Houston Independent Before An

DOCKET NO. 093-LH-0408

HOUSTON INDEPENDENT § BEFORE AN

SCHOOL DISTRICT, §

Petitioner § INDEPENDENT, CERTIFIED

§

v. § HEARING EXAMINER FOR THE

§

EMIILIO BARRIENTES, § TEXAS EDUCATION AGENCY

Respondent §

WRITTEN FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER FOR THE STATE OF TEXAS

I.

STATEMENT OF THE CASE

This appeal is from the March 28, 2008, proposed contract nonrenewal of Mr. Emilio Barrientes by the Houston Independent School District (“HISD” or “District”). At the time of the proposed nonrenewal, Mr. Barrientes was a teacher at Sharpstown High School (“Sharpstown”) on a one year term contract. The basis for the proposed nonrenewal, pursuant to HISD Board Policy DFBB (Local) is as follows:

1) deficiencies pointed out in observation reports, appraisals or evaluations,

supplemental memoranda, or other communications;

2) failure to fulfill duties or responsibilities;

3) incompetency or inefficiency in the performance of duties;

4) insubordination or failure to comply with official directives;

5) failure to comply with Board policies or administrative regulations;

6) excessive absences;

7) falsification of records or other documents related to the District’s activities; [or]

8) any reason constituting good cause for terminating the contract during its term.

In compliance with Tex. Ed. Code §21.251 et seq., Mr. Barrientes requested a hearing before a Certified Hearing Examiner. Ms. Thelma Elizalde was appointed by the Commissioner of Education to: 1] conduct the hearing; 2] make written Findings of Fact and Conclusions of Law, and 3] make a Recommendation to the HISD board. Mr. Christopher L. Tritico, Essmyer, Tritico & Rainey, L.L.P., represented Mr. Barrientes at the hearing conducted on June 24, 2008. Ms. Merri Schneider-Vogel, Bracewell & Giuliani LLP, represented HISD.

II.

FINDINGS OF FACT

After due consideration of the record and matters officially noticed, the following Findings of Fact (citations to evidence are not exhaustive but are intended to indicate some of the basis for the particular finding of fact):

1.  Emilio Barrientes (“Mr. Barrientes”) has 25 years experience as a teacher, administrator, and counselor. [Transcript (“Tr.”), Page 19].

2.  Mr. Barrientes signed a one-year term contract with HISD for the 2007-2008 school year. [HISD’s Exhibit (“HISD Ex.”) 1].

3.  According to Board Policy DFBB (Local) and DFBB (Legal), an employee under a term contract may be nonrenewed at the end of the employee’s contract term for any of the reasons stated in Board Policy DFBB (Local). [HISD Ex. 26].

4.  Mr. Barrientes was employed as a Spanish teacher at Sharpstown High School during the 2007-2008 school year. [Tr. 29-30].

5.  During the 2007-2008 school year, Mr. John Allen was the principal of Sharpstown High School. [Tr. 141].

6.  Ms. Dayna Michels was the Dean of Sharpstown High School during the 2007-2008 school year. She also served as the instructional leader for the foreign language department and was Mr. Barrientes’ Professional Development and Appraisal System (PDAS) appraiser. [HISD Ex. 19; Tr. 75-76].

Grade book

7.  At the beginning of the 2007-2008 school year, Principal Allen communicated to Mr. Barrientes and other teachers in his school about their obligation to maintain a grade book and the District’s expectations regarding grading procedures, guidelines, and policy. [Tr. 142, 152].

8.  At one faculty meeting, Principal Allen gave the teachers a choice of keeping either a physical grade book or an electronic grade book. [Tr. 143].

9.  On October 23, 2008, at the end of the first nine weeks of school, Principal Allen sent an email to all teachers, including Mr. Barrientes, requesting a copy of their grade book. [HISD Ex. 4].

10.  Similar email directives were sent to Mr. Barrientes on October 24, 2007; November 1, 2007; February 4, 2008; and February 5, 2008. [HISD Exs. 4, 5, 6, 9, 10, 14].

11.  Mr. Barrientes did not respond to the email directives. [Tr. 146-147].

12.  Principal Allen met with Mr. Barrientes on February 5, 2008, to request a copy of his grade book. During this meeting, Principal Allen learned for the first time that Mr. Barrientes did not have a grade book. [Tr. 149-151].

13.  Neither Principal Allen nor his office staff had been asked to provide Mr. Barrientes with a grade book. [HISD 11; Tr. 154].

14.  Immediately following the February 5, 2008, meeting, Mr. Barrientes received a grade book. [HISD Ex. 11, 12].

15.  As part of the February 5, 2008, meeting, Principal Allen also directed Mr. Barrientes to submit, within 24 hours, the notes he used to keep track of class assignments, check attendance, and calculate grades. [HISD Ex. 11; Tr. 155].

16.  Mr. Barrientes did not comply with the 24- hour directive. [Tr. 156].

17.  On February 12, 2008, Mr. Barrientes submitted a grade book to Principal Allen. [Tr. 160].

18.  Principal Allen reviewed Mr. Barrientes’ grade book and determined it was incomplete and did not comply with HISD secondary school guidelines. [HISD Ex. 20; Tr. 153-154]. The grade book contained few grades and Principal Allen could not determine individual grades, grade averages, dates, or other required information. [HISD Ex. 21; Tr. 159-160].

19.  The grade book did contain progress reports wherein each student received a grade of 100. Mr. Barrientes gave his students 100s on their progress reports to motivate them and give them confidence. [Tr. 60].

20.  According to Ms. Dayna Michels, Dean of Sharpstown High School and Mr. Barrientes’ supervisor, progress reports are to reflect the actual grades that students earn at the time the progress reports are issued. [Tr. 97].

21.  On February 20, 2008, Principal Allen issued a written directive to Mr. Barrientes to comply with his February 5, 2008, directive by the end of the school day. [HISD Ex. 14]. Principal Allen also directed Mr. Barrientes to submit all graded final exams from the first semester to him by the end of the school day. [HISD Ex. 13].

22.  Mr. Barrientes did not comply with either of Principal Allen’s February 20, 2008, written directives. [Tr. 161].

23.  On February 29, 2008, Principal Allen convened a conference for the record with Mr. Barrientes and his representative, Ms. Rosemary Covalt. During this conference, Principal Allen specifically addressed Mr. Barrientes noncompliance with the HISD’s Secondary School Guidelines and board policy regarding grading requirements, his failure to timely submit a grade book, and his failure to submit the notes he used to determine grades. [HISD Ex. 16].

24.  During the conference for the record, Ms. Covalt, on behalf of Mr. Barrientes, submitted some of his notes from the fall semester and said more would be forthcoming by March 3, 2008. However, no additional notes were submitted. [HISD Ex. 16; Tr. 161-162].

25.  The notes submitted to Principal Allen during the conference for the record did not contain information that satisfied his previous requests for documentation. Principal Allen could not make sense of the notes. [HISD Ex. 16, 23; Tr. 162].

26.  By the end of the school year, Principal Allen had not received a completed grade book from Mr. Barrientes. [Tr. 162-163 ].

27.  In addition to the grade book submitted on February 12, 2008, Mr. Barrientes submitted another grade book prior to this hearing. [HISD Ex. 24; Respondent’s Exhibit (Resp. Ex.) 6; Tr. 56, 163].

28.  Although the two grade books covered the same students, in the same classes, and during the same school year, the grade books contained different grades for the students. [HISD Ex. 24, Resp. Ex. 6; Tr. 56].

29.  Mr. Barrientes could not explain why the two grade books were different. [Tr. 56].

Job Performance

30.  Mr. Barrientes’ performance appraisal during the 2007-2008 school year indicated several performance deficiencies. Specifically, he rated below expectations in domains I, II, V, and VIII, and an unsatisfactory rating in domains III, IV, VI, VII, and IV. [HISD Ex. 19].

31.  As Mr. Barrientes’ instructional leader and classroom appraiser, Ms. Michels’ responsibility was to observe Mr. Barrientes’ performance in the classroom. [Tr. 76].

32.  During Ms. Michels’ walk-throughs of Mr. Barrientes’ classroom, she observed that his classes lacked focus, students were off-task, and he had little interaction with the students. Ms. Michels also noted that no specific learning targets were presented to the classes. [HISD Ex. 18; Tr. 77, 87-88].

33.  Ms. Michels continually shared her observations and expectations with Mr. Barrientes. [Tr. 78].

34.  In collaboration with Mr. Barrientes, Ms. Michels attempted to develop an intervention plan with Mr. Barrientes for his improvement. [HISD Ex. 18; Tr. 84-90].

35.  Frances Brooks, Manager, West Region Office, observed Mr. Barrientes in his classroom on several occasions and had concerns about his teaching ability. According to her job protocol, she shared her concerns with Mr. Barrientes’ supervisor, Ms. Michels. [Tr. 138].

36.  On various occasions, Principal Allen observed Mr. Barrientes’ classroom and found students sleeping in class, listening to iPods, and playing PlayStation 3. [Tr. 165].

Absences

37.  Mr. Barrientes was absent 37 out of 186 teaching days during the 2007-2008 school year, approximately 20% of his duty days. [HISD Ex. 25].

38.  Any finding of fact deemed to be a conclusion of law is hereby adopted as such.

III.

DISCUSSION

The issue in this case is whether Mr. Emilio Barrientes’ actions and job performance during the 2007-2008 school year justified the nonrenewal of his term contract.

HISD contends, inter alia, that Mr. Barrientes’ failure to 1) maintain a grade book and comply with grading requirements, 2) follow administrative directives, 3) perform in the classroom, and 4) his excessive absences violated Board Policy DFBB (Local).

Conversely, Mr. Barrientes asserts that he complied with directives to submit a grade book.

Grade book.

Principal Allen apprised his faculty of grading policies, procedures, and expectations during faculty meetings and by email correspondence early in the 2007-2008 school year. [Tr. 142-144]. On October 23, 2007, Principal Allen made his first request that teachers turn in a grade book for the first nine week grading period. [HISD Ex. 4]. Principal Allen made subsequent requests for the grade books until all teachers complied with his request.

The sole exception was Mr. Barrientes. [Tr. 91]. Although Mr. Barrientes attended these faculty meetings and received copies of email correspondence, he did not turn in a grade book. As a result of Mr. Barrientes’ noncompliance, Principal Allen repeatedly issued directives to him requesting the submission of a grade book.

On February 5, 2008, Principal Allen learned that Mr. Barrientes did not have a grade book and had not had one the entire year. As a result of this information, he ensured that Mr. Barrientes received a grade book that same day and directed Mr. Barrientes to turn in any notes or supporting documentation that were used in lieu of a grade book within 24 hours. [HISD Ex. 11].

Although Mr. Barrientes ignored the 24-hour deadline, on February 12, 2008, he submitted some notes and a grade book. And prior to this hearing, Mr. Barrientes submitted a second grade book.

However, the first grade book was not in compliance with HISD’s grading policies. [Tr. 92]. It was incomplete, contained few grades, and the grades contained therein could not be verified by any supporting notes or documentation. [Tr. 92]. The second grade book had not been seen by Principal Allen, and, therefore, was not reviewed by him for completeness. [Resp. Ex. 6; Tr. 162-163].

During this hearing, Mr. Barrientes could not adequately explain the following:

·  why he failed to report to anyone that he did not have a grade book;

·  why individual grades did not result in accurate grade averages;

·  why his notes did not support the grades in his grade book; and

·  his non compliance with Principal Allen’s repeated directives.

Mr. Barrientes has been a teacher, administrator, and counselor for over 25 years. [Tr. 19]. During his career as a teacher, he was responsible for student assignments, calculating grades, and submitting grade books. [Tr. 20-22]. He testified that he knew it was his responsibility as a teacher to maintain a grade book and that grade books were issued at the beginning of the year. [Tr. 22, 31]. Yet, for reasons known only to Mr. Barrientes, he failed to take the necessary steps to ensure that he received a grade book. And when he finally received a grade book, he failed to maintain it with any degree of accuracy to the detriment of the students who were enrolled in his classes.

Unequivocally, Mr. Barrientes’ failure to comply with repeated directives and failure to fulfill his duties and responsibilities as a classroom teacher by not maintaining a grade book are sufficient reasons to nonrenew his term contract.

Job Performance and Absences.

Principal Allen, Ms. Michels, and Ms. Brooks all observed Mr. Barrientes in the classroom on many occasions when he was neither instructing nor interacting with the students and they were not engaged in active learning. [HISD Ex. 2; Tr. 77-89; 138, 165]. Despite Ms. Michel’s ongoing efforts to communicate HISD curriculum expectations to him and work collaboratively with him on an intervention plan designed to improve his teaching deficiencies, Mr. Barrientes’ job performance did not improve during the 2007-2008 school year. [Tr. 80, 88-90].

In addition to his job performance, HISD contends that Mr. Barrientes had excessive absences during the 2007-2008 school year. [HISD Ex. 2]. He was absent at least 37 out of 186 teaching days or approximately 20% of his duty days. [HISD Ex. 25; Tr. 158-159].

Mr. Barrientes did not offer any controverting evidence or testimony that would explain his behavior, job performance or absences. Thus, Mr. Barrientes deficient job performance and excessive absences are sufficient reasons to nonrenew his term contract.

Based on the foregoing, HISD presented sufficient evidence to support its reasons to nonrenew Mr. Barrientes’ term contract.

IV.

CONCLUSIONS OF LAW

After due consideration of the evidence presented at the hearing, materials officially noticed, and the foregoing Findings of Fact, in my capacity, as a Certified Hearing Examiner for the State of Texas, I make the following Conclusions of Law:

1.  The Certified Hearing Examiner has jurisdiction to hear this issue under Texas Education Code § 21.251(a)(1).