DOCKET NO .tx.us



DOCKET NO. 081-LH-505

DALLAS INDEPENDENT SCHOOL §

DISTRICT § BEFORE THE

§

VS. § CERTIFIED HEARING EXAMINER

§

PAULETTE BAINES § THE STATE OF TEXAS

RECOMMENDED DECISION OF THE CERTIFIED HEARING EXAMINER

DATE FILED: 04/22/05

DATE OF HEARING: CLOSED: 07/25, 26, 28, and 08/02/05

60-DAY WAIVER 08/05/05

PRE-HEARING: 06/07/05

BRIEFS: 7/20, 7/25, 7/30 and 8/2/05

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: Enedina Townsend

DISD ATTORNEY: Veretta L. Frazier

320 So. R.L. Thornton #300

Dallas, Texas 75203

Ph: 214-941-1881

Fax: 214-941-1399

TEACHER: PAULETTE BAINES

TEACHER'S ATTORNEY: Demetri Chambers

5787 S. Hampton, Suite 365

Dallas, Texas 75232

Ph: 214-339-1490

Fax: 214-339-0194

WAIVER: To 08/05/05

COURT REPORTER: Zuni Stoval, CSR#4588 Ph: 972-221-0331

Joy Dunkin, and Rachael Chavez

BASIS OF HEARING: Appeal of Recommendation of Termination of

Teacher Contract

RECOMMENDATION: DALLAS ISD should terminate Contract

PROCEDURAL MATTERS

Attached hereto and incorporated herein as “APPENDIX” for purposes of sealing from the DALLAS INDEPENDENT SCHOOL DISTRICT (DISD) Board’s proceedings and decisions are findings, which are not exhaustive and are not exclusive of any other basis and findings for procedural matters related to this hearing and are a part of the record for purposes of any appeal from the decision of the DISD Board. The exhibits and portions of the transcripts which are sealed are for purposes of not being a part of the recommendation to the Board and for the Board’s decision. There are an Offer of Proof by PAULETTE BAINES (BAINES) of her proposed testimony and Exhs. B-4 through -6, which are and were not admissible and excluded from the evidence and are not a part of the basis of this recommendation for numerous reasons including, but without limitation, the proffered testimony and evidence was hearsay, not authenticated, not established as reliable, qualified and knowledgeable, not admissible, not in compliance with the agreed Pre-Hearing Order for the identification and production of evidence and information; violated the discovery rules and procedures; the responses by BAINES to written discovery requests and depositions questions were not supplemented including to address the documents and information as a part of the Offer of Proof and were not in compliance with the Pre-Hearing Order to identify witnesses and exhibits. This was a part of BAINES’s hearing strategy, which was not timely and was used, unfairly and improperly, as a basis for delay and unfair advantage and the timing of the proffer of the proposed documents, information, testimony put DISD at an unfair advantage without the opportunity to evaluate, investigate and respond to said materials and to challenge them to determine if they were admissible, qualified, relevant, reliable, knowledgeable, and based on a proper foundation.

FINDINGS OF FACT

References are to the transcript which consists of multiple volumes, for example, “TR P/L.“ The Hearing was held on 7/25, 26, 28 and 8/02/2005.

D = DISD Exhibit

B = BAINES Exhibit

H = Hearing Examiner Exhibit

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. BAINES was employed by DISD pursuant to a Two-Year Contract, Exh. D-1, at North Dallas High School (North Dallas).

2. BAINES was, at all material times a BECP teacher.

3. BAINES's duties did not included any activity at DISD’s William B. Travis Academy/Vanguard for the Academically Talented and Gifted (Travis).

4. BAINES’s daughter, Lauren B., was registered as an 8th grade student at Travis.

5. On or about April 7, 2005, BAINES received a DISD letter, Exh. D-2, 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. Any act or conduct while at school, whether in or out of a classroom, which is either indecent, obscene, illegal, cruel, abusive, or is otherwise contrary to and inconsistent with the ordinary standards set by the performance and conduct of the other professional public employees of the District. (DF-Local #2)

b. Physical or verbal abuse of students, parents, co-workers, or other persons. (DF-Local #12)

c. Conduct or behavior not otherwise expressly referred to in this policy, either during or off working hours that could cause the public, students, or employees to lose confidence in the administration and/or integrity of the District. (DF-Local #24)

d. Failure to meet acceptable standards of conduct for employees in like or similar positions, which would make retention of the employee detrimental to the best interests of the District. (DF-Local #25)

6. Furthermore, the April 7, 2005, letter recommended termination for the following reasons, including, but not limited to:

“misconduct on or about April 1, 2005, in leaving your assigned duty and assaulting another teacher on District property.”

1. On April 22, 2005, BAINES, then represented by attorney James Paul Barklow, Jr., requested the appointment of a Certified Hearing Examiner by the Texas Education Agency to hear this dispute. Robert C. Prather, Sr., was notified on May 2, 2005, of his selection as Certified Hearing Examiner to conduct a hearing in this dispute. The assignment was accepted on May 2, 2005. Exh. H-1 and -2

2. On June 3, 2005, BAINES and DISD agreed to a waiver and extension for the recommendation to August 5, 2005. Exh. H-3

3. On June 7, 2005, a pre-hearing was held with attorney Demetri Chambers now representing BAINES. Exh. H-6. James Paul Barklow, Jr., represented BAINES in her criminal case, but Demetri Chambers replaced Barklow in this administrative matter.

4. On July 25, 2005, after continuance from hearing dates of June 8 and July 18, at BAINES’s request, Exh. H-4, -5 and -7, the hearing in this matter was commenced as a closed hearing and was completed on August 2, 2005, with both parties in attendance represented by counsel.

5. A school policy at Travis provides that students are only allowed to go to their lockers before school, during lunchtime, and after school, unless there is a pass from the Principal or a teacher. There is a policy about the halls at North Dallas, Exh. D-8, 217, “Duty Posts,” 282.

6. On the morning of April 1, 2005, Katie S. (Caucasian), Lauren B. and Reagan B. (both African-American) were at student lockers in the 3rd floor hall during 1st period classroom instructional time, without permission from the Travis school Principal, Mari Smith (SMITH).

7. Lauren B. and Katy S. did have permission from their respective teachers to go to their lockers, but there is not evidence that they had a written pass.

8. Reagan B. did not have a teacher’s permission, a teacher’s pass, or a Principal’s pass to be in the 3rd floor hallway, during 1st period, on April 1, 2005, when Mary Oliver (OLIVER), a 7th Grade Science Teacher at Travis, told Lauren B., Reagan B. and Katy S. to go to their classroom.

9. During 1st period, on April 1, 2005, Lauren B. went into the 3rd floor hall on the side closest to OLIVER’s classroom. Reagan B., Lauren B.’s friend, went into the hall across from OLIVER’s classroom and down the hall from Lauren B. Katy S., from another classroom, went into the hall across from OLIVER’s classroom, approximately across from Lauren B.

10. During 1st period, of April 1, 2005, Lauren B. and Reagan B. were talking to each other across the 3rd floor hall and making a disturbance during class time. Katie S. was standing at her locker.

11. All three students were at least in technical violation of the school policy.

12. The noise in the hall caused OLIVER to step into the hall. She asked Lauren B., Reagan B., and Katy S why they were at their lockers.

13. OLIVER told Lauren B. and Reagan B., who were closest to her, to get back to their classroom.

14. After Lauren B. and Reagan B. went into their classroom, OLIVER then walked toward Katie S. and told her to go back to her classroom as this was not a designated time for students to be at their lockers.

15. OLIVER was giving class instruction at the time that Lauren B., Reagan B. and Katy S. went to their lockers in the hall outside OLIVER’s classroom door.

16. Karen Graves (GRAVES), a teacher teaching a class on the 3rd floor, also heard talking in the hallway during class.

17. GRAVES saw OLIVER talk to and send back to class all three girls, that is, Lauren B., Reagan B., and Katy S.

18. During 1st period while Lauren B., Reagan B., and Katy S. were in the 3rd floor hall at their lockers, there was enough noise to cause OLIVER, GRAVES and Marzina Barcinska (BARCINSKA) to stop teaching their classes and go into the hallway. See statements and testimony of GRAVES, BARCINSKA, and OLIVER.

19. The noise in the hallway at the time the three students were in the hall on April 1, 2005, 1st period was loud enough to lead BARCINSKA (whose classroom was across the hall from OLIVER’s) to believe that there were a lot more students in the hall than three and caused her to step in the hall to see what the situation was.

20. OLIVER, calmly and firmly, told all three girls, Lauren B., Reagan B., and Katy S., to go to their classroom. See testimony of OLIVER, GRAVES BARCINSKA, and Katy S.

21. OLIVER did not yell at Lauren B., Reagan B., or Katy S. when they were in the hall April 1, 2005, 1st period.

22. OLIVER did not discriminate against Lauren B. or Reagan B. when instructing them to go to their class on April 1, 2005.

23. OLIVER was not Lauren B.'s teacher during the 2004-2005 school year. However, OLIVER did have the authority and responsibility to monitor the halls as to all students.

24. Lauren B. was not crying or visibly upset when she returned to class.

25. Lauren B. only claimed to be upset because of alleged racism by OLIVER’s telling them to go to class and allegedly not telling Katie S. to go to class, which was not true.

26. EDWARDS, the 1st period teacher for Lauren B. and Reagan B. on April 1, 2005, did not give Reagan B. permission to go into the hallway, which resulted in the incident with OLIVER and the three girls. However, Lauren B. and Reagan B. told OLIVER that EDWARDS had said that they could go to their lockers, which was not true for Reagan B. See Exh. D-4, 26, EDWARDS’s statement, as well as hearing testimony.

27. Later, when EDWARDS sent Lauren B. to the 1st floor to the Carnival, EDWARDS did not give permission to Reagan B. for Reagan B. to also go, but Reagan B. went anyhow.

28. At this time, Lauren B. and Reagan B. went to the office of the school counselor, Carol Blair (BLAIR) first, instead of the Carnival.

29. Lauren B. and Reagan B. were not upset at the time EDWARDS sent Lauren B. to the Carnival for food.

30. Lauren B. and Reagan B. went to BLAIR's office to report that they believed OLIVER treated them differently than Katie S. by telling them to leave their lockers and go back to class.

31. BLAIR called BAINES, Lauren B.'s mother, and Reagan B.'s mother to report what the two students said, and that they seemed upset by the incident with OLIVER.

32. BLAIR told each of the mothers that the daughters were all right and to follow up with Principal SMITH.

33. Neither BLAIR nor Lauren B. told BAINES in the telephone conversation that there was any immediate danger, emergency, or urgency and did not tell BAINES that she needed to come to Travis.

34. Lauren B. and Reagan B. had calmed down from any alleged “upset” as of the time BLAIR called BAINES and Reagan B.’s mother.

35. BLAIR did not ask OLIVER about what had happened in the hallway with Lauren B., Reagan B., and Katy S. prior to calling BAINES or Reagan B.’s mother.

36. Neither Lauren B. nor counselor BLAIR told BAINES that there was an emergency situation.

37. There was not an emergency situation at Travis from the time 1st period began April 1, 2005, until BAINES entered OLIVER’s classroom during 3rd period, and, specifically, there was no emergency situation involving Lauren B. or Reagan B. during said time.

38. There is no evidence that BAINES believed Lauren B. was in an emergency situation.

39. BLAIR called to inform BAINES of an incident that had occurred the morning of April 1, 2005, as reported by BAINES's daughter, involving OLIVER.

40. Neither BLAIR nor Lauren B. requested that BAINES come to Travis.

41. A short time later, BAINES left North Dallas without signing out as required by campus policy and went to Travis. Exh. D-8, 279, “Sign In/Out Procedures” BAINES violated DISD procedures.

42. BAINES went to Travis in response to the telephone call she received BLAIR.

43. BAINES had received a written copy of the DISD Faculty Handbook, Exh. D-8, Exh. D-7.

44. There was not an emergency situation at Travis on April 1, 2005, involving Lauren B. as defined by DISD GKA, Exh. D-9. However, BAINES, upon attacking OLIVER, created an emergency situation and crisis at the school, involving not only OLIVER, but students, other faculty, and staff. BAINES violated DISD procedures.

45. Lauren B.’s and Reagan B.’s report to BLAIR did not justify BAINES’s conduct, including her attack on OLIVER. See BLAIR testimony.

46. Parents are not to go to classes during class time, but must set up a meeting time with the teacher in advance. See BLAIR testimony.

47. On April 1, 2005, when BAINES arrived at Travis, she went to the 1st floor main office and talked with the assistant principal at Travis, Randall Shaw (SHAW), requesting to file a complaint against OLIVER. When SHAW told BAINES he needed to get the paperwork, and that BAINES needed to talk with Principal SMITH, who was not in, BAINES said she would do it later or go downtown.

48. Instead, on April 1, 2005, after leaving SHAW’s office, BAINES went to OLIVER’s 3rd floor classroom after seeing her daughter on the 1st floor in BLAIR’s office.

49. On April 1, 2005, before BAINES went to the 3rd floor, she saw (and spoke to) her daughter, Lauren B., in counselor BLAIR’s 1st floor office in the presence of BLAIR. Lauren B. was:

a. in a safe place;

b. in the presence of and attended by BLAIR;

c. not crying or upset;

d. not requesting any help, assistance or protection;

e. not in any danger;

f. not in an emergency situation.

50. As a teacher herself, BAINES violated DISD policy and knows that she violated DISD policy that:

a. a parent must sign in at a school; yet, BAINES did not sign in, even though she knew that she needed to sign in because she had done it on prior occasions when she came to the school to see Lauren B. See SHAW testimony;

b. parent-teacher conferences are not held during student class time; yet, BAINES went into OLIVER’s 3rd period class when there were students in the classroom during class time;

c. a parent is not to walk through the halls to a class without an escort; yet, BAINES walked through the halls without an escort;

d. BAINES used her DISD badge as a means to walk about Travis and pass by the hall monitors.

51. BAINES did not have a child, including Lauren B., who was a student being taught by OLIVER during the 2004-2005 school year.

52. Upon arriving at Travis, BAINES was still wearing her DISD identification badge.

53. BAINES was calm and rational to SHAW when she was in the main office of Travis.

54. BAINES went by the counselor's office where her daughter Lauren B. and Reagan B. were talking with BLAIR.

55. BAINES smiled at BLAIR and said that she would be right back. BAINES was calm and rational to BLAIR.

56. BAINES went to the 3rd floor of Travis, were OLIVER's classroom was located.

57. At the time BAINES walked into OLIVER's classroom, OLIVER was in the middle of classroom instructional time during the 3rd period science class with several 7th grade students present.

58. OLIVER has been a teacher for nine years. She has been a teacher at Travis for five years and, on April 1, 2005, was the 7th grade science teacher.

59. Prior to the time of the assault by BAINES on OLIVER on April 1, 2005, OLIVER was in good health and her eyes were good.

60. After the assault on OLIVER by BAINES on April 1, 2005, OLIVER:

a. had a bleeding and swollen face;

b. was bruised on her legs, back and pelvis;

c. has two broken ribs;

d. has several herniated discs in her upper back;

e. suffered a concussion;

f. has swelling behind her eyes;

g. has blurry vision;

h. gets headaches from reading, then migraines;

i. has difficulty reading;

j. has difficulty doing the daily acts and duties of a teacher she used to do.

61. On April 1, 2005, 3rd period, after entering OLIVER’s classroom and before grabbing OLIVER’s hair, BAINES said:

a. “You have embarrassed my daughter for the last time;

b. “I’m going to beat you up;

c. “Get ready because I’m going to beat you up;

d. “I want to talk to you.”

62. OLIVER was sitting in her chair at her computer in her classroom with 7th grade students in her classroom and repeatedly told BAINES three times that she had a class, and that she would meet with BAINES after class.

63. The school procedure, well known to BAINES, for meeting with a teacher is to make an appointment with the teacher in advance, particularly when there is no emergency.

64. On April 1, 2005, in OLIVER’s 3rd period 7th grade classroom with students present, from behind OLIVER, BAINES:

a. grabbed OLIVER’s hair,

b. pulled OLIVER’s head back,

c. punched OLIVER in the face with rings on the fingers of the hand with which she punched her,

d. pulled OLIVER off of the chair onto the floor,

e. dragged OLIVER on the floor,

f. continued to punch OLIVER,

g. continually kicked OLIVER in the stomach, ribs, and hips while OLIVER was on the floor, while OLIVER’s head and hips kept hitting the floor.

65. On April 1, 2005, in OLIVER’s 3rd period class, BAINES’s actions were an attack on OLIVER, not a fight between BAINES and OLIVER, and OLIVER did not fight or attempt to hit BAINES.

66. OLIVER did not strike back, take any offensive action or talk back to BAINES, but took a defensive position and remained calm and polite.

67. On April 1, 2005, from the time BAINES grabbed OLIVER’s hair until BAINES was taken downstairs, BAINES:

a. said to OLIVER: “I’m gong to bash your face,”

b. screamed at students,

c. said “I’ll kick your ass,”

d. told a student “Shut up, bitch.”

68. BAINES's words and conduct of brutally and viciously attacking another teacher, during classroom instructional time, in the presence of 7th grade students, were violations of DISD policy and constitute "good cause" for termination of employment of BAINES.

69. BAINES’s conduct as described above, including leaving North Dallas, entering Travis, entering OLIVER’s classroom, her statements to OLIVER, students and staff, and her physical attack on OLIVER, and continued statements and actions, support the fact that BAINES:

a. assaulted OLIVER;

b. physically injured OLIVER;

c. acted recklessly in touching, striking, hitting and kicking OLIVER;

d. acted intentionally in touching, striking, hitting and kicking OLIVER;

e. voluntarily participated in the acts described above, including the physical attack upon OLIVER, and

f. was not the victim, but the aggressor in the confrontation with OLIVER.

70. On April 1, 2005, OLIVER was the victim of BAINES’s attack on her and OLIVER was not a voluntary participant in the attack.

71. On April 1, 2005, OLIVER did nothing to provoke BAINES to attack her.

72. There is no evidence of OLIVER’s being a racist.

73. There is no evidence of OLIVER’s having discriminated particularly against Lauren B. and Reagan B. on the morning of April 1, 2005, during 1st period.

74. OLIVER did not discriminate against Lauren B. and Reagan B. on April 1, 2005.

75. During the 2004-2005 school year there had not been documented racial complaints received by the administration. There were no student or parent complaints about race, and, according to the teachers and staff, there is no racial tension at Travis, except the complaints of Lauren B. and Reagan B. on the April 1, 2005, about the incident in the hall during 1st period. See hearing and deposition testimony.

76. Prior to April 1, 2005, or April 7, 2005, there is no evidence that BAINES needed or sought to avail herself of the Employee Assistance Program per DISD DI, Exh. D-9J (EAP).

77. Prior to April 1, 2005, there was no written request by BAINES with the appropriate supporting documentation and information for any type of assistance or accommodation, including under the Americans with Disabilities Act (ADA).

78. As of April 1, 2005, and April 7, 2005, there is no written request for an ADA accommodation by BAINES with the appropriate supporting medical documents, the basis for ADA accommodation, and what accommodation is requested.

79. The basis for DISD’s recommending termination and the facts to support that recommendation do not include anything to do with the ADA or any request for an ADA accommodation made as of April 7, 2005.

80. The recommendation of the Hearing Examiner is not based upon, and has nothing to do with, any alleged request for an ADA accommodation or conditions related thereto.

81. There is no ADA discrimination in or as the basis for the recommendation to terminate BAINES of April 7, 2005.

82. Any ADA claims are not the basis of this hearing nor of the Hearing Examiner’s decision and recommendation.

83. Prior to the April 7, 2005, DISD letter recommending termination of BAINES, Exh. D-2, DISD was not requested to, and did not fail to, engage in any interactive process with any request by BAINES for an ADA accommodation.

84. There is no evidence that prior to submitting the April 7, 2005, DISD letter recommending termination of BAINES, Exh. D-2, that DISD violated the ADA. Nothing in or about the ADA was the basis for DISD’s proposed recommendation of termination of BAINES.

85. The violations of Board policy which form the basis of the District’s recommendation for termination of BAINES do not relate to any alleged disability that may now be claimed by BAINES and occurred prior to any alleged request for accommodation under the ADA.

86. BAINES has not been denied due process in this administrative proceeding.

87. BAINES violated DF-Local #2 of “any act or conduct while at school, whether in or out of a classroom, which is either indecent, obscene, illegal, cruel, abusive, or is otherwise contrary to and inconsistent with the ordinary standards set by the performance and conduct of the other professional public employees of the District” as described above and by:

a. Failing to follow procedures at North Dallas High School, including leaving the campus and failing to sign out;

b. Failing to follow the procedures of a teacher and/or parent at Travis by failing to sign in, going through the halls without escort, using her DISD badge, and as further set out above;

c. Interrupting a class in session by walking into OLIVER’s class and demanding to talk with her without an appointment;

d. Attacking OLIVER and physically touching her;

e. Screaming at students, including obscenities.

88. BAINES violated DF-Local #12 with her “physical or verbal abuse of students, parents, co-workers, or other persons” as described above and by:

a. Physically touching OLIVER;

b. Viciously attacking OLIVER, including punching, kicking and yanking her hair;

c. Screaming at students, including profanities.

89. BAINES violated DF-Local #24 with “conduct or behavior..., either during or off working hours that could cause the public, students, or employees to lose confidence in the administration and/or integrity of the District” as described above and by:

a. Failing to follow procedures at North Dallas;

b. Failing to follow procedures at Travis;

c. Entering a classroom in session without an appointment and interrupting that class, including when the teacher of that class was not a teacher of her child;

d. Brutally attacking and causing severe physical harm to another teacher during school, on campus, in the presence of 7th grade students;

e. Screaming at students, including obscenities and profanities;

f. Continuing to attack OLIVER and resist efforts by other teachers to stop BAINES and endangering students in close proximity to her;

g. Creating a chaotic atmosphere and conditions at Travis as a result of attacking OLIVER, including police and other emergency personnel entering the campus, students in tears, all sorts of rumors being spread throughout the school about what had happened and OLIVER’s condition, including that she died. See Smith deposition testimony.

90. BAINES violated DF-Local #25 by her “failure to meet acceptable standards of conduct for employees in like or similar positions, which would make retention of the employee detrimental to the best interests of the District” as described above and by:

a. The conduct described above;

b. A teacher attacking a fellow teacher on school property, during class, in front of students;

c. Causing OLIVER to fear being in the presence of BAINES;

d. Not being in the best interest of other DISD employees to be in physical proximity to BAINES;

e. Acting contrary to DISD policies, procedures and practices as if she were above the rules, with the resulting perception that those rules would not need to apply to anyone;

f. Verbally cursing at students and putting the students in physical danger, not only from her own actions, but from the events she set in motion of creating chaos on the school campus.

91. BAINES’s acts and omissions on April 1, 2005, constituted misconduct, including, without limitation, in leaving her assigned duties at North Dallas and not following procedures in doing so, and entering and moving about the Travis campus in violation of its policies and procedures and in assaulting OLIVER, another teacher, on DISD property in the presence of students during class time in a class in which she had no business being.

92. BAINES’s conduct in violating the procedures at North Dallas, at Travis, and in verbally and physically attacking OLIVER in front of her students and verbally abusing students and placing the students in potential physical danger is contrary to and inconsistent to the ordinary standards set by the performance and conduct of other professional public employees of the District and does not meet acceptable standards of conduct for employees in like or similar positions.

93. Retention of BAINES as an employee would be detrimental to the best interest of DISD, its students and employees.

94. The recommendation for termination of BAINES’s contract is for reasons set out in Board policy as described in Exh. D-2, the letter of April 7, 2005, and the facts which support the described violation of those policies.

DISCUSSION

Essentially, there are two (2) issues in this case:

1. Has DISD established good cause to terminate BAINES's Contract? Yes

2. Was remediation required? No.

To terminate BAINES's Contract, DISD must establish good cause, which has been spelled out in Commission Opinions, cases, and the statute. The facts and laws establish that good cause exists to recommend termination of BAINES.

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.”

In addition, a teacher may be terminated for good cause when the grounds are failing to follow a general directive, that is, not one directed at a specific teacher, such as complying with times of arrival and departure and procedures for clocking in, Harries V. Burkeville ISD, Docket No. 047-92-1197 (Comm'rs. Dec. 1997); or, a directive specifically directed to a teacher, such as, turning in the next week's lesson plan on the Friday before that week. Cox V. Andrews ISD, Docket No. 092-R2-199 (Comm'rs. Dec. 1999).

The evidence in this case is replete with BAINES's failing to follow directives and policies on April 1, 2005, including, without limitation, the procedures:

1. for leaving North Dallas,

2. at Travis for entering the school, moving about the school, scheduling a parent-teacher conference, and entering a classroom in session;

3. concerning her conduct in OLIVER’s classroom.

Good cause can also be established by a teacher who declines directives and suggestions about her teaching performance and fails to fulfill her job duties and responsibilities and to adequately manage the instruction of her class. Ramirez v. Edgewood ISD, Docket No. 166-R2-898 (Comm'rs. Dec. 1998).

Failure to follow directives is a serious matter. It is generally inconsistent with the employment relationship. Teachers who disregard directives invite termination.

Assaulting a fellow employee constitutes good cause for termination. McKeown v. Galena Park ISD, No. 043-R2-995 (Comm’r Educ.)

Inappropriate language and physical violence, including fighting or attacks, are “especially egregious when they take place in a public school building and with public school children present.” Treadway v. Jasper ISD, No. 60-R2-1295 (Comm’r Educ.). A possible exception to terminating someone participating in a fight in school would be if one of the employees were “truly and completely the ‘victim’ and not a willing but later sorry former employee.” Treadway. BAINES was not the victim and there was no willing participation by OLIVER.

“The fact that a teacher’s conduct or behavior could cause an adverse reaction may well be sufficient to terminate a contract. Actual harm is not required to find good cause for termination.” Tave v. DISD, No. 67-R2-501 (Comm’r Educ.). BARNES did cause actual and potential harm to OLIVER, as well as actual and potential harm to students by her conduct, language and profanities in the presence of students. In addition, there was potential harm to the disturbance of the normal routine of the school building and the chaos and crisis created and/or potentially created from students running out of the classroom and screaming for help, police and other emergency personnel arriving and entering the building, and BAINES continuing to kick, resist, yell and threaten as staff attempted to separate her from OLIVER and remove her from OLIVER’s classroom, all in the presence of students.

The nature of BAINES’s actions as described herein do not and did not require remediation prior to recommending termination.

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:

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

DISD had and has good cause to terminate BAINES's Contract of employment before the end of its term which is supported by the evidence.

The reasons for DISD's suspension and termination of BAINES were so serious that remediation was not possible or required.

These acts and conduct violate the terms and provisions of BAINES's Contract and DISD School Board policy.

DISD's decision to terminate BAINES's Contract was and is supported by evidence of her failure to perform as claimed, and the inappropriate conduct toward OLIVER and the Travis students.

OLIVER did not discriminate against Lauren B. or Reagan B. on April 1, 2005.

On April 1, 2005, prior to the time BAINES entered OLIVER’s classroom, Lauren B. was not in danger and an emergency did not exist at Travis.

BAINES has failed to perform as an ordinary employee would in the areas referenced herein.

The evidence and documentation of BAINES's conduct are inconsistent with and violate DISD School Board policies.

DISD proved by a preponderance of evidence that BAINES violated DISD Board Policies of Local Numbers 2, 12, 24, and 25.

BAINES’s conduct in violating the procedures at North Dallas, at Travis, and in verbally and physically attacking OLIVER in front of her students and verbally abusing students and placing the students in potential physical danger is contrary to and inconsistent to the ordinary standards set by the performance and conduct of other professional public employees of the District and does not meet acceptable standards of conduct for employees in like or similar positions.

Even without touching OLIVER, BAINES’s conduct, before attacking OLIVER, violated numerous DISD policies, including, without limitation, DF-Local #24 and #25 and leaving her duty station, that constitute good cause for recommending BAINES’s termination.

Retention of BAINES as an employee would be detrimental to the best interest of DISD, its students and employees.

There is no ADA discrimination in the basis for the recommendation to terminate BAINES.

Any ADA claims are not the basis of this hearing nor of the Hearing Examiner’s decision and recommendation.

Prior to submitting the April 7, 2005, DISD letter recommending termination of BAINES, Exh. D-2, DISD has not violated the ADA and nothing in the ADA was the basis for its proposed recommendation of termination.

BAINES has not been denied due process in this administrative proceeding.

BAINES’s acts and omissions on April 1, 2005, constituted misconduct, including, without limitation, in leaving her assigned duties at North Dallas and not following procedures in doing so, and entering and moving about the Travis campus in violation of its policies and procedures and in assaulting OLIVER, another teacher, on DISD property in the presence of students during class time in a class in which she had no business being.

The recommendation for termination of BAINES’s contract is for reasons set out in Board policy as described in Exh. D-2, the letter of April 7, 2005, and the facts which support the alleged violation of those policies.

The violations of Board policy which form the basis of the District’s recommendation for termination of BAINES do not relate to and are not based upon any alleged disability that may now be claimed by BAINES and occurred prior to any alleged request for accommodation under the ADA.

The facts and laws establish that good cause exists to recommend termination of BAINES.

BAINES's employment should be terminated for good cause.

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

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 approve the recommendation by DISD to terminate PAULETTE BAINES's Contract.

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

SIGNED AND ISSUED this_______ day of_______________ 2005.

________________________________________

ROBERT C. PRATHER, SR.

CERTIFIED INDEPENDENT HEARING EXAMINER

cc: CMRRR

& FAX 972-925-3712

President, Board of Trustees

Dallas ISD - Box 1

3700 Ross Avenue

Dallas, Texas 75204

CMRRR

& FAX 214-941-1399

Veretta L. Frazier

320 So. R.L. Thornton #300

Dallas, Texas 75203

214-941-1881

Attorney for Dallas ISD

CMRRR

& FAX 214-339-0194

Demetri Chambers

5787 S. Hampton, Suite 365

Dallas, Texas 75232

214-339-1490

Attorney for Teacher

CMRRR

& FAX 1-512-463-9838 &

karin.crumbling@tea.state.tx.us

Joan Howard Allen

Director of Hearings

Texas Education Agency

1701 North Congress Avenue

Austin, Texas 78701-1494

DOCKET NO. 081-LH-505

DALLAS INDEPENDENT SCHOOL §

DISTRICT § BEFORE THE

§

VS. § CERTIFIED HEARING EXAMINER

§

PAULETTE BAINES § THE STATE OF TEXAS

APPENDIX

PROCEDURAL MATTERS

The following matters are submitted as a part, but are not exclusive, of the basis of some of the rulings of the Hearing Examiner in this case and the references herein to either events, transcripts, statutory or case law, rules, and actions of the parties, are not exhaustive or exclusive listings, references, or grounds of the basis for the rulings of the Hearing Examiner:

For purposes of the record, the Exhibits, testimony, pleadings, depositions, and arguments of counsel are incorporated herein by reference.

On April 22, 2005, BAINES requested a hearing and, by agreement, waived the time for the recommendation of the Hearing Examiner was extended to August 5, 2005. Exhs. H-1 through -6

This matter was initially set for hearing on June 8, 2005, with the agreement of BAINES’s counsel at that time, James Paul Barklow, Jr. Exh. H-4. Subsequently, BAINES requested continuances of the hearing, first to July 18, 2005, and then to July 25, 2005. Exhs. H-5 and -7.

In accordance with the Pre-Hearing Order participated in by Demetri Chambers, counsel for BAINES, the discovery completion deadline was July 13, 2005.

Witness lists and lists of Exhibits that the parties intended to use at the hearing were to be submitted by July 20, 2005. Exh. H-6.

BAINES’s deposition was taken on June 30, 2005. Exh. 24, A, B, C, and D (of which the video disks and transcripts were offered into evidence). The transcript had not been marked as Exh. D-24 at the time of submission, but was admitted into evidence and is a part of the record as Exh. D-24 D.

During the hearing on July 13, 2005, the following BAINES responses of July 13, 2005, to DISD discovery were submitted:

1. Response to 1st Set of Interrogatories, Exh. D-15;

2. Response to Request for Disclosure, Exh. D-16;

3. Response to 1st Request for Production, Exh. D-17;

4. Response to Request for Admissions, Exh. D-18.

At no time prior to the hearing commencing on July 25, 2005, have BAINES’s responses to the DISD discovery requests, Exhs. D-15 through -18, and BAINES’s deposition been supplemented.

The only additional materials identified and submitted are now marked as Exhs. B-4 through -6, which were first presented on and after July 25, 2005.

In addition to BAINES’s request of April 22, 2005, there was no additional timely filing of any claims or defenses by BAINES.

On Wednesday, July 20, 2005, three working days prior to the commencement of the hearing:

1. Exhs. B-4 through -6 had not been identified or produced,

2. the purported authors of Exhs. B-4 through -6 had not been identified in responses to discovery,

3. the authors of Exhs. B-4 through -6 were not listed on BAINES’s Witness List, nor was BAINES,

4. no documentation or supporting information forming the basis of any statements in Exhs. B-4 through -6 had been identified in the discovery or any supplemental discovery responses, in BAINES’s deposition or in BAINES’s Exhibit List,

5. underlying and supporting documentation and information was not submitted on July 25, 2005, or any time thereafter.

At approximately 4:00 p.m., Wednesday, July 20, 2005, BAINES submitted her Pre-trial Brief and Pre-trial Motions which are now marked as Exhs. B-1 and B-9. No request for hearing on these pre-trial motions was made prior to the appearance of the parties at the hearing on July 25, 2005. The BAINES July 20, 2005, Motions were:

1. Motion to Dismiss Administrative Proceeding,

2. Motion to Compel DISD to Grant an Accommodation,

3. Motion to Seal All Confidential Information,

4. Motion to Abate Administrative Proceeding,

5. Motion to Strike.

On July 25, 2005, the Hearing Examiner denied the following BAINES Motions:

1. Motion to Dismiss Administrative Proceeding,

2. Motion to Compel DISD to Grant an Accommodation,

3. Motion to Seal All Confidential Information,

4. Motion to Abate Administrative Proceeding,

5. Motion to Strike.

On July 28, 2005, during BAINES’s case-in-chief, through her attorney, BAINES re-urged the following Motions:

1. Motion to Dismiss Administrative Proceeding,

2. Motion to Compel DISD to Grant an Accommodation,

3. Motion to Seal All Confidential Information,

4. Motion to Abate Administrative Proceeding,

5. Motion to Strike.

On July 28, 2005, the Hearing Examiner denied the following BAINES Motions:

1. Motion to Dismiss Administrative Proceeding,

2. Motion to Compel DISD to Grant an Accommodation,

3. Motion to Seal All Confidential Information,

4. Motion to Abate Administrative Proceeding,

5. Motion to Strike.

Exhs. B-4 through -6 (medical letters) were ruled non-admissible and were SEALED as not evidence or matters to be considered by the Board since they were inadmissible for the following reasons, including, but not limited to and not exclusive of:

1. The medical letters were not timely produced in discovery.

2. The medical letters were not listed on BAINES’s Exhibit List due July 20, 2005.

3. The medical letters were not authenticated for introduction in the hearing, were hearsay, and not substantiated, were established as relevant, reliable, qualified, and with a foundation.

4. The authors of Exhs. B-4 through -6 were not identified in discovery.

5. The authors of Exhs. B-4 through -6 were not present at the hearing and offered for and submitted as witnesses to testify.

6. The authors were not listed on BAINES’s Witness List.

7. BAINES was not listed on BAINES’s Witness List.

8. None of the supporting documentation and information from and related to the statements of the authors of Exhs. B-4 through -6 were timely produced in discovery or submitted at any time.

BAINES had known of the matters related to Exhs. B-4 through -6 for weeks, if not longer, and prior to the close of discovery, including Exh. B-4 dated July 7, 2005.

The hearing could not be abated or continued due to the deadline for the submission of the recommendation of August 5, 2005.

1. The transcripts of the hearing will reflect that the hearing generally lasted until approximately 8:00 p.m. each day.

2. Following the conclusion of the testimony, the Hearing Examiner would need to review the transcripts and prepare the Findings of Fact and Conclusions of Law to make the recommendation by August 5, 2005.

3. In addition to the time in the hearing, the Hearing Examiner was requested to spend approximately 14 hours reviewing deposition transcripts and video depositions as a part of the evidence of the hearing itself, once the hearing started on July 25, 2005.

If Exhs. B-4 through -6 had been properly identified in discovery, produced and authenticated as evidence, DISD would have been entitled to review the underlying documentation and information, to depose BAINES and the authors of the documents and to obtain its own expert witnesses in response to Exhs. B-4 through -6. The time required to conduct the hearing and produce the recommendation did not permit such time for DISD to have the opportunity to perform those tasks related to Exhs. B-4 through -6, even if they had been produced on the evening of July 20, 2005 (which they were not), which would have left two business days prior to the hearing.

The delay in the identification of Exhs. B-4 through -6 and the authors and related information and the proposed testimony of BAINES was a part of the hearing strategy of BAINES and by its timing and failure to supplement timely the discovery and matters in discovery related to Exhs. B-4 through -6 was designed to give BAINES an unfair advantage and to put DISD at a disadvantage.

On the third day of hearing, Thursday, July 28, 2005, in her case-in-chief, BAINES sought to testify, but without waiving her Fifth Amendment rights, transcript page 953, l. 1, to 955, l. 17. DISD objected to BAINES being called as a witness.

Thereafter, BAINES was permitted to make an Offer of Proof of her testimony as well as reference to the proposed Exhs. B-4 through -6, to which DISD objected. The objections were sustained. The Offer of Proof and Exhibits were ruled inadmissible and SEALED.

BAINES then presented other evidence by other witnesses and deposition in her case.

On the BAINES motions submitted the evening of July 20, 2005, which were not heard until the beginning of the hearing on July 25, 2005 (no pre-hearing having been requested by BAINES), the Hearing Examiner made the following rulings:

1. Denied the Motion to Dismiss the Administrative Hearings in part, but not exclusively, due to:

a. the Hearing Examiner’s not having authority to compel DISD to do anything with respect to an ADA claim first allegedly made on July 20, 2005;

b. no authority being shown for the Hearing Examiner to order DISD to do anything, except for the Hearing Examiner to hear the matter referenced in the April 7, 2005, letter, Exh. D-2;

c. there being no evidence, documentation, affidavits, or expert opinions submitted in support of the motion that were admissible that had been submitted in discovery or had been supplemented by discovery, and such matters by the pleadings themselves had been known for at least a year.

d. Assuming that Exhs. B-4 through -6 were offered in support of said motion on July 25, 2005, they were not competent evidence for the reasons, without limitation, that:

1) they had not been identified in discovery,

2) supporting documentation was not included,

3) they were not authenticated,

4) they were hearsay,

5) they were not admissible, without a showing of relevance, reliability, qualification and foundation,

6) the authors were not present at the hearing and were not presented for testimony and were not listed on BAINES’s Witness List.

2. Paragraph 2.B of BAINES’s Motion to Dismiss Due to Being Denied Due Process was denied, due to including, without limitation:

a. Any challenge to the limitation of the deposing of OLIVER was not presented to the Hearing Examiner prior to the hearing.

b. It is disputed by the parties as to the scope and nature of the questioning and limitations and BAINES’s counsel had full opportunity to and did cross-examine OLIVER, who appeared in person at the hearing, on any subject.

c. The other items in support of the motion under 2.B are factual matters to be considered in the hearing, which they have been, in determining the weight and credibility of the witnesses and the evidence.

d. The Hearing Examiner has heard and reviewed the depositions, documentation, investigative reports, and testimony of the witnesses, and no decision with respect to whether or not a recommendation for termination of BAINES had, has been or will be made until the close of the evidence and recommendation by the Hearing Examiner.

3. BAINES’s Motion to Abate the Proceedings was denied, in part, but not exclusively, since the statutes require that the recommendation be made within 105 days after the request for a hearing of April 22, 2005, BAINES’s two prior requests for continuance, and that civil proceedings, including such as this administrative hearing, may proceed, even though there are criminal proceedings pending.

4. BAINES’s Motion to Strike the Testimony of Student Witnesses was denied in part, but not exclusively, since those matters are matters as to the weight and credibility to be given to the witnesses and their testimony. Furthermore, the witnesses either testified in person or via depositions and were offered into evidence by DISD without objection by BAINES.

5. BAINES’s Request for the Entry of the Confidentiality and Stipulation Order proposed by BAINES was denied in part, but not exclusively, due to there being no agreement by the parties, and that the proposed order as submitted was inappropriate as to the actions to be ordered and to matters to which stipulation was requested to be ordered and the scope of confidentiality as submitted.

6. It was not necessary to review the proposed medical letters, Exhs. B-4 through -6, in camera, when requested on July 25, 2005, including, but not limited to, that they were not specifically produced or identified. Prior to the close of the hearing, the Hearing Examiner did review Exhs. B-4 through -6 and ruled them inadmissible.

BAINES’s offer of proof of her testimony at the hearing and Exhs. B-4 through -6 were excluded and motion to submit such testimony and exhibits denied for the following reasons, including, without limitation:

1. The testimony and supporting documentation was not timely identified in discovery with the discovery requests by DISD not being properly responded to or supplemented prior to the hearing and to this time.

2. There was not sufficient time to continue the hearing and complete the hearing and recommendation as required by statute to allow for supplementation, response and allow DISD discovery regarding the new information and to prepare responses to the new information.

3. By BAINES’s pleadings, claims and the proposed Exhs. B-4 through -6, the material and condition have been known for over a year and the information has been available for over a year prior to the close of discovery in this case.

4. The proposed documents Exhs. B-4 through -6 are not admissible as presented as previously discussed herein and the testimony of BAINES and Exhibits are not admissible, being without proper foundation, authentication and identification.

5. BAINES has not shown good cause for her failure to timely make, amend, or supplement her discovery responses, including in reference to Exhs. B-4 through -6, which the Hearing Examiner has reviewed in camera and DISD would be unfairly surprised or prejudiced by BAINES’s failure to timely make, amend, or supplement discovery responses, in part without limitation, due to the time limits that are not available to allow for the supplementation and then investigation and response including depositions of BAINES who has already had her deposition taken for approximately six to eight hours, in which she did not answer based upon her Fifth Amendment rights, including to matters about which she now seeks to offer testimony and the need for DISD to review documentation in addition to Exhs. B-4 through -6 which has not been produced or identified and to depose the authors of Exhs. B-4 through -6 and to obtain its own expert witnesses.

6. The proposed nature and extent of the proposed evidence does come as a surprise to DISD is unique would require expert testimony and analysis and yet was information known or could have been known and in fact was known for at least a year by BAINES. A review of DISD’s discovery requests, Exhs. D-16 through -18, as well as the questions of BAINES at her deposition, Exh. B-24, A-D, reflect that BAINES refused to provide information or discovery about information which now, at the last minute, BAINES seeks to offer as essential to her case in this hearing seeking to remain an employee.

a. BAINES is seeking affirmative relief, including, without limitation, that she appealed the recommendation to terminate so as to halt the recommendation from proceeding to finality without a hearing which would have been the result if she had not made her request for a hearing. See Exh. D-2

b. BAINES seeks to advocate an excuse for her conduct in order to abate these proceedings and/or to obtain dismissal of the proceedings and/or to justify her conduct and reverse the recommendation for termination so as to keep her employment with DISD.

7. By BAINES’s own argument, the information and testimony she seeks to use, as argued by BAINES, is outcome determinative as to justifying her conduct and as described above, yet she has used the privileges and the Fifth Amendment as a basis for failing to produce the information and responses to discovery prior to the date of the beginning of the hearing. BAINES’s real concern seems to be confidentiality.

8. The protected information which has been protected and not disclosed is not otherwise available to DISD since DISD has not known prior to July 25 and actually July 28 who any of the proposed witnesses as authors of Exhs. B-4 through -6 might be or what medical information and its source and documentation may be and would be limited in obtaining that information without the consent or disclosure of BAINES, which consent and disclosure have not previously been given and not even discussed to extend beyond her own testimony and Exhs. B-4 through -6. Thus, a very narrow scope of information was provided to DISD as opposed to the full scope of all medical information.

9. BAINES’s actions and failure to produce information while claiming her Fifth Amendment privilege has also claimed confidentiality, privacy and other privileges to avoid discovery or to create delay as has been requested by BAINES’s counsel to delay these proceedings. It is a requested delay with respect to matters and information that BAINES has known for some time but failed to provide in discovery timely.

10. In viewing the totalities of the circumstances leading up to the request by BAINES the timing and deadlines controlling the hearing in time for recommendation and the surprise and unfairness to DISD, among other things, convinces the Hearing Examiner that less burdensome remedies are not available and would not be effective in preventing unfairness to DISD; and that while BAINES is entitled to a certain Fifth Amendment privilege, her use of the assertion of the privilege and failure to provide responses to discovery and supplementation of that discovery on matters to which she now at the hearing seeks to offer evidence and testimony indicates that she merely sought to avoid discovery as a hearing strategy and to create delay in this case.

11. Among other things, BAINES has made an offensive use of her claim of privilege and the Hearing Examiner is justified in preventing BAINES from introducing evidence on the subjects on which she has failed and refused to produce evidence.

When a plaintiff invokes the privilege against self-incrimination, the trial court can subsequently prohibit the plaintiff from introducing evidence on the subject and such an act of judicial discretion does not constitute penalizing the plaintiff’s use of the privilege. Gutierez-Rodriguez v. Cartagena, 882 Fed.2nd 553, 576 (1st Circ. 1989)

1. The discovery requests by DISD to BAINES as well as questions posed to her in her deposition generally include inquiries about expert witnesses and underlying documents related to expert witnesses, medication, medical condition, any defense to her actions, her intent, state of mind, any statements given to medical professionals, all to which no response or supplementation was made or the Fifth Amendment was claimed. For instance, see Exhs. D-15 through -18; Exh. D-24 D, p. 22, l. 10 to p. 29, l. 6; p. 66, l. 6 to p. 80, l. 25.

2. As a consequence, the Motion for Offer of Proof and for BAINES to give testimony and for the admission of Exhs. B-4 through -6 was denied, and said evidence excluded and those matters SEALED.

SIGNED AND ISSUED this 5th day of August, 2005.

________________________________________

ROBERT C. PRATHER, SR.

CERTIFIED INDEPENDENT HEARING EXAMINER

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