Mary Linda Ramirez v. Edgewood Independent School District, and Michael Moses, Commissioner of Education, in his Official Capacity--Appeal from 45th Judicial District Court of Bexar County

No. 04-00-00137-CV

Mary Linda RAMIREZ,

Appellant

v.

EDGEWOOD INDEPENDENT SCHOOL DISTRICT and

Michael Moses, Commissioner of Education, In his Official Capacity,

Appellees

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 1998-CI-15635

Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 10, 2001

AFFIRMED

This is an appeal from the trial court's judgment, affirming the Commissioner of Education's ("the Commissioner") decision that good cause existed to support the termination of Mary Linda Ramirez's continuing contract with Edgewood Independent School District ("Edgewood"). In an opinion and judgment dated October 18, 2000, we affirmed the trial court's judgment in favor of the Commissioner. Ramirez filed a motion for rehearing. We grant the motion, withdraw our opinion and judgment of October 18, 2000, and issue this opinion and judgment in its place.

Because we conclude that substantial evidence supported the Commissioner's decision to terminate Ramirez's contract, we affirm.

BACKGROUND

Ramirez was employed by Edgewood for several years as a special education teacher at Wrenn Middle School under a continuing contract. In April 1998, Edgewood notified Ramirez of its intention to terminate her continuing contract. The specific grounds supporting the termination included: (1) deficiencies noted in observation reports, appraisals and evaluations, supplemental memoranda, and other communications; (2) failure to fulfill duties and responsibilities; (3) incompetency and insufficiency in the performance of acquired or assigned duties; (4) inability to maintain discipline in the classroom; (5) incompetency and failure to comply with official directives; (6) failure to comply with reasonable school district requirements regarding professional improvement and growth; and (7) failure to attain the school's stated goals for the 1996-1997 and 1997-1998 school years.

Ramirez requested a hearing pursuant to Texas Education Code, Chapter 21, subchapter F. She was placed on administrative leave with pay pending a hearing before the independent hearing examiner. After an evidentiary hearing, the hearing examiner issued a written Proposal for Decision, concluding that there was good cause to terminate Ramirez's contract. The recommendation also included findings of fact and conclusions of law. Edgewood and, on appeal, the Commissioner adopted the hearing examiner's recommendation to terminate Ramirez's contract.

Ramirez sought judicial review of the Commissioner's decision in district court. After a bench trial, the district court affirmed the decision to terminate Ramirez's contract. This appeal by Ramirez ensued.

STANDARD OF REVIEW

A teacher who receives notice of a proposal to terminate her employment contract is entitled to a hearing before a certified hearing examiner. Tex. Educ. Code Ann. 21.251(a)(1) (Vernon 1996). At this hearing, the teacher has a right to hear the evidence on which the charges are based and present her own evidence. Id. 21.256(c). The burden of proof is on the school district by a preponderance of the evidence. Id. 21.256(h). After the hearing, the examiner must make a written recommendation that includes findings of fact and conclusions of law, and may include a proposal for granting relief. Id. 21.257(a).

At the first school district meeting for which notice can be given after the examiner issues his recommendation, the school district "shall consider the recommendation and record of the hearing examiner" and allow each party to address the school district. Id. 21.258(a), (b). No later than the tenth day after the meeting, the school district must announce a decision that includes findings of fact and conclusions of law. Id. 21.259(a). The school district may adopt, reject, or change the hearing examiner's conclusions of law. Id. 21.259(b). However, the school district may reject or change a finding of fact only after reviewing the record of the proceeding before the hearing examiner and only if the finding of fact is not supported by substantial evidence. Id. 21.259(c).

If dissatisfied with the school district's decision, the teacher may appeal to the Commissioner of Education. Id. 21.301(a). The Commissioner must review the record of the hearing before the hearing examiner and the oral argument before the school district. Id. 21.301(c). If the school district terminated a teacher's contract and accepted the hearing examiner's findings of fact without modification, the Commissioner may not substitute his judgment for the school district's unless the school district's decision was arbitrary, capricious, or unlawful or is not supported by substantial evidence. Id. 21.303. Furthermore, the Commissioner may not reverse the school district's decision based on a procedural irregularity or error unless the error likely led to the rendition of an erroneous decision by the school district. Id. 21.303(c).

Either party may appeal for judicial review of the Commissioner's decision in district court. Id. 21.307(a). The court must review the record made at the local level under the substantial evidence rule, and not take any additional evidence. Id. 21.307(e); see also McConnell v. Alamo Heights Indep. Sch. Dist, 576 S.W.2d 470, 475 (Tex. Civ. App.--San Antonio 1978, writ ref'd n.r.e.) ("It is well settled that an appeal to a court from a hearing before the board of trustees of a school district is governed by the substantial evidence rule."). The district court may not reverse the Commissioner's decision unless the decision was not supported by substantial evidence or unless the Commissioner's conclusions of law were erroneous. Id. 21.307(f).

In conducting a substantial-evidence review, we determine whether the evidence as a whole is such that reasonable minds could have reached the same conclusion as the agency in the disputed action. Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 30 (Tex. App.-Austin 1999, no pet.). The reviewing court may not substitute its judgment for that of the agency and may only consider the record on which the agency based its decision. Id. The findings, inferences, conclusions, and decisions of an administrative agency are presumed to be supported by substantial evidence, and the burden is on the contestant to prove otherwise. Id.; McConnell, 576 S.W.2d at 475 (plaintiff has burden of proving absence of substantial evidence, that is, the burden of proving that board's action was illegal, arbitrary, capricious, unreasonable or discriminatory).

BURDEN OF PROOF

In point of error one, Ramirez asserts the hearing examiner applied the incorrect burden of proof in the underlying proceeding. Ramirez contends the hearing examiner applied a "substantial credible evidence" standard, instead of the "preponderance of the evidence" standard.

The hearing examiner's Proposal for Decision included a short statement of the case, nineteen findings of fact, a discussion section, four conclusions of law, and a recommendation. Contrary to Ramirez's contention that "substantial credible evidence" was the only standard articulated by the hearing examiner, the discussion section began with a short introductory paragraph, beginning with the following statement: "[Edgewood] must prove by a preponderance of the evidence that it has good cause to terminate Ms. Ramirez'[s] continuing contract of employment . . . ." This paragraph is followed by a consideration of each of the seven grounds upon which Edgewood relied to terminate Ramirez's contract. In discussing whether Ramirez had failed to fulfill her duties and responsibilities (one of the seven grounds for termination), the hearing examiner stated, "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 in her classroom." The hearing examiner's conclusion of law stated, "Good cause, as defined in Texas Education Code Section 21.156, does exist for the termination of Ms. Ramirez'[s] continuing contract of employment . . . ." The "Decision of the Commissioner" stated, "While [Ramirez] does a good job of highlighting the evidence that supports her, the Commissioner must consider this case under the substantial evidence rule. . . . While the evidence goes both ways, it must be concluded that [Edgewood's] [d]ecision is supported by substantial evidence."

We may only set aside an agency's decision if the decision was made without regard to the law or the facts and therefore was unreasonable, arbitrary, or capricious. Hernandez v. Texas Workforce Comm'n, 18 S.W.3d 678, 681 (Tex. App.-San Antonio 2000, no pet.). Ramirez extracts the phrase "substantial credible evidence" from two sentences in the discussion of one of seven grounds for termination, and attempts to transform that phrase into an argument that good cause based on all other grounds for termination was proved under a lesser burden of proof. See Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 290 (Tex. App.-Houston [1st Dist.] 1992, no writ) (noting that substantial evidence is more than a mere scintilla, but less than a preponderance of the evidence). Even were we to agree with Ramirez's argument, the discussion of the other six grounds for termination do not contain the same language. We conclude that the hearing examiner did not hold Edgewood to a lesser burden of proof.

"GOOD CAUSE" TO TERMINATE

In point of error two, Ramirez asserts Edgewood did not prove "good cause" because there is no evidence that her conduct did not meet accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts. In point of error three, Ramirez asserts the Commissioner's decision was not supported by substantial evidence.

The Education Code provides that a teacher "may be discharged at any time for good cause as determined by the board of trustees, good cause being the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state." Tex. Educ. Code Ann. 21.156(a). Incompetence was one of the seven grounds upon which Edgewood relied to terminate Ramirez's contract.

Ramirez contends Edgewood was required to put on evidence of what constitutes a failure to meet accepted standards of conduct for her profession, such as geographic, demographic, special education population, budgetary, and other information. Ramirez contends there is no evidence in the record supporting any of the seven grounds for termination.

In affirming the hearing examiner's decision, the Commissioner conceded there was no direct testimony that Ramirez's actions violated the standards in any particular school district similar to Edgewood. However, the Commissioner relied on prior decisions (1) in which testimony regarding the standards of similar districts was not required. The Commissioner noted that, in these cases, the teachers' failings were so great there was no need to provide testimony concerning standards in similar districts or to justify termination in similar districts. The Commissioner also relied on another decision (2) in which it was held that a school district was not required to offer remediation to an incompetent teacher. The Commissioner noted that remediation assumes an error is not grave and can be corrected, but if the teacher is incompetent, the error is grave and there is no expectation of improvement. The Commissioner stated that after an error has been pointed out and the teacher given an opportunity to correct the problem, repetition of the error may rise to the level allowing termination.

The Commissioner concluded that 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, and there is no need to present witnesses to testify that similarly situated school districts would terminate an incompetent teacher. We cannot conclude that this decision was arbitrary, capricious, or without regard to the facts. We next review the evidence in support of the Commissioner's decision.

The evidence of Ramirez's incompetence was substantial. Claire Davies-Tamez, an Edgewood special education teacher, testified about Edgewood's decision in the Spring of 1997 to create a resource classroom at Wrenn to provide a more conducive environment for teaching severely learning disabled and/or dyslexic students who were not performing well in a regular classroom setting despite receiving inclusive special education assistance. Edgewood placed Ramirez in charge of this classroom because of her special education background and her training in dealing with dyslexic students. Davies-Tamez testified she told Ramirez about the special education training opportunities available to her within Edgewood and its regional offices. Davies-Tamez said she admonished Ramirez for giving students low grades for exhibiting defiant behavior in refusing to do their work. She said she told Ramirez this was an inappropriate way to deal with a special education student and told Ramirez the appropriate way to handle such problems.

Janet Raue, an Edgewood special education facilitator, met with Ramirez on six occasions during the 1997-1998 school year to observe her classroom and/or to arrange training or discuss concerns about her teaching and classroom management skills. Raue testified that, during her visits to Ramirez's classroom, she repeatedly provided guidance and training to Ramirez, but she did not observe Ramirez implementing the teaching skills and classroom management techniques during subsequent classroom visits. Specific problems observed by Raue included Ramirez's failure to do the following: maintain classroom order, give all students required "briganee" academic achievement tests, conduct a reading styles inventory for each student, teach in accordance with students' "IEPs," give information to regular classroom teachers regarding learning style strengths, maintain lesson plans for all student groups, and follow the "lesson cycle." Raue also said Ramirez lacked any systemic approach to teaching designed to meet her students' long-range goals.

Susan Aaron, an Edgewood educational specialist in the Edgewood Special Education Department and a certified appraiser, observed Ramirez's classroom six or seven times for a total of approximately six hours during the 1996-1997 school year. Aaron recommended to the Wrenn principal that Ramirez be given a growth plan to assist her in areas of student discipline and organizational skills. Specific problems observed by Aaron included the following: failure to discipline unruly students and redirect off-task students, poor planning and organizational skills, poor classroom management skills, and weak instructional skills.

Joyce Marie St. John, an Edgewood learning disabilities specialist, testified that when she observed Ramirez's classroom, she did not see Ramirez implement any of the special education training in her classroom.

Amy Brieno, an Edgewood dyslexia facilitator, testified she observed Ramirez's classroom many times for observational and advisory purposes during the 1996-1997 and 1997-1998 school years. Specific problems observed by Brieno included the following: not being prepared to teach when the class began, improperly interrupting the dyslexia students' viewing of instructional video tapes, not maintaining control of students, and frustrating dyslexia students by asking them to perform skills their disability would not allow them to perform. On at least two occasions, Brieno modeled effective teaching skills for Ramirez with her students, but Ramirez ignored her training efforts. Brieno saw Ramirez sleeping at in-service training sessions.

Verlene Mooney, a paraprofessional teacher's aide in Ramirez's classroom during the 1996-1997 and 1997-1998 school years, said Ramirez had a hard time controlling her students and keeping them quiet. Mooney often observed students throwing books, dropping chairs and desks, and using profane language.

Margie Willems, a Wrenn vice principal, was Ramirez's chief appraiser for the 1996-1997 school year. In a March 1997 memo to Ramirez, Willems expressed her concerns about Ramirez's classroom management and discipline, and the quality of her lesson plans and teaching techniques. Willems' 1996-1997 appraisal of Ramirez reflected that Ramirez did not provide students the appropriate response time to questions, did not re-teach students when necessary or provide corrective feedback, and did not successfully redirect students who were inattentive.

Elba Alicia Rodriguez, a Wrenn vice principal, was Ramirez's evaluator for the 1997-1998 school year. Specific problems observed by Rodriguez included the following: poor classroom management, failure to adequately discipline unruly students and redirect off-task students, and failure to explain class objectives to students. Rodriguez made numerous informal walk-throughs of Ramirez's classroom and attended various school-related meetings with Ramirez. She observed Ramirez sleeping through some of the meetings. During one formal evaluation, a student sitting next to Rodriguez had to raise his hand for twenty-five minutes before Ramirez saw him, because she was not properly monitoring the classroom.

Richard Nagelhout, the Wrenn principal, testified he first noticed problems with Ramirez's performance when she went from being an inclusion/content mastery teacher to taking over her own classroom when Edgewood decided to create the resource classroom. A March 1997 visitation report by Nagelhout reflects Ramirez did a poor job of presenting an experiment to her class, did not discipline several students for inappropriate behavior, and did not respond to a student's question. Nagelhout testified he observed Ramirez's classroom on several occasions during the 1996-1997 and 1997-1998 school years, but he never saw improvement in her teaching performance or her classroom management skills.

David Salano, a parent volunteer, spent most of his time in the parent involvement center next to Ramirez's classroom. Salano said he routinely heard students yelling and making other noises in her classroom. When in her classroom, he saw Ramirez try, but fail, to control her students.

We find substantial evidence in the record that Ramirez's termination was in conformity with the provisions of the Texas Education Code. We cannot conclude that the Commissioner's decision that Ramirez's incompetence constituted "good cause" per se was arbitrary, capricious, or without regard to the facts.

We overrule Ramirez's points of error and affirm the trial court's judgment.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. See Comm'r Educ., Hoskins v. Smithville Indep. Sch. Dist., Docket No. 137-R2-397 (1997) (helping students cheat in extracurricular competition is per se good cause grounds for termination); Comm'r Educ., Veteto v. Houston Indep. Sch. Dist., Docket No. 227-R2-897 (1997) (sexually assaulting a student is per se good cause grounds for termination); Comm'r Educ., Adams v. Gregory-Portland Indep. Sch. Dist., Docket No. 024-R2-1088 (1990) (disparaging a student is per se good cause grounds for termination).

2. See Comm'r Educ., Baker v. Rice Consol. Indep. Sch. Dist., Docket No. 227-R2-493 (1987).