DOCKET NO. 32-H-1205

DALLASINDEPENDENTSCHOOL§BEFORE THE CERTIFIED

DISTRICT §HEARING EXAMINER

§

vs.§

§THE STATE OF TEXAS

KAY LYNN LYON§

RECOMMENDED DECISION OF THE CERTIFIED HEARING EXAMINER

DATE FILED:11/29/05

DATE OF HEARING:CLOSED: 02/24/06

60-DAY WAIVER TO:03/16/06

PRE-HEARING:12/09/05

BRIEFS:3/7/06

CERTIFIED HEARING EXAMINER: Robert C. Prather, Sr.

HEARING LOCATION:DallasIndependentSchool District

AdministrationBuilding

3807 Ross Avenue

Dallas, Texas75204

Ph: 972-925-3719

Fax: 972-925-3712

DALLAS ISD:By: Paul Zevallos

DISD ATTORNEY:Veretta L. Frazier

320 So. R.L. Thornton #300

Dallas, Texas75203

Ph: 214-941-1881

Fax: 214-941-1399

TEACHER:KAY LYNN LYON

TEACHER'S ATTORNEY:Daniel Ortiz

715 West Abrams

Arlington, Texas76013

Ph. (817) 861-7984

Fx. (817) 861-8909

COURT REPORTER:Rachel Chavez, CSR#2610, Ph: 972-221-0331

BASIS OF HEARING:Appeal of Recommendation of Termination of

Teacher Contract

RECOMMENDATION:DALLAS ISD should NOT terminate LYON’S contract.

PROCEDURAL MATTERS

At the beginning of the hearing, Counsel for Respondent filed Respondent's Objections to Petitioner's Proposed Witnesses and Exhibits. Respondent, during argument, withdrew her objection to the Exhibits, only. After considering the arguments of counsel, it was determined that the Respondent’s objections to Petitioner's proposed witnesses and witness list was reserved. Respondent’s objections to the witnesses and witness list are now overruled.

FINDINGS OF FACT

  1. References are to the transcript which consists of multiple volumes, for example, “TR P/L.“ The Hearing was held on 2/24/06.

D = DISD Exhibit

L or R = LYON Exhibit

H = Hearing Examiner Exhibit

  1. Admission of Exhibits:
  2. DISD’s Exh. D-1 to 7 were admitted into evidence by agreement of the parties,
  3. Lyon’s Exhs. R-1, 3-18, 10-14 were admitted into evidence by agreement of the parties.
  4. Lyon Exhs. R-2 and 9 were offered by Respondent, objected to by DISD, and admitted for all purposes, including showing the exhibits were sent, were sent on behalf of Lyon, addressees and copies, explanation of contract, course of conduct with Lyon and procedure, but not for the truth of the matter stated in the exhibits.
  5. After due consideration of and based upon the preponderance of the credible evidence, including the credibility of the witnesses and matters officially noticed, in my capacity as Certified Hearing Examiner, I make the following Findings of Fact (citations to evidence are not exhaustive or exclusive, but are intended to indicate some basis for the particular finding of fact).
  6. Lyon has a B.S. in Dance from the University of North Texas (1977) and an M.S. from the University of North Texas (1981). Exh. D-3.
  7. Lyon has taught dance privately, beginning while she was in college, and did some substitute teaching for the Carrollton/Farmer Branch Independent School District. TR P. 146, L. 1 to 148, L. 8.
  8. Lyon was and is certified in secondary dance, secondary history, and secondary physical education for grades 6-12. Exh. D-2, R-1. TR P. 143, L. 3 to 148, L. 8.
  9. LYON was employed by DISD pursuant to a Two-Year Educator Term Contract (Contract), Exh. D-1, for the 2005/2006 and 2006/2007 school years to teach part-time at a DISD school.
  10. Lyon was and is a classroom teacher and educator, as those terms are defined by §5.001, Tex. Educ. Code.
  11. Lyon’s Educator Term Contract provides under paragraph 4 that “Educator shall be subject to assignment and reassignment according to the General Superintendent.” Exh. D-1.
  12. While employed by DISD, Lyon has always received above average performance evaluations. TR P. 152,Ls 5-8.
  13. In 30 years of working, Lyon has never been fired or abandoned a job. TR P. 168, L. 21 to 169, L. 1; P. 171, L. 25 to 172, L. 2.
  14. On or about November 15, 2005, LYON received a DISD letter, Exh. D-7, placing her on administrative leave and recommending that her employment be terminated for good cause pursuant to Board Policy DF (Local). The recommendation to terminate was made under the following policy provisions:
  15. Failure or refusal to comply with policies, orders, and directives of the Board, General Superintendent, and/or designee (DF-Local #1).
  16. Excessive absences, tardiness, or job abandonment. (DF-Local #31).
  17. Furthermore, the November 15, 2005, letter recommended termination for the following reasons, including, but not limited to:
  18. Lyon failed to comply with call-in requirements for excused absences.
  19. Lyon failed to report to your assignment.
  20. Lyon had constructively abandoned your job.
  21. On November 29, 2005, LYON, then represented by attorney Daniel Ortiz, timely requested the appointment of a Certified Hearing Examiner by the Texas Education Agency to hear this dispute. Robert C. Prather, Sr., was notified on December 6, 2005, of his selection as Certified Hearing Examiner to conduct a hearing in this dispute. The assignment was accepted on December 6, 2005. Exh. H-1 and -2.
  22. On December 9, 2005, a pre-hearing was held with attorneys Veretta L. Frazier and Daniel Ortiz. Exh. H-3.
  23. On December 14, 2005, LYON and DISD agreed to a waiver and extension for the recommendation to March 16, 2006. Exh. H-4.
  24. On February 24, 2006, the hearing in this matter was commenced as a closed hearing and was completed on February 24, 2006, with both parties in attendance represented by counsel.
  25. Lyon began her employment with DISD in the Fall of 2002 on a half-time basis, and has always worked half-time for the DISD.
  26. Lyon was hired as a half-time dance teacher and assigned to HillcrestHigh School for the 2002/2003 and 2003/2004 school years.
  27. DISD attempted to force Lyon to teach full-time for the 2004/2005 school year. However, DISD, through its Area Supervisor, instead reassigned Lyon to teach dance, half-time, at CaryMiddle School for the 2004/2005 school year. Exh. R-2 and 3. TR P. 152, L. 17 to 157, L. 22.
  28. By letter dated March 11, 2005, Lyon was informed that she was being released from her assignment at Cary Middle School due to “budget, reduced enrollment or changes in the Bilingual/ESL program” could apply for voluntary transfer, attend a job fair, and would receive an assignment letter by 5/27/06. Exh. D-5.
  29. On 4/18/05, Lyon was advised of an 4/30/05 job fair which she attended. Exh. D-6, TR P. 138, Ls. 14 to 24.
  30. Lyon made other efforts to find similar PART TIME employment with DISD, but was not able to do so. TR P. 182, L. 22 to P. 185, L. 7.
  31. When Lyon received the notice in March of 2005 that her position would not longer be available, she made reasonable efforts to try to find other assignments. TR P. 20, Ls. 2-23.
  32. By letter dated May 23, 2005, Lyon was sent notice that she had been released from her assignment at CaryMiddle School and that she would receive an assignment letter by 8/1/05. Exh. R-5.
  33. On July 20, 2005, Lyon received a 7/15/05 Letter of Assignment from Human Resources from Area Supervisor Branch (Branch), assigning Lyon to the full-time Physical Education teaching position at L.O.DonaldElementary School (Donald Elementary) (a K-6th grade school), effective August 8, 2005. Exh. D-4. TR P. 34, L. 16-19.
  34. Lyon is not certified to teach elementary Physical Education. Exh. D-2.
  35. Additionally, per §21.210, Tex. Educ. Code, after June 25, 2005, Lyon could not unilaterally resign her teaching position.
  36. On July 22, 2005, Lyon sent an e-mail to her Area Supervisor, Branch, that Lyon was unable to accept said assignment because
  37. Lyon had been hired by the DISD as a half-time teacher and
  38. Lyon is not certified to teach elementary Physical Education. Exh. R-7.
  39. No one from DISD, including those people copied on the e-mail, responded to Lyon’s 7/22/05 e-mail. TR P. 163, L. 5-23.
  40. Since Lyon received no response to her 7/22/05 e-mail and Branch did not return Lyon’s numerous phone calls, Lyon sent Branch an e-mail on 8/2/05, Exh. R-8, asking when she would receive another assignment. TR P. 163, L. 5 to 164, L. 5.
  41. Branch sent Lyon an e-mail on August 2, 2005, stating that the Physical Education teaching position at Donald Elementary was the only assignment DISD had to offer to Lyon. Exh. R-8.
  42. Lyon replied to Branch by e-mail, on August 3, 2005, stating that Lyon has been waiting for a new assignment from the DISD and, consequently, had turned down other job offers due to her half-time contract of employment with the DISD. Exh. R-8.
  43. Branch, by e-mail dated August 4, 2005, stated Lyon could either accept the assignment stated in the July 15, 2005, Letter of Assignment or resign. Exh. R-8.
  44. The first day teachers were to report to school for the 2005/2006 school year was August 8, 2005. Students were to report on 8/12/05. Exh. R-14.
  45. On August 10, 2005, Lyon’s attorney, Steven Heath, who handled the part-time issue in 2004 (see Exh. R-2 and 3), wrote to Branch and Dr. Linda Chance, Executive Director of Employment, that Lyon had a half-time contractual relationship with the DISD. Mr. Heath requested a DISD response by August 12, 2005. Exh. R-9.
  46. No response from DISD was received by either Lyon or Heath about Exh. R-9, TR P. 165, Ls. 14-17.
  47. On October 7, 2005, Lyon’s attorney, Daniel Ortiz, wrote Mr. Luis Tamez, Director of Employee Relations, again requesting that Lyon be assigned to “an appropriate half-time position of employment with the DISD.” and that Lyon was “ready, willing and able to fulfill her contractual duty...” Exh. R-10.No response was received. TR P. 217 L. 11 to P. 218, L. 2.
  48. After Ortiz’s 10/7/05 letter, DISD did not offer Lyon a half-time teaching position in a field for which she was certified. TR P. 165 L. 7 to P. 167, L. 18.
  49. The only communication by the DISD to Lyon after the August 4, 2005, email of Branch was the letter of proposed termination of November 15, 2005. Exh. R-7.
  50. About 30 days later, by letter dated November 15, 2005, Dr. Troy Coleman recommended to propose the termination of Lyon’s employment. Exh. R-7.
  51. Lyon always stood ready to perform her duties as a part-time secondary teacher for DISD. Exh. R-10, TR P. 170, L. 10-25.
  52. No one from the DISD ever told Lyon to report to the elementary school principal and that her assignment was as a part-time teacher only teaching sixth grade P.E. and 6th grade history.
  53. No one from the DISD told Lyon that the principal would be the one responsible for finding Lyon an appropriate half-time assignment. TR P. 162, L. 2 to P. 163, L. 1; ; P. 168, L. 5 to P. 169, L. 23.
  54. The procedures which had been followed between the DISD and Lyon in the prior school year 2004 were through the Area Supervisor, like Branch, not the principal of a particular school. TR P. 167, L. 3-20.
  55. The Area Supervisor has more knowledge about the assignments available in all of the schools for Lyon as opposed to just the elementary principal at one school, especially for a secondary teacher. TR P. 104, L. 13, to 105, L. 3; P. 182, L. 22 to P. 185, L. 7.
  56. In Exh. R-8, Branch's email of August 4, 2005, Branch made a simple "take it or leave it" option of either accepting the contract or resigning.
  57. Neither Branch nor the DISD stated, either in the email or in any communication with Lyon, that Lyon could resign without penalty and without breaching her agreement or what the terms of a resignation would be.
  58. If that was the DISD's intent, it was not communicated by the DISD to Lyon.
  59. Branch failed to return numerous phone calls by Lyon to Branch between Lyon's first email of 7/22/05, upon Lyon’s receipt of Exh. D-4 on July 20, 2005, and Lyon's email of August 2, 2005. TR P. 161, L. 2 to P. 163, L. 1.
  60. No one from the DISD communicated with Lyon or her attorney following Mr. Heath's letter of 8/10/05, Exh. R-9, or Mr. Ortiz' letter of October 7, 2005. Exh. R-10.
  61. Paul Zevallos, the Principal at L.O.DonaldElementary School, believed that Lyon was coming to him as a full-time teacher for all of his K-6 P.E. classes. TR P. 28, L. 23 to P. 29; L. 6; P. 122, L. 7 to P. 123, L. 8.
  62. Since the time Lyon began teaching with DISD in the Fall of 2002, she has been a part-time dance teacher.
  63. Under each of the contracts Lyon has had with the DISD she has taught as a part-time teacher.
  64. DISD does not have a contract form that is used only with full-time teachers, and a contract form that is used only with part-time teachers. The same form of contract is used for both full-time and part-time teachers. TR P. 66, L. 8 to P. 67, L. 6.
  65. The practice of the parties and certainly the intent of Lyon was that Lyon was under contract as a part-time teacher.
  66. Lyon signed each of her contracts with DISD intending and believing that she was signing a contract as a part-time teacher.
  67. In addition to Lyon's past employment having been part-time, in the Fall of 2004 when DISD placed Lyon in a full-time position Lyon raised the issue that she was only to work part-time in light of her having other contractual commitments that would only permit her to work part-time. DISD then placed Ms. Lyon in a part-time position. Exh. R-3.
  68. There is no evidence that, at any time, DISD told Ms. Lyon that her contract was a FULL-time contract, NOT a PART-time contract. TR P. 154, L. 21 to P. 155, L. 25.
  69. Lyon’s contract, Exh. D-1, was a part-time contract.
  70. DISD was to notify Lyon of her new assignment by May 27, 2005, which the DISD failed to do. Exh. D-5.
  71. DISD unilaterally extended the time to notify Lyon of her assignment until August 1. Exh. R-5.
  72. On July 15, 2005, DISD gave Lyon her Notice of Assignment to DonaldElementary School.
  73. The Assignment, Exh. D-4, was received by Lyon on Wednesday, July 20, 2005, with said receipt being nineteen (19) days before Lyon was to report for work on 8/8/05.
  74. A teacher cannot unilaterally resign within 45 days of the first day of class.
  75. The date of the letter in Exh. D-4 and its receipt by Lyon were less than 45 days prior to the start of class, 8/8/05, which meant that Lyon could not resign in compliance with § 21.210 of the Tx. Ed. Code without breaching her contract.
  76. Exh. D-7, the 11/15/05 recommendation of proposed termination to Lyon fails to give Lyon notice of her pay status pending the hearing.
  77. When Lyon did not appear at L. O’Donald Elementary School, the Principal, Paul Zevallos, did not call Lyon. Instead, he sent a no-show form to and called Area Supervisor Branch. TR P. 27, L. 17 to P. 28, L. 19; P. 38, L. 13 to P. 41, L. 19; P. 123, L. 17 to P. 124, L. 13.
  78. Branch never told Mr. Zevallos that:
  79. Lyon was not certified to teach elementary; and
  80. Lyon had communicated with Branch on 7/20/05 raising these issues about her certification and half-time contract. TR P. 42, L. 3-17.
  81. The DISD Local Rules, including DF Local #1 and #31, are not in evidence, except for the phrasing in the letter. Exh. D-7.
  82. In the hearing on February 24, 2006, Zevallos stated he might have been able to create a part-time position for Lyon. This was the first time this had been communicated to Lyon. That information had not been communicated to Lyon by Branch or anyone else, until this Hearing. TR P. 115, L. 2 to P. 116, L. 12.
  83. Zevallos did not tell Branch or anyone else prior to this hearing on February 24, 2006 that he would have hired Lyon as a part-time teacher. TR P. 115, L. 2 to P. 116, L. 12.
  84. Zevallos filled the vacancy of Lyon's assignment with a full-time teacher. TR P. 123, L. 6-9.
  85. Exhibit D-4 assumes a full-time P.E. teacher. TR P. 122, L. 7 to P. 123, L. 5, P. 199, Ls. 7 to 22.
  86. Zevallos would have had to get H.R. approval for such re-arrangement at his school. Branch was his Area Supervisor to give such approval. Branch never communicated that information to Lyon.
  87. If Ms. Lyon was not certified to teach the assignment that she was given, her procedure would be to talk with the Area Supervisor, who was Ms. Branch. TR P. 62, L. 1-21.
  88. Branch should have reviewed Lyon's certification. TR P. 71, L. 21 to P. 72, L. 5.
  89. To assign Lyon to teach K-6 P.E. was not a proper assignment. TR P. 76, L. 10 to P. 77, L. 5.
  90. Lyon was bound to her part-time DISD contract and could not seek work some place else.
  91. Lyon was not at fault for not showing up at L. O’Donald Elementary for teaching P.E. full-time to grades K-6 because:
  92. Prior to classes beginning, she promptly called the Area Supervisor, but her calls were not returned about the assignment.
  93. She sent an email to the Area Supervisor on 7/22/05, and received no response.
  94. After the email of 7/22/05, she called the Area Supervisor, Branch on numerous occasions but her calls were never returned.
  95. She was never told that the elementary principal would work out the problems with her assignment. TR P. 196, L. 21 to P. 197, L. 20.
  96. She was given an assignment contrary to her contract and for which she was not certified.
  97. On August 2, 2005, Lyon exchanged a series of emails with Branch, Exh. R-8, in which Branch did not really address the issues being raised by Lyon about certification and part-time.
  98. DISD did not respond to Lyon's attorney's letter (Mr. Heath), Exh. R-9, of 8/10/05. TR P. 165, L. 7-17.
  99. DISD did not respond to Mr. Ortiz's letter of 10/7/05, including that Lyons stood ready, willing and able to perform as a part-time teacher in matters in which she was certified to teach. Exh. R-10. TR P. 165, L. 7-17.
  100. DISD was at fault for failing to communicate with Lyon and making a proper assignment.
  101. Prior to and including April 2005, Lyon would not have accepted a DISD contract if it was a full-time contract since she had other contractual obligations to provide services to other entities. Exh. R-11,-12; TR P. 171, L. 3 to P. 182, L. 20; P. 200, Ls. 7 to 22.
  102. Lyon had worked under contract for the City of Farmers Branch for 29 years, with at least a 100 contracts like R-11. Under R-11, third to last paragraph, Lyon could not resign or cancel the contract any time she wanted.
  103. DISD never told Lyon that her contract was a full-time contract.
  104. Lyon could not have reported to DISD on a full-time basis for the Fall of 2005 without breaching other obligations that she already had, for which she was committed.
  105. From at least the Fall of 2004 through the present time, all of Lyon's communications to her and from her were with the Area Supervisor, such as Branch. TR P. `168 L 3-20.
  106. At no time did Lyon receive any calls or receive any instructions to call the Principal (instead of the Area Supervisor) at either FranklinSchool in the Fall of 2004 or L. O’Donald Elementary in 2005.
  107. Lyon sent the emails of August 2, 2005, and following, because Branch was not returning her phone calls.
  108. Lyon was not told that there were no other part-time positions in DISD for which she was certified for the Fall of 2005. TR P. 164, L. 20 to 165, L. 6.
  109. There is no evidence that there were no other part-time positions for which Lyon was qualified or certified for the Fall of 2005. TR P. 164, L. 20 to 165, L. 6.
  110. Lyon would have spoken with Zevallos if she had known that that was the appropriate thing to do. Her experience had been and her communications had been with the Area Supervisor, such as Branch. TR P. 162 L. 6 to 163, L. 1.
  111. Branch did not tell Lyon:
  112. that there were no other part-time assignments in DISD;
  113. that she was to contact the Principal, Zevallos;
  114. that there were any other variables to be considered in her being part-time and her certification; and
  115. under what conditions, terms and agreements Lyon could resign.
  116. DISD failed to give Lyon notice that she was being suspended without pay. Exh. D-7, TR P. 215, L. 20 to P. 217, L. 10.
  117. Lyon did not abandon her job.

91.Lyon did not intend to abandon her job.