#027-R3-1087 -- DOCKET NO. 027-R3

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#027-R3-1087
DOCKET NO. 027-R3-1087
EULOGIA LAZANO DE LA CRUZ
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V.
ROBSTOWN INDEPENDENT
SCHOOL DISTRICT
BEFORE THE STATE
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COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner De La Cruz appeals from the decision of
Respondent Robstown ISD to reassign Petitioner from the
position of high school counselor to elementary school
counselor.
On February 3, 1988, the case was heard by Hearing
Officer Terry J. Johnson. Petitioner is represented by Ms.
Dianne Doggett, Attorney at Law, of Austin. Respondent is
represented by Ms. Viviana Cavada, Attorney at Law, of
Corpus Christi.
On October 28, 1988, a Proposal for Decision was issued
containing the recommendation that the Commissioner enter an
order denying the subject appeal. Exceptions were timely
filed.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact:
1. Under a series of one-year term contracts,
Petitioner had been employed by Respondent as a counselor
since the 1984-85 school year. (Tr. 5).
2. Pursuant to a one-year term contract, Petitioner
was employed by Respondent as a counselor during the 1987-88
school year. (Tr. 5; Resp. Ex. 1).
3. Prior to the 1987-88 school year, Petitioner had
been assigned to the district's high school campus. (Tr.
5).
4. For the 1987-88 school year, Petitioner was
assigned to an elementary campus. (Tr. 7).
5. Under local policy in effect at the time, job
assignment was not subject to formal employee grievance
procedures. (Pet. Ex. A).
6. On August 18, 1987, Petitioner presented her
reassignment dispute to Respondent board of trustees. (Tr.
8-9, 24).
7. Respondent board took no action with regard to
Petitioner's presentation. (Tr. 9).
8. The contract governing Petitioner's employment
relation with Respondent specifically reserves to Respondent
the power to reassign Petitioner during the contract term.
(Resp. Ex. 1).
9. Petitioner was subject to no reduction of salary as
a result of her assignment to the elementary campus. (Tr.
23, 53).
10. There was no significant difference in Petitioner's
authority or duties as a result of her assignment to the
elementary campus. (Tr. 7-8, 21-22).
11. Petitioner's assignment to the elementary campus
did not constitute a demotion. (Record).
12. Petitioner has engaged in no political activity
with respect to Respondent district. (Tr. 26-27, 59-60).
Discussion
Petitioner was employed under a contract which
specifically provided for her reassignment. The facts
presented for review fail to demonstrate that Petitioner's
assignment to the elementary campus was the product of
impermissible motive on the part of Respondent. Petitioner
offered no protected activity as a target for retaliation
but only alleged that she was out of favor with the board.
The record evidence does not rise to the level which would
require Respondent to come forward with any evidence to
justify Petitioner's reassignment. Connick v. Myers, 461
U.S. 138, 103 S.Ct. 1684 (1983); Mt. Healthy City School
District v. Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977).
The action below will stand
Conclusions of Law
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact, in
my capacity as State Commissioner of Education, I make the
following Conclusions of Law:
1. Petitioner's assignment as counselor to an
elementary campus was not the product of impermissible
motivation.
2. Respondent's decision to assign Petitioner to an
elementary campus was neither arbitrary, capricious nor
unlawful.
3. Petitioner's appeal should be denied.
O R D E R
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact and
Conclusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that Petitioner's appeal be, and is hereby,
DENIED.
SIGNED AND ENTERED this _____ day of ________________,
19_____.
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W. N. KIRBY
COMMISSIONER OF EDUCATION
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