TEA DOCKET NO. 064-LH-0110

ALIEF INDEPENDENT SCHOOL DISTRICT
VS.
DERRICKHEYWARD / §
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§ / BEFORE CERTIFIED
HEARING EXAMINER
TAMMYE CURTIS-JONES
FOR THE STATE OF TEXAS

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

I.

STATEMENT OF THE CASE

Respondent (“DerrickHeyward”) appeals from the notice of proposed termination issued by the Board of Trustees of the Alief Independent School District (“AISD”) on January 4, 2010. Respondent filed a timely request for a hearing pursuant to Chapter 21, Subchapter F of the Texas Education Code. The matter was assigned to Certified Independent Hearing Examiner (“CIHE”), TammyeCurtis-Jones, duly appointed by the Texas Education Agency (“TEA”). The hearing in this matter was held before the CIHE in Houston, Texas on April 8-9, 2010. Petitioner was represented by J.ErikNichols and J.LeanneBramLundy of Feldman, Rogers, Morris & Grover, L.L.P, Attorney at Law. Respondent was represented by RussellRamirez of the Texas State Teachers Association. The Respondent requested a closed hearing pursuant to Tex. Ed. Code § 21.207. Citations to the evidence are not exhaustive, but are intended to indicate some of the grounds for the Findings of Fact.

Post Trial Proceedings

The parties agreed to file Proposed Findings of Fact and Conclusions of Law by April 21, 2010. In accordance with this tribunal’s request and their agreement, the parties timely submitted Proposed Findings of Fact and Conclusions of Law.

As this was a hearing with two days of testimony, references to the transcript of the testimony are as follows:

Testimony heard on April 8, 2010, will be referred to as “Tr: Vol. 1”

Testimony heard on April 9, 2010, will be referred to as “Tr: Vol. 2”

II.

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:

Respondent

1.Respondent is employed by the Alief Independent School District (AISD) under a one-year term contract of employment dated and signed by Respondent on May 1, 2009, for the 2009-2010 school year, as a teacher. Petitioner’s Exhibit 9, Respondent’s Exhibit 8.

2.The contract reflects that Respondent’s contract could be terminated upon a determination by the Board of good cause. Id.

3.The contract further reflects that Respondent “…shall perform the duties of the position as prescribed by state law and as may be assigned by the District” and that Respondent “…shall perform those duties with all reasonable care, skill and diligence.” Id.

4. Respondent was placed on administrative leave with pay by AISD on November 10, 2009. Petitioner’s Exhibit 11 at p. 0034.

5. On January 4, 2010, AISD notified Respondent that his term contract had been proposed for termination for good cause by the AISD Board of Trustees. Petitioner’s Exhibit 10.

6. Respondent has been employed by AISD for four years and has been certified in Physical Education for 26 years. Tr.Vol. 2, 311:9-12, Respondent’s Exhibit 5.

7. Respondent is certified in all levels of Physical Education, Secondary Health and Driver Education and was so employed by AISD. Id. at 311:18-23, Respondent’s Exhibit 5.

8. Respondent was a Physical Education (hereinafter referred to as P.E.) Teacher at Sneed Elementary. Tr.Vol. 1, 182:9-10.

9.Respondent received proficient ratings on his annual evaluations for the 2007-2008 school year and the 2008-2009 school year. Respondent’s Exhibits 7, 9.

10.Respondent’s evaluations noted above revealed that while Respondent was rated “Proficient in Domain IV (Management of Student Discipline, Instructional Strategies, Time, and Materials) it was noted in the 2007-2008 evaluation that “[w]hen working with 2nd grade students during the main activity, [Respondent] has to reassess his instructions for the activity when a large group of students were running into each other and screaming…” In this same area, it was noted in the 2008-2009 evaluation that “[a]ctive teacher monitoring of all lines during activities needs to be occurring during physical play.” Id.

11. AISD Police investigated an allegation of assault against Respondent on or about April 23, 2008, wherein a student alleged that Respondent “…took him by the neck and turned him towards the wall like the other students.” AISD Police determined the complaint to be unfounded. Petitioner’s Exhibit 12.

12. AISD Police investigated an allegation of assault against Respondent on or about September 9, 2008, wherein a student alleged that Respondent punched him in the stomach. AISD Police determined there was insufficient evidence to sustain that the alleged assault occurred. Petitioner’s Exhibit 13.

Incident of November 9, 2009, and thereafter

1.Respondent taught Physical Education to Student “A” during the 2009-2010 school year and Student “A” was in Respondent’s class on November 9, 2009. Petitioner’s Exhibit 11, Tr.Vol. 2, 313:19-315:17.

2.On November 9, 2009, Respondent’s class was in the gym engaging in an activity that required the students to run across the room. Tr.Vol. 1, 158:9-11; Vol. 2, 317:19-318:11.

3.On November 9, 2009, Student “A” was not following Respondent’s directions, was moving around the gym and causing disruption to the class by not staying in his assigned area. Tr. Vol. 1, 109:18-20; 142:12-21; 155:22-156:9; Tr. Vol. 2, 318:17-319:16, Petitioner’s Exhibit 11 at pp. 19, 30.

4.Respondent admitted that he assigned Student “A” to the steps several times because Student “A” was roaming around as other students were doing the shuttle run preparing for a fitness-assessment. Student “A” did not adhere to Respondent’s instructions. Respondent sent Student “A’ to the steps because there was a near collision with another student and Respondent almost tripped over Student “A.” Student “A” was not sent to the steps for discipline or punishment. Tr.Vol. 2, 316:2-319:25; 325:25-326:24.

4.Respondent admitted that he picked up Student “A” and they were face-to-face, eye level. Respondent admitted that he picked Student “A” up to his eye level to tell him to go back to the steps because somebody was going to get hurt. Respondent further admitted to AISD Police that he was not happy with Student “A.” Tr. Vol. 2, 319:19-25; 324:8-17; 357:21-358:3, Petitioner’s Exhibit 11.

5.Respondent denied that he threw Student “A” against a wall or that he yelled at Student “A” or was angry with Student “A.” Student “A” acknowledged that Respondent did not yell at him. Tr. Vol. 1, 139:3-4; 153:15-16; 159:10-11; 160:23-24; 177:19-21; Tr. Vol. 2, 84:17-18; 100:1-2; Petitioner’s Exhibit 11, pp. 30-32.

6.Student “A” was taking medications for hyperactivity, of which Respondent was not aware, which has a side effect of upset stomach and could lead to vomiting. Tr.Vol. 2, 267:12-19; 288:12-16; 327:2-4.

7.When class was being dismissed, Respondent observed Student “A” sitting on the steps making choking/gagging sounds and he took Student “A” to Petitioner’s nurse following the incident on November 9, 2009. Student “A” told the nurse that Respondent grabbed him on his upper arms and put him against the wall. The nurse examined Student “A” and did not find any evidence that Student “A” had been abused, did not detect any bruising or swelling and the nurse did not make a report to Child Protective Services. Student “A” was released to class. Tr. Vol. 2, 294:23-295:22; 320:16-321:3, Respondent’s Exhibit 11 (no. 1).

8.Student “B” witnessed Student “A” fail to obey Respondent’s instructions more than once. Tr.Vol. 1, 155:22-156:9, Petitioner’s Exhibit 11 at p. 0024.

9.Student “B” saw Respondent pick Student “A” up by his (Student “A’s”) shoulders and to his (Respondent’s) eyes and put him next to the wall but did not see Respondent throw Student “A” against the wall. Tr. Vol. 1, 153:2-16, 154:24-25, 159:3-11, Petitioner’s Exhibit 11 at p. 0024.

10.Student “C” witnessed Student “A” fail to obey Respondent’s instructions and observed Respondent pick Student “A” up at the shoulder area and put him against the wall. Tr.Vol. 1, 169:6-7, Petitioner’s Exhibit 11 at p. 0024.

11.The Principal spoke to Respondent the afternoon of the incident and Respondent reported to the Principal that he did not throw Student “A” against the wall but shook Student “A” as he was talking to him. Tr.Vol. 1, 184:8-21, Petitioner’s Exhibit 11 at p. 0023.

12.Student “A” discussed the incident with the school Counselor and Assistant Principal on the day of the incident. Petitioner’s Exhibit 11 at pp. 0025-0026.

13.None of the other students saw Student “A” run into or almost run into other students. Tr.Vol. 1, 158:12-14; 177:2-3.

14.Petitioner has good cause to terminate the term contract of Respondent.

III.

CONCLUSIONS OF LAW

After considering the record, the exhibits, the live testimony, the arguments of counsel and the written proposed Findings of Fact and Conclusions of Law submitted by both parties together with the applicable law, in my capacity as Independent Hearing Examiner, I make the following Conclusions of Law:

  1. The Hearing Examiner has jurisdiction of this subject matter pursuant to Chapter 21, Sub-chapter F, §21.251, Texas Education Code Chapter 21
  1. This hearing was properly requested in compliance with Chapter 21, Sub-Chapter F, §21.253 of the Texas Education Code.
  1. The Respondent is a “teacher” as defined in Sub-chapter C, §21.101 of the Texas Education Code.
  1. The Respondent was recommended for discharge pursuant to the authority in Sub-chapter D, §21.156 of the Texas Education Code.
  1. The Texas Education Code Chapter 21, Sub-chapter E §21.211 provides: (a) Theboard of trustees may terminate a term contract and discharge a teacher at any time for (1) good cause as determined by the board. Under this section of the Texas Education Code, local School Districts are authorized to terminate an employee’s term contract for “good cause” as defined in the statute.
  1. In Baker v. Rice CISD, TEA Docket No. 227-R2-493 (Sept. 1995) the Commissioner held that good cause for termination may exist if an employee engages in acts that are inconsistent with the continuation of the employer-employee relationship.
  1. In Lee-Wright, Inc. v. Hall, 840 S.W.2d, 572, 580 (Tex. App.-Houston [1st Dist.] 1992, no writ.), the court defined good cause for terminating a term contract and discharging an employee 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 circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.
  1. In Littleton v. Fort Worth Indep. Sch. Dist., Docket No. 106-R2-390 (Tex. Comm’r Educ. 1993), the Commissioner found actions that posed a threat of emotional or physical harm to students or other employees were not remediable.
  1. In Ramirez v. Edgewood ISD, Docket No. 162-R2-898 (Tex. Comm’r Educ. 1998), the Commissioner found that if remediation is not required prior to termination for a certain act, then that act constitutes per se good cause for termination.
  1. In Wright v. Clear Creek ISD, Docket No. 335-RD-591 (Tex. Comm’r Educ. 1997), the Commissioner found that slamming a child into a wall was not an appropriate disciplinary technique.
  1. In Gibson v. Karnack ISD, Docket No. 037-R2-101 (Tex. Comm’r Educ. 2001) the Commissioner found that a violation of the Code of Ethics and Standard Practices for Texas Educators constitutes good cause to terminate a teacher’s contract. Further, in Closs v. Goose Creek ISD, Docket No. 005-R2-989 (Tex. Comm’r Educ. 1992), the Commissioner found that a violation of the Code of Ethics and Standard Practices for Texas Educators alone constitutes good cause for termination.
  1. In Whalen v. RockspringsIndep. Sch. Dist., Docket No. 065-R1B-284 (Tex. Comm’r Educ. 1985), the Commissioner held that while a teacher’s conduct that endangers a child's physical safety is much easier to identify and has more tangible consequences, protecting the emotional well-being of children is no less important because it is more difficult to determine severity and what harm is done. The Commissioner further held that when a teacher engages in activity that is potentially harmful to her students' physical or emotional well being, a school district must be allowed to terminate that teacher's employment rather than risk the possibility that the teacher might engage in further similar conduct.
  1. In Guerra v. San Diego Independent School Dist., Docket No. 147-R2-796 (Tex. Comm’r Educ. 1996), the Commissioner held that physical contact, in and of itself, constitutes significant harm. No longer can educators strike out in physical anger at students. Educators are expected to maintain control of their emotions or remove themselves from the situation until they are in control. The district should not have to wait for Petitioner to lose his temper again with students and assault them.
  1. In Lake v. Dripping Springs Independent School Dist., Docket No. 049-R10-305 (Tex. Comm’r Educ. 2006), the Commissioner held that where a teacher pushed a student who disregarded a command to move, it was not a reasonable use of force.
  1. In Ruiz-Garcia v. Houston ISD, Docket No. 049-R2-1199 (Tex. Comm’r Educ. 2000), the Commissioner defined corporal punishment as physical punishment.
  1. In Papa v. Presidio ISD, Docket No. 016-R2-0306 (Tex. Comm’r Educ. 2006), the Commissioner outlined several factors to consider in determining whether force is reasonable, to include 1) the age, sex and condition of the child; 2) the nature of the offense or conduct and his motives; 3) the influence of his example on other students; 4) whether the force was reasonable necessary to compel obedience to a proper command; and 5) whether the force was disproportionate to the offense, is unnecessarily degrading, or is likely to cause injury.
  1. The school district has the burden of proof by a preponderance of the evidence. Texas Education Code § 21.256(h).
  1. Respondent violated the terms and conditions of his term contract, board policies and directives as follows:
  1. Failing to properly manage students, properly discipline students and provide proper classroom instruction;
  2. Failure to comply with official directives by failing to comply with all district established discipline standards for addressing student behavior;
  3. Failure to comply with Board policies or administrative regulations;
  4. Failure to meet the District’s standards of professional conduct by picking up a young student, bringing him to eye level and putting him against the wall;
  5. Failure to adhere to the Code of Ethics and Standard Practices for Texas Educators.

Respondent violated the Code of Ethics and Standard Practices for Texas Educators as follows:

  1. Standard 1.7 the educator shall comply with state regulations, written local school board policies, and other applicable state and federal laws.
  2. Standard 3.2 the educator shall not knowingly treat a student in a manner that adversely affects the student’s learning, physical health, mental health, or safety.

IV.

DISCUSSION

Respondent is a Teacher at Sneed Elementary in AISD. Respondent teaches Physical Education and has been with AISD for four (4) years. Further, Respondent has been certified to teach Physical Education for over 26 years. During his tenure at AISD, Respondent has received proficient ratings on his annual evaluations since the 2007 school year. However, with regard to the area of student discipline, both evaluations included notations indicating that Respondent needed improvement. No evidence was presented regarding Respondent’s prior teaching experience.

On the day in question, Respondent was teaching Physical Education and Student “A” was in Respondent’s class. The class was doing a fitness assessment that day and engaging in an activity called the Shuttle Run that required students to run in the gym. The great weight of the evidence indicates that, while in the class that day, Student “A” was not following Respondent’s directions and was moving around the gym. There is no evidence that prior to this time, Respondent contacted or called anyone for assistance with Student “A’s” behavioral issues. Rather, Respondent assigned Student “A” to the “steps[1]” to prevent interference with the running activity. When Respondent observed Student “A” almost collide with another student, there is no evidence that Respondent called for help or assistance at that time either. Again, Respondent assigned Student “A” back to the “steps.” Subsequently, Student “A” roamed again and almost ran into Respondent, at which time in an attempt to deter/redirect Student “A” from his behavior, Respondent picked Student “A” up by the shoulders and brought him to eye level and shook him. Two other students observed Respondent pick up Student “A” around the shoulders and put Student “A” next to the wall. Respondent admitted that he was not happy with Student “A” at that time.

Taking all of the testimony and exhibits into consideration, Petitioner’s attempt to establish that Respondent engaged corporal punishment was not persuasive. Likewise, Petitioner’s attempt to establish that Respondent engaged in a pattern and practice of assaulting students was unmeritorious as Petitioner did not submit evidence that Petitioner took disciplinary action of any sort for any prior incidents. Therefore, no analysis or discussion of corporal punishment and/or prior incidents will be discussed.

Petitioner did, however, establish that Respondent’s conduct was a use of excessive and unreasonable force with a student that amounted to good cause. Petitioner asserted that Respondent did not prove his reasonable force as an affirmative defense. However, Petitioner had the burden to show that the immunity granted professional employees in Texas Education Code Section 22.0512 did not apply. Petitioner met that burden. Respondent’s claim(s) that AliefISD did not have good cause to terminate him were unpersuasive. Respondent attempted to show that the force used against the student in question was reasonably necessary maintain safety and avoid others getting hurt. Assuming, arguendo, that to be the case, it was unreasonable for Respondent to bring such a small, young student to eye level and shake him to redirect the student. Such behavior amounted to an unreasonable use of force when dealing with a small, elementary child. Respondent is not a novice at teaching physical education as his teaching certificate shows he has been certified for over 26 years. While Respondent has had proficient evaluations during his tenure with AliefISD, the fact that Respondent picked up the student, brought him to eye level and shook him constituted an excessive and unreasonable use of force. The physical safety and emotional well-being of students is of paramount importance and it is clear that Respondent has failed in this regard. The consideration of all of the events enumerated herein lead to the conclusion that Petitioner has met its burden by a preponderance of the evidence and has shown good cause for the proposed termination of the term contract of DerrickHeyward.

Respondent’s failure to meet the standards of an educator is arguably an egregious act sufficient to justify termination without the opportunity for remediation. When a teacher engages in activity that is potentially harmful to a students’ physical or emotional well being, a school district must be allowed to terminate the teacher’s employment rather than risk the possibility that the teacher might engage in further similar conduct. That is not to say that a teacher may be terminated for participating in any harmful activity no matter how minor, the harm must be significant. See Whalen v. Rocksprings ISD, 065-Rib-284 (Comm’r Dec. Jul. 1985).