DOCKET NO. 002-LH-0910
DALLAS INDEPENDENT § BEFORE INDEPENDENT HEARING
SCHOOL DISTRICT § EXAMINER
Petitioner, §
§
V. § A. Y. COLLINS OF
§
BETH BALMAN §
Respondent § THE STATE OF TEXAS
RECOMMENDATION FOR DECISION
Dianna D. Bowen, Lead Counsel
Isabel S. Andrade, Attorney at Law
Fisher & Phillips, LLP
500 North Akard Street, Suite 3550
Dallas, TX 75201
Phone: (214) 220-8305
Fax: (214) 220-9122
Email:
Attorneys for Petitioner Dallas Independent School District
Beth Balman, Pro Se
4420 Sycamore Street, Apartment 3,
Dallas, Texas, 75204
Mobile: 679- 644-7167
Email:
DOCKET NO. 002-LH-0910
DALLAS INDEPENDENT § BEFORE INDEPENDENT HEARING
SCHOOL DISTRICT § EXAMINER
Petitioner, §
§
V. § A. Y. COLLINS OF
§
BETH BALMAN §
Respondent § THE STATE OF TEXAS
RECOMMENDATION FOR DECISION
I.
STATEMENT OF THE CASE
Respondent, Beth Balman (“Respondent” or “Balman”), employed by Petitioner, Dallas Independent School District, (“Petitioner” or “DISD” or “District”), as a school nurse appeals from the recommendation to terminate employment during the term of her probationary contract. 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”), A. Y. Collins, duly appointed by the Texas Education Agency (“TEA”). A telephonic prehearing conference was held on September 22, 2010, at which time the parties waived the 45-day decision deadline and agreed to schedule the hearing for November 18, 2010 and November 19, 2010. The hearing was held before the CIHE in Dallas, Texas on November 18, 2010 through November 19, 2010. Petitioner was represented by Dianna Bowen and Isabel Crosby of Fisher and Phillips, LLP. Respondent, proceeding pro se, although duly notified of the hearing in this matter, failed to appear. The deadline for the Recommendation for Decision is December 9, 2010.
Citations to the evidence are not exhaustive, but are intended to indicate some of the grounds for the Findings of Fact.
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:
1. Respondent is currently employed by Petitioner, Dallas ISD pursuant to a one-year educator probationary contract for the 2009-2010 school year.
2. Respondent was required to comply with all terms of her contract along with all state and federal laws, District policies, rules, regulations, and administrative directives. (Ex 3)
3. The Board of Directors of the Dallas Independent School District had the authority to terminate Respondent’s contract during the contract term for good cause.
4. Good cause being the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state. Tex. Educ. Code § 21.04(a), DF Local, Ex 44, Tr. pp 299-301.
5. During the 2009-2010 school years, Respondent was assigned as a nurse at Sanger Elementary School (“Sanger”) for three days a week and assigned as a nurse at Robert E. Lee Elementary School (“Lee”) for two days a week.
6. Some of the essential duties of Respondent’s position were as follows:
a. Establish and maintain a comprehensive school health program according to nursing standards of practice and departmental procedures and protocol.
b. Maintain communicable disease prevention and control measures, administers immunizations.
c. Assesses the health and developmental status of students through performance of physical evaluations and health appraisals.
d. Perform special procedures.
e. Develop and implement nursing care plans.
f. Record all health information on students in the school’s computer system.
g. Supervise and monitors subordinates and delegate nursing responsibilities according to District policy and the Texas Nursing Practice Act. And
h. Be computer literate.
7. Respondent had no prior experience as a School Nurse, but was provided classroom and hands on training, along with written materials to equip her with the necessary tools to perform her job. Training provided to Respondent by DISD included attended the New Nurse Orientation at Dallas ISD. Respondent was also provided long term training through the School Nurse Clinical Development Program (SNCDP), a two-year orientation and continuing education program designed, written, and implemented by the Health Services Department for nurses new to Dallas ISD.
8. Respondent was required to obtain certification in vision and hearing screenings and to conduct mandatory state vision and hearing screenings on each campus as well as provide vision screenings for students referred to the student support team (or “SST”) and/or for special education evaluations.
9. Respondent failed her written certification examination for vision and hearing screenings on September 4, 2009 but passed the vision and hearing screenings examinations and the practicum tests on October 30, 2009.
10. Respondent was provided four (4) opportunities for training on the computer student database system (StuSys Training) and one on one training by her preceptor Cheryl Helms.
11. During the months of September and October, Respondent was absent 12.5 days. From January 19 through June 4, 2010, Respondent was absent 18 school days not including her medical leave of absence. Not including her medical leave, Respondent was absent 33 work days from work during the 2009-2010 school year.
12. From September,2009 through January, 2010 Respondent’s supervisors and/or preceptor observed the following regarding Respondent’s performance: did not feel comfortable with basic medication check-off of office staff and would have to review skills herself before checking off others, did not pass certification for hearing and vision screenings, failed to input clinic traffic into computer, did not keep list of students with flu-like symptoms who were sent home (as required by the state health department), failed to conduct vision and hearing screenings; failed to input immunizations, medications, screenings, clinic traffic or any other data into the computer system; lacked computer skills despite multiple attempts at remediation; failed to complete monthly reports in a timely manner; failure to complete self-assessment; failed to complete performance skills check-off list for non-medical paraprofessional; demonstrated lack of understanding of StuSys tasks; required frequent prompting despite multiple attempts at remediation; exhibited episodes of extreme drowsiness and inattention, excessive absences; inability to acquire and/or retain new to District Health Services employee training information; inability to maintain progress and/or level of proficiency with essential job requirements; inappropriate temperament (e.g. on two occasions with nursing supervisor, employee became loud, agitated, argumentative, and disrespectful); and lack of patience with students and staff at times of increased activity in the clinic.
13. Respondent was placed on an Individual Intervention Plan on October 21, 2009, for failure to comply with attendance policy, failure to attend all monthly SNCDP sessions, failure to demonstrate job tasks at a proficient level, and failure to pass certification for vision and hearing.
14. Respondent received complaints from the counselor at Sanger and the diagnostician at Lee regarding her continued failure to screen and provide health information for students referred to the SST for assistance or for a special education evaluation.
15. Respondent failed to complete the state-mandated vision and hearing screens for both her campuses during the 2009-2010 school years.
16. At Sanger, Respondent failed to complete the following essential functions of her job as follows:
· 39 students on the active health conditions list without evidence of follow up regarding current status of health condition,
· 38 students on Health Management list without current Health Management Plans,
· 300 students missing vision screenings,
· 345 students missing hearing screenings,
· 64 students were missing scoliosis screenings, and
· 110 students missing acanthosis nigricans.
17. At Lee, Respondent failed to perform the essential functions of her job as follows:
· 35 students on the active health conditions list without evidence of follow up regarding current status of health condition,
· 34 students on Health Management list without current Health Management Plans,
· 105 students were missing vision screenings,
· 218 students were missing hearing screenings, 38 students were missing scoliosis screenings, and
· 121 students were missing acanthosis nigricans screenings – all essential duties of Respondent’s job.
18. At both Lee and Sanger Respondent failed to perform essential duties of her job as follows:
· Failed to monitor and report state-mandated flu-like illnesses on the district and county databases,
· Failed to produce required monthly reports for nursing supervisor regarding clinic activities,
· Failed to retrieve and/or input student health information on student’s electronic health record, without prompting and repeated instruction,
· Failed to prioritize campus needs on nursing schedule, and
· Failed to provide evidence of completion of mandatory blood borne pathogen training, diabetic Level 2 training, CHIPS outreach, or any formal asthma or obesity health-related training.
19. Written Reprimands - Respondent was reprimanded on February 23, 2010, March 11, 2010, and March 12, 2010 for sleeping in her office, insubordinate conduct toward her supervisors.
20. Job Performance – On March 10, 2010, Respondent received below expectation ratings in all areas of her mid-year review. April 22, 2010, Respondent received Below Expectations ratings in all performance areas on her final evaluation and summative review for the 2009-2010 school year.
21. Intervention Plans - On March 10, 2010 and March 12, 2010, Respondent was placed on Individual Intervention Plans for her below expectation performance in all four performance areas.
22. On April 23, 2010, all of Respondent’s supervisors recommended that Respondent’s employment with DISD be terminated for good cause, pursuant to Dallas ISD Board Policy DF (Local) for excessive absences and her continued failure to meet Health Services directives and the essential functions of her job.
23. On July 20, 2010 the Legal Review Committee recommended that Respondent’s employment with the District be terminated.
24. By letter dated August 10, 2010, the District notified Respondent that it was recommending that her employment with the District be terminated for good cause pursuant to board policies. The recommendation to terminate Respondent’s employment was made including, but not limited to the following:
a. “Failure to successfully complete and/or lack of improvement following an Intervention Plan.”
b. “Performance issues, which have been documented and shared with the employee.”
c. “Below Expectations performance rating for the 2009-2010 school year.”
d. “Unprofessional conduct on campus.”
e. “Failure to comply with or meet directives from the Health Services Department.”
f. “Failure to properly complete nursing duties on school campus.”
g. “Excessive absences.” (Ex 37)
25. Dallas ISD Board Policy DF (Local) lists the following acts or actions, among others, as “good cause” for the termination of an employment contract with the District, all of which were included as reasons for Respondent’s recommendation for termination in the letter dated August 10, 2010:
a. “Failure or refusal to comply with policies, orders, and directives of the Board, Superintendent of Schools, and/or designees.”
b. “Any act or conduct while at school, whether in or out of a classroom, which is either indecent, obscene, illegal, cruel, abusive, or is otherwise contrary to and inconsistent with the ordinary standards set by the performance and conduct of other professional public employees of the District.”
c. “Neglect of duty that constitutes peril of any degree to students.”
d. “Inefficiency, incompetency, or inability to perform assigned duties.”
e. “Insubordination, including refusal or failure to perform work assigned and/or refusal to obey orders of supervisors.”
f. “Conduct or behavior not otherwise expressly referred to in [Dallas ISD Board Policy DF (Local)], either during or off working hours, that could cause the public, students, or employees to lose confidence in the administration and integrity of the District.”
g. “Failure to meet acceptable standards of conduct for employees in like or similar positions, which would make retention of the employee detrimental to the best interests of the District.”
h. “Failure or refusal to fulfill duties or responsibilities as set forth under the terms and conditions of the employment contract, or contained in the employee’s job description or local Board policy.”
i. “Excessive absences, tardiness, or job abandonment.”
j. “Any other reason constituting ‘good cause’ under Texas laws.” (Ex 42)
26. On August 22, 2010, Respondent filed an appeal with the Texas Education Agency regarding the recommendation to terminate her employment. P Ex. 38.
27. A Pre-Hearing Conference was conducted in this matter on September 22, 2010 by telephonic conference call. Respondent participated in the Pre-Hearing Conference. Pursuant to the agreement of the parties, the dates for trial of this case were set for November 18, and 19, 2010. On September 23, 2010, the CIHE signed and issued her Corrected Docket Control Order setting the final hearing in this matter for Thursday and Friday, November 18, 2010 and November 19, 2010.
28. On November 18, 2010 at approximately 7:55a.m. Respondent contacted the CIHE by phone and advised that she would not be appearing at the hearing, and that she intended to resign from here position. The CIHE advised Respondent that she would be called at 9:00a.m. to place her statement on the record. (Tr. 10.)
29. DISD was advised of the phone call made to this tribunal by Respondent, and indicated that if Respondent appeared at the District no later than 4:30p.m. on November 18, 2010, her resignation would be accepted. This information was left on Respondent’s voice mail by this tribunal at approximately 8:55a.m. by placing a telephone call to Respondent at 469-644-7167. (Ex 38)
30. On November 18, 2010 the hearing in this matter was convened at 9:00a.m. Two additional phone calls were made to Respondent by this tribunal by dialing 469-644-7167, the number provided to this tribunal by Respondent. Respondent failed to answer. Voice mail messages were left at the number, advising Respondent she must appear at the district to place her resignation in writing by no later than 4:30p.m. on November 18, 2010.
31. Phone calls made to the Respondent by this tribunal and by representative of DISD Respondent were not returned. On the request of DISD the case therefore proceeded to a default hearing.
32. A record of the proceeding was made by Rachel C. Chavez of Stovall Reporting & Video, Inc.