Ritter.tea.state.tx.us



DOCKET NO. 025-LH-1110

FORT WORTH INDEPENDENT § BEFORE THE INDEPENDENT

SCHOOL DISTRICT, §

§

Petitioner, § HEARING EXAMINER §

vs. §

§ FOR THE STATE OF TEXAS,

JOSEPH PALAZZOLO, §

§

Respondent. § JESS C. RICKMAN III

RECOMMENDATION

Background

Joseph F. Palazzolo (“Palazzolo”) came to the Fort Worth Independent School District (“District” or “FWISD”) in the 2007-08 school year. After working as a history teacher at South Hills High School (“SHHS” or “South Hills”) for that school year, he was hired as an assistant principal for Arlington Heights High School (“Arlington Heights” or “AHHS”) for the 2008-09 and 2009-10 school years.[1] He was placed in charge of the freshman class for 2009-10.

Arlington Heights is a historic high school, but it has been beset in recent years by a number of issues, including racial tensions, substandard student performance, staff discord, campus mismanagement and an “Academically Unacceptable” rating for the 2008-09 school year because of an inadequate completion rate for the students. (Tr. I, p. 112). Early in his second school year at Arlington Heights, he began to engage in conduct that created a hostile work environment for some members of the staff; was disrespectful to a number of students, parents and staff; created dissension among the staff; did not comply with directives from the principal; and implemented disparate disciplinary consequences for some minority students. While verbally counseled on a number of occasions by the principal about these things, no formal documentation as to such conferences/reprimands was placed in his file by that principal. Because of his history, she did not want to create chaos for Arlington Heights and was relying on her immediate superiors to keep Palazzolo under control, as they had promised.

In March 2010, Palazzolo was assigned as a diversity coordinator for Arlington Heights. On May 18, 2010, the staff at AHHS had a presentation by Sharon Herrera (“Herrera”), who was the District diversity coordinator from the Office of Health and Wellness. It was about a District-wide endeavor to create a separate communications channel for the teachers to raise directly any complaints they may have with the District’s Office of Health and Wellness. Everyone was assured by Herrera that the complaints would be kept confidential and, most importantly, there would be no retaliation for the submission of any complaints. This communication channel was established to augment the campus-based Campus Coordination Committee (“CCC”), where teacher concerns were forwarded to the principal by the CCC.

Shortly thereafter, and in response to the District’s invitation to use this program, several AHHS teachers, led by Coach Chad Whitt (“Whitt”), prepared and submitted anonymous statements to Herrera and the District complaining primarily of a hostile work environment they were having to endure because of the extreme unprofessionalism and harassment of them by the athletic coordinator, Isabelle Perry (”Perry”). The complaints included chronic vulgarity and open references by her to staff and students about her sex life; an inappropriate relationship Perry was having with an AHHS assistant principal, Harold Nichols (“Nichols”); and a belief that Perry and Nichols had altered some student attendance records (Ex. P-6).

Because of the gravity of these allegations, they were promptly turned over to the Office of Professional Standards (“OPS”) and its director, Michael Menchaca (“Menchaca”) for investigation. Several days prior to the teachers submitting these statements, the District’s Chief of Schools, Robert Ray, had contacted OPS and asked that Perry and Nichols be investigated concerning possible alterations of student attendance records. The source of his information was not identified, but from the record in this matter, it was neither from Palazzolo nor any of the teachers who submitted statements. Thus, when OPS received the teacher’s anonymous statements on June 3, 2010, OPS was already interviewing Nichols and Perry and finding that the allegations, particularly those of alteration of student records, were true.

On June 7, 2010, Palazzolo brought to OPS the same teacher statements, but which now had the names of various teacher authors on them. He also brought to OPS additional sources of information about falsification of attendance and/or grades of certain students to facilitate their graduation. In the process of turning this over to Menchaca in OPS, Palazzolo expressed concern about possible retaliation against him for his participation in this disclosure process.

On June 10, 2010, just after graduation ceremonies, Palazzolo brought a list to OPS of 21 students who had graduated that weekend. It was a list of students whom he and other teachers felt had not met District and state attendance requirements to graduate. OPS and Dr. Sylvia Reyna, the District’s Chief of Administration who took over that position in July 2010, along with other staff members, prepared a wide-ranging and thorough report on these and a number of other issues raised throughout the investigation. This October 15, 2010 report was presented to the District’s Board. (Ex. P-3).[2]

On or about June 21, 2010, Principal Reta Alexander gave Palazzolo his review for the 2009-10 school year. The review was dated June 15, 2010. Under the domain of “School/Organizational Morale,” she checked that he “Needs Improvement.” In the comments section, she said he “must improve his approach in order to resolve numerous conflicts with parents, staff and students that have been documented during the 2009-10 school year.” (Ex. P-2, ps. 1138-39).[3] Ms. Alexander was about to transfer to Paschal High School and was finishing up business at AHHS.

On June 22, 2010, Palazzolo was advised that he was being reassigned as an assistant principal to an alternative campus, International Newcomer’s Academy, something he considered a demotion, especially since he was going to be in a lower pay grade. On June 30, 2010, Palazzolo filed a Level I. grievance seeking redress for a reassignment he considered to be retaliation for forwarding complaints about the hostile work environment concerning Perry and alterations of attendance records. He wanted reinstatement of a two-year contract, his re-assignment revoked, reinstatement of pay, and revocation of his recent appraisal (Ex. P-34). A hearing on it was held on July 21, 2010.

In an August 3, 2010 District letter to Palazzolo about that hearing, he was advised that other teachers had first brought these concerns that were still under investigation to the District’s attention and that his reassignment was a result of his performance concerning campus administration issues at Arlington Heights, as evidenced by a number of conferences with Alexander throughout the year and a March 2010 conference with Chuck Boyd, Assistant Superintendent for Secondary School Leadership (“Boyd”) and Jimmy Torres, the District’s director for the AHHS campus. Retaliation played no part in his reassignment. He was given partial relief, namely that his two-year contract which had one more year to run was validated (as opposed to a new one-year contract), he would receive the same pay as he did at AHHS, his evaluation would be modified to “Meets Expectations” in all areas, and he would go to Western Hills High School instead of INA. (Ex. P-36). One of the reasons for this change in assignment was that the superintendent said there would be no demotion if there had first not been a growth plan provided for Palazzolo.[4] (Tr. I, p. 44). Robert Ray had suggested in the spring of 2010 that Palazzolo had one, but, for some reason, one was not implemented by Principal Alexander (Tr. VI., ps. 399-402).

Just prior to the reassignment on June 22, 2010, Palazzolo met with Chuck Boyd and Robert Ray. When they explained it to him, he contended that it was retaliation. When Ray asked why, Palazzolo told him that he was the one that had turned in all of the statements, to which he claims Ray responded that he could understand why he felt that way and that Boyd said that he had suspected it was Palazzolo all along. (Tr. II., ps. 284-85). But the District stated the reason for the reassignment at that point was because of performance deficiencies at different points in the year, as pointed out and discussed with him over the year by Principal Alexander, and her superiors, Chuck Boyd and Robert Ray. He was just not a good fit on the staff at Arlington Heights. (Ex. P-89; Tr. I., p. 145; Tr. IV., p. 148).

On or about June 25, 2010, Perry resigned and Nichols retired. But the investigation into a number of areas continued. (Ex. P-30) (Menchaca’s investigative notes). On that same day, Palazzolo submits an email to Menchaca saying his relationship with Principal Alexander began to change for the worse shortly before the homecoming dance in October 2009, primarily because of a complaint he made to her about Perry’s vulgar language to the staff and students, (Ex. P-2, p. 1271), wanting this information “on the record,” ostensibly because he was claiming all the District’s acts at this stage concerning his reassignment were retaliatory. But Perry’s vulgarity was known well before then, and Principal Alexander and others had tried to work with her on it.

On July 7, 2010, as part of his investigation, Menchaca met with Arlington Heights Assistant Principal Kerwin Cormier, because she was responsible for the attendance office at AHHS in school year 2010-11 and had information in connection with some of the allegations. She stated that Principal Alexander knew about the romantic relationship between Nichols and Perry before Palazzolo ever told Alexander. (Tr. V., p. 5).[5] Mr. Menchaca invited Cormier to provide him with any allegations about Palazzolo after she relayed concerns to him about how divided and contentious the faculty had become due, in her mind, to Palazzolo. (Tr. IV., p. 29; V. p., 169; VI., p. 194). She submitted a document entitled “A Brief Study” on Palazzolo that covered areas of a hostile work environment; his rude, disrespectful and inappropriate conduct as a supervisor at the 2009 homecoming dance; his encouragement of teachers, particularly 9th grade ones under his supervision, to file grievances against administrators; harassment of students off-campus; his confrontation with the other AHHS assistant principals when they tried to interact with or discipline his 9th grade students; her suspicions about him stealing school property (later proven to be unfounded); a general commentary of how Palazzolo had bullied and intimidated certain staff and teachers; and how he appeared to regularly treat students unprofessionally by race or family status. She felt all of these things resulted in a deteriorating atmosphere on the campus. (Ex. P-2, p. 1510-16).[6]

The District began to investigate these allegations against Palazzolo as well. On July 14, 2010, Menchaca sent an email to Palazzolo and invited him to come and personally meet about the OPS investigation. (Ex. P-2, p. 1271). On July 30, 2010, Menchaca then requested from the District’s information technology office to have access to Palazzolo’s email at school. (Ex. P-2, p. 1269).

Mr. Menchaca and Palazzolo finally met on August 4, 2010 (Tr. VI., p. 197). Mr. Menchaca asked for specific responses in writing from Palazzolo about a variety of topics, many of which were from the original investigation, including the attendance change allegations, Perry, missing computers and other electronic items perhaps taken by Perry, documents on attendance that were taken from Cormier’s office and how he got them, burglaries on campus, and racial tension on field day. As to Palazzolo, Menchaca wanted answers on student discipline and his past meetings with leadership and what they discussed with him about his performance. (Ex. P-2, p. 1204-05). When Palazzolo had not responded by August 7, 2010, Menchaca emailed him, to which Palazzolo responded on Monday, August 9, 2010, that he would try to get him a response very soon, but stated that this inquiry appears to be “a combination of issues, my grievance, and new Perry/Alexander/Boyd allegations.”

Between July 12 and August 4, 2010, Menchaca and his staff either personally interviewed or contacted a number of people as part of their investigation: Alexander; Sharon Herrera; Ray; Wallis Vick (attendance issues); Durham (attendance issues); Randy Roberson (theft report); Detective Halford (theft issues) and Libby Bogart (hostile environment). (Ex. P-30, ps. 3652-3655).

On August 9, 2010, Palazzolo submitted a report to the Texas State Auditor’s office hotline about these matters. It was the first type of report of wrongdoing to an agency outside of the District. (Ex. P-94).

On August 10, 2010, Palazzolo filed a Level III grievance alleging retaliation for filing a whistleblower complaint(s) with various educational and other state agencies. (Ex. P-33). He wanted to go back to Arlington Heights as a designated assistant principal. The Board was meeting that night to consider his move to Western Hills School. The hearing on the grievance was ultimately held on October 12, 2010. (Ex. P-32).

On August 12 and 13, 2010, articles critical of the District on some of the issues started coming out in the Star Telegram. (Exs. B-6A and 6-B). Numerous other articles came out over the next several months in that paper and the Fort Worth Weekly, as they followed the investigation. (Exs. B-6C-I and B-7A-F).

Between the August 4th meeting with Palazzolo and August 18, 2010, Menchaca interviewed or contacted Assistant Superintendent Chuck Boyd (Palazzolo’s management); met again with Cormier; contacted a parent who was in charge of the booster club checkbook; again with Sharon Herrera; Chad Whitt; Area Director Jimmy Torres (Palazzolo’s management); teacher Linda Bobo (missing property); Don Waldron (theft of property); Vicki Stellar (changes in attendance records); teacher Murtaza Yusufali (hostile environment); SRO Charlie Lewis (Palazzolo’s constant calling for police intervention on minor matters); teacher Brandy Stearns (attendance documents); Perry; teacher Pam Hoffman (PLATO lab/attendance issues); Kathleen Hodges (stay-in-school coordinator); teacher Virginia Jeffries (Perry and attendance documents); secretary Debbie Bell (Palazzolo management/hostile environment); Ms. F., a parent of a child from homecoming dance; David Woffard, former teacher; and Sgt. Major Fiallo (field day events). (Ex. P-30, ps. 3660-3669).

On August 24, 2010, there was a Board meeting. Just prior to the Board meeting, Trustee Needham referred some parents of a child at the homecoming dance who were attending the Board meeting to Dr. Sylvia Reyna to discuss what they had understood happened at the homecoming dance and why they were disappointed in Palazzolo’s treatment of their child. (Tr. VI., p. 277).

On August 25, 2010, Palazzolo finally responded to Menchaca’s questions of August 7, 2010 with a written statement about his recollection of events. (Ex. P-84). Concerning his leadership meeting with Ray and Boyd on March 2, 2010, he felt he was being “thrown under the bus” by Alexander, as she was having him be the “bad cop,” while she was the good cop.

On August 26, 2010, Palazzolo was put on administrative leave, with pay, as a result of the on-going investigation. (Ex. A-14). The letter reflected only that it was for “inappropriate behavior.” Palazzolo claims he was told by the District only that it was for inappropriate contact with a female at the homecoming dance as he was ushering her out of the dance. (Tr. III., p. 105). The District chose to suspend him at this point because the fall semester was about to commence and there were still a number of unresolved issues surrounding him in the way that he had dealt with the students and the staff. It was going to be the start of a new school year at a brand new school, Western Hills High School, and they did not want to run the risk of him possibly repeating behavior that he had exhibited at both South Hills and Arlington Heights until everything was fully understood. (Tr. I., p. 155; Tr. VI., ps. 334-35).

On September 2, 2010, the District received an anonymous letter raising concerns about two things. The first was a prior 1997 criminal conviction of Palazzolo in Oklahoma for his failure to maintain child support. The other piece of information concerned him being terminated in 1998 by the Fort Worth office of the General Services Administration (“GSA”) for, among other things, threatening the mayor of Forth Worth and City Council with litigation if they continued to do business with the GSA. He was claiming there were kickbacks going on. (Ex. P-4). The District then began to investigate this latest allegation against Palazzolo.

On September 10, 2010, the District issued a response to the Level II. grievance hearing that was held on August 26, 2010. It stated that Mr. Palazzolo would essentially remain at Western Hills High School and finish out the remaining year on the two-year contract, unless he was terminated. The examiner in that matter confirmed that valid performance reasons existed during school year 2009-10 to justify his reassignment. (Ex. B-5).

On September 22 and October 7, 2010, administrative meetings were held between the District and Palazzolo to go over some of the allegations, including the new ones concerning the child support criminal matter in Oklahoma and his prior termination by the GSA. Little was gained through the meetings, except that in one of the meetings Palazzolo admitted he had been terminated by the GSA. (Tr. VI., ps. 295, 298-99).

On October 15, 2010, the 35-page Arlington Heights High School Investigation Report (the “Report”) by Dr. Sylvia Reyna was released. (Ex. P-3). In working on it, she had been instructed by Superintendent Melody Johnson to thoroughly investigate any and all allegations/complaints, and that there were to be no “sacred cows.” (Tr. I., ps 71-72, 81, 86; VI., p. 287). Dr. Reyna worked closely with the OPS and a number of others to do the report. It broke out into five main categories:

• Student academic data quality – graduation requirements

• Student attendance data quality

• Campus operations management

• Campus personnel management

• Campus and Central Office leadership responsibilities.

As a result of the Report, the principal and all of the assistant principals , except for Shawn Harris, are no longer at Arlington Heights. More importantly, it is undisputed that all of the teachers who provided statements or provided information for the investigation have been retained, including Coach Chad Whitt, who organized the submission of the original, anonymous statements.

The Report dealt in depth with the initial allegations concerning Perry and Nichols’ relationship, Perry’s profanity and harassment and the alteration of some attendance records by Nichols and Perry, why they occurred and what steps could be taken in the future to prevent such. This review included the negligent supervision of various phases of campus management by Alexander, and in particular her inadequate supervision over and accountability for Palazzolo throughout the 2009-10 school year.

As to Palazzolo, the Report also covered a number of the allegations and provided specific examples of his inconsistent assessments of disciplinary sanctions (ps. 13-16); harassment and bullying of teachers and other staff members (ps. 20-22); harassment and bullying of students and parents (ps. 22-23); supposed inappropriate physical contact with a student at the 2009 homecoming dance (p. 25); and the falsification of his employment applications by not revealing prior convictions and job terminations (ps. 25-26).

On October 15, 2010, the District gave Palazzolo notice that it would make a recommendation regarding his employment status at the Board meeting on October 26, 2010. (Ex. P-83). Although this was an opportunity for him to resign or retire like Perry, Nichols, Boyd and Alexander (Tr. I., p. 211; VI., p. 308), he chose not to do so. Mr. Palazzolo denies that he was given any type of opportunity to do so in the intervening 11 days. (Tr. II., p. 40).

On October 21, 2010, the District received another anonymous letter concerning Palazzolo’s GSA termination and provided the names of witnesses who would have information concerning the criminal conviction references and other matters in the lengthy civil litigation over his pre-termination leadership of his union and how he was being deprived of it in his whistleblower 1999 termination. (Ex. P-5). These September and October anonymous letters led to the District obtaining within several months all of the Oklahoma state and federal criminal records and the civil litigation records. (Exs. P-21-22, 24-29).[7]

On October 26, 2010, the District prepared a memo to the Board of Education proposing to terminate Palazzolo, setting forth all of the reasons in it, and provided a booklet of supporting information that was nearly two inches thick. (Ex. P-2).

The FWISD Board of Education then met and voted 6-3 on October 26, 2010, to notify Palazzolo of his proposed termination. (Ex. P-1). In the letter communicated to him on that date, it set forth the reasons for his proposed discharge, along with a reference to the applicable state law and District policies:

• Falsification of information on the employment application form, including information regarding criminal history and previous work experience;

• Violation of district policies;

• Creation of a hostile work environment for campus personnel;

• Treating students and staff disrespectfully and in violation of the Code of Ethics for Educators;

• Assessing discipline in at least three specific incidents in an inequitable manner resulting in harsher disciplinary consequences for minority students; and

• Engaging in inappropriate physical contact with a student.

Mr. Palazzolo timely contested the proposed termination, and a certified hearing examiner was assigned to this matter pursuant to §21.251 et. seq. of the Texas Education Code. A hearing on the merits was held on January 27, 28, 31 and February 7-9, 2011.[8] The parties agreed that the hearing examiner had until February 25, 2011 to present a recommendation to the District. Mr. Palazzolo was represented by Mr. Jason C.N. Smith, while the District was represented by Ms. Sandra D. Carpenter and Ms. Sandi P. Tarski.

Relevant Testimony and Findings of Fact

After due consideration of the evidence submitted by the parties, stipulations agreed upon by the parties and the matters officially noticed, in my capacity as duly appointed Independent Hearing Examiner, I note the following relevant evidence and make the following Findings of Fact:[9]

A. Falsification of District Employment Applications

1. Before coming to the Fort Worth educational community, Palazzolo had a varied vocational background, accompanied by some interesting life experiences. He received an undergraduate degree from Notre Dame in 1977, intermixed with military service from 1973-1992. For a year, he was a high school substitute teacher in Madison Heights, Michigan. Thereafter, he worked for the “U.S. Government” from June 1993 – March 1999 as a management analyst, building maintenance specialist and FEMA coordinator. For the next 17 months, he ranched at his place in Weatherford. (Exs. P-52-55).[10] In 2001, he became interested in teaching, which would require divulging critical information about his background on application forms.

2. In this regard, while living in Oklahoma in the late 80’s and into the early 90’s, he had several encounters with law enforcement, one of which was more than inconsequential in potential effect. In August 1988, he was charged with entering an apartment to commit larceny. (Ex. P-21). The next month, in an apparent plea agreement, the larceny charge was dismissed and Palazzolo pled guilty to a charge of employing an unlicensed security guard, which carried a potential punishment of up to 60 days in jail and a $2,000.00 fine. He was fined $400.00 and the sentencing deferred for one year. (Ex. P-20).

3. In 1997, while working for the GSA in Fort Worth, his former wife filed a criminal child support collection action in federal court in Oklahoma. They had been divorced in 1989. The punishment included a fine and potential incarceration for up to six months. He pled guilty, paid a $10.00 fine, promised to keep payments current and was put on probation for one year. (Ex. P-22).

4. His tenure as a civil servant for the U.S. Government from 1993-99 was hardly a tranquil, easily forgotten experience. It was one that led to the termination of his job in Fort Worth in a high profile situation, and it occurred only six years prior to him first applying for a job at the District. (Ex. P-24). He filed a pro se RICO action in federal court in July 1998 against management officials of his employer, the General Services Administration. At the time, he was the vice-president of the local union of government employees. He claimed illegal use of government funds, falsification of documents, and obstruction of investigations, with the intent of those officials being to remove him from his position as an officer and to deprive him of the opportunity to run for the union presidential position in an upcoming election. (Ex. P-24, ps. 000234-243).

5. In November 1998, Palazzolo, as local union officer, wrote a letter to the Fort Worth Mayor, City Council and City Manager in which he threatened litigation if the City continued to do business with the GSA. In the letter, he apparently made serious allegations about kickbacks and fraud by and between the City and the GSA. On March 19, 1999, Palazzolo was fired because the allegations were unsubstantiated and deemed reckless by the GSA. In defense of his proposed termination, he claimed that he was protected as a whistleblower, a position which was ultimately rejected. (Exs. P-26-29). This and other related litigation was apparently concluded as late as November 2005. (Ex. P-30, p. 000420). If so, this was six months after Palazzolo completed his first on-line job application with FWISD (Ex. P-79), and just 18 months before he submitted another on-line application for a teacher’s position on May 19, 2007 in which he made the statement that he had never been terminated. (Exs. P-53, 79).

6. In 2001, he started working for Springtown ISD. It is not known what applications he filled out there, but criminal checks were likely run. Mr. Palazzolo avers that no criminal background checks on him for his teaching or administrative position have ever revealed the two criminal matters. He considered them to be more of an administrative nature, not criminal, and he figured the matters must have had been expunged and did not need to be reported. (Tr. II., ps. 170-176).

7. As noted above, Palazzolo created an account for an on-line application at FWISD on May 17, 2005 for the 2005-06 school year. (Ex. P-79). He said he attended a District job fair at that time and filled out a paper application.[11] He was hired but chose to remain another year in Springtown ISD. (Tr. II., ps. 157-58). He duplicated the process in June 2006 by going on-line and also submitting a resume. (Exs. P-54, 55, 79).

8. In May 2007, he was interested in an assistant principal or principal’s position in the District, but he did not have the requisite qualifications for that position at that time. (Ex. P-56). So he went on-line on May 17, 2007 and made an application for a teacher’s position and added a resume to it of the same date. (Exs. P-53, 57, 79).[12] These two were received in the deputy superintendent’s office for consideration on June 5, 2007. There were two questions under background information on the application that are relevant. In paragraph 4. concerning criminal information, he answered “No” to the following question:

“Except for minor traffic violations such as parking or speeding, have you ever been convicted, fined, placed on probation, placed on parole, given a suspended sentence, given deferred adjudication, put on work release or court ordered community service or forfeited bail in connection with any violation of law (misdemeanor or felony), regardless of any subsequent court dismissal, sealing or expungement? (If answering YES, provide details below.) (Conviction is not an automatic bar to employment. The District will consider the nature and date of the offense, and the relationship between the offense and the position for which you are applying.” (emphasis added).

9. Likewise, he answered “No” to paragraph 5 concerning involuntary terminations. The language on the form was as follows:

“Have you ever been involuntarily terminated, asked to resign from, or not re-employed by a public or private school while holding a teaching or non-teaching position, or while in any other type of employment? (If answering YES, provide details below).” (emphasis added)

10. He was thereafter employed as a history teacher at South Hills High School and signed a one-year probationary contract for the 2007-08 school year. In paragraph 6. of the contract, it provided that false statements or omissions of requested information in an employment application are grounds for dismissal. (Ex. P-50).

11. On March 25, 2008, Palazzolo submitted another on-line application as he sought to move into an administrative position. It was received in the deputy superintendent’s office on March 28, 2008. (Ex. P-52). Paragraphs 4. and 5. of the background information section read the same as the one in paragraph 9. and Palazzolo again answered both of them “No”. He was hired as an assistant principal at Arlington Heights and was given a two-year term contract, which he signed on May 20, 2009 (the “Contract”). (Ex. P-49). Paragraph 3.4 of the Contract provides that any false statements or omissions of information in the employment agreement may be grounds for termination. Likewise, paragraph 3.2 provides that Palazzolo has revealed to the District any felony or any other offense listed at 19 Texas Administrative Code §249.16(b) [see Ex. A-101].

12. Mr. Palazzolo made false statements in paragraphs 4. and 5. on both of his 2007 and 2008 employment applications when he answered “No” to each of those questions. Mr. Palazzolo’s falsifications constitute good cause for the termination of his contract.

13. As to paragraph 4. concerning disclosure of crimes, using the language of 19 Texas Administration Code §249.16(b) that was incorporated into his current contract (Ex. P-49), Palazzolo argues that it cannot be good cause to terminate him if he did not commit any of the crimes set out in Rule 249.16(b) (the “Rule”). While it is undisputed that neither of the violations in Oklahoma fall within the listed criminal actions of the Rule (which encompass felonies or those actions that directly relate to the duties and responsibilities of the education profession, such as crimes involving moral turpitude or drugs), Palazzolo’s argument misses the point. What Palazzolo was under an obligation to do in this matter was to fully and truthfully answer paragraph 4., a paragraph that was worded as broadly and as clearly as possible to unmistakably advise the applicant that, unless it is a minor parking or speeding violation, any violation of the law (felony or misdemeanor) must be revealed, even if the violation resulted in probation or the violation was expunged. It is at such point that the District may exercise some discretion in the hiring process. But the applicant must first provide the information for the District to evaluate. Palazzolo’s argument effectively precludes the exercise of that discretion by the District.

14. It is not up to the applicant to know what is contained in Rule 249.16(b), or even what is provided in District Policies DBAA (Local) [Ex. B-3B], DF (Legal) [Ex. P-8], nor even the guidelines under DFBB (Local), paragraph 27[13], to decide whether or not the prior criminal event, however small, needs to be reported. It is simple: the applicant need only reveal them all. It is then up to the District to evaluate the crime under the guidelines of DBAA (Local) or what other criteria they may use to make a decision as to whether the infraction would preclude employment. The language in that guideline concerning “offenses that may not preclude offers of employment” provides great latitude to hire even if the crime was a state jail felony (as opposed to 1st, 2nd or 3rd degree felonies) and a number of types of misdemeanors.

15. In this case, the violation of DFBB (Local) is not that of paragraph 27. – where the Oklahoma violations would not come into play – but of paragraph 40. That is because the information was not revealed on the application form. Just because a criminal violation of an applicant does not come within the provisions of the Rule, it does not give an applicant a safe harbor to not reveal it to the District on an application form.

16. Mr. Palazzolo next argues that the District does not normally terminate employees for failing to disclose misdemeanors that would otherwise preclude employment and this is but another sign that the District is seizing upon minor criminal infractions to justify the termination of an otherwise protected whistleblower. First of all, the two violations of Palazzolo are certainly more of a magnitude than just a traffic violation. Secondly, the District evaluates each situation on a case-by-case basis. Including Palazzolo, there have been 64 instances of employees who had either felony or misdemeanor convictions at the time of hiring or thereafter. Of that group, there were 8 who had convictions before application, but revealed the conviction on the application. Five of those persons are still employed. On the other hand, there have been 9 persons who had convictions and failed to reveal them on the application form. Six have been terminated, one is proposed (Palazzolo) and two are still employed for various reasons (one is a custodian and one is a substitute teacher).[14] This reflects an even handed approach by the District.

17. An even more conscious falsification by Palazzolo was the one in which he said he had never been terminated from any type of employment. This falsification was so close in time to his GSA termination, especially since the final stages of subsequent litigation concerning his whistleblower action occurred so close to his start at AHHS, as to have just slipped his mind. Mr. Palazzolo argues that his employment history was there for anyone to review in his resumes, but that is not exactly accurate. He never mentioned in his resumes that his employer was specifically GSA; it was only the U.S. Government. He did not provide contact information or addresses for the GSA. It was just the “U.S. Government.” Nor did he list any references at the GSA or his union that could have provided any information. He was apparently hoping that no one would ever discover his GSA situation.

B. South Hills High School – A Harbinger of Things to Come

18. Mr. Palazzolo started at South Hills High School in 2007 as a history department chair. (Tr. II., p. 294). For the one year there, he received an acceptable review, but it was hardly a tranquil year for him. As it also turned out at Arlington Heights, he had a number of supporters, as well as detractors. (Ex. A-17 [AHHS] and witnesses at trial, Whitt, Segler, Jeffris, Mihalik, Stacy, Jackson, Stearns, Barron and Sullivan).

19. While he claims to have a good working relationship with everyone at South Hills, such was not necessarily the case. By the end of the school year, all of the administrators were transferred. (Tr. II., p. 299). On May 10, 2008, UEA received an incident report from him complaining about his being constructively fired in retaliation of his being the CCC spokesperson on the information that was produced. He claims he had to “fight off a number of attempts to terminate and discipline and defame him in the eyes of his superiors, peers and students.” (Ex. P-62). Chuck Boyd, the assistant superintendent was a frequent visitor to the campus because of the turbulence there. (Tr. IV., p. 52). In the one year Palazzolo was there, the atmosphere of the campus plunged, which a teacher there attributed to Palazzolo. Cheryl Morton claims he became a divisive force because of his demeanor and a very aggressive management style. (Tr. I., ps. 242-43).

20. Cheryl Morton filed a grievance against him for stopping her in the hallway and vigorously grabbing her by the shoulders. (Ex. P-2, ps. 1445-46). Mr. Palazzolo had accused Morton and another teacher of stealing supplies from the school store for an event, a claim which later was proven not to be true; the teachers had used their own funds to purchase the supplies to the students. Later, as they were going in opposite directions in the school hallway, Palazzolo grabbed her and turned her around to ask her “Are we okay?”, which seemed to be his way of an apology. She resented the force he used.

21. Morton was later nominated and voted teacher of the year at AHHS, but Palazzolo, who was also nominated, demanded and achieved a recount, thinking that the ballot box had not been secure. He lost to her on the revote. (Tr. I., p. 250).

22. Another teacher at South Hills prepared a complaint about her interactions with Palazzolo on that school’s CCC. He took over the selection process and tried to dominate it to his way of thinking, and this created significant tension on the CCC. (Ex. P-2, ps. 1440-41; Tr. I., ps. 269-273). She, too, concurred that the atmosphere at South Hills rapidly declined because of the remarks and behavior of Palazzolo (Tr. I., ps. 263-64). Particularly troublesome to her was the fact that he was extremely accusatory and aggressive toward other members of the CCC. On another occasion, she had a child being taught by Palazzolo. When that child’s grades began to slip, because of the disputes, he did not have the courtesy to let her know that her child was close to failing. (Tr. I., ps. 275-76). Only after her husband intervened was there any relief.

C. First Year at Arlington Heights

23. An opening came up at AHHS for an assistant principal late in the spring of 2008, but it was late in the interview process. Principal Alexander was advised by Boyd and Torres that there were only two candidates available – Palazzolo and the one other person who had filed a grievance against his principal. She was concerned about Palazzolo as she had heard from the principal about Palazzolo and his disruptive behavior that had wreaked havoc at South Hills. That former principal ultimately told Alexander that she was sorry he was at her school and hat he shouldn’t be around children. (Ex. P-89; Tr. IV., ps. 148-49). Mr. Boyd essentially advised Alexander to hire Palazzolo because he thought Palazzolo’s problems related to him being a teacher, and that he would be better as an administrator. Importantly, both Boyd and Torres told her that they would be supportive and intervene if the same problems started to emerge at AHHS. (Ex. P-89; Tr. IV., ps. 231-32).

24. For the first year at Arlington Heights, Alexander assigned him general responsibilities, so that he could learn the ropes. He received a good appraisal from her in June 2009, with a mixture of “exceeds expectations” and “meets expectations,” and one “needs improvement.” But everyone received an “NI” because of AHHS’ unacceptable academic rating. (Ex. A-5).

D. Second Year at Arlington Heights

25. The start of his second school year, Alexander gave him responsibility for the freshman team. Mr. Palazzolo also wanted responsibility for attendance and was disappointed when Kerwin Cormier was given responsibility for it. It did not take long for tension to being to develop on the staff, which concerned Alexander. Mr. Palazzolo began to cultivate his 9th grade team teachers and a few others and would eventually come to frequently remark, “either you’re with me or not.” (Ex. P-89). Unfortunately, Alexander had begun to better understand what others had told her about his thriving on being in charge, making authoritarian displays and bullying people. She believed Palazzolo’s method of operation was to sow deceit and discontent, divide and then present himself as the solution. (Ex. P-89).

26. During 2009-10, when she frequently counseled Palazzolo, Alexander did not put any letters of concern, reprimands or memos about their conferences into Palazzolo’s personnel file. There were always verbal reprimands whenever she received a complaint about Palazzolo and she took it up with him. (Tr. IV., p 228). From a school management perspective, this is unfortunate. As the year progressed, she was afraid letters to his file would provoke grievances by him against her and create even more discord on the staff, as underlying tensions between them arose. (Tr. IV., ps. 129, 153-54). She simply did not want him to tear her school apart like South Hills if Palazzolo didn’t get his way. As the school year progressed and problems mounted, she even called on Torres and Boyd for their promised help, but with little overt results. (Tr. IV., p. 159). Fortunately, however, she kept a good personnel file for herself on Palazzolo, which included emails concerning her ever increasing problems with him. (Ex. P-91 [18 complaints – 9 parents, 2 counselors, 3 teachers, 2 assistant principals, 1 intervention specialist and 1 security person], P-2).

E. The 2009 Homecoming Dance

27. The October 24, 2009 homecoming dance proved to be a watershed moment concerning Palazzolo. Mrs. Alexander was away on family business at the time. All of the assistant principals and certain teachers attended the dance as chaperones and supervisors. Although there had been an overdose situation at a dance earlier in the fall, no special supervisory steps were called for by the principal that differed from the usual protocol of quietly removing someone from the dance who appeared to be impaired. (Tr. IV., ps. 301, 399-400). Yet, at the dance, Palazzolo took charge and was, almost at his sole discretion, screening whom he believed to be impaired and directed them to police officers for horizontal gaze nystagmus testing.

28. The screening and removal process became a very major and disruptive event. Ultimately, more than 20 students were removed from the dance, many of whom claimed that they had not been drinking and who wanted the opportunity to be further tested or have a chance to somehow demonstrate they were not impaired. Mr. Palazzolo seemed to focus on persons in the limos and party buses, ostensibly because those would be situations where drinking might occur. While some said that Palazzo was restrained and professional in his activities at the dance, others had a very different view. Some perceived Palazzolo as being very aggressive, loud, and confrontational, which resulted in humiliation for some of the students who were removed. (Tr. IV., ps. 299-302). In fact, it was just the type of circumstance that Palazzolo seemed to relish.

29. After removal of the students, they were simply ushered out of the building and left to their own devices. Some had dates in the dance that had not been pulled out and tested, and this resulted in further complications. Other staff had to step in to help them. Mr. Palazzolo apparently undertook little or no effort to ensure that the parents of those particular students were contacted or that suitable arrangements were made for them to be returned home.

30. Ms. Shotwell was one of the teacher/sponsors at the dance. Because of other chaperoning experiences, she was familiar with whether young people were under the influence. In one instance at the dance, a young man approached her for help. He had already gone through the initial screening by the staff and was in the dance. Because of that, he had not been tested by the police. Ms. Shotwell detected no slurred speech, unfocused eyes, or smell of alcohol in the student. She felt he was unimpaired, but Palazzolo thought otherwise and pulled him out of the dance. Palazzolo had him tested and removed from the dance, which was shocking and disappointing to him. Ms. Shotwell was appalled at the overly aggressive manner in which Palazzolo acted. (Tr. IV., ps. 300-05).

31. Another example reflective of his intimidating, inconsiderate bullying style, a style that went beyond reasonable efforts to maintain discipline and safety at the dance involved assistant principal Cormier, who would later have other disagreements with Palazzolo. She was working at one of the staff checkpoints when another student who had already gone through the checkpoint and been admitted into the dance had now been selected by Palazzolo to be screened, just like the above student. The student asked for help with Palazzolo; he did not seem under the influence, so Cormier asked Palazzolo why he selected the boy. This angered Palazzolo, and he brusquely pushed past Cormier and got in the boy’s face and challenged him in an intimidating manner by saying “I’ve already told you three times to leave the premises, if I tell you again, I’ll have the cops escort you off.” (Tr. IV., ps. 399-401).

32. Student body president M.R. observed Palazzolo’s arbitrary, intimidating approach at the dance. One of the girls ejected from their group had not been drinking, but was ejected from the dance without testing by Palazzolo. She had very, very pale blue eyes. Mr. Palazzolo looked at that girl and concluded that her eyes were “glossy” and asked the girl to leave. (M.R. depo., ps. 21-22). No police testing was done.

33. Unfortunately, M.R. also got to experience first-hand Mr. Palazzolo’s disrespectful, inappropriate conduct as a professional administrator at the dance. M.R. had not been drinking nor did she believe anyone else in her group had either. Four boys and one girl from their group were ultimately removed by Palazzolo. When she tried to ask Palazzolo what was going on and why, Palazzolo ignored her. When she persisted for a simple explanation, Palazzolo grabbed her by the top of the shoulder, turned her, and moved or pushed her towards the door. (M.R. depo, ps. 25, 57-58). He said she was constantly coming in and out of the dance and was creating a problem and that he had asked her to leave three times. (Tr. II., p. 333). She acknowledged that the force did not hurt her; it was more of an “urging” type of contact. Although she had been firm, but polite, in seeking answers as student body president and head of the dance as to circumstances that had never occurred while she had been a student at AHHS, at some point in the process Palazzolo pejoratively referred to her as a “mouthy blond.” (Tr. IV., ps. 307-08).[15]

34. When Alexander returned to school on Monday, she was met with a number of parental and student complaints about Palazzolo’s behavior at the dance. (Ex. P-3, ps. 22-23; Ex. P-2, ps. 1401-02; Ex. P-89). Even Director Torres was receiving complaints from parents.

35. A conference was held between Alexander, M.R., her parents, and all of the assistant principals about the homecoming dance. M.R. related her story to them. All she wanted was an apology and the return of her admission fee. Palazzolo simply laughed at her in the conference and called her a “liar.” This insulted her and caused her to cry. Mr. Palazzolo never apologized to her. Whenever she saw him in the school hallway after that, she felt he would just kind of laugh at her. (M.R. depo., ps. 31-39).

36. This type of behavior by an assistant principal is unacceptable, discourteous and falls well below the District’s standard of professional conduct. However, when he moved M.R. out of the dance area, Palazzolo did not engage in corporal punishment of M.R. nor did he use any inappropriate physical force in doing so. Rather, as inconsiderate as he might otherwise have been, Palazzolo used acceptable “direction” force to remove her from the area. (Ex. A-104 [§22.0512 of the Texas Education Code]).

37. Ms. Alexander thereafter met with Palazzolo. The issue of sending the students home without contacting the parents was discussed. He was very defensive about everything and threatened a grievance if he was written up because he said the police would back him up. (Ex. P-89, p.2). Ms. Alexander decided more seasoned decision makers would make the decisions at future dances and removed Palazzolo from any duties of that nature going forward. That obviously angered him and their relationship declined and tensions on campus increased from that point on, as the incidents in which he was involved quickly mounted after Christmas.

E. Problems with the Staff[16]

38. After he was placed in charge of the freshman team for the 2009-10 school year, numerous complaints about Palazzolo began to arise. He was now in a position of significant supervisory responsibility that required him to interface more broadly with parents, peers and students. To a number of staff members, particularly on the freshman team, his strong, consistent, disciplinarian, authoritative leadership approach was well received; in short, they felt very supported. (Ex. A-17). But just as many had feelings as strong to the contrary. One representative example involved a social studies teacher. She remarked that if anyone disagreed with his decisions or the method he employed, he would shout or bully them into agreement or silence. To her, he seemed to prefer punishment over discipline. He also had a disdain for policies he did not like and simply disregarded them. (Ex. P-2, ps. 1508-09). In a survey done by CCC at AHHS, Palazzolo was the lowest rated assistant principal by far. (Ex. P-2, p. 1195). Mr. Palazzolo’s attitude of someone either “being on my team or not” led to significant dissension on the faculty, a situation that was hardly conducive toward a united effort by restoring morale and academic achievement at Arlington Heights. Although he was responsible for the freshman team, his impact spilled beyond that group of staff and students. Sadly, his strong personality was simply too much for Alexander to control, whether it involved Palazzolo’s relations with the staff, parents or students. Her reluctance to formally reprimand him for what she considered to be his intimidating and bullying style of management only fueled his increasing instances of confrontation and crises through the remainder of the school year.

39. On January 28, 2010, a counselor wrote a complaint to Alexander about Palazzolo creating a hostile work environment as a result of a recent encounter with him. (Ex. P-2, p. 1374). She said that tension between she and Palazzolo very much increased in his second year at AHHS. (Tr. V., p. 89). In one situation, late in the semester a student who had transferred in August to AHHS was discovered to possibly be in need of 504 accommodations. An exchange of emails and conferences ensued as to where fault, if any, lay as to whether he needed such and what could now be done for him. (Ex. P-2, ps. 1224-29). She believed Palazzolo caused the child’s parent and grandmother to become unnecessarily upset over the situation at a second meeting, and then personally accused her of being the one who let the situation slip through the cracks. She vigorously denied it. The emails from Palazzolo talk of “our” error, which he construed to be “we” as the District as a whole. However, she took it to mean her personally because of the personal conferences she and Palazzolo had about the situation in which he left no doubt in her mind from the aggressive manner in which he addressed her in private. (Tr. V., ps. 93-106). She felt bullied and became scared of him, and on several occasions left school ill because of her anxiety. Principal Alexander counseled Palazzolo and told him no harassment or “bulldogging” of staff.[17] She then contacted Boyd and Torres about counseling him, which finally occurred on March 2, 2010.[18]

40. Mr. Palazzolo had an encounter with a different counselor in January as well. On January 26, 2010, she filed a complaint covering several instances that resulted in her being harassed and her perception that it was hostile work environment. (Ex. P-2, p. 1371-73). One involved his harassment of her over her assignments of freshmen to honors classes. In a dispute over one student’s status, he stood over her and was yelling that he was “not going to play games with her” and then challenged her as to whether or not “she was on his team.” Later, the confrontations between them continued because of Palazzolo’s rude dismissal of her from an RTI meeting. Finally, during the course of an arrest of a student on January 20, 2010, in a classroom (to be addressed later in the Recommendation), the other student sought to be arrested was absent from school. Mr. Palazzolo accused her of contacting the mother of the child to warn him about the arrest and threatened to press criminal charges against her. When this all occurred, she was returning the parent’s call when Palazzolo challenged her about warning the student. She had been working with the parent for some time on the student’s pending withdrawal, so the purpose of the call was certainly not to warn the parent. The SRO felt it was not a criminal act for her to return the call to the parent, and she apparently did not warn the parent in any event. After the confrontation, she became ill and had to leave the campus. She considered Palazzolo to bully people and was extremely aggressive and overbearing in his interactions with everyone. By March 25, 2010, he continued to be at odds with the counselor and apparently threatened to another teacher that he might have to write his “own letter” about the counselor. (Ex. P-2, p. 1385). After the incident was reported to her, Alexander counseled Palazzolo and again reported the situation to Torres, again seeking the assistance of her supervisors on how to deal with him or to move him. (Tr. IV., ps. 169-70).

41. An outstanding teacher at AHHS had a very unprofessional experience with Palazzolo on January 12, 2010 involving the pickup of one of her students after exams. The child had notified his parents that he was through with exams. Somehow the word made it to the office from the parent and Palazzolo came into her classroom in the middle of exams and interrupted everything by asking if anyone was using a cell phone. When the teacher responded that she did not see anyone using one, Palazzolo became agitated and began to speak loudly, chastising her in the process in front of the class. (Ex. P-2, p. 1379).[19] He not so subtly intimated that the “A” student who was being picked up had been cheating on the exam by using the cell phone. This situation later spilled over into an additional complaint from that parent about her subsequent visit with Palazzolo and how rude and unprofessional he was to her at the meeting over this event. (Ex. P-2, p. 1378).

42. In mid June 2010, Palazzolo came to the office of the choir director. He told her that he was doing an investigation for the school, and in particular about Perry. (Ex. P-2, ps. 1263-64). First of all, the statement was incorrect. He had no authority to investigate what was occurring nor had he been appointed by anyone to do so. Later, this teacher learned about the allegations against Perry and felt that Palazzolo believed that she had thereafter contacted Perry about him investigating Perry which never occurred. She felt threatened by him if he remained at the school. She characterized Palazzolo as being judgmental and always putting people on the defensive. A month or two before she had two odd encounters with Palazzolo. On both occasions, she had locked her door to her office so she could work undisturbed. Both times Palazzolo appeared unannounced, unlocked the door and walked in without knocking. She had no idea each time why he came into her office other than he must have thought she wasn’t in and was looking for something. (Ex. P-2, ps. 1265-66). She told OPS investigators that Palazzolo was overzealous in his discipline approach with students and teachers and maintained more of a “gotcha” mentality than anything. (Ex. P-30, p.12).

43. In April 2010, an intervention specialist complained about Palazzolo’s rudeness and inflexibility in working with him in this area to resolve problems in OCI/ISS. (Ex. P-2, p. 1389). This was just arbitrary stubbornness and a desire to control by Palazzolo.

44. On February 10, 2010, Palazzolo also instructed a teacher, M.F., to refrain from writing additional infractions for students assigned to OCI. The teacher was intimidated and did not do so until Palazzolo’s decision was overridden by Alexander. (Ex. P-2, p. 1197). This was something beyond Palazzolo’s to do in the first place.

45. None of the other assistant principals got along with Palazzolo. (Ex. P-89, p. 3). One in particular was Ms. Kerwin Cormier. She said Palazzolo was clearly not a team player with staff and this dramatically changed the atmosphere of the campus. (Tr. IV., ps. 346, 351). Mr. Palazzolo’s focus was primarily in looking after his 9th grade team. It was like it was a school within a school. After the OPC invited her comments about Palazzolo she prepared a brief study on him. (Ex. P-2, ps. 1511-1515). She alleged that he had perhaps stolen property from the school and information from her office (later discovered to be untrue) but it was troubling to her that Palazzolo was apparently engaging in both direct and indirect encouragement to have teachers file grievances against administrators. Through the vehicle of the COC, he always seemed to be stirring the pot, a view with which Alexander concurred. (Ex. P-2, ps. 1382, 1386). Most troubling and offensive to her was the fact that when allegations arose about the alteration of attendance records, Palazzolo never came to her with any concerns that he, as a fellow assistant principal, might have had with something going on in her area of responsibility nor did he seek an explanation from her on what might have occurred. (Tr. V., p. 356). This was another example of the principal and the other assistant principal trying to be a team, but Palazzolo flying solo.

46. On May 20, 2010, Shawn Harris, an assistant principal, asked for a conference with Alexander and Palazzolo to resolve some issues concerning Palazzolo and the school monitors. The relationship between Palazzolo and the monitors had been rocky that year, but Harris was attempting to get Alexander to intercede before any more monitors left because of Palazzolo’s badgering them. (Ex. P-2, p. 1423). He was tired of all the “drama” being created by Palazzolo.

47. Along these lines, the record is replete with instances of where Alexander and Palazzolo becoming more and more incompatible. Some instances were insubordinate. One of them was where Palazzolo refused a directive by her to sign a common narrative for the COC student packets for the students who were being third-partied for their involvement in the April 2010 patio fight. She and all of the assistant principals spent several hours jointly agreeing upon the language, when Palazzolo suddenly changed his position, claiming it was misleading. (Tr. IV., ps. 174-79). Mr. Palazzolo ultimately filed a protest on it. (Ex. P-93). The other instance involved a directive by her that all administrators not schedule hearings during Jacket Time. He disobeyed her directive and scheduled hearings anyway. She needed his help covering a class so a teacher could help some students. (Tr. IV., ps. 173-74; Ex. P-92). Like a similar situation involving one administrative meeting, he seemed to have something else to do.

48. Another instance is more subtle and demonstrates one of his efforts to undermine Alexander’s authority with her staff. Some freshman boys were bothering immigrant students who were under the direction of a teacher. That teacher went to Palazzolo to enlist his assistance on disciplining them. He said he would, but told her that she first had to help him. He asked the teacher to go to the principal and tell her “you” want this situation handled because, otherwise, “she [Alexander] has tied my hands.” When the teacher talked to Alexander about it, Alexander responded that it would certainly be taken care of, but that she didn’t want the boys “crucified” in the process, as Palazzolo would apparently desire. This exchange made the teacher feel very uncomfortable about what was going on between Palazzolo and Alexander. (Tr. IV., p. 314-15).

49. Moreover, there were instances of Palazzolo withholding important school administration information from Alexander. Whether this was for his own benefit in the event of litigation or to just be spiteful is unknown. One instance was about an altercation between a teacher and an assistant principal. Mr. Palazzolo observed it, but did not report it to Alexander. He later did a statement and turned it over to OPS as part of their investigation. Likewise, he came into possession of a video of a student fight at Central Market on May 5, 2010, but did not turn it over to OPS until June 10, 2010; again he did not share it with Alexander. (Ex. P-30, ps. 13, 17). On April 14, 2010, in a telling episode about how he works, Palazzolo received information from another teacher about an unusual number of student absences or tardies, but he did not report this critical information to Alexander or anyone else until he turned it over to OPS in June, after school was over. (Ex. P-30, ps. 7-8). Even though he knew about the allegations involving alterations of the attendance records and other complaints in the investigation, as an administrator, he chose not to bring those to her attention to try to be a part of the solution or to even find out anything about it. He told Alexander in his summative review in June 2010 that as the diversity representative he was simply under no obligation to do so. (Tr. IV., ps. 264-66).

50. The comments and actions of Palazzolo created a hostile work environment for staff members at South Hills High School.

51. Palazzolo treated staff members at South Hills High School in a disrespectful, discourteous, and unprofessional manner.

52. The comments and actions of Palazzolo created a hostile work environment for staff members at Arlington Heights High School.

53. Palazzolo treated staff members at Arlington Heights High School in a disrespectful, discourteous and unprofessional manner.

54. Palazzolo failed to comply with directions from Principal Alexander on several occasions, as well as other Board policies.

55. Palazzolo failed to maintain a good working relationship with or maintain good rapport with colleagues at Arlington Heights High School.

56. The comments and actions of Palazzolo are detrimental to other employees at Arlington Heights High School or the District’s best interests.

57. The comments and actions of Palazzolo constitute a failure by him to fulfill his duties or responsibilities that a person of ordinary prudence would have done under the same or similar circumstances and is inconsistent with the continued existence of an employer-employee relationship. Thus, good cause exists for the termination of his Contract prior to its expiration.

F. Problems with Parents

58. In addition to a large number of complaints of the parents over the way the homecoming dance was handled, as well as the complaint over the way the episode involving the parents of the child in the “texting” episode mentioned above was handled, there were other problems that were a result of his frequently inappropriate management style. One involved Palazzolo not notifying some parents of their child’s COC hearing. This issue was raised on May 12, 2010 by Cormier. (Ex. P-2, ps. 1421-22). This was very important because it would deny students important rights, which included having the parent being able to participate in the hearing. (Ex. P-30, p. 13). Ms. Cormier said it appeared that Palazzolo was unilaterally making punishment decisions that were beyond his authority.

59. Another incident involved a parent statement dated May 10, 2010, when Palazzolo called to inform the parent about her child being out of dress code. When the parent came to talk with Palazzolo about it, he was rude and disrespectful to her. In addition to Alexander receiving parent complaints, her supervisors, Torres and Boyd were also receiving a number of them. As to Torres, he received phone-in complaints in October 2009, and January, April, May and August 2010. One of those complaints involved Palazzolo slamming the door in the face of the parent. (Ex. P-3, p.23).

60. Considering the comments and conduct of Palazzolo set out herein, the parents and students at Arlington Heights High School were treated by Palazzolo in a disrespectful, discourteous and unprofessional manner.

61. Considering the comments and actions of Palazzolo set out herein, Palazzolo failed to maintain a good working relationship with or maintain good rapport with a number of parents of students at Arlington Heights High School.

62. The comments and conduct of Palazzolo constitute a failure by him to fulfill his duties and responsibilities that a person of ordinary prudence would have done under the same or similar circumstances and is inconsistent with the continued existence of an employer-employee relationship. Good cause thus exists for the termination of the Contract prior to its expiration date.

G. Problems with Students

63. In addition to the comments and actions of Palazzolo concerning his treatment of M.R. and certain other students during and after the homecoming dance that are set out in previous paragraphs herein,[20] there were other instances of disrespect, bullying and unprofessional conduct by Palazzolo toward students. Reflected in a January 14, 2010 email is a situation which involved student S.S., an African-American. She was a struggling student. Mr. Palazzolo pulled her out of class one day and told her she was likely going to fail. She responded that she was still going to try hard to pass. At that point, Palazzolo asked S.S. about the beaded bracelet she was wearing. He said he understood that such a bracelet was to reflect how many boys she had slept with to that point. She took it as an accusation of promiscuity. These totally inappropriate comments hurt her feelings, especially since it was a bracelet she and her mother had made together, and it had no meaning of the sort that Palazzolo suggested. (Ex. P-2, ps. 1358-59; Tr. IV., ps. 165-66; V., ps. 108-110). The parent requested that her daughter be moved to another assistant principal, which was done shortly thereafter. There were several other moves of students out from under the control of Palazzolo to another assistant principal because of similar discord during the course of the year. This was done by both Alexander and Boyd. Ms. Alexander concluded in the process that Palazzolo did not work well with African- Americans and was continually in conflict with them. (Ex. P-89, p. 5).

64. Along this line, there was concern raised about Palazzolo’s possible disparate treatment of minorities in disciplinary matters. Assistant Principal Cormier prepared a report in the early spring on disciplinary referrals as part of an effort to obtain a grant from TEA. It was discussed by Alexander and the assistant principals at a March 29, 2010 meeting. (Ex. P-86). Mr. Palazzolo made notes of that meeting. (Ex. P-85). The report encompassed referrals in all four grades and reflected a disproportionate amount of suspensions for 9th grade minority students by Palazzolo. The consequences of the referrals would typically be placement in alternative education centers. (Tr. IV., ps. 372-378). The report showed that Palazzolo made more than 50% of AHHS’ entire referrals for the prior year, and of that amount, nearly 60% were African-Americans. (Ex. P-3, p. 13; P-86).

65. In January 2010, Palazzolo changed a student’s record to reflect a more severe infraction than what had occurred. The teacher’s discipline referral form said that the student had told her to “shut up.” Mr. Palazzolo later unilaterally changed the infraction after hearing from his own daughter and two other unnamed sources that the student actually called the teacher a “b _ _ _ _.” No effort was apparently made by Palazzolo to verify this with the teacher, nor to ask the teacher’s permission to upgrade the referral form. (Ex. P-3, ps. 13-14). Fortunately, the parent caught the change and prevented her child from later receiving an enhanced punishment because of the steps Palazzolo had taken.

66. There were two occasions where Palazzolo took inappropriate and unusual steps to keep students from enrolling at AHHS. (Ex. P-2, p. 1201). One situation dealt with a supposed homeless student. Her home had burned, and she was living in a motel. Palazzolo was attempting to keep the student out for that reason and because she had enrolled at Premier, but not done the work. He was arguing that the student could not return to AHHS, a position which was successfully disputed by Cormier. (Ex. P-2, p. 1365; Tr. V., ps. 143-45). The other situation was where Palazzolo was trying to block the enrollment of a parenting teen, whose boyfriend Palazzolo had once third partied. Her “mother-in-law” with whom she was staying now lived in the boundaries of the district, but Palazzolo tried to block the student’s enrollment because of the address of the mother-in-law that was listed on the bond for the boyfriend was showing it to be out of the district. It turned out to be an old address. However, in order to secure this information, Palazzolo had to get access to criminal information about a minor, information which he was not authorized to secure or possess. (Ex. P-30, p. 29). The information which he sought was not even of a student at Arlington Heights, creating even more concerns about how he came to possess unauthorized information to block an enrollment.

67. The policy at AHHS concerning arrests of students during classroom hours was apparently to accomplish the arrest with minimal interruption to instruction and without unnecessary attention or embarrassment to the student. (Tr. IV., p. 411). Mr. Palazzolo had been made the contact person by Alexander for such purposes. Two students were being sought on felony warrants for burglaries, one of whom was considered to be a flight risk. Officer Halford testified that the police department’s usual procedure, which he said was done here, was to not advise anyone at the school that they were coming to serve a warrant. Upon arrival, they would coordinate with the contact person, principal or campus resource law enforcement person. When he arrived, he talked to Palazzolo, as Alexander was absent. (Tr. II., ps. 96-97). The students were in two different locations, so one team of three or four police officers went to one room and an equal amount to another. The one student who was on campus at the time was confronted in the classroom, taken into the hall, handcuffed and removed. (Tr. II. 98-99). This was contrary to the usual AHHS policy of handling such matters, and it had not been cleared in advance with Alexander. Contrary to what the officer said, this arrest had actually been the subject of some emails between Officer Halford and Palazzolo several days in advance of the arrests. Officer Halford wanted to make an impact – and Palazzolo concurred – when he said in the email “I would like to make an example out of them by getting them from in front of their classmates.” (Ex. P-2, ps. 1122-23). With careful planning, they certainly succeeded as to one of the students. After his arrest, the student was apparently left handcuffed and in custody for an undetermined period of time in the foyer during the lunch hour, where he was observed by staff and students. (Tr. IV., ps. 409-10). 68. An African-American student was involved in an incident where he poured Gatorade on another student during an argument. Mr. Palazzolo recommended him for removal from campus for the infraction. This student had some disciplinary infractions but not nearly as many as an Anglo who had never been removed from campus. Assistant Principal Harris pointed this situation out to OPS to show an inconsistency in Palazzolo’s disciplinary approach. As an aside, the removal was reversed by Principal Alexander when it was learned that Palazzolo had used a statement in the matter from a student he was allowing to work credits for behavioral issues. The student admitted he was only in the general area, but shaped his statement just to get out of trouble on the other infraction. (Ex. P-2, ps. 1553-54; P-30, p.15).

69. Considering the comments and conduct of Palazzolo set out herein, Palazzolo treated the students at Arlington Heights High School in a disrespectful, discourteous and unprofessional manner.

70. Considering the comments and conduct of Palazzolo set out herein, Palazzolo did not respect the rights of the students at Arlington Heights High School.

71. Considering the comments and conduct of Palazzolo set out herein, Palazzolo assessed discipline in an inequitable manner, resulting in events where there were harsher disciplinary consequences for minority students.

72. Considering the comments and conduct of Palazzolo set out herein, Palazzolo knowingly treated students in a manner that adversely affected the student’s learning.

73. Considering the comments and conduct of Palazzolo set out herein, The comments and actions of Palazzolo are detrimental to students or the District’s best interests.

74. Considering the comments and conduct of Palazzolo set out herein, The comments and actions of Palazzolo constitute a failure by him to fulfill his duties or responsibilities that a person of ordinary prudence would have done under the same or similar circumstances and is inconsistent with the continued existence of an employer-employee relationship. Good cause thus exists for the termination of the Contract prior to the expiration date.

H. There was no demonstrated retaliation against Palazzolo by the District for his disclosures

One of the essential elements to entitle a movant to protections of the Texas Whistleblower Act, Tex. Gov’t Code Ann. §554.002(a), is to establish causation. It is the burden of Mr. Palazzolo to demonstrate that the proposed termination of the Contract by the District would not have occurred when it did had the reports or information provided by him not been made. City of San Antonio v. Heim, 932 S.W.2d 287 (Tex. App. – Austin 1996, writ denied). I find that he did not meet that burden.[21]

I will not repeat all of the evidence in detail, but Palazzolo did not establish by a preponderance of the credible evidence that he would not have been put in the position of being proposed for termination “but for” his reports and information he was turning over to the District. His performance problems certainly started at the homecoming dance. When Alexander exchanged an email with Torres on December 18, 2009 about the suitability for Palazzolo being a principal at Metro (Ex. P-88), it was not necessarily because he was doing a great job; she had already had enough problems with him and thought that his aggressive behavior would be better suited at that particular school. (Tr. IV., p. 147). Director Torres was already receiving complaints about Palazzolo as well.

January through April reflected even more turbulent times between Alexander and Palazzolo. In February, because of performance issues, he was recommended for a one-year contract as a signal of problems he was having, and the Chief of Schools indicated to Boyd that Palazzolo needed to be put on a growth plan, which inexplicably was not done. He was also being considered at that time by the Chief of Schools to be moved out of AHHS because of his aggressive behavior and undermining acts there. (Ex. P-89, p3). In March 2010, he had a meeting with Boyd and Torres to discuss performance issues.

The diversity training at AHHS on May 18, 2010 presented the teachers with a new way to present complaints about a school to the District. Ms. Herrera was the trainer and Palazzolo was the school’s representative for diversity. During the session, confidential, anonymous surveys were completed by many of the teachers, which apparently contained information about Perry, Nichols and the alteration of student records complaints. Ms. Herrera did not collect them, nor did Alexander. That left Palazzolo in possession of sensitive information that never made it to Herrera or the District. (Tr. III, ps. 42-45; IV., p. 278; Vi, p. 108). Mr. Palazzolo claims he spent time talking at length to Herrera immediately after the training session about all of the volatile issues about to arise at Arlington Heights, something that was not supported by Herrera. (Tr. VI. 101-02, 153).

Within 10 days, Robert Ray contacted OPS and asked them to start investigating allegations about the alteration of the attendance records. By June 1, 2010, Coach Whitt had become comfortable enough with no threat of retaliation to contact Herrera about problems he and others were having with Perry and Nichols at AHHS. On June 3, 2010, he brought anonymous statements to Herrera, which set in motion a more expansive investigation. Mr. Palazzolo had not made contact with the District at that point in time. However, there was no doubt in any of the teachers’ minds that it was Coach Whitt who was leading the effort to bring to light major problems with Perry and, to a lesser degree, Nichols. (Tr. V., p. 405).

But Palazzolo interjected himself into the process by misrepresenting to the teachers who had provided anonymous statements that their names had to be on them before the District would go forward. Ms. Herrera and Mr. Menchaca never told Palazzolo or anyone else about such a requirement; they routinely investigate anonymous statements. (Tr. VI., ps. 117, 173) (Palazzolo claims Menchaca said it was necessary – Tr. II., p. 30, something firmly refuted by Menchaca).

Mr. Palazzolo made no contact with Menchaca until a phone call on June 4, 2010, three days after Coach Whitt had first met with Menchaca. It was not until June 7, 2010 that Palazzolo brought any reports to the District. The reports that he brought were essentially the same ones Coach Whitt had brought him, except that these reports now had names affixed to them. The only value he added was bringing additional sources for the same information to the attention of the investigators.

Mr. Palazzolo was then initially reassigned on June 22, 2010, an action that had been under consideration for quite some time by District administration. When Cormier presented her concerns to the District on July 7, 2010, the investigation took an added dimension and more information about the problems of Palazzolo about Arlington Heights came to the surface. And when the anonymous information came to the surface on September 2, 2010 about his falsifications of his application form, this added even more serious allegations about Palazzolo to evaluate.

In summary, the District’s proposed termination of Palazzolo was not causally connected with what information or reports Palazzolo provided to the District or that the local news had covered the investigation. At best, the investigation by the District into the Perry, Nichols and the record alteration issues was proceeding in parallel with this investigation of Palazzolo and not because of it.

Conclusions of Law

After due consideration of the evidence, and the matters stipulated to and officially noticed in the Relevant Testimony and Findings of Fact, in my capacity as Independent Hearing Examiner, I make the following Conclusions of Law:[22]

1. Pursuant to §21.251 et seq. of the Texas Education Code, the Independent Hearing Examiner has jurisdiction over this matter.

2. The District proved Findings of Fact in paragraphs 1 - 74 by a preponderance of the evidence, with the exception of a portion of paragraph 33 concerning the physical removal of M.R. from the homecoming dance.

3. The District failed to prove by a preponderance of the evidence in paragraph 33 that Palazzolo had engaged in the corporal punishment of or had inappropriate physical contact with student M.R. while in the process of removing M.R. from the homecoming dance.

4. Joseph Palazzolo failed to establish by a preponderance of the evidence a causal link between his proposed termination and his reports or disclosures he made to the District about, among other things, personnel issues and alterations to attendance data.

5. Good cause for termination of a term contract 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 S.W.2d 572, 580 (Tex. App. – Houston [1st Dist.] 1992, no writ).

6. The comments and conduct of Palazzolo, as set forth above, were a failure to comply with and a violation of the following, each of all of which constituted good cause for the termination of Palazzolo’s term contract dated May 20, 2009, before its expiration:

A. The educator shall not falsify records, or direct or coerce others to do so. Standard 1.6, Code of Ethics and Standard Practices for Texas Educators. (DH[Exhibit]).

B. Written local school board policies and other applicable state and federal laws. Standard 1.7, Code of Ethics and Standard Practices for Texas Educators. (DH [Exhibit]).

C. The educator shall not knowingly treat a student in a manner that adversly affects the student’s learning, physical health, mental health or safety. Standard 3.2, Code of Ethics and Standard Practices for Texas Educators. (DH [Exhibit]).

D. The educator shall not deliberately or knowingly misrepresent facts regarding a student. Standard 3.3, Code of Ethics and Standard Practices for Texas Educators. (DH [Exhibit]).

E. All District employees shall perform their duties in accordance with state and federal law, District policy, and ethical standards. (DH [Local])

F. All District personnel shall recognize and respect the rights of students, parents, other employees, and members of the community and shall work cooperatively with others to serve the best interests of the District. (DH[Local]).

G. Employees are expected to conform to reasonable standards of performance and conduct. (DH[Local]).

H. Employees shall comply with the standards of conduct set out in this policy and with any other policies, regulations, and guidelines that impose duties, requirements, or standards attendant to their status as District employees. Violation of any policies, regulations or guidelines may result in disciplinary action, including termination of employment. (DH [Local]).

7. The comments and conduct of Palazzolo, as set forth above, were violations of DFBB (Local) in the following respects and constitute good cause for the termination of Palazzolo’s term contract dated May 20, 2009, before its expiration:

• Failure to fulfill duties or responsibilities. [Reason 2]

• Insubordination or failure to comply with official directives, Board policies, or administrative regulations. [Reason 12]

• Any breach by the employee of an employment contract or any reason specified in the employee’s employment contract. [Reason 13]

• Failure to maintain an effective working relationship, or maintain good rapport, with parents, the community, or colleagues. [Reason 17]

• Discourteous treatment of others. [Reason 20]

• Failure to meet the District’s standards of professional conduct. [Reason 24]

• Misrepresentation of facts to a supervisor or other District official in the conduct of District business. [Reason 32]

• Falsification or omission of required information on an employment application. [Reason 40]

• Any other good reason that the Board deems to be “good cause,” including any act or omission by the employee which performance or conduct is detrimental to students, other employees, or the District’s interests. [Reason 44]

8. The falsification of information on his employment application concerning answers to paragraphs 4. and 5. of the background information section is a breach of paragraph 3.4 of Palazzolo’s term contract dated May 20, 2009, and constitutes good cause for termination of that contract prior to its expiration.

9. The comments and conduct of Palazzolo, as set forth above, resulted in a hostile work environment for the staff at Arlington Heights High School and constitutes good cause for the termination of Palazzolo’s term contract dated May 20, 2009 prior to its expiration.

10. As a result of the comments and conduct of Palazzolo, as set forth above, he assessed discipline in an inequitable manner, resulting in harsher disciplinary consequences for some minority students, and such constitutes good cause for the termination of Palazzolo’s term contract dated May 20, 2009 prior to its expiration.

11. The proposed termination of Joseph Palazzolo was not in retaliation for any statements, reports or other information provided to FWISD in connection with any of the matters that were ultimately addressed in the October 15, 2010 document entitled “Arlington Heights High School Investigation” nor does the proposed termination violate §554.002(a) of the Texas Government Code.

Recommendation

After due consideration of the evidence and matters officially noticed in the foregoing Relevant Testimony, Findings of Fact and Conclusions of Law, in my capacity as Independent Hearing Examiner, it is hereby:

RECOMMENDED that the Board of Trustees for the Fort Worth Independent School District adopt the foregoing Relevant Testimony, Findings of Fact and Conclusions of Law; and

IT IS FURTHER RECOMMENDED that Petitioner’s recommendation be sustained that the term contract dated May 20, 2009 of Mr. Joseph Palazzolo be terminated.

SIGNED AND ISSUED this 25th day of February, 2011.

_____________/s/_______________________

JESS C. RICKMAN III

INDEPENDENT HEARING EXAMINER

/

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[1] (Ex. P-49). This is the operative two-year contract in this matter that was signed on May 20, 2009.

[2] Petitioner FWISD’s exhibits are marked P-__. Respondent Palazzolo’s exhibits are marked A-__, B-__, and C-__.

[3] The domain in this review was later changed to “Meets Expectations” as part of a resolution to a grievance filed, but is an accurate reflection of Alexander’s opinion of him as of that time.

[4] Robert Ray, Chief of Schools, had told Boyd on or about February 17, 2010 that Palazzolo needed to be put on a growth plan because of the problems he was having on campus. Somehow it did not get done. (Ex. P-30, p. 6; Tr. VI., ps. 399-402).

[5] This denotes in which volume and page of the transcript the testimony is located. Volume I. is from 1/27/11; II. is from 1/28/11; III. is from 1/31/11; IV. is from 2/7/11; V. is from 2/8/11; and VI. is from 2/9/11.

[6] I do not find that she provided this information as part of a District plan to counteract Palazzolo’s claims of retaliation. While Cormier and Palazzolo certainly did not get along, even taking that into account, I find this report to be no more than an exuberant and detailed response to a request by Menchaca, which did lead to more, valid concerns with Palazzolo.

[7] The records reflect that the unsuccessful appeal of his removal from his position at the GSA because of his claim of protected whistle-blowing activity was finally concluded in November 2005.

[8] There were 27 witnesses, almost 200 exhibits that totaled 3,500 pages, and a six-volume transcript of 2,316 pages.

[9] Citations to the evidence are not exhaustive, but are intended to indicate some of the grounds for the Findings of Fact.

[10] Palazzolo’s resumes in this matter are Exhibits 55, 57-60. Although clearly prepared by him or someone on his behalf or at his direction, he was reluctant to admit that those were his resumes during the hearing. He would only say that they “purport” to be his resumes. (Tr. II., ps. 160-62).

[11] The District has not used paper applications at job fairs or anywhere else since 2003. (Tr. VI. 38-40).

[12] Palazzolo denies creating or modifying either of the on-line applications in the record [Exs. 52, 53], claiming that perhaps Perry or some other District official with access to the system did so (Tr. II, 130, 155; III. ps. 122-25), which is not supported by credible evidence; they are his applications, created and updated by him from time to time.

[13] It is acknowledged that the latter District policy and a counterpart at DH (Local) (Ex. P-15) pertain to the immediate reporting to the District of crimes just committed once the person is hired, while the DF (Legal) can apply to discovery of crimes committed in the past.

[14] Chad Whitt is not believed to be included in the chart, but his minor infraction was apparently considered and waived after discovery by the District. (Ex. P-97; Tr. V, ps. 209-212).

[15] Palazzolo not only denies calling her a “mouthy blond” but denies any physical contact with her at the dance. (Ex. A-15).

[16] A more complete compilation of instances of problems with the staff, parents and students can be found in Exhibits P-2, 3, 30 and 89, but some of the more representative ones have been selected for use in the Recommendation.

[17] The “sticky” notes of Alexander on the January 28, 2010 email above are the type of her personal notes on documents throughout Exhibit P-2 that she kept on occurrences involving Palazzolo.

[18] When Palazzolo returned from the March session with Boyd and Torres, he smirked at Alexander and said “I guess no more bulldogging.” (Ex. P-89, p. 3.). Palazzolo, however, denies ever being counseled by her about this event. (Ex. P-3, p. 21).

[19] Palazzolo’s version is at Ex. P-2, ps. 1380-81.

[20] See also statement of concern dated November 2, 2009 by the parents of student M.R. (Ex. P-2, ps. 1403-04).

[21] In light of this ruling, it is not necessary to address the issue raised by the District in its most recent filing as to whether Palazzolo gave the information to an appropriate law enforcement entity.

[22] The matters set forth in any part of the Recommendation are also considered to be Findings of Fact and Conclusions of Law, as appropriate. If any Conclusion of Law is deemed to be a Finding of Fact, or if any Finding of Fact is deemed to be a Conclusion of Law, it is hereby adopted as such.

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