TEA DOCKET NO



TEA DOCKET NO. 082-LH-0408

DALLAS INDEPENDENT § BEFORE VICTORIA F. WELCOME

SCHOOL DISTRICT §

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v. § CERTIFIED HEARING EXAMINER

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CLEMENT NWEKE § TEXAS EDUCATION AGENCY

RECOMMENDATION OF CERTIFIED HEARING OFFICER

Statement of the Case

Dallas Independent School District, Petitioner, has proposed the non-renewal of Clement Nweke under Texas Education Code §21.207. On March 27, 2008 by letter to Clement Nweke, the Dallas Independent School District recommended non-renewal of Mr. Nweke’s term employment contract with the District as a mathematics teacher at Pearl C. Anderson Middle School for alleged violations of Board Policy DF-Local #1, #2, #12, #24, #25 and #33.

On April 3, 2008, Respondent, Clement Nweke made a timely request for a local hearing pursuant to Texas Education Code §21.207 contesting the recommended non-renewal of his term employment contract as an educator with the Dallas Independent School District. Victoria Welcome is the Certified Hearing Officer appointed by the Texas Commissioner of Education to preside over the educator’s local hearing.

Petitioner, Dallas Independent School District, is represented by Ms. Veretta Frazier, Attorney at Law, Dallas, Texas.

Respondent, Clement Nweke, is represented by Mr. Edwin Nwokocha, Dallas, Texas.

Findings of Fact

After due consideration of the record and matters officially noticed, the Certified Hearing Examiner finds that the preponderance of the credible testimony and documentary evidence supports the following Findings of Fact and makes the following Findings of Fact:

1. Respondent, Clement Nweke, was employed under a term contract by Petitioner as a mathematics teacher at Pearl C. Anderson Learning Center for the 2006-2007 and 2007-2008 school years, having signed a term contract with the District on April 4, 2006. In all years relevant to this decision, Respondent has worked at Pearl C. Anderson Learning Center.

2. One of the undisputed terms of the employment contract between Petitioner and Respondent incorporate the requirement that Respondent adhere to all policies established by the Board of the Dallas Independent School District to meet the standards of professional performance set forth in Dallas Independent School District Board Policies DFBB-Local #1 and #20, as well as more general allegations that Respondent evidenced a lack of classroom management ability.

3. During the 2006-2007 school year, Respondent’s Principal, Dr. Benita Ashford, determined that Respondent demonstrated deficiencies in the areas of classroom management and certain teaching methods and placed Respondent on a Teacher in Need of Assistance performance plan on March 5, 2007.

4. On May 3, 2007 Respondent received a PDAS Summative Annual Evaluation rating of “Proficient” in Domains I.-VII. And “Exceeds Expectations” in Domain VIII., implying that Respondent had remedied the perceived performance deficiencies noted in his March 5, 2007 Teacher in Need of Assistance performance plan. Dr. Benita Ashford was Respondent’s appraiser for this evaluation.

5. On September 18, 2007, Respondent was notified in writing that Pearl C. Anderson Associate Principal Pamela Wilson would be his appraiser for the 2007-2008 school year and was informed of the general manner in which Ms. Wilson planned to conduct Respondent’s performance appraisal for the year.

6. On October 31, 2007, Associate Principal Pamela Wilson placed Mr. Nweke on a Teacher in Need of Assistance performance plan, however, the local hearing record reflects no written feedback given to Respondent prior to that date that would justify imposition of such a plan under current District policy.

7. During the 2006-2007 and 2007-2008 school years, Petitioner gave Respondent assistance in carrying out his Teacher in Need of Assistance performance plans in the form of assignment of other teachers to team teach with Respondent and to model expected teaching methods, continuing education and reading assignments and limited written observation feedback. Among others, Ms. Monique Wyatt was assigned as Respondent’s team teacher during 2006-2007 and a Mr. Speaks and Mr. Richmond were assigned to team teach with Respondent in 2007-2008, although it is unclear whether the assignments were made solely to address Respondent’s problems with teaching methodology or as part of a general Mathematics Department teaching plan.

8. Respondent made a good faith effort to comply with the terms of his Teacher in Need of Assistance performance plans in 2006-2007 and 2007-2008 school years by attending the required continuing education sessions and availing himself of the other assistance offered by Petitioner.

9. In addition to the Summative Annual Evaluations referred to later in these Findings of Fact, Petitioner offered as proof of its allegations written performance feedback that was given to Respondent in the form of observation reports, memoranda and e-mails documenting perceived deficiencies in his classroom management ability and instructional methods from Ms. Pamela Wilson and Dr. Benita Ashford on the following dates:

a. Undated e-mail from Dr. Ashford printed on October 23, 2007;

b. Observation Form by Dr. Ashford on November 6, 2007;

c. E-mail from Ms. Pamela Wilson on December 14, 2007;

d. E-mail from Dr. Ashford on December 17, 2007;

e. Memo from Ms. Wilson on February 7, 2008;

f. Memo from Ms. Wilson on February 12, 2008 informing Respondent of certain “instructional assistance” that would be assigned to him and advising him of changes in his performance the writer expected to see, followed by an exchange of e-mails between Respondent and Ms. Wilson concerning the assistance outlined in the memo.

10. Although the duration and degree of the performance problems described in these Findings of Fact is disputed by the parties and Respondent wrote rebuttals to his observations and first Summative Annual Evaluations on January 11, 2008 and February 23, 2008, respectively, Respondent was observed by Dr. Ashford, Ms. Wilson and once by Mr. Jones to have significant classroom management problems and to be somewhat inconsistent in his use of certain expected teaching methods during the 2007-2008 school year.

11. Although all of Petitioner’s witnesses attested to Respondent’s superior knowledge of his subject area and Ms. Wyatt attested to Mr. Nweke’s helpfulness in coaching her in certain aspects of mathematics in which she was weak, the credible testimony given by all of Petitioner’s witnesses, much of which was not directly disputed by Respondent himself, supports the finding of fact that Respondent evidenced continued deficiencies in the area of classroom management.

12. Although the Certified Hearing Officer found as credible the testimony of Ms. Monique Wyatt, a witness for Petitioner, that there was a school wide atmosphere of chaos at Pearl C. Anderson that presented great challenges for the teaching staff as a whole, there is no evidence in the record that other teachers had the same degree of difficulty as Respondent in controlling the classroom behavior of his students.

13. Two separate Summative Annual Appraisals were conducted for Respondent in 2008, one on February 14, 2008 by Associate Principal Pamela Wilson and another on March 27, 2008 by Assistance Principal Tyrone Jones. Respondent complained in writing to his Principal, Dr. Benita Ashford, that Ms. Wilson had failed to follow District policy in conducting his evaluation and requested a new appraiser. Dr. Ashford thereafter assigned Mr. Jones to conduct another appraisal of Respondent, which was submitted as his official Summative Annual Appraisal for 2007-2008.

14. Respondent’s most recent performance evaluation as a mathematics teacher at Pearl C. Anderson Learning Center, which was done by Mr. Jones in school year 2007-2008, reflects that his performance was given an overall rating of “below expectations.”

15. On February 15, 2008, Dr Benita Ashford informed Respondent of her intended recommendation of non-renewal of his teaching contract, as well as in a letter dated March 3, 2008. Both notices were given before Mr. Nweke was evaluated by Mr. Jones.

15. On March 27, 2008, the Board notified Mr. Nweke, by letter, of its decision not to renew his teaching contract for the 2008-2009, 2009-2010 school years.

16. Despite the fact of the performance deficiencies noted above, Respondent had a 2006-2007 CEI (“Classroom Efficiency Index”) of 71% and a 2008 ACP (“Assessment of Classroom Performance”) for two of his sections showing 90% or more of his students passing. These objective performance measures cannot be attributed solely or primarily to the team teaching arrangement in which Respondent participated in either year.

17. The Certified Hearing Officer did not find that there was “… A significant lack of student progress attributable to Respondent” for the 2007-2008 school year, although on one occasion Respondent’s Principal, Dr. Ashford, notified Respondent that 50 of his students

18. At the local hearing, Petitioner’s counsel made reference, both off and on the record, of a grievance filed by Respondent in 2008 and the fact that a decision was rendered on the grievance on June 26, 2008; however, the hearing record contains no evidence about the issue grieved and about the hearing official’s determination on the grievance.

19. The Certified Hearing Officer, on the motion, took official notice of Dallas Independent School District Board Policies DNA (Legal), DFBB (Local) #1 and #20 and DGBA (Local) and Texas Administrative Code §§105.1001-105.1007 and Chapter 247 of the Texas Administrative Code.

20. The Certified Hearing Officer did find that Petitioner committed certain technical violations of the PDAS appraisal process in evaluating Respondent, which, however, are not considered for the purposes of making her recommendation.

21. The Certified Hearing Officer cannot make any specific findings of violations of the Texas Code of Educator Ethics on the part of Respondent’s appraisers based on the state of the local hearing record, and finds that she would have no jurisdiction over such complaints even if proven.

Discussion

The issue presented in this local hearing is whether Respondent’s performance as a teacher during the 2007-2008 school year, taking into consideration any continued performance deficiencies on Respondent’s part noted in the 2006-2007 school year, supports Petitioner’s decision not to renew Respondent’s term teaching contract with the Dallas Independent School District.

Petitioner asserts that Respondent’s performance deficiencies existed over a protracted period of time preceding the 2007-2008 school year. Respondent asserts that Petitioner, having refused to honor his request for a transfer from Pearl C. Anderson in the 2006-2007 school year, and set out on a concerted campaign to invent or overstate his alleged performance deficiencies so as to justify the non-renewal of his contract at the end of the 2007-2008 term contract.

Respondent has aptly pointed out that at the time he was placed on a Teacher in Need of Assistance performance plan in October 2007, he had received no written notice of the deficiencies for which he was placed on the plan, and that subsequent written feedback appeared designed to justify the imposition of the plan. Respondent has also aptly pointed out that the timing of both Summative Annual Evaluations he received in 2008 coincided within one or two days with the February 15, 2008 original notice of intent to non-renew and with the March 27, 2008 actual notice of non-renewal recommended by his Principal, Dr. Benita Ashford.

Respondent alleges that his contract non-renewal was a fait accompli. The Certified Hearing Officer finds that there is at least circumstantial evidence that Petitioner made the decision to non-renew Respondent’s contract and to assured that both of his Summative Annual Evaluations would support that decision rather than observing and evaluating him before making the non-renewal decision.

The preponderance of the credible evidence establishes, at best, a pro forma effort on the part of Petitioner to assist Respondent in remedying his perceived performance deficiencies and to salvage the employee to the extent permitted by District policy. Repeated references made in the testimony of Petitioner’s witnesses to Respondent’s ethnicity, his culture and the difficulty in understanding his spoken English reinforced the impression that the individuals charged with assisting Respondent allowed legally impermissible considerations to color their assessment of his chances of improving his performance and successfully remaining as a mathematics teacher at Pearl C. Anderson.

Disregarding the controverting evidence offered by Respondent and viewing all eyewitness testimony offered by Petitioner in a light most favorable to Petitioner’s case, Petitioner did not establish by a preponderance of the evidence that Respondent was consistently deficient in the area classroom instruction but at most established that Respondent’s performance in this area was inconsistent and varied during the most recent school year. The preponderance of the credible evidence offered by Petitioner did not establish that Respondent was wholly deficient in his classroom teaching methodology and failed to meet the standards set forth in DFBB (Local) and DNA (Legal). The credible, though largely incomplete, documentary evidence offered at the local hearing concerning the performance of Respondent’s students suggests that his students performed at an acceptable level for that particular campus as of the end of the 2007-2008 school year.

However, the Certified Hearing Officer does find that the testimony of Monique Wyatt, one of Respondent’s team teachers and of Tyrone Jones, Respondent’s second appraiser in 2008, does objectively and independently establish that Mr. Nweke had difficulty in maintaining classroom control and in engaging the students in learning due in part to his lack of control over his classroom, notwithstanding Respondent’s allegation that both Dr. Ashford and Ms. Wilson were consistently biased in their observations and assessments of his performance during the 2007-2008 school year. As fact finder, the Certified Hearing Officer cannot arrive at any conclusion whether a lack of classroom management skill can be successfully remediated or not, and therefore declines to suggest what remedies should be considered by the Board in light of her findings.

Of the reasons stated for the District’s non-renewal of Respondent’s contract, the Certified Hearing Officer found that by a preponderance of the evidence, that is, by “the greater weight and degree of the credible evidence” offered at the local hearing, that Respondent was deficient in the area of classroom management in school year 2007-2008, and that this reason alone, without consideration of Respondent’s two disputed 2007-2008 Summative Annual Evaluations, would justify the recommendation of non-renewal.

Conclusions of Law

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

1. Jurisdiction to hear this case is proper under Texas Education Code §§21.207.

2. That the Certified Hearing Examiner has no jurisdiction to determine the validity of the ratings given in Respondent’s most recent PDAS Annual Summative Evaluations for 2007-2008 nor whether the appraisers violated State and District policy in the conduct of their 2007-2008 Summative Annual Appraisals of Respondent.

3. That under Dallas Independent School District Board Policy DNA (Legal), Petitioner was entitled to use Respondent’s most recent PDAS Summative Annual Evaluation and “cumulative data” consisting of “ …written documentation collected regarding job-related teacher performance, in addition to formal classroom observations,” in deciding whether or not to renew Respondent’s contract for 2008-2009 and 2009-2010.

4. That Petitioner may non-renew Respondent’s contract for failure to satisfy the Dallas Independent School District’s Board Policies regarding performance and is not required to establish “good cause” for such non-renewal.

6. That Respondent’s failure to consistently achieve and maintain control of his classroom during the 2007-2008 school year is a failure to comply with Dallas Independent School District’s Board Policy DFBB (Local) #1.

Any finding of fact herein that should be construed as a conclusion of law shall be deemed a conclusion of law. Any conclusion of law herein that should be construed as a finding of fact shall be deemed a finding of fact.

Recommendation

After due consideration of the records, the matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, in my capacity as Certified Hearing Officer, it is hereby

RECOMMENDED that the Board of Trustees of the Dallas Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an Order consistent therewith.

SIGNED AND ISSUED this _____ day of ____________________________, 2008

__________________________________

VICTORIA F. WELCOME

CERTIFIED HEARING EXAMINER

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