DOCKET NO. 166-R2-898
MARY LINDA RAMIREZ
V.
EDGEWOOD INDEPENDENT
SCHOOL DISTRICT
§
§
§
§
§
§
§
BEFORE THE
COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner, Mary Linda Ramirez, appeals Respondent’s, Edgewood Independent
School District’s, decision to terminate her continuing contract.
Christopher Maska was the Administrative Law Judge appointed by the
Commissioner of Education to preside over this cause. Petitioner was represented by
Lorraine J. Yancey, Attorney at Law, Austin, Texas. Respondent was represented by
Juan C. Cruz, Attorney at Law, San Antonio, Texas.
Findings
It is concluded that the following findings are supported by substantial evidence.
1.
The Recommendation of the certified hearing examiner is adopted as if set
out in full.
2.
On July 27, 1998, Respondent, Edgewood Independent School District,
voted to accept the Recommendation of the certified hearing examiner to
terminate the continuing contract of Petitioner, Mary Linda Ramirez.
3.
The Petition for Review was filed August 13, 1998.
Discussion
Petitioner asserts that Respondent’s decision should be overturned because the
wrong evidentiary standard was used; Respondent failed to prove all allegations; there
was no evidence as to what constitutes a failure to meet the accepted standards of conduct
for the profession as generally recognized and applied in similarly situated school
districts; Petitioner’s failings are not sufficient to terminate a continuing contract; and
Petitioner was denied equal protection because Respondent did not treat similar teachers
in a similar manner .
Standard of Review
Petitioner contends that there should be a conclusion of law or ultimate finding of
fact that states the evidentiary standard used and that the discussion section indicates that
the substantial evidence standard was used.
Petitioner argues that a decision of a board of trustees must indicate by an ultimate
finding of fact or conclusion of law what standard of review was used. Petitioner notes
that a hearing on the merits by a certified hearing examiner is to be conducted in the same
manner as a trial without a jury in a district court in this state. Texas Education Code
§21.256 (e). Petitioner then claims in every civil or criminal case conducted by a district
court that a written record is created that indicates the standard of proof used. However,
the requirement that the hearing on the merits is to be conducted in a particular manner
does not mean that the recommendation of a certified hearing examiner should look just
like a decision of a district court. In fact, Texas Education Code §21.257 specifies what
type of recommendation is to be made. There is no specific requirement that the standard
of review be indicated in the recommendation. This is not surprising. A district court
#166-R2-898
-2-
may use a number of different standards of review: beyond a reasonable doubt, clear and
convincing evidence, preponderance of evidence, substantial evidence, or substantial
evidence de novo. Hence, it is important that a district court notes which standard was
used. A certified hearing examiner, however, can only use the preponderance standard.
There is no requirement that the recommendation indicate that the preponderance of
evidence standard was used.
However, even if there were such a requirement, the
standard would have been met. The Recommendation states, “EISD must prove by a
preponderance of evidence that it has good cause to terminate Petitioner’s continuing
contract of employment.”
Recommendation1, p.7.
While this portion of the
Recommendation is not labeled either a finding of fact or conclusion of law, the
Commissioner has repeatedly ruled that in a Chapter 21 case, a finding of fact or
conclusion of law found anywhere in a recommendation will be considered to be a
finding of fact or conclusion of law no matter how it is labeled. Hastings v Lake Travis
Independent School District, Docket No. 130-R2-696 (Comm’r Educ. 1996); Boyer v.
Austin Independent School District, Docket No. 062-R3-1296 (Comm’r Educ. 1996);
Roberts v San Benito Independent School District, Docket No. 046-R2-1196 (Comm’r
Educ 1996).
Substantial Credible Evidence
Petitioner contends that the Recommendation indicates that the wrong standard of
review was used:
There is substantial credible evidence that Ms. Ramirez failed to fulfill her job
duties and responsibilities. Specifically, there is substantial credible evidence
that Ms. Ramirez failed to adequately manage and discipline the students and
1
While the document is entitled Proposal for Decision, the term used in statute is Recommendation. Texas
Education Code§21.257.
#166-R2-898
-3-
maintain discipline in her classroom and failed to adequately manage the
instruction of her classes.
Recommendation, p.8, emphasis added. Petitioner contends that the phrase “substantial
credible evidence” means that the substantial evidence standard was used. “Substantial
evidence” is a term of art. Texas Education Code §21.258 ( c), Texas Government Code
§2001.175.
It is a compound noun.
The phrase used in the Recommendation is
“substantial credible evidence” not “substantial evidence.” A search of Texas statutes
and cases found only one use of the phrase “substantial credible evidence.” This phrase is
used in Jones v. Garcia, 538 S.W.2d 492, 496-497 (Tex. Civ. App.-San Antonio 1976, no
writ):
The evidence conclusively establishes that Garcia had made all payments due
under such note and, while the evidence is conflicting, there is substantial
credible evidence to the effect that Garcia was conducting business in a prudent
businesslike manner…
Emphasis added. This case is not an administrative law case. “Substantial credible
evidence” was used to mean that there was much credible evidence. In this phrase, the
noun “evidence” is modified by the adjectives “substantial” and “credible.” One would
think that this is how one would ordinarily interpret the phrase “substantial credible
evidence.” By stating that there was “substantial credible evidence,” the certified hearing
examiner in this case was stating that there was much credible evidence. The proper
standard of review was used.
Pleading
Respondent, in its Notice of Proposed Termination, listed the grounds for
proposed termination conjunctively. Petitioner contends that this means that the district
#166-R2-898
-4-
could only prevail if it proved up each of the listed reasons. Petitioner notes that many
districts make clear that any reason for proposed termination may be sufficient by
specifically pleading that fact. The issue of whether conjunctive pleading requires all
grounds for termination need not be reached. The district filed an Amended Notice of
Proposed Termination. An amended pleading completely supersedes the prior pleading.
Johnson v. Coca-Cola Co., 727 S.W.2d 756, 758 (Tex. App.-Dallas 1987, writ ref’d
n.r.e.). The Amended Notice of Termination states that “The good cause for such action
against Ms. Ramirez is:” then seven numbered reasons are given. These reasons are not
listed conjunctively. In fact, the reasons are linked by neither an “and” nor an “or”. As a
matter of pleading, Respondent could prevail by proving one or more of the numbered
reasons in the Amended Notice of Proposed Termination.
Similarly Situated Districts
Petitioner is correct that no direct testimony was offered that Petitioner’s actions
failed to meet “the accepted standards of conduct for the profession as generally
recognized and applied in similarly situated school districts in this state.”
Texas
Education Code §21.156. No one testified that Petitioner’s actions violated the standards
in any particular district that is similar to Respondent. While Respondent contends that
its witnesses had experience with other school districts, they did not indicate that
Petitioner’s conduct was good cause for termination in other districts.
Respondent contends that Petitioner’s failings are so serious that there is no need
for testimony about the standards around the state. The Commissioner has found in some
continuing contract cases that testimony regarding the standards of similar districts is not
required: (helping students to cheat in an extracurricular competition is per se good cause
#166-R2-898
-5-
for termination) Hoskins v. Smithville Independent School District, Docket No. 137-R2397 (Comm’r Educ. 1997); (sexually assaulting a student constitutes per se good cause
for termination) Veteto v. Houston Independent School District, Docket No. 227-R2-897
(Comm’r Educ. 1997); and (violating the standards of professional conduct by
disparaging a student is a per se grounds for termination) Adams v. Gregory-Portland
Independent School District, Docket No. 024-R2-1088 (Comm’r Educ. 1990). In all
these cases, the failings are so great that there was no need to provide testimony
concerning standards of similar districts. There is no need to have someone testify that
such actions justify termination in similar districts.
While the actions at issue in this case do not fit the areas identified supra,
Respondent contends that because the certified hearing examiner found that Petitioner
was incompetent, there are sufficient grounds for termination. Respondent argues that
being incompetent is per se grounds for termination. Respondent cites the case of Baker
v. Rice Consolidated Independent School District, Docket No. 227-R2-493 (Comm’r
Educ. 1987) for the proposition that remediation is not required to be offered to a teacher
prior to termination if the teacher is incompetent. Remediation assumes that an error is
not grave and may be expected to be corrected. If a teacher is incompetent the error is
grave and there is not much expectation of improvement. Teachers, like everyone else,
are not perfect and are not expected to be so. Nonetheless, teachers, and for that matter
all employees, are not expected to demonstrate a serious lack of competence.
While Baker is a term contract case, the principle is equally applicable to
continuing contracts. Remediation prior to termination is only required when a teacher’s
actions are not sufficiently serious to warrant termination. After an error has been
#166-R2-898
-6-
pointed out and the teacher is given an opportunity to correct the problem, repetition of
the error may rise to the level allowing termination. A corollary to the principle that
remediation is not required if the teacher is incompetent is the principle that
incompetence is per se grounds for termination. There is no need to present witnesses to
testify that similarly situated districts would terminate an incompetent teacher.
Substantial Evidence and Equal Protection
Petitioner contends that her conduct was not sufficient to warrant termination and
that teachers whose conduct was similar did not have their contracts proposed for
termination. While Petitioner does a good job of highlighting the evidence that supports
her, the Commissioner must consider this case under the substantial evidence rule. If any
rational finder of fact could have made the findings in Respondent’s Decision, and those
findings support the conclusions of law, Respondent’s Decision must be said to be
supported by substantial evidence. While the evidence goes both ways, it must be
concluded that Respondent’s Decision is supported by substantial evidence.
For
example, in Finding of Fact No. 16, Petitioner is found to have failed to effectively
manage her classroom as to student instruction and student discipline.
In No. 17,
Petitioner is found to be incompetent. These two ultimate findings of fact are supported
by a number of findings of fact including Finding of Fact No. 7 which states in part, “Ms.
Ramirez had a difficult time controlling her students and keeping them quiet, and that she
(Ms. Verlene Mooney) often observed (Ms. Ramirez’) student’s throwing books,
dropping desks and chairs, and using profane language.” Finding of Fact No.7 describes
a classroom that is often out of control. A rational finder of fact could determine that
Petitioner was incompetent in maintaining discipline.
#166-R2-898
-7-
Petitioner argues that there were many discipline referrals at Wrenn Middle
School. But even if it is granted that there were some discipline problems, this does not
mean that there were not very serious discipline problems in Petitioner’s classes.
Petitioner cannot even start to make a successful equal protection claim because she
cannot point to teachers who had discipline failures as great as hers.
Conclusion
The certified hearing examiner used the proper evidentiary standard.
Respondent’s pleading does not require Respondent to prevail as to all reasons for
proposed termination. Incompetence is per se grounds for termination. Respondent’s
decision to terminate Petitioner’s employment is supported by substantial evidence.
Respondent did not treat Petitioner differently than similarly situated teachers.
Respondent’s decision should be affirmed.
#166-R2-898
-8-
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing
Findings, in my capacity as Commissioner of Education, I make the following
Conclusions of Law:
1.
The Commissioner of Education has jurisdiction of this appeal pursuant to
Texas Education Code § 21.301.
2.
A certified hearing examiner is required to use a preponderance of the
evidence standard in making findings of fact in a Chapter 21 case.
3.
A finding of fact or conclusion of law in a recommendation of a certified
hearing examiner will be considered to be a finding of fact or conclusion
of law whether or not it is properly labeled as such.
4.
The certified hearing examiner used a preponderance of the evidence
standard in drafting his Recommendation.
5.
A recommendation of a certified hearing examiner or decision of a board
or board subcommittee in a Chapter 21 case need not state that the
certified hearing examiner used a preponderance of the evidence standard
in making findings of fact.
6.
The Amended Notice of Proposed Termination did not require Respondent
to prove all seven reasons for proposed termination in order to prevail.
7.
Texas Education Code §21.156 allows a continuing contract to be
terminated for good cause and specifies good cause is the failure to meet
the accepted standards of conduct for the profession as generally
recognized and applied in similarly situated school districts in the state.
#166-R2-898
-9-
8.
A teacher who is incompetent has failed to meet the accepted standards of
conduct for the profession as generally recognized and applied in similarly
situated school districts in the state.
9.
Petitioner was not treated differently than similarly situated teachers in
violation of the Equal Protection Clause of the 14th Amendment to the
U.S. Constitution.
10.
Respondent’s decision is supported by substantial evidence.
11.
Respondent’s decision is not arbitrary and capricious.
12.
Respondent’s decision is not unlawful.
13.
Petitioner’s appeal is denied.
ORDER
After due consideration of the record, matters officially noticed, and the foregoing
Findings and Conclusions of Law, in my capacity as Commissioner of Education, it is
hereby
ORDERED that Petitioner’s appeal be, and is hereby, DENIED.
SIGNED AND ISSUED this _______ day of ____________________________,
1998.
______________________________________
MIKE MOSES
COMMISSIONER OF EDUCATION
#166-R2-898
-10-