DOCKET NO. 001-R1-997
EARNEST SAMUEL DELAUNE, IV
V.
HOUSTON INDEPENDENT
SCHOOL DISTRICT
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BEFORE THE
COMMISSIONER OF EDUCATION
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THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner, Earnest Samuel Delaune, IV, appeals the decision of the Houston
Independent School District, Respondent, to deny his grievance concerning the decision
by Respondent’s board of trustees not to employ Petitioner under a probationary contract
for the following school year or under a continuing or term contract.
Paula Hamje is the Administrative Law Judge appointed by the Commissioner of
Education. Petitioner is represented by James T. Fallon, III, Attorney at Law, Houston,
Texas. Respondent is represented by Myra Schexnayder, Attorney at Law, Houston,
Texas.
On November 4, 1997, the Administrative Law Judge issued a Proposal for
Decision recommending that Petitioner’s appeal be dismissed for lack of jurisdiction. No
exceptions were filed.
Findings
After due consideration of the record and matters officially noticed, in my
capacity as Commissioner of Education, I make the following Findings:
1.
Petitioner, Earnest Samuel Delaune, IV, was a probationary teacher at
Hogg Middle School in Houston, Texas (North Central District) and timely filed a
grievance with Respondent concerning a decision of the board of trustees, on or about
January 9, 1997, to terminate his employment.
2.
Petitioner’s appeal to the Commissioner is based on the allegation that the
board of trustees’ decision to terminate his employment violated a provision of a written
employment contract between Petitioner and the school district which caused or would
cause monetary harm. No such provision of the contract was cited in the appeal; the
termination was recommended pursuant to Section 10 of the Petitioner’s contract.
3.
Petitioner was employed as a reading teacher by Hogg Middle School in
Houston, Texas for school years 1994-1995,1995-1996, and 1996-1997 under a
probationary contract.
4.
After an observation in February 1995, resulting in performance ratings of
“unsatisfactory” in three of five domains (appraisal levels); instructional strategies,
classroom management and organization, and professional growth and responsibilities,
Petitioner was presented with a growth plan dated February 7, 1995 and a conference
summary dated March 6, 1995, designed to improve his teaching performance.
5.
In April 1995, the assistant principal had a conference with Petitioner
concerning the use of profanity and inappropriate language in the classroom and issued a
written reprimand dated May 12, 1995.
6.
Petitioner received another written reprimand dated May 22, 1995 from
the principal of Hogg Middle School for failing to maintain control in the classroom after
he received several complaints from teachers concerning the noise level of Petitioner’s
classroom.
7.
The principal issued Petitioner a written reprimand dated May 14, 1996
concerning the unnecessary touching of a student’s face to redirect him “due to off task
behavior” and cautioning Petitioner not to use physical restraints unless absolutely
necessary.
8.
A parent complained to the North Central District Schools on or about
November 20, 1996 concerning Petitioner’s use of sexual references in class which
resulted in an investigation and conferences. The principal issued a recommendation
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dated December 16, 1996 for nonrenewal of Petitioner’s contract at the school term’s
conclusion.
9.
On or about January 9, 1997, Respondent’s board of trustees determined
the best interests of the district would be served by terminating the employment of
Petitioner at the end of the 1996-1997 term.
10.
Petitioner was notified by letter dated January 23, 1997 by the
Superintendent of Schools of the Houston ISD board of trustees’ decision to terminate
Petitioner’s probationary contract at the conclusion of the 1996-1997 school year.
11.
The board of trustees gave notice to Petitioner of its intention to terminate
Petitioner’s employment not later than the 45th day before the last day of instruction
required under his contract for the 1996-1997 term.
12.
The decision of the board is final and may not be appealed.
13.
The decision of the Houston ISD did not violate a provision of Petitioner’s
employment contract, and notice of intention to terminate was timely based on the
board’s judgment that the best interests of the district would be served by termination of
Petitioner. The Commissioner lacks jurisdiction over the subject matter of this case.
Discussion
Petitioner, Earnest Samuel Delaune, IV appeals the decision of Respondent,
Houston Independent School District to terminate his probationary employment contract
at the end of the 1996-1997 school term. Petitioner taught reading to seventh-grade
students at Hogg Middle School in the North Central District of Houston, Texas under a
probationary contract which had been renewed for a third year (1996-1997 school year).
Petitioner argues that the reason for his termination was based on the school principal’s
recommendation after receipt of one parental complaint in November 1996 against the
Petitioner.1
Petitioner appeals the termination pursuant to Tex. Educ.Code
1
References in the record by both parties to subsequent letters dated December 3, 1997 and December 17,
1997 should read “1996.”
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§7.057(a)(2)(B) which provides the right to appeal a school district board of trustees’
decision that violates a provision of a written employment contract between the district
and an employee, which causes or would cause monetary harm. No copy of the contract
or reference to the particular contractual provision violated was in the record. The record
reflects the Respondent’s procedure utilized to terminate Petitioner did comply with
Section 10 of the probationary contract.
Petitioner received several reprimands from officials at Hogg Middle School
during his employment concerning classroom management and behavior. Petitioner was
the subject of an observation report in February 1995, written by the assistant principal,
which reflected a disorganized, cluttered class, students shouting, and absence of lesson
plans.
As a result, Petitioner received a growth plan emphasizing the need for
improvement in unsatisfactory domains; classroom management and organization, growth
and responsibilities, and instructional strategies. In April of the same year, Petitioner
received a written reprimand concerning the use of profanity and inappropriate language
in the classroom. In May of that same year, Petitioner was again reprimanded for failing
to maintain control of his classroom after complaints were received concerning the noise
level of the room.
In May 1996, Petitioner was issued a written reprimand for
unnecessarily touching a student’s face as part of his discipline. Then, in November
1996, the district received a complaint from a parent concerning numerous sexual
references made by Petitioner when addressing his students in class. A conference was
held with the principal after which time he recommended nonrenewal of Petitioner’s
contract.
The Houston ISD board of trustees met on January 9, 1997, and decided to
terminate Petitioner’s employment. The board timely notified Petitioner of its final and
non-appealable decision by letter dated January 23, 1997. Petitioner was afforded a Level
II hearing, Level III hearing, Level II hearing on remand, and final arguments at Level III
prior to the filing of this appeal. Respondent acted in accordance with Tex. Educ. Code
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§21.103 and pursuant to Section 10 of the employment contract in terminating
Petitioner’s probationary employment. Petitioner failed to point out any provision of the
employment contract which was violated by Respondent’s decision to terminate
Petitioner. Therefore, the Commissioner lacks jurisdiction over this appeal.
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.
Respondent violated no provision of a written employment contract with
Petitioner which caused or would cause monetary harm, thereby failing to create subject
matter jurisdiction in this case pursuant to the Texas Education Code §7.057.
2.
Respondent terminated Petitioner from probationary employment as a
middle school teacher in compliance with the Texas Education Code §21.103.
3.
The Commissioner of Education lacks jurisdiction over the instant matter
under Tex. Educ. Code §7.057.
4.
Petitioner’s appeal should be DISMISSED for lack of jurisdiction.
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
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ORDERED that Petitioner’s appeal be, and is hereby, DISMISSED for lack of
jurisdiction.
SIGNED AND ISSUED this _______ day of ______________________, 1998.
____________________________________
MIKE MOSES
COMMISSIONER OF EDUCATION
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