DOCKET NO. 066-LH-0110

DALLAS INDEPENDENT §BEFORE THE HEARING EXAMINER

SCHOOL DISTRICT§

Petitioner,§

V.§FOR THE STATE OF TEXAS

STEVEN WELSH,§

Respondent.§A.Y. COLLINS

NUNC PRO TUNC

RECOMMENDATION FOR DECISION

On May 6, 2010 this Tribunal considered the Motion of Dallas Independent School District for a corrected Recommendation for Decision. The portion of the Recommendation for Decision issued on May 5, 2010 to be corrected is Conclusions of Law No. 14 removing the name substitution the name of Respondent, Steven Welsh for the incorrect name of Ms. Hendricks-Stewart as contained therein. The Nunc Pro Tunc Recommendation for Decision with said correction is attached hereto as if recited verbatim.

SIGNED on May 6, 2010.

/s/A. Y .Collins ______

A. Y. Collins

Certified Independent Hearing Examiner Presiding

CERTIFICATE OF SERVICE

I hereby certify that on May 6, 2010 a true and correct copy of the foregoing document was forwarded to the Texas Education Agency, the Dallas Independent School district and all counsel of record as follows:

Via ELECTRONIC MAIL TRANSMISSION: Jack Elrod

Valerie Carrillo

Dallas Independent School District

Adam Medrano, President Board of Education

Dr. Michael Hinojosa, Superintendent

3700 Ross Ave.

Dallas, Texas

VIA ELECTRONIC MAIL TRANSMISSION ONLY-

Joan Howard Allen

Deputy General Counsel

Texas Education Agency

1701 North Congress Ave.

Austin, TX 78701-1494

Fax: (512) 463-9838

VIA ELECTRONIC MAIL ONLY

, and

Fisher & Phillips, LLP

Dianna D. Bowen, Lead Counsel

Isabel Crosby, Attorney at Law

1601 Elm Street, Suite 4343

Thanksgiving Tower

Dallas, TX 75201

Phone: (214) 220-8305

Email:

Attorneys for Petitioner Dallas Independent School District

VIA ELECTRONIC MAIL TRANSMISSION ONLY

Janovsky and Associates

1604 8th Avenue

Fort Worth, Texas 76104

Phone: 817-332-6800

Mobile: 817-937-4499

Attorney for Respondent, Steven Welsh

DOCKET NO. 066-LH-0110

DALLAS INDEPENDENT §BEFORE THE HEARING EXAMINER

SCHOOL DISTRICT§

Petitioner,§

V.§FOR THE STATE OF TEXAS

STEVEN WELSH,§

Respondent.§A.Y. COLLINS

NUNC PRO TUNC

RECOMMENDATION FOR DECISION

I.

STATEMENT OF THE CASE

Respondent , Steven Welsh (“Respondent” or “Welsh”) appeals from the notice of proposed leave without pay issued by the Board of Trustees of the Dallas Independent School District (“Petitioner”, the “District”, “DISD” or) on June 16, 2009. Respondent requests that the proposed leave without pay be suspended, that the written reprimand be dismissed and removed from his personnel file. Respondent filed a timely request for a hearing pursuant to Chapter 21, Subpart F of the Texas Education Code.[1] The matter was assigned to Certified Independent Hearing Examiner (“CIHE”), A. Y. Collins, duly appointed by the Texas Education Agency (“TEA”). A telephone prehearing conference was held on February 9, 2010, at which time the parties waived the 45-day decision deadline and agreed to schedule the hearing for April 14, 2010. The hearing was held before the CIHE in Dallas, Texas on April 14, 2010. Petitioner was represented by Dianna Bowen and Isabel Crosby of Fisher and Phillips, LLP. Respondent was represented by Liane Janovsky, and Antoinette Bone of Janovsky and Associates. The hearing was closed pursuant to Tex. Ed. Code § 21.256(a). The deadline for the Recommendation for Decision is May 5, 2010.

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

III.

FINDINGS OF FACT

After considering the evidence presented by the parties and witnesses, the Exhibits entered into evidence, the arguments of counsel and the proposed Findings of Fact and Conclusions of Law submitted by both parties, in my capacity as the Independent Hearings Examiner, I make the following Findings of Fact:

  1. Respondent began his employment with DISD in June 2002. At that time, he attended orientation where he was provided with information on Dallas ISD’s personnel policies and procedures.
  2. Respondent received sexual harassment and racial sensitivity training from the District. (TR. 330:13-22)
  3. Respondent attended a class on racial sensitivity during his course of study in obtaining his Master’s Degree. (TR. 351:8-15)
  4. Respondent is currently an assistant principal at DISD, assigned to W.E. Greiner Middle School under a term contract with the District. (TR. 312:24-25, 35T 18-25, Pet. EX 6):
  5. During the 2008-2009 school year, Respondent was assigned to Benjamin Franklin Middle School (the “School”) as the Assistant Principal.
  6. On May 28, 2009, the School held an eighth grade celebration party outside on the School’s blacktop. During the party, staff and students participated in pranks, which included water balloon fights and food fights. (TR. 15:8-23)
  7. Respondent and Officer Munya Roberts (“Roberts”) witnessed Teacher Assistant Steven Sneed (“Sneed”) [2] and an eighth grade student (the “Student”) engage in a food fight. (Tr. P16:5-8 21-22)
  8. Respondent and the acting principal, Jeannette Papadopoulos, agreed that Sneed’s removal from the School was warranted as a result of the food fight between Sneed and the Student.
  9. At the request of Respondent, Sneed reported to Respondent’s office at approximately 3:15 p.m.
  10. Sneed felt Respondent harassed him, because he, had been “written him up” eight times by Welsh, and Welsh called him repeatedly on his cell phone before he made it to work whether he was late or not. (TR. 205:16-19)
  11. Because of the previous experiences with Respondent, and the fact that he felt he was probably in trouble, Sneed asked Nicholas Lee (“Lee”) , a teacher and coach at the School, to accompany him to Respondent’s office to tell Respondent his (sic Lee’s) version of what happened. (TR. 207:12-14, 17-19)
  12. Respondent allowed Lee to tell him what he thought happened between Sneed and the student, but did not allow Lee to participate in the meeting. (TR. 208:1-14)
  13. Lee waited outside of Respondent’s office while Sneed and Respondent met. (TR. 212:19-21)
  14. During the meeting with Sneed, Respondent provided Sneed with a letter of removal. (Pet. Ex. 8)
  15. The removal letter directed Sneed to leave the building without disruption. (Pet. Ex. 8).
  16. Respondent told Sneed to leave the campus immediately and report to Human Resources or the Office of Professional Responsibility on Monday. (TR 33511-14)
  17. During the meeting with Respondent, Sneed became upset, started using profanity, raised his voice, called Respondent a racist, tore up the removal letter, threw it on the floor; and slammed the door of Respondent’s office knocking everything off the wall. (TR. 210:11-24; 335:14-25,336:1-6)
  18. Sneed, Lee, and Security Officer Munya Roberts (“Roberts”) were in the hallway of the School after Sneed left Respondent’s office. (Tr. 20:2-4, 21:1-7)
  19. Children visitors were on campus. They witnessed and heard what went on. (TR 71:24-25-72:1; 116-117; 153:1-14,257:1-6, 16)
  20. Respondent knew Sneed was still on campus because he could hear him talking in elevated tones. (TR. 336:14)
  21. Even though Respondent was aware Sneed was still upset, Respondent again approached Sneed because he had not left the building as he had directed. (TR 336:7, 21-25).
  22. Sneed raised his voice and directed profanity to Respondent and threatened to “kick” Respondent’s “ass.” (TR. 72:5-6, 337:14-17)
  23. During this exchange, Lee and Roberts were attempting to restrain Sneed. (TR. 7:7-16)
  24. Sneed, Roberts, and Welsh were yelling and were speaking loudly trying to get Sneed to calm down and leave the campus. (TR. 18:18-25, 42:9-12, 255:21-25, 256:2-7)
  25. Sneed heard Respondent say “Nigger leave”. (TR. 212:11-20, 220:21-23)
  26. Due to his actions on May 28, 2009, Sneed was originally recommended for termination. He filed a grievance, and the sanction was reduced to four months leave without pay, a permanent reprimand, and transfer to a different school.[3] (TR. 219:13-25, 221:9-13)
  27. Lee heard Respondent say “Nigger didn’t I tell you to get out.” (TR.21:5-7)
  28. Willie Alicia Warren (“Warren) a counselor’s clerk Benjamin Franklin Middle School during the 2008-2009 school year was at her desk in the counselor’s office down the hall from the girl’s restroom when she heard the commotion and came out of her office. (TR. 150:12-21)
  29. Warren observed Welsh come out of his office, go out the front door and then turn around and walk up to Sneed. (TR. 150:12-21)
  30. Warren heard Respondent say, “Nigger, why don’t you leave the building or get out of the building”. (TR. 11-12)
  31. Latosha Minniefield (“Minniefield”), a certified special education teacher at the School was walking up the hall from the girls’ bathroom when she saw Sneed, Roberts and Welsh standing at the entrance of the school. (TR. 71:21-25)
  32. Minniefield was in close enough proximity to Welsh and heard Welsh tell Sneed, “Nigger, didn’t I tell you to leave.” (TR.72:17-18)
  33. Minniefield repeated the word “Nigger” to Roberts asking her if she was going to allow Welsh to get away with calling Sneed that, and to Warren responding to Warren’s query. (TR. 74:10-15, 152:7-12, 131:19-25, 267:17-25)
  34. DISD placed Minniefield on probation for the 2009-2010 school year for her use of the racial epithet during the incident. (TR. 80:14)
  35. Jared Robinson, (“Robinson”), a computer applications teacher at Benjamin Franklin Middle School, was approximately15-25 yards away from Sneed. (TR. 9:20, 92:1, 100:24-25, 106:22-23)
  36. Though Robinson did not actually see Welsh utter the statement, he was familiar with Welsh’s voice. Robinson heard Welsh say, “Nigger you need to leave”. (TR. 94: 18-23, 95:12-25, 96:2)
  37. On May 27, 2009, Welsh sent an email to the faculty apologizing for making a culturally insensitive statement during a faculty meeting on May 27, 2009.[4] (Pet. Ex 7)
  38. OPR Investigator Chris Lyle (“Lyle”), who was assigned to investigate the allegations for the District’s Office of Professional Responsibility (“OPR”) conducted an investigation and forwarded his report in accordance with DISD policy. (Pet. EX 10 TR. 173:18-20, 176:1-6, 9-11,21)
  39. Roberts, who was engaged in restraining Sneed and attempting to deescalate the situation between Sneed and Respondent, reported to Lyle that she did not hear Respondent use the word “nigger.” (TR. 179:4-5, TR. 191:12-14, Pet. EX 10 P.122)
  40. All parties with the exception of Sneed and Roberts provided a written statement to Lyle during the investigation. (TR. 177-178, Pet. EX 10 Pp. 116-151)
  41. Roberts did not provide an Administrative Affidavit or any other type of written statement regarding the incident. (TR. 179:6-9)
  42. Roberts and Welsh had a close relationship in which each felt comfortable making jokes regarding African American’s hair and noses. (TR.280:11-15, 301:8-10)
  43. These jokes were made on campus and some of them were overheard by others. (TR. 280:11-15, 301:8-10)
  44. Roberts jokingly told Fancie Dooley a career investigations teacher at Benjamin Franklin Middle School that Welsh was a card carrying member of the KKK. (TR. 109:15-16, 22; 128:3)
  45. Sneed, Lee, Minniefield, Warren, Robinson were only coworkers who did not socialize outside the workplace. (TR. 35:1-4, 93:2-4, 110:19-21, 149:5-7)
  46. Dallas ISD Board Policy DAA (Legal), entitled “Employment Objectives Equal Employment Opportunity,” states in relevant part:

“The District shall not fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of any of the following protected characteristics: 1. race, color, or national origin…;” and

“The District has an affirmative duty to maintain a working environment free of harassment on the basis of a protected characteristic.” (Pet. EX 25, 26)

  1. Dallas ISD Board Policy DC (Local), entitled “Employment Practices,” states in relevant part:

“The District is committed to principles of diversity at all levels of employment and shall recruit and assign quality teachers and administrators without regard to race, national origin, ethnicity, gender, or religion. The District is committed to affirmative efforts towards: 1. Equal employment opportunities for all persons. 2. Prohibiting discrimination based on race, creed, color, national origin, sex, age, or disability. 3. Promoting full realization of equal employment opportunity by continuing affirmative action efforts towards diversity in every department, program, division, and school building in the District.”

“The major goals of the affirmative action program are to: 1. Promote diversity in the staff’s ethnic group representation … 4. Foster a climate at every level of the District in which men and women of all races, creeds, experience levels, ages, and physical capabilities appreciate and accept each other….” (Pet. EX 26)

  1. Dallas ISD Board Policy DH (Local), entitled “Employee Standards of Conduct,” provides: “Employees shall not engage in conduct constituting racial, ethnic, religious, gender, or sexual orientation harassment of another employee….” (Pet. EX 28)
  2. Dallas ISD Board Policy DH (Local) further defines racial harassment to include, but not be limited to, “oral, written, psychological, physical (both climate and contact), and other demonstrative actions with regard to race … that is harassing and/or abusive.” (Pet. EX 28)
  3. Dallas ISD Board Policy DH (Local) provides for prompt investigations into allegations of racial harassment and cautions that “[v]iolation of any policies, regulations, and guidelines may result in disciplinary action, including termination of employment.” (Pet. EX 28)
  4. DISD Board Policy DH (Exhibit), entitled “Employee Standards of Conduct,” provides in relevant part:

“The educator shall comply with state regulations, written local school board policies, and other applicable state and federal laws.”

“The educator shall not discriminate against or coerce a colleague on the basis of race [or] color ….”(Pet. EX 29)

  1. DISD Board Policy DIA (Local), entitled “Employee Welfare Freedom from Discrimination, Harassment, and Retaliation,” states: “The District prohibits discrimination, including harassment, against any employee on the basis of race [or] color … or any other basis prohibited by law.” (Pet. EX 31)
  2. DISD Board Policy DIA (Local), entitled “Employee Welfare Freedom from Discrimination, Harassment, and Retaliation” states: “The District is responsible for acts of unlawful harassment by fellow employees and by nonemployees if the District, its agents, or its supervisory employees knew or should have know of the conduct, unless the District takes immediate and appropriate corrective action.” (Pet. EX 32)
  3. DISD Board Policy DIA (Local) defines “discrimination” and “harassment” and provides a list of examples of prohibited harassment, which includes “offensive or derogatory language directed as another person’s … skin color,” “name calling,” and “slurs.” DISD Board Policy DIA (Local) also provides: “If the results of an investigation indicate that prohibited conduct occurred, the District shall promptly respond by taking appropriate disciplinary or corrective action reasonably calculated to address the conduct.” (Pet. EX 32)
  4. Although DISD initially deducted forty (40) hours of pay from Respondent’s paycheck on January 15, 2010, upon learning of the appeal to the TEA, DISD repaid the funds to Respondent on January 28, 2010. (TR. 366:12-15, Pet. EX 22)
  5. In using a racial slur at the workplace which was directed toward Sneed, Respondent violated DISD Board Policy DIA (Local), DISD Board Policy DAA (Legal) and DISD Board Policy (DH) Standards of Conduct.
  6. Respondent admitted that he knew District policy. (TR 349:25)
  7. Respondent admitted that it is inappropriate for an assistant principal to use racial slurs of any kind during the workday. (TR 355:6-9)
  8. The word “nigger” is racially offensive and derogatory when directed toward an individual of African American descent.
  9. Respondent acted in an unprofessional manner regarding the May 28, 2009 incident in using a racial slur against Sneed.
  10. This incident occurred before School was dismissed. It was overheard by visitors and students.
  11. Respondent is an Assistant Principal, an administrator with the district, and is therefore charged with representing the district. He is further required to be knowledgeable of District policy.
  12. The seriousness of the potential harm and embarrassment to DISD from Respondent’s use of a racial slur directed toward Sneed justifies a ten day suspension without pay. (TR. 251:8)
  13. The disciplinary action recommended by the Legal Review Committee against Respondent as a result of the May 28, 2009 incident was an appropriate and measured response based on the seriousness of the incident and this incident does rise to the level of seriousness to constitute good cause for leave without pay.
  14. Respondent was appropriately disciplined for this misconduct when he received a written reprimand for calling Sneed a “nigger”.

IV.

DISCUSSION

As stated in closing arguments by Respondent’s attorney, the central issue in this case is whether Respondent, Steven Welsh, an Assistant Principal at Benjamin Franklin Middle School during the 2008-2009 school year used a racial epithet, specifically the word “nigger” during an incident on May 28, 2009 in which he issued a disciplinary sanction to Steven Sneed, an African-American Teacher Assistant at Benjamin Franklin Middle School at the time. Petitioner presented eight witnesses, five of whom, Lee, Franklin, Warren, Minniefield, and Sneed, consistently testified maintained that they heard Respondent cal Sneed a “Nigger”. None of these witnesses had any reason to fabricate their testimony. Although they expressed surprise, shock and astonishment, and their testimony was somewhat inconsistent after the word “nigger”, none of them ever recanted that they in fact heard him say “nigger”.

The word "nigger” when addressed to individuals of African-American descent is particularly reprehensible, vile and despicable. Webster’s Dictionary defines “nigger”

1usually offensive; a black person, 2usually offensive; a member of any dark-skinned race it now ranks as perhaps the most offensive and inflammatory racial slur in English. It is otherwise a word expressive of racial hatred and bigotry.

Respondent’s defense was only that he did not use the word that the witnesses were too far away to hear anything anyway. However, it is undisputed that he and Sneed were talking in elevated tones. It is undisputed that they were “yelling” at each other. Respondent presented only one witness who corroborated his allegation that he did not use the word. Officer Munya Roberts, a friend of Respondent’s offered inconsistent testimony. Officer Roberts stated that she did not hear Welsh call Sneed a “nigger” however, more than once she stated in her trial testimony that she told Minnefield when asked did she hear Welsh call Sneed a “nigger” that she “did not want to deal with that right now:” (TR267-17-21, 273:17). Roberts' testimony was permeated by phrases calling her testimony into question, e.g. she stated “I don’t recall Robinson”, “I don’t recall Lee being present…” ; “’I’m trying to remember…’; “Let me think…”;“Give me a minute…” ;“I’m getting old…”;“I don’t remember”… ‘I can’t remember…”, “Let me think….” (TR. 267:5, 272:23-25 273:1-8, 275:15-15, 278:14-25, 279: 1-8, 2670-P

This testimony coupled with her relationship with Welsh, and the fact that she allegedly prepared a written statement, had it in her possession, but did not review it before trial makes her testimony untrustworthy on the central issue in this case. She further testified as to the statement that “she typed it”, that a teacher helped her type it and that she dictated it. (TR. 283:6-12, 289:7-22, 290:14-16) Roberts further testified that she gave her report to Lyle the same day, the next day, immediately then, said it was a couple of days after. (TR. 290:6-7) Officer Roberts’s testimony was inconsistent in many respects. She also testified that she felt the other witnesses had personal vendetta against Welsh, but she could not give any reason why, any justification for, any concrete evidence whatsoever for this statement. (TR. 295:10-14, 302:15-25)