#096-R2-1286
DOCKET NO. 096-R2-1286
GWENDOLYN MERRITT
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V.
FORT WORTH 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
Gwendolyn Merritt, Petitioner, appeals from a decision
of the Fort Worth Independent School District Board of
Trustees, Respondent, terminating her employment because of
her failure to perform satisfactorily on the Texas Examination of Current Administrators and Teachers (hereinafter
"TECAT") on or before June 30, 1986. Respondent filed a
Motion for Summary Judgment in this cause on July 22, 1987,
to which the Petitioner responded on September 14, 1987.
The Hearing Officer appointed by the Commissioner of
Education to issue a Proposal for Decision is Cynthia D.
Swartz. Petitioner is represented by Sharon D. Groth,
Attorney at Law, Houston, Texas. Respondent is represented
by Jo Ann S. Wright, Attorney at Law, Fort Worth, Texas.
On September 22, 1987, the Hearing Officer issued a
Proposal for Decision recommending that Petitioner's appeal
be DENIED. Petitioner filed Exceptions to the Proposal for
Decision on October 16, 1987; Respondent's Reply to
Petitioner's Exceptions was filed on October 27, 1987.
By order dated November 9, 1987, the State Commissioner
of Education recused himself from consideration of this
appeal based upon his previous action to deny Petitioner a
waiver of the TECAT requirement. Thomas E. Anderson, Jr.,
Deputy Commissioner for Finance and Compliance, was
designated to render a decision this appeal.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as designee of the State
Commissioner of Education, I make the following Findings of
Fact:
1. Petitioner was employed as a teacher under a continuing contract by Respondent during the time in controversy. (Pet. Rev. para. II).
2. Petitioner failed to perform satisfactorily on the
March 10, 1986 TECAT examination. (Pet. Rev. para. II).
3. From June 17, 1986 to July 11, 1986, Petitioner was
hospitalized by her physician for emergency back surgery.
(Respondent's Motion for Summary Judgment "RMSJ" Ex. A).
4. Petitioner requested Respondent to seek a waiver of
the TECAT requirements from the Texas Education Agency.
Respondent complied and the Commissioner of Education denied
the request by the following letter:
I am unable to approve the request of the above
named individual for an extension of time to pass
the Texas Examination of Current Administrators
and Teachers (TECAT). The Texas Education Code,
Section 13.047, provides that educators employed
during the 1985-86 school year be afforded multiple opportunities to pass the TECAT prior to June
30, 1986, to be employed during the 1986-87 school
year. All educators were given opportunities to
meet this requirement on March 10,
June 28, 1986. Our staff provided
opportunities to take the TECAT on
12, May 17, July 12, and August 15
in certain situations.
1986, and on
additional
March 22, April
for individuals
A teacher certificate is not valid for continued
employment in a Texas public school unless an individual has passed the TECAT. The next opportunity to take the TECAT will be October 4, 1986.
The registration postmark deadline for the October
test has been extended to September 5, 1986. Enclosed is the registration material.
(RSMJ Ex. C and D).
5. By letter dated August 27, 1986, Respondent informed Petitioner that it had approved the recommendation to
propose her termination of employment and set forth the
following reasons:
Section 13.047 - Tex. Educ. Code
Each teacher must perform satisfactorily on the
applicable examination on or before June 30, 1986,
to teach the subject at a particular level unless
a school district establishes to the satisfaction
of the Commissioner of Education that there is an
emergency need. A teacher may not teach under a
determination of emergency need for more than one
year;
Section 13.109(4) - Tex. Educ. Code
Repeated failure to comply with official directives and established school board policy; and
Board Policy 4.6(a)(1)(d)
Repeated failure to comply with official directives and established school board policy.
(RSMJ Ex.
6.
quested a
a teacher
E).
Petitioner, by letter dated July 28, 1986, retemporary disability leave of absence from duty as
for the beginning school year, August 1986.
Respondent denied this request. (Pet. Rev. Att. 1).
7. Respondent's leave of absence policy provides in
pertinent part:
All certificated personnel are entitled to a leave
of absence for one school year or the remainder of
one school year after completion of three year's
service in the Fort Worth Independent School District. In meritorious cases, the superintendent
may give special consideration to a year's leave
of absence for applicants to have completed less
than three years of service. All applications
must be made in writing to the superintendent and
may be granted for any of the following reasons
when not accompanied by the pursuit of a gainful
occupation.
(a)
Applicant's illness.
(b) Serious illness of a member of applicant's
immediate family.
(c) Desire of applicant to study in an institution of higher education.
(d) Extensive travel which may be considered of
equal educational value to training in an institution of higher learning.
(e) Adoption of a child.
(RSMJ Ex. F).
Discussion
Petitioner first contends that the Respondent wrongfully terminated her employment based upon her failure to
pass the TECAT before June 30, 1986. According to Petitioner, the Respondent did not comply with Tex. Educ. Code
Ann. +13.047(f) which provides that each teacher shall have
more than one opportunity to take the TECAT examination.
Petitioner asserts that she was not given more than one
opportunity because illness prevented her from taking the
June 30, 1986 examination.
This issue has been directly addressed in Jacks v. Fort
Worth Independent School District, No. 097-R2-1286 (Comm'r
Educ. 1987). In Jacks, the Petitioner likewise had failed
the March 10, 1986 TECAT examination. Due to extenuating
circumstances, the petitioner was unable to take the June
28, 1986 examination. The Commissioner found that the petitioner was in fact given more than one opportunity to perform satisfactorily on the TECAT examination. In addition
to the March 10, 1986 exam, the petitioner was given the
opportunity to take the June 28th exam, but did not do so
because of extenuating circumstances. The Agency staff
provided additional opportunities to take the TECAT on March
22, April 12, May 17, July 12 and August 15 for individuals
in certain situations. Therefore, Tex. Educ. Code +13.047(f)
had not been violated. Consequently, the first contention
is without merit.
Petitioner next asserts that Respondent wrongfully denied her a leave of absence. According to Petitioner,
Respondent's failure to place her on leave of absence was
arbitrary and capricious. However, both Tex. Educ. Code
Ann. +13.905 and Respondent's leave of absence policy are
applicable to certified employees. Under Tex. Educ. Code
+13.047(a), Petitioner did not hold a valid certificate because of her failure to satisfactorily perform on the TECAT
on or before June 30, 1986. Consequently, these provisions
were unavailable to Petitioner.
Nonetheless, Petitioner asserts that Respondent could
have applied its leave of absence policy for non-certified
employees to Petitioner and in its discretion granted the
leave of absence. As noted by Petitioner, the application
of the leave of absence policy for non-certified employees
to Petitioner was within the Respondent's discretion. Its
failure to do so does not constitute an abuse of that discretion. Therefore, Petitioner's second contention is
devoid of merit.
Finally, Petitioner asserts that Respondent failed to
give notice in accordance with Tex. Educ. Code Ann.
+13.111(a). This section provides in pertinent part
[B]efore any teacher holding a continuing contract
shall be dismissed or returned to probationary
contract status at the end of a school year for
any of the reasons mentioned in Section 13.110 of
this code, he shall be notified in writing by the
board of trustees or under its direction of the
proposed action and of the grounds assigned therefor.
In this instance, the Board of Trustees informed Petitioner of the proposed action and set forth the grounds for
said action in a letter dated August 27, 1986. The grounds
which were set forth included Petitioner's failure to
satisfactorily perform on the TECAT on or before June 30,
1986. Contrary to Petitioner's assertion, Respondent's
notification was in compliance with +13.111(a). Accordingly,
this contention is also without merit. Therefore,
Respondent's Motion for Summary Judgment should be GRANTED.
Conclusions of Law
After due consideration of the record, matters offi-
cially noticed, and the foregoing Findings of Fact, in my
capacity as designee of the State Commissioner of Education,
make the following Conclusions of Law:
1. Petitioner was given more than one opportunity to
take the TECAT examination on or before June 30, 1986.
2. Respondent acted in accordance with Tex. Educ. Code
Ann. +13.110(8) when it terminated Petitioner for his failure
to pass the TECAT on or before June 30, 1986.
3. Respondent's notification of its proposed action to
Petitioner was in compliance with Tex. Educ. Code Ann.
+13.111(a).
4. 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 designee of the 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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THOMAS E. ANDERSON, JR.
DEPUTY COMMISSIONER FOR
FINANCE ANC COMPLIANCE