Ritter.tea.state.tx.us



TEA DOCKET NO: 268-LH-0511

HOUSTON INDEPENDENT SCHOOL § BEFORE EQUATOR L. TURNER

DISTRICT §

Petitioner §

§

vs. § CERTIFIED HEARING EXAMINER

§

SHELIA COLLINS §

Respondent § STATE OF TEXAS

RECOMMENDATIONS OF THE HEARING EXAMINER

Statement of the Case

Houston Independent School District, hereinafter referred to as the Petitioner, has proposed the non-renewal of Ms. Shelia Collins, hereinafter referred to as Respondent, one-year term contract. Petitioner has listed two reasons in its letter of notice of proposed nonrenewal of Respondent’s contract. Petitioner is represented by Mr. Miles T. Bradshaw, of Karczewski │ Bradshaw, L.L.P., Houston, Texas. Respondent is represented by Ms. Susan H. Soto, of Watts & Associates, Houston, Texas.

Findings of Fact

After due consideration of the record and matters officially noticed, the following findings of fact have been proven by a preponderance of the evidence (citations to evidence are not exhausted but are basically intended to indicate some of the basis for the specific findings of fact):

1. Respondent is assigned as a Title 1 Coordinator and/or Literacy Coach within the Houston Independent School District and currently teaches at Gregory Lincoln Education Center as she has for the past four years. (Tr. pp. 32- 34).

2. Respondent is employed by the Petitioner pursuant to a one-year term contract for the 2010 – 2011 school year.[1]

3. Respondent position was funded by the Federal Title I, Part A-ARRA/Stimulus.[2]

4. Respondent’s contact in Section 10, specifically states that, “Any action or even that the Board determines creates a financial exigency and a need to reduce expenditures for personnel such as, but not limited to, declines in enrollment or tax revenues, reduction in funding, or change of program shall constitute cause for termination at any time during the term of this Contract. Employment in a federally or categorically funded position in expressly conditioned upon the availability of full funding and any reduction of such funding constitutes good cause for termination at any time during the term of this Contract.”[3]

5. Respondent is certified to Elementary English, grades 1 through 8, elementary self-contained grades 1 through 8, Principal Certified early childhood through 12 in the State of Texas. (Tr. p. 33).

6. Respondent is also Professional Development and Appraisal System (“PDAS”) and Instructional Leadership Development Certified (“ILD”). Id.

7. In December 2010, the former Principal told Respondent that federal funding supporting her position may go away at the end of the 2010 – 2011 school year. However, he would find funding from the budget and she would be kept on the campus. (Tr. p. 35).

8. Respondent was on Family Medical Leave (“FML”) from December 15, 2010 until March 31, 2011 for surgery. (Tr. p. 34).

9. The Family and Medical Leave Act of 1993 (“FMLA”) provides up to twelve (12) weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons.[4]

10. Ms. Pamela Farinas, (“Farinas”) is the Principal of Gregory Lincoln Education Center and has been since January 4, 2011. (Tr. p. 9).

11. Principal Farinas never had the opportunity to meet Respondent because she was out on FML. (Tr. p. 34).

12. On February 22, 2011, Principal Farinas sent Respondent a memorandum regarding a Conference on the Record scheduled for February 25, 2011 at 11:30 am to review the impact that the end of stimulus grants will have on have on her contract.[5]

13. Respondent responded to the memorandum via email that her Houston Federation of Teacher representative, Ms. June Dansford would represent her at the conference, due to the fact that she was still on FML.[6]

14. Ms. Dansford attended the conference on Respondent’s behalf.[7]

15. On February 28, 2011, Principal Farinas recommended the proposed nonrenewal of Respondent’s term contract to Houston Independent School District Chief Human Resources Officer, Ms. Ann Best due to the loss of stimulus funding supporting the Literacy Coach position at Gregory Lincoln Education Center.[8]

16. Respondent’s nonrenewal was no way based on her performance at Gregory Lincoln Education Center. (Tr. p. 17).

17. Principal Farinas did not recommend the termination of Respondent’s contract. (Tr. p. 20)

18. On April 7, 2011, Houston Independent Board of Education voted to propose the nonrenewal of Respondent’s term contract. [9]

19. By letter dated April 08, 2011, Respondent received notice from Petitioner’s Superintendent, Terry B. Grier, Ed.D, that it was recommended to non-renew her contract to Petitioner’s Board of Education.[10]

20. On April 15, 2011, Respondent received a copy of the notice to recommend the nonrenewal of her contract.[11]

21. On April 27, 2011, Respondent timely requested that the Commissioner of Education appoint a Certified Hearing Examiner to preside over a hearing and this Certified Hearing Examiner was appointed.[12]

Discussion

There are two issues in this case: (1) Whether Petitioner terminated Respondent’s contract during its term, and (2) Whether Respondent is entitled to protection of her employment with the District pursuant to FMLA policies. Two reasons were given to the Respondent for non-renewal of her one year term contract. The reasons are listed in the Petitioner’s Board Policy DFBB (Local) and are as followed: (19) Any breach by the employee of an employment contract or any reason specified in the employee’s employment contract, and (34) Any reason constituting good cause for terminating the contract during its term. Petitioner has to prove by preponderance of the evidence at least one of the pre-established policy reasons for non-renewal reason stated in the Board Policy DFBB (“Local”).

Petitioner presented evidence on the following reasons for non-renewal:

A. Any breach by the employee of an employment contract or any reason specified in the employee’s employment contract

Petitioner has alleged that there was a breach by the employee of an employment contract or any reason specified in the employee’s employment contract. Respondent’s contact in Section 10, specifically states that, “Any action or even that the Board determines creates a financial exigency and a need to reduce expenditures for personnel such as, but not limited to, declines in enrollment or tax revenues, reduction in funding, or change of program shall constitute cause for termination at any time during the term of this Contract. Employment in a federally or categorically funded position in expressly conditioned upon the availability of full funding and any reduction of such funding constitutes good cause for termination at any time during the term of this Contract.”[13] The Board did not declare a financial exigency.[14] There are two ways a term contract can be ended by the District: nonrenewal and termination. To be specific, this is not a nonrenewal based on program change reduction in force under Houston Independent School District Board Policy DFF (Local). Respondent is not included on the list of teachers who were recommended for “termination of their term contract during the term of the contract.”[15] Petitioner presented no evidence regarding a breach by the employee of an employment contract. Petitioner alleges that there is a reason specified in the Respondent’s contract for nonrenewal. However, that section says specific, “employment in a federally or categorically funded position in expressly conditioned upon the availability of full funding and any reduction of such funding constitutes good cause for termination at any time during the term of this Contract.” Petitioner did not “terminate” Respondent’s contract at any time during the term of the contract. The problem with reliance on this particular section in the contract is rooted in the fact that Respondent was not terminated during the term of her contract, she was recommended for nonrenewal of her contract for the upcoming school year. (Tr. p. 20), There is a distinct difference between a nonrenewal and a termination.

In Myrtle Springs Reverted Independent School District v. Hogan, the Court of Appeals considered the nonrenewal of Carolyn Hogan, a full-time teacher/part-time principal. The court found that the school district failed to follow its own written policies that were in effect when Hogan was hired when it nonrenewed her. Myrtle Springs Reverted Indep. Sch. Dist. v. Hogan, 705 S.W.2d 707, 709 (Tex.App.—Texarkana 1985, writ ref'd n.r.e.). The school district’s failure to follow written policy that was in effect when the contract was entered into as it nonrenewed Hogan’s contract was a breach of contract on the district’s part. Id.

In the present case, the Petitioner did not follow its policy to terminate Respondent whose position is funded by federal funds that are subsequently reduced. Rather than terminate Respondent, Petitioner improperly proposed for a nonrenewal of her contract. Therefore, I find there is insufficient evidence that there was any breach by the employee of an employment contract or any reason specified in the employee’s contract.

B. Any reason constituting good cause for terminating the contract during its term

Petitioner has alleged that there was any reason constituting good cause for terminating Respondent’s contract during its term. There are two ways a term contract can be ended by the District: nonrenewal and termination. A term contract may be terminated during the contract’s term for good cause as determined by the board or a financial exigency that requires a reduction in personnel. Tex. Educ. Code § 21.211(a). The Commissioner has used the definition of “good cause” in found in case law 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. Tave v. Alanis, 109 S.W.3d 890 (Tex. App.-Dallas 2003, not pet.) citing Lee-Wright, Inc. v Hall, 840 S.W.2d. 572, 580 (Tex. App.-Houston [1st Dist.] 1992, no writ). Petitioner alleges that “good cause” exists because employment in a federally or categorically funded position in expressly conditioned upon the availability of full funding and any reduction of such funding constitutes good cause for termination at any time during the term of this Contract. However, Respondent is not included on the list of teachers who were specifically recommended for termination of their term contract during the term of the contract.[16] Respondent’s contract was recommended for nonrenewal at the end of her contract and not termination during the term of the contract. Therefore, there is insubstantial evidence to support that there was any reason constituting good cause for terminating Respondent’s contract during its term.

C. Whether Respondent is entitled to protection of her employment with the District pursuant to FMLA policies.

Respondent began a twelve (12) week leave of absence under the FMLA beginning December 15, 2010. Under the FMLA, “an eligible employee shall be entitled to a total of twelve (12) work weeks of leave during any twelve (12) month period.” 29 U.S.C. § 2612(a)(1). Additionally, under the FMLA:

[A]ny eligible employee who takes leave under section 102 of this title [the FMLA] for the intended purpose of the leave shall be entitled, on return from such leave—

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

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

29 U.S.C. § 2614(a)(1).

Under the implementing regulations:

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

29 C.F.R. § 825.215(a).

For purposes of determinations under section 104(a)(1)(B) (relating to the restoration of an eligible employee to an equivalent position), in the case of a local educational agency or a private elementary or secondary school, such determination shall be made on the basis of established school board policies and practices, private school policies and practices, and collective bargaining agreements.

29 U.S.C. § 2618(e).

Not counting holidays, Respondent twelve (12) weeks of FMLA leave expired on March 09, 2011. In this case, Respondent was not offered a position at her same school, making the same salary, with the same benefits. Her position was recommended for nonrenewal on February 28, 2010, clearly within her twelve week job protection period. The Commissioner of Education has held that “…just because a position is eliminated does not mean that it is necessary to terminate a teaching contract. If a teacher meets a district’s objective criteria to obtain another position, the teacher must be offered the position.” Amerson v. Houston Independent School District, Docket No. 022-R2-1202 (Comm’r Educ. 2003). Here, Respondent has testified that she is certified to Elementary English, grades 1 through 8, elementary self-contained grades 1 through 8, Principal Certified early childhood through 12 in the State of Texas. (Tr. p. 33). Petitioner did not offer Respondent a another position in which she was qualified. Therefore, I find sufficient evidence to support that Respondent was entitled to protection of her employment with the District pursuant to the Family and Medical Leave Act of 1993.

Conclusions of Law

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

1. Jurisdiction to hear this cause is proper under the Texas Education Code. The Certified Independent Hearing Examiner has jurisdiction of this matter pursuant to Chapter 21, Subchapter F, Section 21.251(b)(2) of the Texas Education Code.

2. In order to support a non-renewal, only one of the reasons must be found to be substantial enough to support non-renewal. See Woods v. Post Indep. Sch. Dist., Dkt No. 335-R1-794 (Commn’r Educ. 1996). A pre-established policy reason is valid as long as it is not arbitrary or capricious. See Tarrant v. Clear Creek ISD, 238 S.W.3d 445, 441. (Tex. App.-Houston [1st Dist.] 2007 (no pet.).

3. The decision of the Board of Education of Petitioner to propose nonrenewal and not to terminate the term contract of Respondent was arbitrary or capricious.

4. Petitioner had to prove by preponderance of the evidence that it has “good cause” to propose termination of Shelia Collin’s contract.

5. Respondent is entitled to protection of her employment with the District pursuant to FMLA policies.

Based on the facts and discussions enumerated above, Petitioner has not proven by a preponderance of the evidence at least one of the non-renewal reasons stated in the Petitioner’s Board Policy DFBB (Local) that sufficient grounds exist to support the non-renewal of Petitioner’s employment contract.

Any conclusions of law deemed to be a finding of fact are hereby adopted as such.

Recommendation

After due consideration of the record, matters officially noticed, and the above referenced Findings and Conclusions of Law, in my capacity as Certified Hearing Examiner, it is hereby:

RECOMMENDED that the Board of Education of Houston Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an Order consistent therewith. The Nonrenewal of Shelia Collins’s 2010-2011 Employment Contract be rescinded.

SIGNED AND ISSUED this the 10 day of August , 2011.

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EQUATOR L. TURNER,

CERTIFIED HEARING EXAMINER

-----------------------

[1] See Petitioner Exhibit 1 in the Hearing Transcript

[2] See Petitioner Exhibit 2 in the Hearing Transcript

[3] See Petitioner Exhibit 1 in the Hearing Transcript

[4] Please refer to board policy (DEC)LOCAL for details

[5] See Petitioner Exhibit 5 in the Hearing Transcript

[6] See Petitioner Exhibit 6 in the Hearing Transcript

[7] See Petitioner Exhibits 6 & 7 in the Hearing Transcript

[8] See Petitioner Exhibit 8 in the Hearing Transcript

[9] See Petitioner Exhibits 12K and 12L in the Hearing Transcript

[10] Please see Petitioner Exhibit 9 in the Hearing Transcript

[11] Id.

[12] Please see Letter dated May 11, 2011 from Texas Education Agency to Independent Hearing Examiner not included in the Hearing Transcript

[13] See Petitioner Exhibit 1 in the Hearing Transcript

[14] See Petitioner Exhibit 11G in the Hearing Transcript

[15] See Petitioner Exhibit 12L in the Hearing Transcript

[16] See Petitioner Exhibit 12L in the Hearing Transcript

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