exhibit

L or R = LYON Exhibit

H = Hearing Examiner Exhibit

Admission of Exhibits:

1. DISD’s Exh. D-1 to 7 were admitted into evidence by agreement of the parties,

2. Lyon’s Exhs. R-1, 3-18, 10-14 were admitted into evidence by agreement of the parties.

3. Lyon Exhs. R-2 and 9 were offered by Respondent, objected to by DISD, and admitted for all purposes, including showing the exhibits were sent, were sent on behalf of Lyon, addressees and copies, explanation of contract, course of conduct with Lyon and procedure, but not for the truth of the matter stated in the exhibits.

After due consideration of and based upon the preponderance of the credible evidence, including the credibility of the witnesses and matters officially noticed, in my capacity as Certified Hearing Examiner, I make the following Findings of Fact (citations to evidence are not exhaustive or exclusive, but are intended to indicate some basis for the particular finding of fact).

1. Lyon has a B.S. in Dance from the University of North Texas (1977) and an M.S. from the University of North Texas (1981). Exh. D-3.

2. Lyon has taught dance privately, beginning while she was in college, and did some substitute teaching for the Carrollton/Farmer Branch Independent School District. TR P. 146, L. 1 to 148, L. 8.

3. Lyon was and is certified in secondary dance, secondary history, and secondary physical education for grades 6-12. Exh. D-2, R-1. TR P. 143, L. 3 to 148, L. 8.

4. LYON was employed by DISD pursuant to a Two-Year Educator Term Contract (Contract), Exh. D-1, for the 2005/2006 and 2006/2007 school years to teach part-time at a DISD school.

5. Lyon was and is a classroom teacher and educator, as those terms are defined by §5.001, Tex. Educ. Code.

6. Lyon’s Educator Term Contract provides under paragraph 4 that “Educator shall be subject to assignment and reassignment according to the General Superintendent.” Exh. D-1.

7. While employed by DISD, Lyon has always received above average performance evaluations. TR P. 152,Ls 5-8.

8. In 30 years of working, Lyon has never been fired or abandoned a job. TR P. 168, L. 21 to 169, L. 1; P. 171, L. 25 to 172, L. 2.

9. On or about November 15, 2005, LYON received a DISD letter, Exh. D-7, placing her on administrative leave and recommending that her employment be terminated for good cause pursuant to Board Policy DF (Local). The recommendation to terminate was made under the following policy provisions:

a. Failure or refusal to comply with policies, orders, and directives of the Board, General Superintendent, and/or designee (DF-Local #1).

b. Excessive absences, tardiness, or job abandonment. (DF-Local #31).

10. Furthermore, the November 15, 2005, letter recommended termination for the following reasons, including, but not limited to:

a. Lyon failed to comply with call-in requirements for excused absences.

b. Lyon failed to report to your assignment.

c. Lyon had constructively abandoned your job.

11. On November 29, 2005, LYON, then represented by attorney Daniel Ortiz, timely requested the appointment of a Certified Hearing Examiner by the Texas Education Agency to hear this dispute. Robert C. Prather, Sr., was notified on December 6, 2005, of his selection as Certified Hearing Examiner to conduct a hearing in this dispute. The assignment was accepted on December 6, 2005. Exh. H-1 and -2.

12. On December 9, 2005, a pre-hearing was held with attorneys Veretta L. Frazier and Daniel Ortiz. Exh. H-3.

13. On December 14, 2005, LYON and DISD agreed to a waiver and extension for the recommendation to March 16, 2006. Exh. H-4.

14. On February 24, 2006, the hearing in this matter was commenced as a closed hearing and was completed on February 24, 2006, with both parties in attendance represented by counsel.

15. Lyon began her employment with DISD in the Fall of 2002 on a half-time basis, and has always worked half-time for the DISD.

16. Lyon was hired as a half-time dance teacher and assigned to Hillcrest High School for the 2002/2003 and 2003/2004 school years.

17. DISD attempted to force Lyon to teach full-time for the 2004/2005 school year. However, DISD, through its Area Supervisor, instead reassigned Lyon to teach dance, half-time, at Cary Middle School for the 2004/2005 school year. Exh. R-2 and 3. TR P. 152, L. 17 to 157, L. 22.

18. By letter dated March 11, 2005, Lyon was informed that she was being released from her assignment at Cary Middle School due to “budget, reduced enrollment or changes in the Bilingual/ESL program” could apply for voluntary transfer, attend a job fair, and would receive an assignment letter by 5/27/06. Exh. D-5.

19. On 4/18/05, Lyon was advised of an 4/30/05 job fair which she attended. Exh. D-6, TR P. 138, Ls. 14 to 24.

20. Lyon made other efforts to find similar PART TIME employment with DISD, but was not able to do so. TR P. 182, L. 22 to P. 185, L. 7.

21. When Lyon received the notice in March of 2005 that her position would not longer be available, she made reasonable efforts to try to find other assignments. TR P. 20, Ls. 2-23.

22. By letter dated May 23, 2005, Lyon was sent notice that she had been released from her assignment at Cary Middle School and that she would receive an assignment letter by 8/1/05. Exh. R-5.

23. On July 20, 2005, Lyon received a 7/15/05 Letter of Assignment from Human Resources from Area Supervisor Branch (Branch), assigning Lyon to the full-time Physical Education teaching position at L. O. Donald Elementary School (Donald Elementary) (a K-6th grade school), effective August 8, 2005. Exh. D-4. TR P. 34, L. 16-19.

24. Lyon is not certified to teach elementary Physical Education. Exh. D-2.

25. Additionally, per §21.210, Tex. Educ. Code, after June 25, 2005, Lyon could not unilaterally resign her teaching position.

26. On July 22, 2005, Lyon sent an e-mail to her Area Supervisor, Branch, that Lyon was unable to accept said assignment because

a. Lyon had been hired by the DISD as a half-time teacher and

b. Lyon is not certified to teach elementary Physical Education. Exh. R-7.

27. No one from DISD, including those people copied on the e-mail, responded to Lyon’s 7/22/05 e-mail. TR P. 163, L. 5-23.

28. Since Lyon received no response to her 7/22/05 e-mail and Branch did not return Lyon’s numerous phone calls, Lyon sent Branch an e-mail on 8/2/05, Exh. R-8, asking when she would receive another assignment. TR P. 163, L. 5 to 164, L. 5.

29. Branch sent Lyon an e-mail on August 2, 2005, stating that the Physical Education teaching position at Donald Elementary was the only assignment DISD had to offer to Lyon. Exh. R-8.

30. Lyon replied to Branch by e-mail, on August 3, 2005, stating that Lyon has been waiting for a new assignment from the DISD and, consequently, had turned down other job offers due to her half-time contract of employment with the DISD. Exh. R-8.

31. Branch, by e-mail dated August 4, 2005, stated Lyon could either accept the assignment stated in the July 15, 2005, Letter of Assignment or resign. Exh. R-8.

32. The first day teachers were to report to school for the 2005/2006 school year was August 8, 2005. Students were to report on 8/12/05. Exh. R-14.

33. On August 10, 2005, Lyon’s attorney, Steven Heath, who handled the part-time issue in 2004 (see Exh. R-2 and 3), wrote to Branch and Dr. Linda Chance, Executive Director of Employment, that Lyon had a half-time contractual relationship with the DISD. Mr. Heath requested a DISD response by August 12, 2005. Exh. R-9.

34. No response from DISD was received by either Lyon or Heath about Exh. R-9, TR P. 165, Ls. 14-17.

35. On October 7, 2005, Lyon’s attorney, Daniel Ortiz, wrote Mr. Luis Tamez, Director of Employee Relations, again requesting that Lyon be assigned to “an appropriate half-time position of employment with the DISD.” and that Lyon was “ready, willing and able to fulfill her contractual duty...” Exh. R-10. No response was received. TR P. 217 L. 11 to P. 218, L. 2.

36. After Ortiz’s 10/7/05 letter, DISD did not offer Lyon a half-time teaching position in a field for which she was certified. TR P. 165 L. 7 to P. 167, L. 18.

37. The only communication by the DISD to Lyon after the August 4, 2005, email of Branch was the letter of proposed termination of November 15, 2005. Exh. R-7.

38. About 30 days later, by letter dated November 15, 2005, Dr. Troy Coleman recommended to propose the termination of Lyon’s employment. Exh. R-7.

39. Lyon always stood ready to perform her duties as a part-time secondary teacher for DISD. Exh. R-10, TR P. 170, L. 10-25.

40. No one from the DISD ever told Lyon to report to the elementary school principal and that her assignment was as a part-time teacher only teaching sixth grade P.E. and 6th grade history.

41. No one from the DISD told Lyon that the principal would be the one responsible for finding Lyon an appropriate half-time assignment. TR P. 162, L. 2 to P. 163, L. 1; ; P. 168, L. 5 to P. 169, L. 23.

42. The procedures which had been followed between the DISD and Lyon in the prior school year 2004 were through the Area Supervisor, like Branch, not the principal of a particular school. TR P. 167, L. 3-20.

43. The Area Supervisor has more knowledge about the assignments available in all of the schools for Lyon as opposed to just the elementary principal at one school, especially for a secondary teacher. TR P. 104, L. 13, to 105, L. 3; P. 182, L. 22 to P. 185, L. 7.

44. In Exh. R-8, Branch's email of August 4, 2005, Branch made a simple "take it or leave it" option of either accepting the contract or resigning.

45. Neither Branch nor the DISD stated, either in the email or in any communication with Lyon, that Lyon could resign without penalty and without breaching her agreement or what the terms of a resignation would be.

46. If that was the DISD's intent, it was not communicated by the DISD to Lyon.

47. Branch failed to return numerous phone calls by Lyon to Branch between Lyon's first email of 7/22/05, upon Lyon’s receipt of Exh. D-4 on July 20, 2005, and Lyon's email of August 2, 2005. TR P. 161, L. 2 to P. 163, L. 1.

48. No one from the DISD communicated with Lyon or her attorney following Mr. Heath's letter of 8/10/05, Exh. R-9, or Mr. Ortiz' letter of October 7, 2005. Exh. R-10.

49. Paul Zevallos, the Principal at L. O. Donald Elementary School, believed that Lyon was coming to him as a full-time teacher for all of his K-6 P.E. classes. TR P. 28, L. 23 to P. 29; L. 6; P. 122, L. 7 to P. 123, L. 8.

50. Since the time Lyon began teaching with DISD in the Fall of 2002, she has been a part-time dance teacher.

51. Under each of the contracts Lyon has had with the DISD she has taught as a part-time teacher.

52. DISD does not have a contract form that is used only with full-time teachers, and a contract form that is used only with part-time teachers. The same form of contract is used for both full-time and part-time teachers. TR P. 66, L. 8 to P. 67, L. 6.

53. The practice of the parties and certainly the intent of Lyon was that Lyon was under contract as a part-time teacher.

54. Lyon signed each of her contracts with DISD intending and believing that she was signing a contract as a part-time teacher.

55. In addition to Lyon's past employment having been part-time, in the Fall of 2004 when DISD placed Lyon in a full-time position Lyon raised the issue that she was only to work part-time in light of her having other contractual commitments that would only permit her to work part-time. DISD then placed Ms. Lyon in a part-time position. Exh. R-3.

56. There is no evidence that, at any time, DISD told Ms. Lyon that her contract was a FULL-time contract, NOT a PART-time contract. TR P. 154, L. 21 to P. 155, L. 25.

57. Lyon’s contract, Exh. D-1, was a part-time contract.

58. DISD was to notify Lyon of her new assignment by May 27, 2005, which the DISD failed to do. Exh. D-5.

59. DISD unilaterally extended the time to notify Lyon of her assignment until August 1. Exh. R-5.

60. On July 15, 2005, DISD gave Lyon her Notice of Assignment to Donald Elementary School.

61. The Assignment, Exh. D-4, was received by Lyon on Wednesday, July 20, 2005, with said receipt being nineteen (19) days before Lyon was to report for work on 8/8/05.

62. A teacher cannot unilaterally resign within 45 days of the first day of class.

63. The date of the letter in Exh. D-4 and its receipt by Lyon were less than 45 days prior to the start of class, 8/8/05, which meant that Lyon could not resign in compliance with § 21.210 of the Tx. Ed. Code without breaching her contract.

64. Exh. D-7, the 11/15/05 recommendation of proposed termination to Lyon fails to give Lyon notice of her pay status pending the hearing.

65. When Lyon did not appear at L. O’Donald Elementary School, the Principal, Paul Zevallos, did not call Lyon. Instead, he sent a no-show form to and called Area Supervisor Branch. TR P. 27, L. 17 to P. 28, L. 19; P. 38, L. 13 to P. 41, L. 19; P. 123, L. 17 to P. 124, L. 13.

66. Branch never told Mr. Zevallos that:

a. Lyon was not certified to teach elementary; and

b. Lyon had communicated with Branch on 7/20/05 raising these issues about her certification and half-time contract. TR P. 42, L. 3-17.

67. The DISD Local Rules, including DF Local #1 and #31, are not in evidence, except for the phrasing in the letter. Exh. D-7.

68. In the hearing on February 24, 2006, Zevallos stated he might have been able to create a part-time position for Lyon. This was the first time this had been communicated to Lyon. That information had not been communicated to Lyon by Branch or anyone else, until this Hearing. TR P. 115, L. 2 to P. 116, L. 12.

69. Zevallos did not tell Branch or anyone else prior to this hearing on February 24, 2006 that he would have hired Lyon as a part-time teacher. TR P. 115, L. 2 to P. 116, L. 12.

70. Zevallos filled the vacancy of Lyon's assignment with a full-time teacher. TR P. 123, L. 6-9.

71. Exhibit D-4 assumes a full-time P.E. teacher. TR P. 122, L. 7 to P. 123, L. 5, P. 199, Ls. 7 to 22.

72. Zevallos would have had to get H.R. approval for such re-arrangement at his school. Branch was his Area Supervisor to give such approval. Branch never communicated that information to Lyon.

73. If Ms. Lyon was not certified to teach the assignment that she was given, her procedure would be to talk with the Area Supervisor, who was Ms. Branch. TR P. 62, L. 1-21.

74. Branch should have reviewed Lyon's certification. TR P. 71, L. 21 to P. 72, L. 5.

75. To assign Lyon to teach K-6 P.E. was not a proper assignment. TR P. 76, L. 10 to P. 77, L. 5.

76. Lyon was bound to her part-time DISD contract and could not seek work some place else.

77. Lyon was not at fault for not showing up at L. O’Donald Elementary for teaching P.E. full-time to grades K-6 because:

a. Prior to classes beginning, she promptly called the Area Supervisor, but her calls were not returned about the assignment.

b. She sent an email to the Area Supervisor on 7/22/05, and received no response.

c. After the email of 7/22/05, she called the Area Supervisor, Branch on numerous occasions but her calls were never returned.

d. She was never told that the elementary principal would work out the problems with her assignment. TR P. 196, L. 21 to P. 197, L. 20.

e. She was given an assignment contrary to her contract and for which she was not certified.

f. On August 2, 2005, Lyon exchanged a series of emails with Branch, Exh. R-8, in which Branch did not really address the issues being raised by Lyon about certification and part-time.

g. DISD did not respond to Lyon's attorney's letter (Mr. Heath), Exh. R-9, of 8/10/05. TR P. 165, L. 7-17.

h. DISD did not respond to Mr. Ortiz's letter of 10/7/05, including that Lyons stood ready, willing and able to perform as a part-time teacher in matters in which she was certified to teach. Exh. R-10. TR P. 165, L. 7-17.

i. DISD was at fault for failing to communicate with Lyon and making a proper assignment.

78. Prior to and including April 2005, Lyon would not have accepted a DISD contract if it was a full-time contract since she had other contractual obligations to provide services to other entities. Exh. R-11,-12; TR P. 171, L. 3 to P. 182, L. 20; P. 200, Ls. 7 to 22.

79. Lyon had worked under contract for the City of Farmers Branch for 29 years, with at least a 100 contracts like R-11. Under R-11, third to last paragraph, Lyon could not resign or cancel the contract any time she wanted.

80. DISD never told Lyon that her contract was a full-time contract.

81. Lyon could not have reported to DISD on a full-time basis for the Fall of 2005 without breaching other obligations that she already had, for which she was committed.

82. From at least the Fall of 2004 through the present time, all of Lyon's communications to her and from her were with the Area Supervisor, such as Branch. TR P. `168 L 3-20.

83. At no time did Lyon receive any calls or receive any instructions to call the Principal (instead of the Area Supervisor) at either Franklin School in the Fall of 2004 or L. O’Donald Elementary in 2005.

84. Lyon sent the emails of August 2, 2005, and following, because Branch was not returning her phone calls.

85. Lyon was not told that there were no other part-time positions in DISD for which she was certified for the Fall of 2005. TR P. 164, L. 20 to 165, L. 6.

86. There is no evidence that there were no other part-time positions for which Lyon was qualified or certified for the Fall of 2005. TR P. 164, L. 20 to 165, L. 6.

87. Lyon would have spoken with Zevallos if she had known that that was the appropriate thing to do. Her experience had been and her communications had been with the Area Supervisor, such as Branch. TR P. 162 L. 6 to 163, L. 1.

88. Branch did not tell Lyon:

a. that there were no other part-time assignments in DISD;

b. that she was to contact the Principal, Zevallos;

c. that there were any other variables to be considered in her being part-time and her certification; and

d. under what conditions, terms and agreements Lyon could resign.

89. DISD failed to give Lyon notice that she was being suspended without pay. Exh. D-7, TR P. 215, L. 20 to P. 217, L. 10.

90. Lyon did not abandon her job.

91. Lyon did not intend to abandon her job.

92. Lyon did not constructively abandon her job.

93. Lyon did not abandon her contract.

94. Lyon did not intend to abandon her contract.

95. Lyon did not constructively abandon her contract.

96. Lyon always stood ready to perform her contractual duties as a part-time secondary teacher for DISD. Exh. R-10, TR P. 170, L. 10-25.

III.

DISCUSSION

Essentially, there are three (3) issues in this case:

1. Has DISD established good cause to terminate LYON's Contract? No.

2. Was remediation required? Yes.

3. If remediation was required, was remediation or an opportunity for remediation provided? No.

To terminate LYON's Contract, DISD must establish good cause, which has been spelled out in Commissioner Opinions, cases, and the statute. The facts and laws establish that “good cause” does not exist to recommend termination of LYON.

Good cause is statutorily defined as the failure to meet the accepted standards of conduct for the profession that are generally recognized and applied in similarly situated school districts in this state. TEX. EDUC. CODE § 21.104 (Vernon's Supp. 1999).

As stated in Kinsey v Quinlan ISD, 092-R2-598 (07/01/98), the Texas courts have defined “good cause” as:

“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.”

Lee-Wright, Inc., v Hall, 840 SW2d 572, 580 (Tex. App.-Houston [1st Dist.] 1992, no writ)

“Good cause is a high standard. An employee must not only fail to perform as an ordinary employee would, but the failure must be of a serious nature. There is good cause to terminate a contract if a teacher failed to perform as an ordinary employee would and this failing is of a serious nature.”

E. The claims by DISD against Lyon fail when looking at the two requirements of good cause in Kinsey and Lee Wright, Inc., that is,

1. A teacher failed to perform as an ordinary employee would, and

2. This failing is of a serious nature.

3. Lyon performed as an ordinary employee. Lyon did perform, in fact, as an ordinary employee and in a professional, business-like manner like one might expect, considering her position and prior dealings with DISD. She received a late appointment for an assignment not consistent with her part-time contract, and not for what she was certified to teach. She did not delay. She immediately contacted the Area Supervisor from whom she received the letter of assignment, as had been the case in the fall of 2004. Additionally, she made calls to the Area Supervisor, which were not returned. Still, six days prior to the day that teachers were to report, August 8, she again initiated contact with the Area Supervisor by e-mail. Lyon continued to receive incomplete, inadequate or no response. At no time, by e-mail, fax or telephone was Ms. Lyon told to cease communicating with or contacting the Area Supervisor. No one told Lyon she was to show up at the school and the elementary principal would work out these problems, which he was never told about. Even the last communication from the Area Supervisor was inadequate and insufficient. It had told Ms. Lyon to accept the contract [a full time instead of a part time position, for classes that she was not certified to teach] or resign. It did not say under what conditions she would resign or what penalties there may or may not be if she resigned. What would an ordinary person do when they have made calls, they have sent e-mails, and still do not have adequate communication from DISD to reach a resolution of the problem?

4. Ms. Lyon then contacted the attorney who had handled the situation the year before in the fall of 2004 with an Area Supervisor. But, even with a letter from Ms. Heath on August 10, 2005, which was still 2 days prior to the date for students to report (8/12/06), and then a letter from Mr. Ortiz, DISD, for whatever reason, made no response. The only response was almost two months later, to file a claim of job abandonment and recommend termination.

5. There is no evidence of any intention on the part of Ms. Lyon to abandon her job and not report for an assignment for which she was certified and in accordance with her part time contract. Her actions show Lyon being proactive to address the problem so she could go to work, not abandon her job. How do you abandon a full-time position for which you are not certified, when you have a part-time contract? You cannot abandon what you do not have.

6. When all of the circumstances are taken together, there is not a “failing of a serious nature” on the part of Ms. Lyon unless one wants to say that she failed to go to the principal, as opposed to dealing with her Area Supervisor. That does not constitute a failing of a “serious nature” on Lyon’s part, particularly when Lyon is making every effort to communicate with the Area Supervisor. DISD never told Lyon to go to the principal, and he would work it out, she would not have to teach courses for which she was not certified and that she would be given a half time assignment. The principal did not know that Ms. Lyon was half time and was only certified for the sixth grade. He assumed he was getting a full time teacher for all K-6 grades. In fact, he replaced Ms. Lyon with, a full-time elementary teacher.

F. The District’s counsel seeks to draw an analogy to Ms. Lyon’s conduct with that of Autry in DISD vs. Autry, Docket No. 009-LH-1001 (2001). In actuality, the facts of Autry compared to Lyon are different from each other, and in fact, are opposites. In Autry, the employee was failing to communicate with DISD. Here, in the Lyon case, Lyon is communicating and attempting to communicate in a timely manner with DISD, and DISD is the one failing to communicate with Ms. Lyon.

G. There was no warning given to Ms. Lyon, and no attempt or plan for remediation. Considering her work history and performance, as well as observing her professional demeanor at the hearing, if, in fact, Ms. Lyon had done anything wrong, which she did not, it would be a type of situation for remediation.

H. Ms. Lyon’s conduct did not pose a potential or actual danger to students. Ms. Lyon is the one who was communicating with and attempting to communicate with the District long before the first day for teachers to report, 8/8, and before students were to report, 8/12, to try to get the issues straightened out. Instead, she got little or no response from the District. The District created the situation by making an improper assignment to begin with and then by failing to communicate with Ms. Lyon and resolve the problem prior to the time for the teacher to report. There was adequate time for that to have occurred.

IV.

CONCLUSIONS OF LAW

After due consideration of the record, of the evidence at the hearing, arguments of counsel, matters officially noticed, Briefs submitted, and the foregoing findings of fact, in my capacity as Hearing Examiner, by a preponderance of the evidence, I make the following conclusions of law:

A. Jurisdiction in this case is proper under Texas Education Code, Section 21.211(a)(2).

B. DISD did not have good cause to terminate LYON's Contract of employment before the end of its term.

C. The alleged reasons, if they existed, which they do not, for DISD's suspension and proposed termination of LYON were not so serious that remediation was not possible or required.

E. Lyon’s acts and conduct do not violate the terms and provisions of LYON's Contract and DISD School Board policy.

F. DISD's decision to terminate LYON's Contract is not supported by evidence of her failure to perform as claimed.

G. No remediation was ever attempted or even discussed by DISD.

H. The District failed to communicate with Lyons after 8/4/05, thereby interfering with Lyon’s ability to perform.

I. LYON has performed as an ordinary employee would under the circumstances in the areas referenced herein.

J. Any alleged failure to perform by Lyon was not of a serious nature and does not constitute good cause. The evidence and documentation of LYON's conduct are not inconsistent with and do not violate DISD School Board policies.

K. DISD did not prove by a preponderance of evidence that LYON violated DISD Board Policies of Local Numbers 1 and 31.

L.Lyon did not abandon her job.

M. Lyon did not intend to abandon her job.

N. Lyon did not constructively abandon her job.

O. Lyon did not abandon her contract.

P. Lyon did not intend to abandon her contract.

Q. Lyon did not constructively abandon her contract.

R. Lyon always stood ready to perform her contractual duties as a part-time secondary teacher for DISD. Exh. R-10, TR P. 170, L. 10-25.

S. LYON’s conduct is NOT contrary to and inconsistent with the ordinary standards set by the performance and conduct of other professional public employees of the DISD and does meet acceptable standards of conduct for employees in like or similar positions.

T. Retention of LYON as an employee would not be detrimental to the best interest of DISD, its students and employees.

U. The facts and laws do not establish that good cause exists to recommend termination of LYON.

V. LYON's employment should not be terminated for good cause.

W. Since the 2002/2003 school year, Lyon has been employed by DISD under a term contract as a half-time teacher. Said term contract was a HALF-time contract.

X. A teacher cannot abandon an assignment that is not consistent with her contract and for which she is not certified to teach. DISD's assignment letter to Lyon was for a full-time position teaching K-6 for which Lyon was not certified and was not proper.

Y. DISD must show that Lyon intended to abandon her position. DISD has failed to show that Lyon intended to abandon her contract, especially since:

a. Lyon maintained communication with the DISD to obtain a proper assignment;

b. Lyon stood ready, willing and able to perform as a part-time teacher for the DISD in matters in which she was certified; and

c. the DISD failed to communicate with her and to address the issues of part-time and certification.

Z. Lyon followed the proper procedure in addressing assignment issues by trying to communicate with the Area Supervisor, Branch.

AA. The failure of communicating the proper procedures and options was the fault of DISD.

BB. It was NOT communicated to Principal ZEVALLOS, until after he had filed the job abandonment Form in November 2005, that Lyon was not certified for K-6 and was only a part-time teacher.

CC. DISD did not tell Principal Zevallos to contact Lyon about job availability and DISD itself failed to communicate and respond to Lyon or her two attorneys, in an attempt to resolve these issues and did not tell them to talk with Principal Zevallos.

DD. There is no evidence by DISD that there was no part-time position available for which Lyon was certified in the Fall of 2005. Furthermore, if there was no position at that time, then there has been no evidence by DISD of DISD "parking" Lyon as described by Area Supervisor Salinas to be the proper procedure.

EE. There is no evidence as to the terms and conditions under which Lyon supposedly could have resigned.

FF. Lyon’s assignment, D-4, was not a proper assignment.

GG. Lyon, upon being assigned to teach K-6 P.E., was justified in questioning such assignment and contacting Human Resources Area Supervisor, Branch, as to what to do. That was the proper procedure.

HH. Since Lyon was not given proper notice in the Exh.D-7 that she is being suspended without pay, she would be entitled to payment she would have received commencing in the fall of 2005 if she had been given a proper assignment for which she was certified to teach.

II. Lyon did not fail to comply with the call-in requirements for excused absences. She did call in, and her calls were not returned. She did communicate with the District, but the District did not communicate with her. She was not absent from an assignment for which she was qualified, and was part time, since she was never given such an assignment.

JJ. Lyon did not fail to report to her assignment, since she did, in fact, report to the Area Supervisor at DISD and stood ready, willing and able to perform a job in accordance with her part time contract for which she was certified. No proper assignment was made for her for which she would be required to report.

KK. Lyon has not constructively abandoned her job. Her actions and intent are to the contrary, as she asked for an assignment, communicated with the District prior to the time for teachers and students to report, requested an assignment consistent with a part time contract for which she was certified. Since no such assignment was made to her, she cannot abandon what she does not have.

LL. Any and all documents relating to the DISD’s proposed termination of Lyon’s employment should be sealed, to the extent allowed by law.

MM. All findings of fact should be interpreted, where appropriate, as conclusions of law and vice versa.

VI.

RECOMMENDED RELIEF

After due consideration of the record, matters officially noticed and the foregoing findings of fact and conclusions of law, it is recommended that the Board of Trustees of DISD adopt the foregoing Findings of Fact and Conclusions of Law and not approve the recommendation by DISD to terminate LYON's Contract.

It is further recommended in reliance thereupon that DISD’s recommendation that LYON be terminated for “good cause” shown should be DENIED.

SIGNED AND ISSUED this_______ day of_______________ 2006.

_____________________________________ ROBERT C. PRATHER, SR.

CERTIFIED INDEPENDENT HEARING EXAMINER

CMRRR 7160 3901 9848 5690 3481

& FAX 972-925-3712

President, Board of Trustees

Dallas ISD - Box 1

3700 Ross Avenue

Dallas, Texas 75204

CMRRR 7160 3901 9848 5690 3498

& FAX 214-941-1399

Veretta L. Frazier

320 So. R.L. Thornton #300

Dallas, Texas 75203

214-941-1881

Attorney for Dallas ISD

CMRRR 7160 3901 9848 5690 3528

& FAX 214-339-0194

Daniel A. Ortiz

715 West Abram

Arlington, Texas 76013

(817) 861-7984

Attorney for Teacher

CMRRR 7160 3901 9848 5690 3504

& FAX 1-512-463-9838 &

dianne.saldana@tea.state.tx.us

Joan Howard Allen

Director of Hearings

Texas Education Agency

1701 North Congress Avenue

Austin, Texas 78701-1494

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