Recommendation of the Certified Hearing Examiner s1

TEA DOCKET NO. 026-LH-1109

WEST ORANGE-COVE § BEFORE CERTIFIED CONSOLIDATED INDEPENDENT § SCHOOL DISTRICT § HEARING EXAMINER § TAMMYE CURTIS-JONES VS. § § FOR THE STATE OF TEXAS WILHELMINIA WILLS

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

I. STATEMENT OF THE CASE

Respondent (“Wilhelminia Wills”) appeals from the notice of proposed termination issued by the Board of Trustees of the West Orange-Cove Consolidated Independent School District (“WOCCISD”) on October 19, 2009.1 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”), Tammye Curtis-Jones, duly appointed by the Texas Education Agency (“TEA”). Discovery motions were heard on December 4, 2009, and on January 18, 2010. The hearing in this matter was held before the CIHE in Orange, Texas on January 11-13, 2010. Petitioner was represented by Betsy Hall Bender, Attorney at Law. Respondent was represented by Larry Watts of Watts & Associates. The Respondent requested an open hearing although some portions were closed pursuant to Tex. Ed. Code § 21.256(f). The parties agreed to submit closing arguments by written submission by 5:00 p.m. on January 14, 2010. Petitioner timely submitted its written closing arguments. Respondent failed to submit written closing arguments. Citations to the evidence are not exhaustive, but are intended to indicate some of the grounds for the Findings of Fact.

Post Trial Proceedings

1 Respondent was placed on administrative leave with pay on October 7, 2009, and remains on administrative leave without pay. West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 1 of 18 The parties agreed to file Proposed Findings of Fact and Conclusions of Law by January 18, 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 three days of testimony, references to the transcript of the testimony are as follows: Testimony heard on January 11, 2010, will be referred to as “Tr: Vol. 1” Testimony heard on January 12, 2010, will be referred to as “Tr: Vol. 2” Testimony heard on January 13, 2010, will be referred to as “Tr: Vol. 3”

II. RECOMMENDATION Respondent’s claim(s) that WOCCISD did not have good cause to terminate her were not persuasive. Respondent’s claim for the first time at trial that she acted in self defense was unmeritorious. Further, Respondent failed to show that the force used against the student in question was reasonably necessary to further educational purposes or further discipline. Respondent’s continued failure to acknowledge the safety risks and the unsatisfactory nature of her conduct cannot be adequately explained or excused. The consideration of all of the events enumerated herein lead to the conclusion that Petitioner has met its burden and has shown good cause for the proposed termination of the term contract of Wilhelminia Wills.

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:

Respondent

1. Respondent is employed by the West Orange-Cove Consolidated Independent School District (WOCCISD) under a term contract of employment dated and

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 2 of 18 signed by Respondent on April 15, 2009, for the 2009-2011 school years, as a teacher. Petitioner’s Exhibit 1.

2. Respondent is certified in Elementary Self-Contained (Grades 1-8), Elementary Home Economics (Grades 1-8) and Vocational Home Economics (Grades 6-12). Petitioner’s Exhibit 2.

3. Respondent worked for WOCCISD for several years, from 1980-1991, and again from 2000-2009. Petitioner’s Exhibit 3.

4. Respondent retired at the end of the 2007-2008 school year and was subsequently re-employed as a seventh grade science teacher at West Orange- Stark Middle School at the end of October, 2008. Petitioner’s Exhibit 3; Tr. Vol. 1, 197:1-198:18.

5. Respondent stated that she was an educator with “20-odd years” of experience in Texas, having taught from time to time in the WOCCISD. Tr. Vol. 3, 14:17-23.

6. Respondent’s most recent evaluation done during the 2008-2009 school year revealed that while she was rated “Below Expectations” in Domains i(Active, Successful Student Participation in the Learning Process), II (Learner-Centered Instruction), III (Evaluation and Feedback on Student Progress), she was rated “Proficient” in Domain IV (Management of Student Discipline, Instructional Strategies, Time, and Materials). More specifically, it was noted that Respondent’s “…class discipline is well-managed. Expectations for behavior consistently applied – disruptive behavior not evident or immediately redirected.” Petitioner’s Exhibit 5.

7. As a teacher in the WOCCISD, Respondent is bound by her signed Teacher Job Description, which includes her duty to comply with the essential functions set out in the following paragraphs: 15 (present for students a positive role model that supports the mission of the district); 16 (create and maintain a classroom environment conducive to high self-esteem, mutual respect, raised expectations, and high achievement and that is appropriate to the maturity and interests of students); 17 (establish control in the classroom and administer discipline in accordance with school board policies and administrative regulations); 18 (take necessary and reasonable precautions to provide for the care and protection of students, equipment, materials and facilities); 21 (maintain a professional relationship with all colleagues, students, parents and community members); 25 (demonstrate behavior that is professional, ethical and responsible); and 27 (keep informed of, comply with, and execute all state, district and school regulations and policies for classroom teachers). Petitioner’s Exhibit 4; Tr. Vol. 2, 204:11-206:15.

8. The contract reflects that Respondent’s contract could be terminated upon a determination by the Board of good cause. Petitioner’s Exhibit 1, paragraph 9.

9. The contract further reflects that Respondent “…shall comply with, and be subject to, state and federal law and District policies, rules, regulations and West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 3 of 18 administrative directives…” and that the “…[e]mployee shall faithfully perform to the satisfaction of the District all duties set forth in the job description or as assigned.” Petitioner’s Exhibit 1, paragraph 5.

10. Respondent is approximately 5’4” tall, weighing 198 pounds. Tr. Vol. 3, 81:5-8.

C.B. (Student)

1. C.B. is a 14-year-old female student enrolled in the seventh grade at the West Orange Stark Middle school. Because of her disabilities, C.B. has been in special education under the Individuals with Disabilities in Education Act (“IDEA”) since she was in the second grade. Tr. Vol. 2, 34:2-4.

2. C.B. was assigned to Respondent’s third period science class at the beginning of the 2009-2010 school year. Tr. Vol. 2, 14:4-6.

3. C.B. has behavior issues and has been disciplined four times since the beginning of the 2990-2010 school year for “insubordination/gross failure to comply,” “rude/profane language/gestures,” “aggressive behavior” with another student, and “defiance/failure to follow instructions.” C.B. was referred to as the main troublemaker in class and had an attitude toward Respondent. Tr. Vol. 1, 62:12- 63:3; 69:1-3; 204:12-19; 215:24-216:2; Vol. 2, 121:23-122:20; 273:18-274:3, Petitioner’s Exhibit 32.

4. As a special education student, C.B. has a behavior intervention plan which was put into place by her ARD (“Admission, Review and Dismissal”) Committee on March 24, 2009. That behavior intervention plan provides that C.B. is to receive the following behavior interventions: (1) consistent limits; (2) reminders of rules; (3) private discussion about behavior out of view of peers; and (4) supervision during unstructured time and transition. Petitioner’s Exhibit 23.

5. C.B.’s behavior intervention plan was missing at the time it was given Respondent at the beginning of the school year but later received by Respondent. Tr. Vol. 1, 150:9-156:21.

6. C.B. is approximately 5’6” tall, weighing 107 or 108 pounds. Tr. Vol. 2, 140:3-7.

Policies

1. The State of Texas policy is “to treat all students with dignity and respect, including students with disabilities who receive special education services. Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others. No discipline management practice may be calculated to inflict injury,

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 4 of 18 cause harm, demean, or deprive the student of basic human necessities.” Tex. Ed. Code § 37.0021(a); 19 TAC 89.1053(j). Petitioner’s Exhibit 17.

2. Texas Education Code, Chapter 21, §21.211 provides that a term contract may be terminated and a teacher discharged at any time for “good cause as determined by the board…” Petitioner’s Exhibit 8.

3. WOCCISD has adopted a policy setting forth grounds for termination of a term contract. Petitioner’s Exhibits 8-16.

4. Standard 3.2 of the Code of Ethics and Standard Practices for Texas Educators states that “(t)he Texas educator shall not knowingly treat a student in a manner that adversely affects the student’s learning, physical health, mental health, or safety.” Petitioner’s Exhibit 14.

5. Standard 3.5 of the Code of Ethics and Standard Practices for Texas Educators states that “(t)he Texas educator shall not engage in physical mistreatment of a student.” Id.

6. District Policy DH (Local) requires District employees to “recognize and respect the rights of students.” According to this policy, a violation of the Code of Ethics and Standards Practices for Texas Educators, or any policies, regulations or guidelines for District educators may result in disciplinary action, including termination of employment. Petitioner’s Exhibit 13.

7. Pursuant to District policy and state law, any disciplinary action for a student with disabilities must be determined in accordance with federal law and regulations. Tex. Ed. Code § 37.004; Petitioner’s Exhibit 17 (WOCCISD Policy FOF (Legal).

8. The WOCCISD Student Code of Conduct states that “the discipline of students with disabilities is subject to applicable state and federal law in addition to the Student Code of Conduct. To the extent any conflict exists, state and/or federal law will prevail.” Petitioner’s Exhibit 20.

9. WOCCISD Policy FO (Legal) states that the “use of force . . . against a student is justified if the teacher . . . is entrusted with the care . . . of the student when, and to the degree the teacher . . . reasonably believes the force is necessary, to further the purpose of education or to maintain discipline in a group.” Petitioner’s Exhibit 15.

10. A “restraint” means the use of physical force “to significantly restrict the free movement” of a student when there is an emergency. An “emergency” means “a situation in which the student’s behavior poses a threat of: (1) Imminent, serious physical harm to the student or others; or (2) Imminent, serious property destruction.” Id.

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 5 of 18 11. The Student Code of Conduct sets out appropriate discipline management techniques. These do not include pushing a student, hitting a student, pulling a student’s hair or putting a student in a headlock. Petitioner’s Exhibit 20.

12. Campus procedure provides that if a discipline issue requires immediate administrative intervention, the teacher must send a written referral describing in detail the student’s behavior with the student to the office. Petitioner’s Exhibit 30.

13. Teachers at West Orange-Stark Middle School were provided in-service training on the appropriate campus Classroom Management and Discipline Plan on August 17, 2009, by Principal Travis McKelvain. Respondent attended that in- service training. Petitioner’s Exhibit 18.

14. The West Orange-Stark Middle School does not have a written policy regarding backpacks in the classroom but leaves it to the discretion of the teacher whether they will allow students to have backpacks in the classroom. Tr. Vol. 2, 440:22- 441:5.

15. Respondent posted Class Rules that said nothing about students being prohibited from bringing backpacks to class. Petitioner’s Exhibit 22.

Incident of October 7, 2009 and thereafter

1. On October 7, 2009, C.B. came to Respondent’s class with her backpack and was told by Respondent to take her backpack in her locker or the hallway. C.B. objected because another student, D.W., had a backpack in the class. C.B. told Respondent her locker was jammed. Tr. Vol. 1, 62:12-20; 83:16-25; 178:21-23; 193:24-194:25; 226:17-227:14; 266:13-20; 276:8-10; Vol. 2, 16:12-19; 65:7-22; Vol. 3, 36:4-20.

2. C.B. was aware of the teacher’s discretionary policy prohibiting backpacks in the classroom. Tr. Vol. 2, 46:7-47:3.

3. C.B. refused to put her backpack in the locker or hallway and Respondent told C.B. to leave the classroom and go to the principal’s office. C.B. left the classroom alone and went to Mr. Anderson’s (Assistant Principal) office who was busy with other students and could not immediately see C.B. Mr. Anderson directed C.B. to go back to her classroom alone and said he would go talk with Respondent. C.B. did not receive a written referral to Mr. Anderson’s office. Tr. Vol. 1, 181:16-182:5, Vol. 2, 26:12-25, 64:19-66:18, 16:19-25, 167:17-168:25, Petitioner’s Exhibits 24c, 25e, 26.

4. C.B. returned from Mr. Anderson’s office and placed her backpack on the floor outside Respondent’s classroom and stood in the classroom doorway writing the assignment in her notebook. Respondent thereafter made it to the doorway and

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 6 of 18 three times directed C.B. to move and then pushed C.B. at which time C.B. hit Respondent. Tr. Vol. 1, 64:15-17, 178:20-179:3, 182:22-24, 198:20-200:19, 212:1-16238:8-10, 239:25-240:21, 266:11-267:3, Vol. 2,17:1-2, 19:1-18, 85:16- 86:16, Petitioner’s Exhibit 25b-i, Petitioner’s Exhibit 27.

5. Respondent pushed C.B. who responded with by hitting Respondent. Respondent hit C.B. and a fight ensued. Tr. Vol. 1, 66:1-2, 184:20-21, 212:1-16, 267:11-24, Petitioner’s Exhibit 25b-i, Petitioner’s Exhibit 26, Petitioner’s Exhibit 27.

6. Respondent had C.B. against the lockers so C.B. could not move until a principal came. Tr. Vol. 2, 89:4-7, 146:16-19, 169:11-18, Petitioner’s Exhibit 24a, 24c, 24d, Petitioner’s Exhibit 25h, Petitioner’s Exhibit 26.

7. When Respondent released C.B. to Mr. Anderson, C.B. kicked Respondent. Petitioner’s Exhibit 24a, 24c, 24d, Petitioner’s Exhibit 26.

8. J.J, a student, tried to break up the fight but was unable to do so. He ran to Mr. Anderson’s office to get Mr. Anderson’s assistance. Tr. Vol. 1, 66:13-25.

9. The Librarian, Jennifer Tippett, is located across from Respondent’s classroom. She heard the commotion and went into the hallway to see what was going on. She observed Respondent holding C.B. against the lockers. Ms. Tippett offered to take the student but did not do so because she was not sure that she could hold her. Tr. Vol, 2, 142:4-13, Petitioner’s Exhibit 24a.

10.Mr. Anderson arrived to find Respondent restraining C.B. and bent over by the lockers. He directed Respondent to release C.B. and C.B. was eventually released. When he gained control of C.B., C.B. was escorted to the office by Ms. Tippett and Ms Jeannie Istre. Thereafter, students were interviewed by Mr. Anderson about the incident, separated at different tables and asked to write what they heard or saw of the incident. Statements were turned over to the Principal, Mr. McKelvain. Tr. Vol. 2, 169:11-172:11, Petitioner’s Exhibit 24c.

11.Respondent was asked by Mr. Anderson to write a statement of what happened while it was “fresh on her mind” and Respondent wrote a statement. Mr. Anderson reported that Respondent was calm and professional when she spoke to him, but he observed that she was “breathing a little deep.” Respondent told Mr. Anderson that she had informed the students that she would not allow them to put her hands on her. Respondent made a closed fist and said she wasn’t going to allow students to hit her and not hit them back. Tr. Vol. 2, 171:23- 174:21, Petitioner’s Exhibit 24c.

12.The West Orange Stark Middle School has video cameras. The video recording obtained by the WOCCISD (Camera 65) located in the hallway outside Respondent’s classroom is missing some footage but captured some of the incident. The footage shows that Respondent pushed C.B. and a fight ensued wherein C.B.’s arm was twisted behind her back and C.B. was shoved her against the lockers. Petitioner’s Exhibit 27.

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 7 of 18 13.The cameras used by the WOCCISD are motion-activated video surveillance cameras that record the hallway outside Respondent’s classroom at the rate of three frames per second which stores video to the campus server’s disk drive. Mr. McKelvain, who had been trained on how to export video from the surveillance cameras, retrieved the video footage of the incident the day the incident occurred. There is no evidence that the any part of the video was modified, altered or destroyed. Tr. Vol, 1, 376:3-21, 384:4-9, 385:18-21, Vol. 2, 416:21-422:12.

14.C.B. was very upset after the fight was over. She was breathing hard and crying and hysterical. When Ms. Tippett asked her what was wrong, C.B. said that her head hurt and that she wanted her mother. She said Ms. Wills had pushed her and then hit her in the face. Tr. Vol. 2, 143:10-144:2.

15. C.B. was taken to the school nurse after complaining that her back, head and neck hurt. C.B. was evaluated by the nurse who found no swelling or red marks on the neck or face, no swelling, bruising or red marks on the back, stomach or chest. C.B. reported to the nurse that her hair was pulled but the nurse did not note any missing hair or bald spots. The nurse noted that C.B. was very upset and crying. Tr. Vol. 2, 143:10-144:2.

16. After the fight, Respondent returned to her third period classroom and said, “These kids think I’m playing. I ain’t playing with them.” B.J., a student, told her to fix her hair because it had gotten messed up in the fight, and Respondent and the students laughed. Respondent admitted during her testimony that she and the students laughed about the incident. Tr. Vol. 1, 269:10-13, 269:20-22, Vol. 3, 95:2-15.

17. While Respondent was fixing her hair after the fight, a student said, “You got a bunch of scratches on your neck,” to which the Respondent stated, “Believe me, she has more scratches than me.” Tr. Vol. 1, 187:15-188:7.

18. Mr. McKelvain went to Respondent’s classroom shortly after the fight and escorted her to the computer lab. Respondent told Mr. McKelvain that “she had to send the student out of the room twice for having a backpack, and when she tried to get her out of the room the second time she ‘pushed’ the student. Mr. McKelvain asked the Respondent to clarify, to which Respondent repeated her statement ‘I pushed her’ out of the room. As Respondent was talking, she Mr. McKelvain observed that Respondent motioned with both hands in a typical pushing fashion.” Tr. Vol. 2, 411:7-20; Petitioner’s Exhibit 24e.

19. Mr. Anderson went to Respondent’s classroom and asked the students who had observed the conflict between Respondent and C.B. Eight students volunteered that they had seen the incident, and provided written statements of their observations. All of the student statements reported that Respondent started the fight by pushing C.B. Petitioner’s Exhibit 25a-i.

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 8 of 18 20. Mr. Anderson escorted Respondent to his office and asked her to prepare a written statement of the events. Respondent wrote a three-page statement in which she stated, “She (referring to C.B.) then hit me and I hit her back and we started fighting until I could get a lock on her to keep her from hitting. I refused to let her go until a principal came.” In the statement, Respondent said nothing about trying to push the classroom button to summon assistance. Petitioner’s Exhibit 26.

21. After the incident, Respondent met with Mr. McKelvain and the District’s Executive Director of Human Resources, Margaret Duchamp, at which time Respondent asked whether they had spoken with C.B.’s mother, and if the mother was upset. Respondent said something to the effect that she understood why the parent would be upset. During this meeting, Respondent acknowledged that she should have pushed the classroom button2 to summon assistance with C.B. and also changed portions of her rendition of the event. Respondent asked whether C.B.’s mother was going to file criminal charges. Tr. Vol. 2, 225:3-25, 226:4-227:12, 227:23-228:13, 240:14-241:14.

22. During the meeting with Mr. McKelvain and Ms. Duchamp after the fight, Respondent was instructed to leave the campus and go home. She was given a directive not to return to the campus until further notice. She violated this directive, returning to campus the following day. Respondent admitted to Ms. Duchamp and Mr. McKelvain that she took her glasses off and placed them on a student’s desk before pushing C.B., which indicated to Ms. Duchamp that Respondent intended to take stronger action against C.B. than just gently moving her aside so she could close the door. Tr. Vol. 2, 228:10-229:1, 248:10-249:20, Vol. 3, 88:3-6.

23. The West Orange Stark Middle School was aware that several intercom buttons were not working properly and there was a work order in for problems to be fixed. Teachers were notified that if an emergency arose or there was a need for immediate assistance in the class, they were to have a student go to the nearest office to alert an administrator. Petitioner’s Exhibit 29.

24. After the incident, Mr. McKelvain made a report to the Texas Department of Family and Protective Services (CPS) as he is required to do by Tex.Family Code § 261.001. Tr. Vol. 2, 268:3-17.

25. Based upon her investigation of the matter, including consideration of Respondent’s written and verbal statements, C.B.’s written and verbal statements, the information about the behavior intervention plan set out in C.B.’s Individual Education Plan, the statements received from the other witnesses, including students and adults, the statements from Mr. McKelvain and Mr. Anderson, the verbal statements from C.B.’s mother, the videotape of the incident, and the relevant District policies, including the Code of Ethics and Standard Practices for Texas Educators, Ms. Duchamp recommended to the

2 Throughout the hearing, the “classroom button” was referred to interchangeably as the “intercom,” “panic button” or “classroom button.” West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 9 of 18 Superintendent that Ms. Wills’ term contract of employment with the District be proposed for termination for good cause. Tr. Vol. 2, 219:8-221:11, Petitioner’s Exhibit 6.

26. Respondent never apologized to C.B. or to her mother. Tr. Vol. 2, 25:9-10, Vol. 3, 106:7-107:1.

27. C.B. has been teased at school since the fight by other students and found comments made by students hurtful to her. Tr. Vol. 2, 107:7-22.

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

DISCUSSION

This was a lengthy and hotly contested case with fourteen (14) witnesses. The allegations surrounding this case are too numerous to lend to an in depth discussion of each and every allegation. There were allegations of poor job performance, failure to abide by C.B.’s IEP and Behavior Management Plan, tampering with video equipment, improper restraint, unreasonable force, lack of remorse, retaliation, tampering with documents, constituting and constructing a class of students that would be a problem for Respondent, favoritism to another teacher, insubordination and giving that teacher’s troubled students to Respondent, failure of the district to manager a student with disciplinary problems and self defense. The allegations of unreasonable force in fighting a student and insubordination are each separate, distinct and individually sufficient grounds for termination. The findings of fact noted above are supported by a preponderance of the credible evidence. This discussion will in no way be exhaustive of the numerous issues, but is only meant to provide some explanation of a few salient points.

While a number of the facts in this case are in dispute, several key points are not. It is undisputed that Respondent had a classroom policy of not allowing students to bring backpacks in her classroom. A policy of which C.B. was aware. Tr. Vol. 2, 46:7-47:3; 440:22-441:5. It is also undisputed that C.B. brought a backpack to class on October 7, 2009, and was told to take it to her locker or put it in the hallway; that C.B. went to Mr. Anderson’s office without supervision during the transition and was told by Mr. Anderson to go back to class, again without supervision during the transition, as he would come to the classroom after he dealt with some students. It is also not disputed that C.B. went back to Respondent’s classroom, without supervision during the transition and stood in the doorway. An additional undisputed fact is that C.B. had behavioral problems and had been disciplined by Respondent on September 16, 2009, for “insubordination/gross failure to comply” and had been disciplined twice on the day before this incident for “defiance/failure to follow instructions” and “insubordination/gross failure to comply.” Tr. Vol. 1, 62:12-20, 181:16-182:5, 226:17-227:11, 266:11-20, Vol. 2, 26:12-25, 64:19-66:18, 16:19-25, 167:17-168:25, Petitioner’s Exhibit 24c, 25e, 26, Petitioner’s Exhibit 32. West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 10 of 18

What comes in dispute is who struck first as C.B. claimed that Respondent struck first by pushing C.B. Testimony from other students revealed that Respondent struck first. However, Respondent contends that she did not strike or hit C.B. but rather after repeated requests to C.B. to move from the doorway, Respondent moved C.B. out of the way so she could close the door. The videotape revealed that Respondent clearly pushed C.B. as you can see C.B. fall back and thereafter C.B. struck at Respondent who struck back at C.B. Thus, Respondent’s testimony in this regard was not credible. Respondent did not deny her presence in the video. Tr. Vol. 1, 64:15-17, 178:20-179:3, 182:22-24, 198:20-200:19, 212:1-16238:8-10, 239:25-240:21, 266:11-267:3, Vol. 2,17:1-2, 19:1-18, 85:16-86:16, Petitioner’s Exhibit 25b-i, Petitioner’s Exhibit 27, Tr. Vol. 1, 66:1-2, 184:20-21, 212:1-16, 267:11-24, Petitioner’s Exhibit 26, Petitioner’s Exhibit 27.

While Respondent failed to state that she pushed C.B., in her written statement that was written shortly after the incident, the Respondent lacked credibility as the videotape showed otherwise. However, Respondent acknowledged that C.B. hit her and she (the Respondent) hit her back and they “started fighting.” Petitioner’s Exhibit 26. Nothing in Respondent’s statement reciting the actions involved in the incident or her testimony revealed that there was a present danger to Respondent or any other students by C.B. standing in the doorway. There was also no evidence that C.B. posed a threat to Respondent or others. The evidence and testimony was only that C.B. was arguing with Respondent. Tr. Vol. 1, 65:20-22.

Respondent’s testimony concerning the intercom button in her classroom was not credible because her story changed multiple times during the hearing. For instance, she claimed she pushed the button on her way to address C.B. in the doorway. This contradicted her prior testimony on the issue, where she claimed the button was not working. Tr. Vol. 3, 77:4-79:12, 41:17-49:11. Prior to the fight, Respondent never told Mr. McKelvain about an alleged student altercation which she claimed occurred about a week before October 7. Nor did she ever tell him that the classroom button was not working. In fact, in her written statement she said she should have pushed the button before physically pushing C.B., and she told Mr. McKelvain immediately after the incident that she was remiss in not pushing the button. Tr. Vol. 2, 401:11-402:4, Petitioner’s Exhibit 26.

While the Respondent asserted that the videotape had been tampered with, there was no evidence that any part of the video was modified, altered or destroyed. While there appeared to be skips in the time segments, the WOCCISD submitted that it was based on the fact that the cameras were motion-activated and record based on motion. Tr. Vol, 1, 376:3-21, 384:4-9, 385:18-21, Vol. 2, 416:21-422:12

Evidence revealed that the incident was very upsetting to C.B. as she was breathing hard and crying and hysterical. C.B. even cried during her testimony. Although the evaluation by the nurse did not reveal bruises, red marks, or swelling, testimony from witnesses revealed that C.B. was obviously emotionally upset, while it was a laughing matter to the Respondent. Tr. Vol. 2, 143:10-144:2, Vol. 2, 143:10-144:2, Vol. 1, 269:10-13, 269:20-22, Vol. 3, 95:2-15. West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 11 of 18 Respondent is an educator with “20-odd years” of experience. In her most recent evaluation, it was noted that her “class discipline [was] well managed” giving rise to the fact that Respondent knew how to manage the discipline of students. Further, Respondent was provided in-service training on appropriate Classroom Management and Discipline at the beginning of the school year. Tr. Vol. 3, 14:77-23, Petitioner’s Exhibit 5, Petitioner’s Exhibit 18. Thus, Respondent should have been able to implement alternative discipline strategies that did not include an assault on a student for a student that she knew had a history of behavioral problems, even if you believe that the Respondent did not have C.B.’s Behavior Intervention Plan.

Respondent’s apparent disregard for the policies of the WOCCISD and West Orange Stark Middle School is further apparent in her act of insubordination. The day of the incident, Respondent was instructed to leave the campus, go home and not return until further notice. However, Respondent took it upon herself to violate the directive and return to campus the next day. Tr. Vol. 2, 228:10-229:1, Vol. 3, 88:3-6.

Despite the fact that Petitioner has shown by a preponderance of the credible evidence that there was good cause for the termination of Respondent’s term contract, this is a difficult case because Respondent has a prior lengthy history in the WOCCISD. There was no evidence that her prior history was a bad one which leads to the assumption that if she was in the WOCCISD for approximately twenty years, she had to have been a proficient teacher. However, the safety of students is of paramount importance and it is clear that Respondent has failed in this regard.

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 her 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).

The remediation issue is properly analyzed as part of the broader issue of whether the district had good cause for termination of Respondent. See Harper v. San Antonio Indep. Sch. Dist., 183-R2-286 (Tex. Comm’r Educ. 1987). Respondent fought a student who was much smaller than she thereby placing the student in potential danger. In Weatherwax v. Fort Worth Indep. Sch. Dist., 080-R2-1298 (Tex. Comm’r Educ. 1999), the commissioner found that “While an opportunity for remediation is required in many cases because the ordinary prudent person is not perfect… There are no hard and fast rules as to how much remediation is required in a particular circumstance…Each case must be examined individually to determine if cause exists.” See also, Matthews v. Scott, 268 S.W.3d 162, 175 (Tex. App. Corpus Christi, 2008, no pet.); Glanton v. Longview Indep. Sch. Dist., Docket No. 006-R1-994 (Tex. Comm’r Educ. 1996). In a termination case, remediation is not required in every case. Where state standards protecting the mental and physical wellbeing of disabled children are violated, no remediation is required. Boyd v. Lake Travis Indep. Sch. Dist., Docket No. 153-R2-696 West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 12 of 18 (Tex. Comm’r Educ. 1996); Thacker v. Lingleville Indep. Sch. Dist., Docket No. 086-R2- 498 (Tex. Comm’r Educ. 1998); Littleton v. Fort Worth Indep. Sch. Dist., Docket No. 106-R2-390 (Tex. Comm’r Educ. 1993). The issue is whether the teacher’s conduct rises to the level of good cause. See also, Baker v. Rice Indep. Schl. Dist., Docket No. 227-R2-493 (Tex. Comm'r Educ. 1995).

Respondent’s conduct was not behavior in which a reasonable, prudent teacher would engage. Respondent failed to comply with state standards and failed to perform her duties in such a manner as to protect the child’s health and safety. It is obvious that Respondent’s motivation was to demean the student. As to whether Respondent intended to violate established standards or the law, the commission has held that even negligent violation of professional standards constitutes good cause for dismissal. In Hammon v. Dallas, Docket No. 013-R2-1006 (Tex. Comm’r Educ. 2006), the court found that “one can negligently fail to comply. One can negligently act in a way that is contrary to and inconsistent with standards. One can negligently fail to meet acceptable standards.” Likewise, even if Respondent was unaware of the law, Respondent’s violation of the law may constitute grounds for termination. Tave v. Dallas Indep. Sch. Dist., Docket No 067-R2-501 (Tex. Comm’r Educ. 2001); Matthews v. Winona Indep. Sch. Dist., Docket No. 010-R2-1002 (Tex. Comm’r Educ. 2002).

Respondent’s conduct impacts negatively on the reputation and standards of the WOCCISD. WOCCISD has a duty to the general public to ensure that their actions are in compliance with the law, as well as their board policies and procedures. Such actions can only create mistrust between the district and a teacher, as well as mistrust between a parent who entrusts their child to the district and its teachers.

The commissioner has adopted the state law “good cause” standard for teacher discharge:

Good cause for discharging an employee is defined 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 same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.

Lee-Wright, Inc., v. Hall, 840 S.W.2d 572, 580 (Tex.App.-Houston [1st Dist.] 1992, no writ).

After a review of the admissible evidence and arguments of counsel, the Hearing Examiner recommends that the decision of the Board of the West Orange-Cove Consolidated Independent School District proposing to terminate the term contract of the Respondent, Wilhelminia Wills, be sustained.

CONCLUSIONS OF LAW West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 13 of 18 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

2. This hearing was properly requested in compliance with Chapter 21, Sub- Chapter F, §21.253 of the Texas Education Code.

3. The Respondent, Wilhelminia Wills is a “teacher” as defined in Sub-chapter C, §21.101 of the Texas Education Code.

4. The Respondent was recommended for discharge pursuant to the authority in Sub-chapter D, §21.156 of the Texas Education Code.

5. The Texas Education Code Chapter 21, Sub-chapter E §21.211 provides: (a) The board 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.

6. 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.

7. In Weatherwax v. Fort Worth ISD, Docket No. 080-R2-1298 (Tex. Comm’r Educ. 1999) the Commissioner held that placing a student in danger is an action so serious that it breaks the employer-employee relationship.

8. 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 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.

9. In Tave v. Dallas Indep. Sch. Dist., Docket No. 067-R2-501 (Tex. Comm’r Educ. 2001), the Commissioner applied the definition of good cause in Lee-Wright v. Hall and found good cause for termination of a term contract where a teacher came into possession of reprimands of other teachers and shared that information, concluding that such conduct could cause the public, students or employees to lose confidence in the administration and integrity of the district.

10.In Boyd v. Lake Travis Indep. Sch. Dist., Docket No. 153-R2-696 (Tex. Comm’r Educ. 1996), the Commissioner found that no remediation was required when West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 14 of 18 corporal punishment was given in violation of district rules.

11.In Thacker v. Lingleville Indep. Sch. Dist., Docket No. 086-R2-498 (Tex. Comm’r Educ. 1998), the Commissioner found remediation was not required when an “R” rated film was shown to students, students were told dirty jokes and told not to tell their parents.

12.In Glanton v. Longview Indep. Sch. Dist., Docket No. 006-R1-994 (Tex. Comm’r Educ. 1996), the Commissioner found the use of profanity to students was inappropriate and no further remediation was needed when the teacher used profanity after being told not to use profanity, and the district is not required to continue to employ teacher to determine whether she will exhibit another slip of the tongue.

13.In Littleton v. Fort Worth Indep. Sch. Dist., Docket No. 106-R2-390 (Tex. Comm’r Educ. 1993), the Commissioner found actions that posed no threat of emotional or physical harm to students or other employees were remediable.

14. In Gibson v. Tatum Indep. Sch. Dist., Docket No. 040-R2-1099 (Tex. Comm’r Educ. 1999), the Commissioner found that lying in an attempt to conceal facts during an investigation was good cause for termination of a teacher’s term contract.

15.In Whalen v. Rocksprings Indep. 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.

16.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.

17.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. Also, the Commissioner found that the teacher disobeyed directives of the superintendent to not have contact with the student after the incident and such insubordination was sufficient justification for termination.

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 15 of 18 18.In Johnson v. Kenedy Independent School Dist., Docket No. 060-R1-0608 (Tex. Comm’r Educ. 2008), the Commissioner held that where a teacher engaged in behavior that presented a danger of physical harm to a student, failed to comply with official directives, the decision of the board to nonrenew the contract was not unlawful, arbitrary or capricious.

19.The school district has the burden of proof by a preponderance of the evidence. Texas Education Code § 21.256(h).

20. Respondent violated the terms and conditions of her term contract, board policies and directives as follows:

a. Pushing and fighting a student thereby engaging in behavior that presents a danger of physical harm to a student or other individuals;

b. Assault on a student, regardless of time or place;

c. Inability to maintain discipline in any situation in which the employee is responsible for the oversight and supervision of students;

d. Insubordination or failure to comply with official directives, and failure to follow campus protocol;

e. Failure to comply with Board policies or administrative regulations;

f. Failure to meet the District’s standards of professional conduct by instigating and engaging in a fight with a student;

g. Incompetency or inefficiency in the performance of duties by instigating and engaging in a fight with a student;

h. 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:

i. 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.

ii. Standard 3.5 The educator shall not engage in physical mistreatment of a student.

Signed this 28th day of January, 2010.

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 16 of 18 __/s/ TAMMYE CURTIS-JONES______Tammye Curtis-Jones Certified Independent Hearing Examiner

CERTIFICATE OF SERVICE

I hereby certify that on January 28, 2010, a true and correct copy of the foregoing document was forwarded to the Texas Education Agency, the West Orange-Cove Consolidated Independent School district and all counsel of record pursuant to the Texas Rules of Civil Procedure as follows:

VIA ELECTRONIC MAIL TRANSMISSION ONLY- [email protected] Joan Howard Allen Deputy General Counsel Texas Education Agency 1701 North Congress Ave. Austin, TX 78701-1494 Fax: (512) 463-9838

Duplicate Original VIA FACSIMILE TRANSMISSION AND REGULAR MAIL on January 28, 2010 Pete Amy West Orange-Cove Consolidated Independent School District P.O. Box 1107 Orange, TX 77631-1107 President, Board of Education

VIA FASCIMILE TRANSMISSION 409-882-5467 Dr. O. Taylor Collins Superintendent West Orange-Cove Consolidated Independent School District P.O. Box 1107 Orange, TX 77631-1107

WOCCISD VIA FACSIMILE TRANSMISSION ONLY - 512-338-4401 Betsy Hall Bender P.O. Box 26715 Austin, TX 78755-0715 Attorneys for Petitioner West Orange-Cove Consolidated ISD

PETITIONER VIA FACSIMILE TRANSMISSION ONLY – 281-431-1298 Larry Watts West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 17 of 18 P.O. Box 2214 Missouri City, TX 77459 Attorney for Wilhelminia Wills

West Orange-Cove Consolidated ISD v. Wilhelminia Wills TEA Docket No. 026-LH-1109 Recommendation for Decision Page 18 of 18