Patricia Powell v. Rapides Parish School Board
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Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 17-232
PATRICIA POWELL
VERSUS
RAPIDES PARISH SCHOOL BOARD
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 210,322 HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.
AFFIRMED IN PART AND REMANDED IN PART. Robert Lloyd Hammonds Hammonds, Sills, Adkins & Guice, LLP 2431 South Acadian Thruway, Ste. 600 Baton Rouge, Louisiana 70808 (225) 923-3462 COUNSEL FOR DEFENDANT/APPELLANT: Rapides Parish School Board
Mildred Ellen Methvin 408 Silverstone Road Lafayette, Louisiana 70508 337-501-1055 COUNSEL FOR PLAINTIFF/APPELLEE: Patricia Powell
Allison Anne Jones Downer, Jones, Marino & White 401 Market Street, Suite 1250 Shreveport, Louisiana 71101 (318) 213-4444 COUNSEL FOR PLAINTIFF/APPELLEE: Patricia Powell
Jacques Maurice Roy Attorney at Law Post Ofice Box 1592 Alexandria, Louisiana 71309 (318) 487-9537 COUNSEL FOR PLAINTIFF/APPELLEE: Patricia Powell CONERY, Judge.
The Rapides Parish School Board (RPSB) appeals the October 19, 2016
judgment of the district court reversing the termination of a tenured teacher,
Patricia Ellyn Powell (Ms. Powell), after a hearing before RPSB on September 19-
20, 2001. For the following reasons, we affirm the portion of the district court’s
judgment reversing the termination of Ms. Powell but remand to the district court
the portion of the judgment awarding damages to Ms. Powell to set the amount of
damages with proper decretal language.
FACTS AND PROCEDURAL HISTORY
It can be clearly discerned at the outset of this case that it has a long and
involved history, as demonstrated by the district court’s extensive, detailed written
reasons for judgment, including “a timeline of events which began twenty-four
years prior to the termination hearing.” We will not duplicate this portion of the
district court’s reasons for judgment, but will summarize the pertinent parts which
led to the district court’s judgment on appeal before this court, as well as pertinent
parts of the record on appeal.
Ms. Powell graduated with a B.A. in English Education and Social Studies
from Louisiana College; earned a Master’s Degree in Creative Writing from the
University of Louisiana at Lafayette; and earned a Master’s Degree in Ministry
from Seattle University.
Ms. Powell began her teaching career in 1977, and continued teaching in
two private Catholic schools in Rapides Parish until 1988. She began teaching in
RPSB public schools in 1989. During her teaching career with RPSB, she
consistently received excellent evaluations. On December 2, 1997, her
2 performance as a gifted teacher at Tioga Elementary School (Tioga) was rated as
“100% satisfactory,” by her principal. According to the trial judge’s findings, the
principal voiced “no criticisms, or mention of any dissatisfaction with Ms.
Powell’s teaching ability.”
On January 6, 1998, Ms. Powell’s photograph and comments appeared in the
local newspaper, the Alexandria Daily Town Talk (Daily Town Talk), in
connection with a settlement reached in a lawsuit between RPSB and its former
superintendent of schools, Betty Cox (Ms. Cox). Ms. Cox had been hired by
RPSB in March 1994 “but [was] suspended one year later after she began
investigating abuses which publicly embarrassed certain board members.” In
response to her suspension, Ms. Cox filed an intervention in “the long-standing
desegregation case” against RPSB and was able to secure an injunction blocking
her suspension and later termination. Lengthy litigation ensued, and the case was
finally settled for $1.7 million dollars on January 5, 1998.
Following news of the settlement, the Daily Town Talk published an article
called “Residents Outraged.” Ms. Powell was interviewed for the article and on
January 6, 1998, her comments and photograph were printed in the paper:
Patti Powell-Couvillion, a teacher at Tioga Elementary, wondered if parish residents will ever know the details of the agreement. “If the school board members have violated people’s rights to the extent they have to pay more than $1.5 million, why can’t the public know what was done?” Ms. Powell-Couvillion asked.
Shortly after Ms. Powell’s photograph and comments appeared in the Daily
Town Talk, she was evaluated once again by her principal at Tioga on January 15,
1998. This performance evaluation occurred nine days after the newspaper article
and only forty-four days after her previous evaluation on December 2, 1997.
3 Despite receiving twenty-two satisfactory scores and a “100% satisfactory rating”
in the December 2, 1997 evaluation, Ms. Powell received only two satisfactory
scores in the January 15, 1998 evaluation. She received ten unsatisfactory scores
and eight needs-improvement scores.
After the January 15, 1998 evaluation and less than a month after the
newspaper article appeared, the following events took place: First, on January 26,
1998, RPSB closed Ms. Powell’s gifted class at Tioga. Second, on January 28,
1998, the administrator of the Aiken Detention Center (Aiken) sent a letter to the
then Director of Personnel requesting a certified teacher and referencing a previous
conversation about his having to operate the facility with only substitute teachers.
Finally, on January 30, 1998, Ms. Powell was notified by correspondence from the
Director of Personnel that, “due to the closure of the gifted class at Tioga
Elementary,” effective February 3, 1998, she was being assigned to Aiken.
When she reported to the administrator of Aiken as instructed on February 3,
1998, she was told she “must have made someone downtown very angry.” Her
position at Aiken did not involve teaching at all, despite the administrator’s
“request” that a certified teacher be assigned. Ms. Powell’s only duty was to
monitor students who had been suspended or expelled from regular classes while
they wrote papers. She was not allowed to review or grade the papers.
On May 25, 1998, Aiken’s administrator conducted a performance
evaluation of Ms. Powell and rated her performance satisfactory in twenty-eight
out of twenty-nine areas. However, in a handwritten note, on the evaluation, the
administrator reprimanded Ms. Powell because she “disregarded policy by leaving
unannounced on one occasion.” Ms. Powell testified that she did not leave
unannounced. On the date in question, there was a bomb scare. Ms. Powell
4 followed instructions and evacuated her class to a nearby mall. She did not return
to Aiken to sign out at the end of that day.
Ms. Powell was placed on a Level I Intensive Assistance Plan (IAP) on
August 26, 1998. The IAP required her to “arrive at work by 7:20 a.m. and leave
no sooner than 10 minutes after school is out in the afternoon.”
On October 5, 1998, Ms. Powell arrived at Aiken at 8:30 a.m. She had
already notified administration that she overslept and was running late. Her 8:30
arrival conflicted with the terms of the IAP. The Aiken administrator sent a formal
letter to RPSB’s Director of Personnel reporting the incident, which was then
deemed a violation of the August 26, 1998 Level I IAP. Because of this violation,
she was placed on a Level II IAP, “which threatened her with termination.”
On November 5, 1998, Ms. Powell’s termination was, in fact, recommended
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 17-232
PATRICIA POWELL
VERSUS
RAPIDES PARISH SCHOOL BOARD
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 210,322 HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.
AFFIRMED IN PART AND REMANDED IN PART. Robert Lloyd Hammonds Hammonds, Sills, Adkins & Guice, LLP 2431 South Acadian Thruway, Ste. 600 Baton Rouge, Louisiana 70808 (225) 923-3462 COUNSEL FOR DEFENDANT/APPELLANT: Rapides Parish School Board
Mildred Ellen Methvin 408 Silverstone Road Lafayette, Louisiana 70508 337-501-1055 COUNSEL FOR PLAINTIFF/APPELLEE: Patricia Powell
Allison Anne Jones Downer, Jones, Marino & White 401 Market Street, Suite 1250 Shreveport, Louisiana 71101 (318) 213-4444 COUNSEL FOR PLAINTIFF/APPELLEE: Patricia Powell
Jacques Maurice Roy Attorney at Law Post Ofice Box 1592 Alexandria, Louisiana 71309 (318) 487-9537 COUNSEL FOR PLAINTIFF/APPELLEE: Patricia Powell CONERY, Judge.
The Rapides Parish School Board (RPSB) appeals the October 19, 2016
judgment of the district court reversing the termination of a tenured teacher,
Patricia Ellyn Powell (Ms. Powell), after a hearing before RPSB on September 19-
20, 2001. For the following reasons, we affirm the portion of the district court’s
judgment reversing the termination of Ms. Powell but remand to the district court
the portion of the judgment awarding damages to Ms. Powell to set the amount of
damages with proper decretal language.
FACTS AND PROCEDURAL HISTORY
It can be clearly discerned at the outset of this case that it has a long and
involved history, as demonstrated by the district court’s extensive, detailed written
reasons for judgment, including “a timeline of events which began twenty-four
years prior to the termination hearing.” We will not duplicate this portion of the
district court’s reasons for judgment, but will summarize the pertinent parts which
led to the district court’s judgment on appeal before this court, as well as pertinent
parts of the record on appeal.
Ms. Powell graduated with a B.A. in English Education and Social Studies
from Louisiana College; earned a Master’s Degree in Creative Writing from the
University of Louisiana at Lafayette; and earned a Master’s Degree in Ministry
from Seattle University.
Ms. Powell began her teaching career in 1977, and continued teaching in
two private Catholic schools in Rapides Parish until 1988. She began teaching in
RPSB public schools in 1989. During her teaching career with RPSB, she
consistently received excellent evaluations. On December 2, 1997, her
2 performance as a gifted teacher at Tioga Elementary School (Tioga) was rated as
“100% satisfactory,” by her principal. According to the trial judge’s findings, the
principal voiced “no criticisms, or mention of any dissatisfaction with Ms.
Powell’s teaching ability.”
On January 6, 1998, Ms. Powell’s photograph and comments appeared in the
local newspaper, the Alexandria Daily Town Talk (Daily Town Talk), in
connection with a settlement reached in a lawsuit between RPSB and its former
superintendent of schools, Betty Cox (Ms. Cox). Ms. Cox had been hired by
RPSB in March 1994 “but [was] suspended one year later after she began
investigating abuses which publicly embarrassed certain board members.” In
response to her suspension, Ms. Cox filed an intervention in “the long-standing
desegregation case” against RPSB and was able to secure an injunction blocking
her suspension and later termination. Lengthy litigation ensued, and the case was
finally settled for $1.7 million dollars on January 5, 1998.
Following news of the settlement, the Daily Town Talk published an article
called “Residents Outraged.” Ms. Powell was interviewed for the article and on
January 6, 1998, her comments and photograph were printed in the paper:
Patti Powell-Couvillion, a teacher at Tioga Elementary, wondered if parish residents will ever know the details of the agreement. “If the school board members have violated people’s rights to the extent they have to pay more than $1.5 million, why can’t the public know what was done?” Ms. Powell-Couvillion asked.
Shortly after Ms. Powell’s photograph and comments appeared in the Daily
Town Talk, she was evaluated once again by her principal at Tioga on January 15,
1998. This performance evaluation occurred nine days after the newspaper article
and only forty-four days after her previous evaluation on December 2, 1997.
3 Despite receiving twenty-two satisfactory scores and a “100% satisfactory rating”
in the December 2, 1997 evaluation, Ms. Powell received only two satisfactory
scores in the January 15, 1998 evaluation. She received ten unsatisfactory scores
and eight needs-improvement scores.
After the January 15, 1998 evaluation and less than a month after the
newspaper article appeared, the following events took place: First, on January 26,
1998, RPSB closed Ms. Powell’s gifted class at Tioga. Second, on January 28,
1998, the administrator of the Aiken Detention Center (Aiken) sent a letter to the
then Director of Personnel requesting a certified teacher and referencing a previous
conversation about his having to operate the facility with only substitute teachers.
Finally, on January 30, 1998, Ms. Powell was notified by correspondence from the
Director of Personnel that, “due to the closure of the gifted class at Tioga
Elementary,” effective February 3, 1998, she was being assigned to Aiken.
When she reported to the administrator of Aiken as instructed on February 3,
1998, she was told she “must have made someone downtown very angry.” Her
position at Aiken did not involve teaching at all, despite the administrator’s
“request” that a certified teacher be assigned. Ms. Powell’s only duty was to
monitor students who had been suspended or expelled from regular classes while
they wrote papers. She was not allowed to review or grade the papers.
On May 25, 1998, Aiken’s administrator conducted a performance
evaluation of Ms. Powell and rated her performance satisfactory in twenty-eight
out of twenty-nine areas. However, in a handwritten note, on the evaluation, the
administrator reprimanded Ms. Powell because she “disregarded policy by leaving
unannounced on one occasion.” Ms. Powell testified that she did not leave
unannounced. On the date in question, there was a bomb scare. Ms. Powell
4 followed instructions and evacuated her class to a nearby mall. She did not return
to Aiken to sign out at the end of that day.
Ms. Powell was placed on a Level I Intensive Assistance Plan (IAP) on
August 26, 1998. The IAP required her to “arrive at work by 7:20 a.m. and leave
no sooner than 10 minutes after school is out in the afternoon.”
On October 5, 1998, Ms. Powell arrived at Aiken at 8:30 a.m. She had
already notified administration that she overslept and was running late. Her 8:30
arrival conflicted with the terms of the IAP. The Aiken administrator sent a formal
letter to RPSB’s Director of Personnel reporting the incident, which was then
deemed a violation of the August 26, 1998 Level I IAP. Because of this violation,
she was placed on a Level II IAP, “which threatened her with termination.”
On November 5, 1998, Ms. Powell’s termination was, in fact, recommended
by the Level II IAP. Subsequently on March 30, 1999, she was suspended with
pay “pending a full investigation.” The Superintendent notified Ms. Powell by
correspondence on June 27, 2000, that a tenure hearing was fixed for August 3,
2000, “to consider the charges outlined in an attached resolution of the RPSB.”
RPSB’s resolution entitled “SPECIFIC REASONS For Charges Against Ms.
Patricia Powell,” which was attached to the June 27, 2000 correspondence
contained two charges. The first charge, “Section E. Specific reasons for Charge
No. 1,” stated that “[O]n numerous occasions during the 1997-1998 and 1998-1999
school years, Ms. Powell, a tenured teacher, reported to her work assignments in an
untimely fashion.” The charge claimed that she continued to report late for work,
which constituted “willful neglect of duty on her part” despite being counseled and
placed on two levels of professional assistance.
5 The second charge, “Section E. Specific reasons for Charge No. 2,” stated
that on April 24, 1998, Ms. Powell left the Aiken campus at “approximately 1:40
p.m. without notifying the administration or making arrangements for someone to
provide supervision to her class.” This required the school secretary to be sent to
Ms. Powell’s classroom, and later another teacher to consolidate Ms. Powell’s
class with her own. Leaving her class unattended constituted “willful neglect of
duty.” The “intentional falsification” of the sign in/sign out sheet constituted
“dishonesty on her part.” However, the record shows that when Ms. Powell left
the Aiken campus she signed out at 2:30 p.m. and not 1:40 p.m.
The record reflects that between Ms. Powell’s suspension in March of 1999
and before the first tenure hearing fixed for August 3, 2000, there were
negotiations between the Superintendent, counsel for RPSB, and Ms. Powell’s
counsel that ultimately led to her reinstatement in August of 2000. The record
demonstrates that these negotiations, detailed in correspondence dated August 1,
2000, involved an agreement that Ms. Powell would be given a teaching position in
a high school in her area of certification, English. The cancellation of the August 3,
2000 tenure hearing was contingent on her physician providing documentation that
her medication would not interfere with her ability to arrive on time at her new
teaching position.
On August 9, 2000, Ms. Powell’s treating physician, Dr. Steven J. Cavalier,
sent the requested documentation to RPSB. The documentation stated that Ms.
Powell was not taking any medication that would interfere with her arriving on
time at a teaching position. It conditioned that opinion with the caveat that she
suffered from multiple sclerosis, which was presently in remission. But because
multiple sclerosis was an “unpredictable disorder,” Dr. Cavalier opined that Ms.
6 Powell could suffer a “new attack or exacerbation [of multiple sclerosis] that
would temporarily cause some impairment.”
The August 1, 2000 correspondence also warned that if Ms. Powell was
unable to “arrive at work in a timely fashion or to perform the essential functions
of that position[, the Superintendent would] reinstitute her recommendation of
termination.” Further, there is a discussion that it might be possible to
‘accommodate’ Ms. Powell’s “medical problems by assigning her to a high school;
high schools in the parish begin at 8:30 a.m. rather than 7:30 a.m. startup time used
in elementary schools.”
Based on the forgoing, the Superintendent formally assigned Ms. Powell to
Peabody Magnet High School, (Peabody) on August 15, 2000. The Superintendent
asked Ms. Powell to report to the principal, Ms. Peggie Davis (Ms. Davis), for her
actual assignment teaching tenth grade English. The Superintendent further
instructed: “As expected of all teachers, you will be required to report at the time
and place assigned by Ms. Davis.”
From the beginning of her transfer to Peabody there appeared to have been
a lack of communication between Ms. Powell and Ms. Davis. In September of
2000, an undated report stating that Ms. Powell had failed to attend several
conferences regarding a student was placed in her personnel file. On October 3,
2000, a letter from a parent complaining that Ms. Powell had given her child an
“F” in English was placed in her personnel file. Ms. Powell received a reprimand
on an observation report relating to that child’s failing grade on October 3, 2000.
On October 4, 2000, Ms. Powell’s teacher observation form noted seven
“Needs Improvement” scores. On October 11, 2000, she was purportedly placed
on a Level II IAP requiring her to “design and implement effective lessons that are
7 meaningful[.]” Ms. Powell did not sign this document and did not recall ever
reviewing the document. Subsequently, on October 30, 2000, she was purportedly
placed on a second Level II IAP directing that she “follow guidelines for makeup
work; is to provide accurate information on students during conferences, and treat
all students with dignity and respect.”
On November 14, 2000, a complaint was sent to the Assistant
Superintendent about the child who had received the “F” in Ms. Powell’s English
class. On November 16, 2000, Ms. Davis erroneously reprimanded Ms. Powell for
arriving late to work. The reprimand was made in error because of confusion with
the time change that had occurred on October 29, 2000. Ms. Powell had arrived
timely.
In December 2007, Ms. Powell was placed on a third Level II IAP, which
directed her to “continue to design and implement effective lessons, communicate
and have physical documentation that parents and caregivers are kept informed on
students’ progress.” Like the October 11 IAP form, Ms. Powell did not sign or
recall seeing this form either.
On December 11, 2000, Ms. Powell received a negative evaluation of the
October 30, 2000 Level II IAP. The evaluation stated that she “continues to
fabricate information on discipline behavior reports.” No specifics were noted.
On January 11, 2001, Ms. Davis hand delivered a letter of reprimand to Ms.
Powell. The letter identified a number of problems with both the students and
other teachers. Ms. Powell was warned that if she did not comply, Ms. Davis
would make a request to the Superintendent recommending her termination.
Ms. Davis eventually sent a letter to the Superintendent on April 4, 2001,
recommending that Ms. Powell be terminated from her position as an English
8 teacher at Peabody. This letter resulted in Ms. Powell’s suspension from her
position at Peabody with pay in April of 2001. On August 22, 2001, the
Superintendent sent a certified letter notifying Ms. Powell that the school board
had unanimously voted to approve a resolution calling for a tenure hearing to be
held on September 19, 2001, at 5:00 p.m. This certified letter sent to Ms. Powell
advised that she was entitled to legal representation, could testify herself, and
could call witnesses to testify on her behalf. A copy of the resolution detailing the
charges to be heard at the tenure hearing was attached to the certified letter.
There were four charges made against Ms. Powell which can be summarized
as follows: Charge 1—Tardiness; Charge 2—Failing to keep student records and
progress reports; Charge 3—Improper language; and Charge 4—Use of a cell
phone to call a student’s parent during class. RPSB asserts that the charges
brought against Ms. Powell occurred between her August 21, 2000 start date and
her April 2001 suspension and had nothing to do with her prior suspension or
threatened tenure hearing.
However, Charge 1, part E references Ms. Powell’s “problems with tardiness
in previous work locations.” Further, Charge 1, part F asked, “Have any such
charges previously been brought against the teacher?” The response references the
charges brought against Ms. Powell while she was at Aiken, which resulted in her
suspension and original threatened tenure hearing. The response stated, “Ms.
Powell has been charged in a previous school year with excessive tardies, but the
School Board never conducted a tenure hearing to consider that charge.”
The inclusion of the reference in Charge 1 to the “tardiness” of Ms. Powell
during the previous school year at Aiken demonstrates that despite RPSB’s
assertions, Charge 1 was clearly a continuation of the original events that led to the
9 recommendation for her termination in November of 1998 and subsequent
suspension in March of 1999. Ultimately, Ms. Powell was terminated for violating
Charge 1 through “willful neglect of duty.” The facts as found by the district court
clearly demonstrated the grounds for her 2001 termination were not limited to only
the 2000-2001 year at Peabody.
The tenure hearing was held as scheduled on September 19-20, 2001.
Although she consulted with counsel, Ms. Powell represented herself pro se at the
hearing. In both her opening statement and in her testimony, Ms. Powell made it
clear that she felt that she had been a victim of retaliation for the statement quoted
in the Daily Town Talk criticizing the settlement between RPSB and the former
superintendent. Ms. Powell claimed that the closure of her gifted class, transfer to
Aiken, and the many unfavorable reviews since publication of the newspaper
article were all part of RPSB’s effort to make her resign.
During her testimony, Ms. Powell attempted to present her teacher
evaluation forms for the past twenty-two years of her teaching career, which
demonstrated that she had never received a negative evaluation except in the past
two years, after the article was published. When asked by the president of RPSB
why the documents were “[r]elevant to the proceedings,” she replied, “Well, it
shows, you know, that I did get good evaluations for twenty something years prior
to being the most horrible teacher that ever lived.”
The statements made by Ms. Powell at the tenure hearing clearly informed
RPSB of her belief that she had been a victim of retaliation and that the charges
and write-ups in her personnel file were an attempt to force her resignation.
However, the hearing transcript does not contain any questions by the members of
10 RPSB or counsel for the superintendent seeking to inquire further into the
allegations made by Ms. Powell.
The hearing began at 5:00 p.m. and continued into the small hours of the
morning. RPSB went into a private session to debate the four charges and returned
at approximately 1:00 a.m. to vote. RPSB found that Ms. Powell was guilty of
willful neglect of duty on Charges 1, 2, and 4. Tie votes resulted in an acquittal on
Charge 3. The district court ultimately determined that it could not “impose any
disciplinary action” for Charge 4 because although RPSB found that Ms. Powell
had violated her duty, they did not recommend disciplinary action on that charge.
Therefore, Charges 3 and 4, not considered by the district court, are not before this
court for review.
After the voting was concluded and a finding made that disciplinary action
should be taken against Ms. Powell, RPSB voted to terminate her employment.
RPSB sent certified correspondence to Ms. Powell on September 25, 2001, giving
the details of RPSB’s vote on each of the Charges and informing her of her
termination effective September 20, 2001. Ms. Powell, through counsel, timely
filed an appeal for review of the termination decision made by RPSB. The case
languished for many years in the district court before finally proceeding to a
review. Judgment was rendered in favor of Ms. Powell. RPSB now timely appeals
that judgment.
PROCEDURAL HISTORY IN THE DISTRICT COURT
It is necessary to now discuss the procedural history of Ms. Powell’s case
once it reached the district court. Ms. Powell had been terminated by RPSB in
September of 2011. The record demonstrates a long and tortured history in the
Louisiana Ninth Judicial District Court, resulting in many delays and rulings in
11 four different divisions of that court. In fact, a number of motions were pending
when the district judge whose judgment is being appealed took over the case at the
end of 2013.
On October 4, 2002, the first district court judge assigned issued a
scheduling order mandating the record of the 2001 tenure hearing be lodged. The
district court ordered counsel for Ms. Powell to request the transcript of the hearing
and advise the court within thirty days of receipt of that transcript if counsel
intended to offer additional evidence. The district court further instructed that
evidence would be closed if it did not receive timely notice from Ms. Powell’s
counsel. Counsel was then allowed thirty days to brief the issue after the transcript
was filed. RPSB was ordered to respond within thirty days after Ms. Powell’s
brief was filed.
Shortly thereafter, the supreme court issued its opinion in Spears v.
Beauregard Parish Sch. Bd., 02-2870 (La. 6/27/03), 848 So.2d 540, making it clear
that Ms. Powell, as the terminated teacher and the appellant, was required to pay
the cost of preparing the transcript of her tenure hearing. The district court could
not conduct its appellate review without the transcript. Further, Ms. Powell was
required to pay the court costs associated with the appeal to the district court. The
transcript was not filed within thirty days in compliance with the district court’s
order and the record does not contain a notice from Ms. Powell’s counsel that she
intended to offer additional evidence. However, the record also fails to show that
counsel for RPSB immediately filed a motion and order asking the district court to
conduct a hearing to determine whether the appeal should be dismissed and/or
whether Ms. Powell should be precluded from offering additional evidence.
12 Meanwhile, on October 10, 2002, Ms. Powell propounded formal discovery
to RPSB, which included interrogatories and requests for production of documents.
On October 31, 2002, RPSB answered Ms. Powell’s petition and submitted its first
set of interrogatories and requests for production of documents to Ms. Powell.
The record contains no other activity in the case until December 20, 2007,
when counsel for Ms. Powell requested a status conference with the district court.
As a result of the status conference the case was fixed as a bench trial on April 24,
2008. However, contrary to the district court’s original scheduling order of
October 4, 2002, the transcript of the tenure hearing had not yet been lodged in the
record. On March 25, 2008, counsel for Ms. Powell requested another status
conference with the district court.
On April 7, 2008, RPSB filed a motion to compel the filing of the transcript
of the tenure hearing in to the record, along with a motion for protective order, a
motion in limine, and a motion for continuance of the April 24, 2008 bench trial.
In essence RPSB sought to compel Ms. Powell to file a copy of the transcript of
her tenure hearing within ten days or suffer dismissal of her appeal. No rulings on
RPSB’s motions appear in the record but the district court did reset the bench trial
for August 28, 2008.
Ms. Powell responded with a motion to compel RPSB to answer discovery
propounded on November 13, 2003, September 4, 2004, and April 19, 2006. A
hearing was fixed for June 23, 2008, but once again no ruling on Ms. Powell’s
motion or RPSB’s motions is in the record. The minute entry states the matter was
continued without date by agreement. The August 28, 2008 trial was continued
without date.
13 Three years later, on October 19, 2011, counsel for Ms. Powell filed a
records request to RPSB. A supplementary request was filed on October 25, 2011.
On November 23, 2011, nine years after Ms. Powell filed her appeal in the district
court, the record of her 2001 tenure hearing was finally filed into the district court
record along with her objections to the transcript.
On October 19, 2011, RPSB filed a motion to recuse the presiding judge,
Judge Donald T. Johnson. After a series of motions pertaining to Judge Johnson’s
recusal, which eventually led to the case being assigned to Judge Thomas M.
Yeager, additional counsel enrolled on behalf of Ms. Powell, and on November 15,
2013, requested a status conference with Judge Yeager. A status conference with
all counsel was set by conference call for December 5, 2013. A pre-trial
conference was held on February 25, 2014, and a bench trial was tentatively fixed
for July 16, 2014. The July 16, 2014 trial was continued by joint motion of
counsel, which sought an August 21, 2014 trial date. However, considering the
outstanding, undecided motions, the district court did not immediately set a new
trial date.
On May 19, 2014, the district court heard Ms. Powell’s motions seeking a
finding of spoliation of evidence in regard to lost documents, such as the time
cards of other teachers, and a motion to exclude evidence unsubstantiated by
admissible documentary or testimonial evidence. In its written reasons signed on
July 8, 2014, the district court denied both motions. It found that the time cards of
other teachers were “not relevant to the appeal process and would be
inadmissible.” Further, the district court stated:
Incidents or allegations of a similar nature involving other employees are irrelevant and are not within the narrow scope of review by the Court since they do not address the question of whether there was
14 substantial evidence of record presented during the tenure hearing to support the decision of the School Board. McKenzie v. Webster Parish Sch. Board, 609 So.2d 1028 (La.App. 2 Cir. 1992).
The district court found that even if the time cards of other teachers were
relevant it “would not impose the drastic consequence of an adverse inference
against the defendant for the destruction of the time cards.” The district court
found no duty by RPSB to preserve the individual time cards of all other teachers
at multiple schools under the theory of spoliation.
The district court also denied Ms. Powell’s request to prohibit RPSB from
presenting evidence on any Charges other than Charge 1, stating: “To allow
evidence as to one count and not to the others would interfere with the Court’s
burden of evaluating the evidence presented to determine if the School Board’s
conclusions were arbitrary or constituted an abuse of [the] hearing body’s
discretion.” Ms. Powell filed a motion for reconsideration of the district court’s
July 8, 2014 written reasons, which was denied by the district court on August 6,
2014.
In the interim, RPSB filed three motions in limine. After hearing the
motions, the district court assigned written reasons which are summarized below.
The first motion sought to prohibit Ms. Powell from calling “Superintendent Patsy
Jenkins, nine former school board members, Robert Hammonds and James Downs
(attorneys for the school board), David Shackleford, and Cher Marie Wilson,
(Powell’s daughter).”
The second motion by RPSB sought to exclude from evidence “a ring binder
of almost 600 pages of fifty-four (54) exhibits” that were not offered by Ms.
Powell during the tenure hearing. RPSB argued that any testimony and documents
15 not considered by the school board at the tenure hearing should not be considered
by the district court. The district court initially agreed and cited La.R.S. 17:443(B),
which provides for “a full hearing” before the district court but not a “trial de
novo.” The district court also cited Howell v. Winn Parish Sch. Bd., 332 So.2d 822
(La.1976), and further stated:
[I]t would be contrary to logic and reason to admit evidence that was not presented at the tenure hearing and then determine if the action of the board was “supported by substantial evidence, or conversely, an arbitrary decision and thus an abuse of discretion.” To determine if the board was reasonable or unreasonable in its decision, the Court should review only the evidence presented to the board at the hearing and not new evidence presented on appeal.
The district court then granted both motions in limine filed by RPSB. The
district court also granted RPSB’s third motion to strike Ms. Powell’s pretrial
memorandum filed in July of 2014. The findings of the district court were
memorialized in a judgment signed on April 13, 2015.
Ms. Powell filed a motion to reconsider the district court’s ruling, which was
heard on July 13, 2015. Counsel for RPSB did not file a response to Ms. Powell’s
motion and was not present at the hearing. The district court granted Ms. Powell’s
motion for reconsideration and reversed its April 13, 2015 judgment. However, it
was later confirmed that counsel for RPSB had not received proper notice of either
the motion or the hearing.
Accordingly, the district court re-fixed the hearing on Ms. Powell’s motion
for reconsideration for August 17, 2015, with notice to all counsel. Judge Yeager
heard the arguments of counsel and took the matter under advisement. On October
20, 2015, he issued his written reasons for judgment and found:
This identical motion has previously been decided by Judge Donald T. Johnson, Division “A”, prior to his rotating from a civil to a
16 juvenile division of this court. In his oral reasons for judgment on October 20, 2011, he ruled the petitioner would be allowed to present new evidence and after his ruling, the defendant did not request reconsideration of that ruling.
Accordingly, the district court reversed its judgment of April 13, 2015, and
granted Ms. Powell the “right to introduce exhibits not introduced at the tenure
hearing including but not limited to the fifty-two (52) supplemental exhibits
specifically referenced in Powell’s pretrial memorandum (Powell Exhibit #40 and
#50 were introduced at the termination hearing.)”
The district court also partially reversed its April 13, 2015 decision on
witness testimony, and gave Ms. Powell the right to offer additional testimony and
to call as witnesses herself, the nine former school board members, David
Shackleford, Cher Marie Wilson, and Dr. Robert Eisenstadt. The district court
prohibited calling as witnesses Robert Hammonds, attorney for the school board,
and James Downs, attorney for the superintendent, until a hearing could be held
pursuant to La.Code Evid. art. 508.
The district court further vacated its previous ruling and denied RPSB’s
motion to strike Ms. Powell’s pretrial memorandum. The district court stated,
“[H]er memorandum provides a factual analysis and legal arguments which are not
in evidence. The Court will make a decision solely based upon the evidence
introduced at trial and will not consider evidence not introduced that is discussed in
a memorandum.” RPSB sought reconsideration of the district court’s October 20,
2015 ruling, which was denied without hearing on November 4, 2015. No
supervisory writs were taken from this ruling.
Trial in this case began on November 10, 2015, following which additional
testimony was heard on December 2, 2015, and the trial concluded on December 8,
17 2015. The district court issued its extensive written reasons for judgment on
September 22, 2016, and issued its judgment on October 19, 2016. The district
court found in favor of Ms. Powell and reversed RPSB’s September 20, 2001
termination of Ms. Powell. RPSB filed a timely motion for reconsideration and/or
new trial, which was denied by the district court on December 19, 2016. This
timely appeal by RPSB followed.
ASSIGNMENT OF ERRORS ON APPEAL
RPSB asserts the following assignment of errors on appeal:
1. The district court erred in applying the incorrect standard for judicial review of a school board’s tenure hearing decision by, in effect, conducting a trial de novo.
2. The district court erred in concluding that the Board did not comply with the statutory formalities of the [teacher tenure law] TTL and/or procedural due process.
3. The district court erred in concluding that substantial evidence of willful neglect of duty by Powell that occurred during the 2000-2001 school year was “not relevant,” in substituting its opinion for that of the Board, and in concluding that the Board did not prove by substantial evidence that Powell willfully neglected her duties during the 2000-2001 school year.
4. The district court erred in entering a judgment based, at least in part, on a First Amendment/free speech retaliation claim which was not part of the tenure charges, was not alleged in Powell’s petition for review, was not considered by the Board during her tenure hearing, was not subject to the court’s limited judicial review of said tenure hearing decision, and was prescribed.
5. Alternatively, the district court erred when it failed to apply the proper legal analysis to determine whether a retaliation claim existed, specifically by concluding that an adverse employment action has occurred when Powell was transferred in 1998 and that the cause of the transfer(s) was retaliation.
6. The district court erred in awarding Powell full back pay and retirement benefits through 2014, by exceeding the scope of relief authorized by the TTL and/or when the medical evidence indicated
18 that she was disabled and incapable of teaching as of March 2006, at the latest.
LAW AND DISCUSSION
Standard of Review
Due to the extreme length of time between the filing of Ms. Powell’s appeal
in September of 2002, and the final judgment of the district court on October 19,
2016, we must apply the provisions of the TTL in effect in September of 2001, the
time of Ms. Powell’s teacher tenure hearing.1
In 2001, La.R.S. 17:443(A) (emphasis added) provided in pertinent part:
A permanent teacher shall not be removed from office except upon written and signed charges of willful neglect of duty, or incompetency or dishonesty, . . . and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least twenty days in advance of the date of the hearing, the superintendent with the approval of the school board shall furnish the teacher with a copy of the written charges. Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at said hearing. For the purpose of conducting hearings hereunder the board shall have the power to issue subpoenas to compel the attendance of all witnesses on behalf of the teacher. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.
As then stated in 2001 La.R.S. 17:443(B) (emphasis added) provided in
pertinent part:
B. If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of willful
1 The TTL, La.R.S. 17:443, was revised effective June 9, 2014. The revised law is not applicable to this case.
19 neglect of duty, . . . and ordered removed from office, or disciplined by the board, the superintendent with approval of the board shall furnish to the teacher a written statement of recommendation of removal or discipline, which shall include but not be limited to the exact reasons(s), offences(s), or instances(s) upon which the recommendation is based. Such teacher may, not more than one year from the date of said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board.
The Louisiana Supreme Court in Wise v. Bossier Parish Sch. Bd., 02-1525,
pp. 5-7 (La. 6/27/03), 851 So.2d 1090, 1094-95 (emphasis added), reiterated the
district court’s authority in reviewing a school board’s decision to terminate a
teacher pursuant to La.R.S. 17:443 and stated:
In Howell v. Winn Parish School Bd., 332 So.2d 822 (La.1976), we held that judicial review of tenure proceedings must be limited to an inquiry of whether the School Board complied with the statutory formalities under Louisiana’s Teacher Tenure Law and whether the School Board’s findings were supported by substantial evidence. “ ‘Substantial evidence’ has been defined as ‘evidence of such quality and weight that reasonable and fair-minded men in exercise of impartial judgment might reach different conclusions.’ ” Coleman v. Orleans Parish School Bd., 93-0916 (La.App. 4 Cir. 2/5/97), 688 So.2d 1312, 1315 (citing Wiley v. Richland Parish Sch. Bd., 476 So.2d 439, 443 (La.App. 2 Cir.1985)). In conducting such an examination, the district court must give great deference to the school board’s findings of fact and credibility. Arriola v. Orleans Parish Sch. Bd., 01-1878 (La.2/26/02), 809 So.2d 932, 941. Reasons for dismissal are largely in the sound discretion of the school board. Gaulden v. Lincoln Parish School Board, 554 So.2d 152, 157 (La.App. 2 Cir.1989), writ denied, 559 So.2d 126 (La.1990). Thus, the school board’s judgment should not be reversed in the absence of a clear showing of abuse of discretion. Id. Generally, an abuse of discretion results from a conclusion reached capriciously or in an arbitrary manner. See Burst v. Bd. of Com’rs Port of New Orleans, 93-2069 (La.10/7/94), 646 So.2d 955, writ not considered, 95-265 (La.3/24/95), 651 So.2d 284. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. A conclusion is “capricious” when there is no substantial evidence to support it or the conclusion is
20 contrary to substantiated competent evidence. Coliseum Square Association v. City of New Orleans, 544 So.2d 351, 360 (La.1989).
The district court may not substitute its judgment for that of the school board or interfere with the school board’s good faith exercise of discretion. Howard, 793 So.2d at 153; McLaughlin v. Jefferson Parish School Board, 560 So.2d 585 (La.App. 5 Cir.1990); Sampson v. Lincoln Parish School Board, 439 So.2d 454 (La.App. 2 Cir.1983). The district court’s responsibility in such a case is to determine whether the school board’s action was supported by substantial evidence, or conversely, constituted an arbitrary decision and thus an abuse of discretion. Howell, 332 So.2d at 825; Roberts v. Rapides Parish School Board, 617 So.2d 187, 190 (La.App. 3 Cir.), writ denied, 619 So.2d 1068 (La.1993). As with the district court, a court of appeal may not reverse the decision of a district court unless it finds the school board’s termination proceedings failed to comply with statutory formalities and/or the school board’s findings were not supported by substantial evidence. Wiley, 476 So.2d at 442; Cook v. Natchitoches Parish Sch. Bd., 342 So.2d 702 (La.App. 3 Cir.), writ denied, 345 So.2d 52 (La.1977); Mims v. West Baton Rouge Parish Sch. Bd., 315 So.2d 349 (La.App. 1 Cir.1975).
Assignment of Error Number One- “De Novo” Review
RPSB argues that the district court erred in conducting a de novo review of
the case in direct contradiction to “[t]he district court’s responsibility in such a case
is to determine whether the school board’s action was supported by substantial
evidence, or conversely, constituted an arbitrary decision and thus an abuse of
discretion.” Wise, 851 So.2d at 1095.
In its written reasons for judgment, the district court clearly stated that the
standard of review by a district court of a teacher tenure hearing is “not a trial de
novo.” However, La.R.S. 17:443(B) (emphasis added) allows the teacher the right
to “petition a court of competent jurisdiction for a full hearing to review the
action of the school board.” In Butler v. Iberville Parish Sch. Bd., 93-2291, p. 3
(La.App. 1 Cir. 12/22/94), 648 So.2d 459, 460, our sister circuit stated: “while
[La.R.S. 17:443(B)] by its terms provides for review by the courts and not a trial
21 de novo, the requirement of a full hearing indicates that the legislature intended the
courts to exercise a broad scope of judicial review, particularly at the district court
level.” Further in Lewing v. DeSoto Parish Sch. Bd., 113 So.2d 462, 465
(La.1959), the supreme court stated:
Our study of the Teachers’ Tenure Act and the jurisprudence convinces us that the provision in LSA-R.S. 17:443, supra, providing ‘for a full hearing to review the action of the school board’ is for the benefit of discharged teachers. If a school board decides that sufficient evidence was adduced before it to sustain the dismissal of a teacher, she is entitled, if she desires, to a full hearing on the merits in the district court with a presentment of additional evidence in her behalf. Article 476, Code of Practice. The defendant school board would then be given an opportunity to negate this evidence. Article 477, Code of Practice.
Therefore, despite RPSB’s claim that the district court erred in allowing
additional evidence by Ms. Powell at her trial in the district court, this practice has
not been viewed by our courts as a “de novo” review. “[T]he teacher may offer
evidence which does not duplicate that presented at the school board hearing.”
Ford v. Caldwell Parish Sch. Bd., 541 So.2d 955, 958 (La.App. 2 Cir. 1989) (citing
Lewis v. East Feliciana Parish Sch. Bd., 372 So.2d 649 (La.App. 1 Cir.), writ
denied, 375 So.2d 959 (La.1979); and 452 So.2d 1275 (La.App. 1 Cir.), writ
denied , 458 So.2d 123 (La.1984)). See also Wise, 851 So.2d 1090.
RPSB acknowledged in its briefing that when a teacher was subject to
termination, “the TTL leaves open the door for a terminated teacher to present new
evidence in limited circumstances.” The court in Lewing, 113 So.2d 465, held that
unless a teacher chooses to introduce additional evidence, the school board is
confined to the record on which it acted. This is because the board “should not be
allowed to prove its cases in the district court.” Howell, 332 So.2d at 824 n.4.
However, if the terminated teacher, in this case Ms. Powell, chose to present new
22 evidence in the district court, RPSB would be given the opportunity to “negate this
evidence.” Lewing, 113 So.2d at 465.
In oral argument to the district court at the reconsideration hearing on the
introduction of new evidence, RPSB argued that the court was strictly to sit in an
appellate capacity with no new evidence allowed. RPSB compared the district
court’s decision to allow Ms. Powell to present additional evidence and witnesses
not admitted or called at the tenure hearing to allowing the losing party at the
district court level to put additional evidence into the record at the appellate level
that was not presented to the district court. Based on the jurisprudence and the
record before us, we do not agree.
The previous trial judge had specifically ruled that additional evidence by
Ms. Powell would be allowed. RPSB’s counsel did not ask for reconsideration of
that ruling. Although Judge Yeager initially ruled that no new evidence, new
exhibits, or new witnesses from Ms. Powell would be allowed in evidence, on
reconsideration Judge Yeager reversed that decision. We further note that this
issue was subject to extensive briefing and two hearings before the district court.
Especially in light of Judge Yeager’s specific findings that RPSB was in bad faith
and had not followed procedural and substantive due process in this case, we find
that the trial judge’s ruling to allow and consider additional evidence not
introduced at the tenure hearing was within his discretion. Though the district
court may not ordinarily substitute its judgment for that of the school board, that
principle assumes the school board acted in good faith and followed the procedural
and substantive due process rights of the teacher. The district court found
otherwise, and we agree. Accordingly, we find that RPSB’s assignment of error
number one is without merit.
23 Assignment of Error Number Two- Statutory Formalities
RPSB claims in its assignment of error number two that the district court
erred in concluding that RPSB did not comply with the “statutory formalities” of
La.R.S. 17:443(A) (emphasis added), which reads in relevant part:
Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher.
This court in Rubin v. Lafayette Parish Sch. Bd., 93-473, pp.11-12 (La.App.
3 Cir. 12/14/94), 649 So.2d 1003, 1012, writ denied, 95-845 (La. 5/12/95), 654
So.2d 351 discussed a teacher’s rights under the provisions of La.R.S. 17:443(A)
and stated:
The teacher’s right to a complete and detailed list of the specific reasons for each charge against her and the Board’s obligation to vote on specific charges are fundamental requisites of the Tenure Act. State ex rel. Franceski v. Plaquemines Parish School Board, 416 So.2d 150 (La.App. 4th Cir.1982), writ denied, 421 So.2d 907 (La.1982) (Other citations omitted.) Findings of guilt which do not correspond with specific charges are insufficient to legally support a decision to terminate the teacher’s employment. Meaningful judicial review requires that courts know exactly which allegations or combination thereof were judged by the board as substantial evidence supporting the termination.
In this case, the “SPECIFIC REASONS FOR CHARGES AGAINST MS.
PATRICIA POWELL,” dated August 22, 2001, under the heading “Charge No. 1:
Willful Neglect of Duty,” Section “E. Specific reasons for Charge No. 1,”
provided:
As required by the handbook for teachers at Peabody Magnet High School, and, as directed by the Principal of Peabody Magnet High School, teachers are required to report to work and to clock in by 8:25 a.m. During the 2000-2001 school year, Ms. Powell reported and/or
24 clocked in after 8:25 a.m. on numerous occasions. Ms. Powell has had problems with tardiness in previous work locations and had been formally reprimanded for her late arrival at work at Peabody Magnet High School by letter from her principal dated November 16, 2000. Despite these facts, Ms. Powell was still unable to consistently arrive at school in a timely fashion. Such actions on her part constituted willful neglect of duty.
At the hearing before RPSB, Ms. Davis testified to approximately fifty-four
specific dates and times where Ms. Powell failed to clock in as per Ms. Davis’s
directive that Ms. Powell arrive at Peabody at 8:25 a.m. However, this specific
information, which presumably was gleaned from time cards, was not provided to
Ms. Powell as required by La.R.S. 17:443(A), which, by using the mandatory term
“shall”, requires that the notice of the specific charges be sent to a teacher twenty
days prior to the tenure hearing. The TTL (emphasis added) also requires that the
notice “shall include a complete and detailed list of the specific reasons for such
charges and shall include but not be limited to the following: date and place of
alleged offense or offenses, names of individuals involved in or witnessing such
offense or offenses[.]”
In Rubin, 649 So.2d at 1013-14 (citations omitted), a panel of this court
found that the required formalities of the notice to Ms. Rubin were not met when
the Lafayette Parish School Board failed to specifically provide her with the
specific dates and times of the alleged offenses and stated, “[o]ur jurisprudence has
long established that the Teacher Tenure Act should be liberally construed in favor
of the teacher it is designed to protect. Thus, school boards must strictly comply
with the removal provisions of the Act to legally discharge a tenured teacher.”
In this case, the district court found that Charge No. 1 failed to comply with
due process requirements for the following reasons:
25 1) There was a failure to state the date(s) and time(s) Ms. Powell “clocked in” after 8:25 a.m. Obviously because the school had a time clock, the Rapides Parish School Board should have been aware of the exact dates and times she was late and stated such.
2) Although an allegation states she had “problems with tardiness in previous work locations,” it does not provide specificity as to the date(s), time(s) or place(s)” she had problems with tardiness[.]
We find that the district court acted within its discretion in finding that with
respect to Charge No. 1, RPSB did not give Ms. Powell the required due process
notice of the specific dates and times of her alleged tardiness twenty days prior to
the tenure hearing before RPSB, although the information was clearly in the
custody of RPSB. Further, we do not agree with RPSB’s assertions that it was Ms.
Powell’s responsibility to seek clarification of the charges made prior to the
hearing.
a. Willful Neglect of Duty and/or Incompetency-Procedural Due Process
Based on the same analysis, the district court also found that RPSB failed to
comply with the due process requirements of La.R.S. 17:443(A) in Charge No. 2.
That charge also did not state specific reasons and details as is required by the TTL
in light of our decision in Rubin, 649 So.2d 1003.
RPSB’s August 22, 2001 letter giving notice to Ms. Powell of the tenure
hearing, “Charge No. 2: Willful Neglect of Duty and/or Incompetency.” Part E.,
“Specific reasons for Charge No. 2:” stated:
On several occasions during the 2000-2001 school year, Ms. Powell was directed by her principal at Peabody Magnet High School to keep records reflecting the progress of her students (such as graded tests and papers). She was also asked by her principal to communicate student progress on a regular basis to parents/caregivers. The need for physical documentation of student’s progress was discussed with Ms. Powell on October 11, 2000 during an Intensive Assistance Plan meeting. On December 7, 2000, an Intensive Assistance Plan was written outlining the need for physical documentation of each
26 student’s progress. On February 2, 2001, the Principal of Peabody Magnet High School had a conference with Ms. Powell concerning the awarding of grades to a particular student for the fourth grading period. Ms. Powell had no physical documentation that would justify the grades that she gave for that grading period despite the repeated directives of her Principal and her Intensive Assistance Plans. The failure on the part of Ms. Powell to keep documentation supporting the grades that she gave the students and her failure to communicate regularly to the parents/caregivers for such students about their performance constituted willful neglect of duty on her part.
Ms. Davis was the only witness to testify at the tenure hearing on the
specific issues surrounding the failure of Ms. Powell to follow her directives as
stated in Charge No. 2. Ms. Powell denied the accusations and explained her
reasoning in some detail.
The trial judge heard and evaluated the testimony of both Ms. Davis and Ms.
Powell and judged their credibility. The trial judge concluded:
1) There is a failure to state the date(s) and time(s) Ms. Powell was “directed to keep records reflecting the progress of her students” and “when she was asked by her principal to communicate student progress on a regular basis.”
2) There is a failure to state the name of the “particular student” the principal and Ms. Powell discussed on February 2, 2011 (sic).
Counsel for RPSB cites Irchirl v. Natchitoches Parish Sch. Bd., 12-488
(La.App. 3 Cir. 11/28/12), 103 So.3d 1237, for the proposition that the TTL does
not require the exact dates, times, and names of witnesses be included in the
statutory notice. Irchirl was a guidance counselor represented by counsel
throughout the proceedings, and counsel had been provided with a copy of the
letter with attachments specifically outlining, in detail, each charge, identified as
Supt. 1-B.
In reviewing the actions of the school board in that case, a panel of our court
quoted the trial judge and specifically noted, “[T]he trial court found that ‘Irchirl
27 had the extended opportunity far beyond the 20 days provided by the statue to
prepare a defense against the allegations set forth in Supt. 1-B, which the court
finds to be in compliance with the statute.”’ Irchirl, 103 So.3d at 1243.
In Irchirl, 103 So.3d at 1242, our court further noted:
“ ‘[D]ue process is not a technical concept with a fixed content unrelated to the time, place and circumstances.’ Rather, it requires the implementation of flexible rules which may yield to the demands of the particular situation.” Rubin v. Lafayette Parish Sch. Bd., 93- 473, p. 9 (La.App. 3 Cir. 12/14/94), 649 So.2d 1003, 1010-11 (quoting Wilson v. City of New Orleans, 479 So.2d 891 (La.1985)), writ denied, 95-845 (La.5/12/95), 654 So.2d 351. See also, Johns v. Jefferson Davis Parish School Bd., 154 So.2d 581 (La.App. 3 Cir.1963) (Statutory provision for formal notice and hearing on charges against teacher contemplates reasonable and substantial compliance with general principle of due process of law which requires that teacher be given formal notice of charges against him made with sufficient specificity that he may prepare any defense he may have.)
Ms. Powell was unrepresented and there was no exhibit outlining the
specifics of the charges provided to her twenty days before the teacher tenure
hearing as in Irchirl. The district court made specific findings that RPSB was in
bad faith and the notice had violated Ms. Powell’s due process rights.
We find that, as to Charge No. 2, the district court acted within its discretion
in finding that Ms. Powell was not given the required due process notice mandated
by La.R.S. 17:443(A). We find that assignment of error number two is without
merit.
Assignment of Error Number Three – Substantial Evidence
RPSB argues in assignment of error number three that the district court
‘erred in concluding that substantial evidence of willful neglect of duty by Powell
that occurred during the 2000-2001 school year was “not relevant.”’ In its written
reasons, the district court had found that, in effect, the entire tenure hearing was
28 flawed, as Ms. Powell had not been afforded due process and had not received the
opportunity to be heard “at a meaningful time and in a meaningful manner.”
Fuentes v. Cortese, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994 (1972).
The record reflects that it is undisputed that Ms. Powell’s tenure hearing
began at 5:00 p.m. and continued until 1:30 a.m. The Superintendent completed
her case at approximately 11:00 p.m., after six hours of extensive testimony had
been heard by RPSB. At the time Ms. Powell began her pro se defense, the trial
judge noted that it was apparent from the transcript of the tenure hearing that all
parties involved were exhausted and in some cases confused. Yet RPSB continued
the hearing “rather than recess and return another day, as suggested by Ms.
Powell.” The district court concluded that it was fundamentally unfair for the
hearing to continue under those circumstances. RPSB members’ votes on the four
charges against Ms. Powell involved multiple questions, which should not have
been considered at approximately 1:00 a.m. These actions of RPSB resulted in a
violation of Ms. Powell’s due process right to a full and fair hearing.
After much deliberation, the district court issued extensive written reasons
for judgment. Because the district court found that Ms. Powell had not received
procedural due process, it eventually concluded that the tenure hearing conducted
by RPSB was “not relevant.” The district court found that RPSB had not acted in
good faith. The district court based its conclusion on facts in the record that
demonstrated that Ms. Powell was the victim of “political retaliation.” The district
court went into great detail to discuss its reasons for finding that RPSB failed to
present “substantial evidence” to support both Charge No. 1 and Charge No. 2
against Ms. Powell. The district court issued specific reasons finding that the
29 testimony of Ms. Davis was not credible, and accepted the testimony of Ms.
Powell as credible.
RPSB argues on the issue of whether substantial evidence was presented by
RPSB to support Ms. Powell’s termination, that the district court’s statement in its
written reasons, “[A]s to this issue, substantial evidence was presented by both
parties as to whether Powell should have been terminated because of a willful
neglect of duty.” RPSB claims that should have ended the district court’s
determination and RPSB’s termination of Ms. Powell should be affirmed.
It is clear from its well documented reasons for ruling that the district court
found that the specific facts in this case preempted “all the willful neglect of duty
evidence.” The district court stated in its written reasons, “[I]t’s the elephant in the
case, and it concerns political retaliation of a kind that is not found in any other
TTL jurisprudence.” In support of its factual finding of bad faith “political
retaliation” the district court then found that the following undisputed facts
supported its conclusion:
1) Powell was a teacher for 24 years without a blemish on her record, including with the RPSB;
2) December 2, 1997: she received a perfect performance review by her principal, Shirley Richie, which was consistent with her past years of service;
3) January 6, 1998: she is quoted in the local newspaper criticizing the RPSB;
4) January 15, 1998: forty-four calendar days after her previous evaluation and nine days after the article appeared, her evaluation by the same principal with the same class resulted in ten unsatisfactory, eight needs improvement and two satisfactory scores;
5) January 26, 1998: twenty days after the article, the RPSB closed her gifted class at Tioga Elementary School;
30 6) January 28, 1998: twenty-two days after the article, the administration of Aiken Detention Center sent a letter to Patsy Jenkins for a certified teacher after they had a “conversation”;
7) January 30, 1998: by letter from Patsy Jenkins, Powell was transferred to Aiken Detention Center as of February 3, 1999. Although Clayton Williams wrote that he needed a “certified teacher” at Aiken, Ms. Powell was not assigned a teaching position at Aiken. Query: If Powell was not assigned a teaching position, why did Williams need a certified teacher?
ALL OF THIS HAPPENED IN ONE MONTH AFTER THE NEWSPAPER ARTICLE-JANUARY 6 TO FEBRUARY 3, 1998!
After finding that Ms. Powell had not received procedural due process at the
tenure hearing conducted by RPSB, the trial judge based its determination on his
findings that Ms. Powell was the victim of “political retaliation.” Aside from the
fact the district court found RPSB was retaliating against Ms. Powell, the district
court also concluded RPSB failed to present sufficient evidence of the charges. He
then went into specific detail to discuss its reasons for finding that RPSB failed to
present substantial evidence to support both charge one and charge two against Ms.
Powell,2 as we will now discuss.
a. Charge No. 1 – Tardiness
In its written reasons for judgment the district court found that the testimony
presented at the tenure hearing with respect to the reporting time for teachers in
RPSB school system was “confusing and inconsistent.” The Superintendent failed
to introduce a copy of the handbook for teachers at Peabody and only submitted a
letter to the teachers which stated that teachers were “to report by 8:25 a.m. [y]ou
may leave at 3:25 p.m.” The district court’s findings on charge number one are
2 On Charge Number Three, RPSB found that Ms. Powell was not guilty of willful neglect of duty. On Charge Number Four, RPSB found that Ms. Powell was guilty of willful neglect of duty but found in a tie vote that no disciplinary action be taken against Ms. Powell. Therefore the trial court refused to consider Charge Number Four as a basis for her termination.
31 quite thorough:
Ms. Powell has been adamant that the report time was 8:35 a.m. The difference is substantial. If the reporting time was 8:25, Ms. Powell was late fifty-one times and if it was 8:35, she was a few minutes late which totaled 61 minutes in a five month period. However, if report time was 8:35 and class instruction began at 8:45 a.m., she never missed the start of her class at 8:45 a.m. The latest she clocked in was 8:41, six minutes late if clock-in time was 8:35 a.m.
Although the Court is not aware of the report time from the Peabody handbook, the job description for secondary teachers required teachers to report to school ten minutes before school began and to be in the assigned classroom when the class period begins.
As stated above, the evidence presented at the tenure hearing is insufficient to prove Ms. Powell was tardy. The Court is baffled at why such an easy issue as report time for teachers is so difficult to find from the record.
Principal Davis testified at the tenure hearing that Ms. Powell’s frequent tardiness caused problems for the school and that Ms. Davis “had to get a sub or someone to go in and keep her class” when Ms. Powell “came in at 8:40 and nine o’clock.” This testimony is contradicted by the time cards which show that Ms. Powell never clocked in at 9:00 and in fact never clocked in later than 8:41.
She also testified that there were three bells: the first at 8:35, the “beginning of school”, a second at 8:40, and the final “tardy” bell at 8:45 when “class instruction” began. She later contradicted herself and said that because the first bell rang at 8:35 a.m., the teachers were expected to be on campus at 8:25 a.m.
However, in her November 16, 2000, Letter of Reprimand, she stated “you are aware that our school day begins at 8:40 a.m. and that you are expected to report to work before 8:25,” which conflicts with her testimony that school began at 8:35 and conflicts with the job description for secondary teachers to report ten minutes before school begins which would be 8:35.
Lyle Hutchinson, the Assistant Superintendent for Curriculum and Instruction, testified at the tenure hearing that teachers were to arrive “ten minutes before class begins,” (which would be 8:35). He later contradicted this testimony stating that teachers had to report “ten minutes before the first bell” at 8:35, which would have been 8:25. He was unable to explain where Ms. Davis got the idea that school began at 8:40 and not 8:35.
32 Dr. Patsy Jenkins, the Rapides Parish School Superintendent at the time of the tenure hearing, testified at trial that the rule to report “ten minutes before school begins” could not be overruled by a principal. Therefore, teachers cannot be ordered to appear at school fifteen or twenty minutes before the “class instruction time” in that it would violate the Rapides Parish School Board policy.
For the foregoing reasons, the Court does not find substantial evidence in the record to support the finding on charge 1 that Ms. Powell was guilty of “willful neglect of duty for failing to [report to] work timely.” Based on the contradictory and confusing evidence, the Court is unable to determine the time Powell was required to be present at school.
The district court concluded as to Charge No. 1: “the finding by the Board
on this charge was reached in an arbitrary and [capricious] manner in that there
was a disregard of the evidence before it and not supported by substantial
competent evidence.” Based on the district court’s findings, we agree.
b. Charge No. 2-Failing to Keep Student Records and Progress Reports
The evidence supporting Charge No. 2 at the teacher tenure hearing was
given primarily by Ms. Davis. Although some parents and students were called to
testify, the charges are directed to Ms. Powell’s failure to comply with Ms. Davis’s
directives. Ms. Davis had custody of all of Ms. Powell’s student folders but they
were not introduced into evidence at the tenure hearing to support the charges
made against Ms. Powell. The district court further found Ms. Davis’s testimony
was not credible.
The district court gave extensive written reasons citing evidence heard by
RPSB at the teacher tenure hearing which refuted each of the allegations made
against Ms. Powell in charge two. The district court’s findings on Charge No. 2
state in pertinent part:
7) Powell testified that “prior to the Detention Center, I had the gifted class at Tioga Elementary. As far as the second charge, I
33 definitely kept physical documentation on everything, every paper that [a] child ever did, every test they ever took I kept. I have two – every child has two folders. I didn’t get any at the beginning of the year, I did not see a folder. I went one day to ask Mr. Bayonne if I could get a box of folders and he didn’t even respond to me. So I went to Ms. Cox and asked her if she-if I was just to go buy those on my own and she said well, no, I have some that I got with grant money and so she gave me a box. And I had asked all the kids – I had sent letters home at the beginning of the year asking every student with a – it was like a syllabus and I had a list of supplies and two manila folders, black pens, glue stick, three ring binds [sic][binders], everything I needed was on there, and the kids wouldn’t bring them in regularly. You know, I didn’t collect enough, and so I did go ahead and try to finally and try to make my own with the help of Ms. Cox and they were used. There were two folders for every child. One was a writing portfolio because I used process writing groups in my class and you have to keep – to trace their progress, you have to keep a portfolio of their work, and it shows how they get better and better as the year progresses. The other folder was all their test papers, every, every test they had ever taken, every grade they ever made. And generally my students would have lots of opportunities for extra credit. I offered extra help two days a week. They could either come before school or after school. So I had two days a week where I offered extra help or they could like make an appointment and I was glad to help them with anything extra.”
8) It appears from the evidence that the documentation issue in this charge specifically involved KD, a student in Powell’s English I class. The evidence shows beyond any doubt that KD, like most of her fellow students, had serious problems with rules and authority figures. During class time instruction, she would talk, shout, and distract the other students and was insubordinate to Ms. Powell. She would also step out in to the hall during class and leave the class early without permission. On several occasions, KD would leave class early without turning in her test paper which resulted in Powell giving her a zero (0) grade for that test. According to Powell’s grade book, this occurred on three occasions which caused her to receive an F average. Unfortunately, instead of her mother disciplining her child, she complained to Ms. Davis, who then complained by letter to Thomas Roque, Assistant Superintendent at RPSB. In the letter, Davis informed Roque that after MD (KD’s mother) had met with Mr. Bazone, Mrs. Henagan, Ms. Hammond and Ms. Powell, she “mandated” Powell to “change a grade of 70 that should have been a 93.” Her reasons were: There were three zeros recorded that Ms. Powell could not justify because “papers could not be produced to verify the grades of zero (0).” In translation, this means KD was given a test, left the room early and did not turn in her test paper. Her failure to take the test and turn it in means she doesn’t get any credit for a test she doesn’t take…thus, she received the zeros.
34 The Court finds the evidence shows that KD would leave class early without permission and would fail to turn in her test because there was a “bus leaving early from school.” In her letter, Ms. Davis stated this was “proven to be a misrepresentation of true facts because we do not have any buses leaving before 3:20 p.m.” This was “not a misrepresentation of true facts” by Ms. Powell, but was a misrepresentation of “true facts” by KD. KD knew there was not an early bus but used this as an excuse to leave the classroom without permission so she didn’t have to turn in her test. Obviously, Ms. Davis chose to believe a 15 year old child with a behavioral problem than a teacher with 24 years’ experience.
Powell also caught KD cheating on two occasions giving her a zero for one assignment and reducing a 95 to a 70 on one paper because she “at least turned in an assignment.” A review of KD’s grade[s] form (sic) Powell’s grade book shows KD received grades of 0, 0,73,57,43 and 61, a total of 236 points, for an average grade of 39. Ms. Powell’s grade book shows an average of 39.8, exactly as it should be, which is an F average anywhere in North America.
The district court “was impressed with Powell’s record keeping,” made
credibility decisions after considering all the evidence, and found factually that
“there was no substantial evidence to support the charge.” The district court found
“a clear abuse of discretion” on the part of RPSB. We agree that the district
court’s detailed findings and reasoning were within its discretion and find
assignment of error number three is without merit.
Assignment of Error Number Four-First Amendment/Free Speech Claims
RPSB argues in assignment of error four that the district court erred:
[I]n entering a judgment based, at least in part, on a First Amendment/free speech retaliation claim which was not part of the tenure charges, was not alleged in Powell’s petition for review, was not considered by the Board during her tenure hearing, was not subject to the court’s limited judicial review of said tenure hearing decision and was prescribed.
RPSB took great pains to argue to both the district court and this court that
the charges brought against Ms. Powell at her teacher tenure hearing were only
related to her performance at Peabody in 2000-2001. However, as previously
35 found by the district court and this court, there is sufficient evidence in the record
to support a finding that Ms. Powell’s problems with RPSB stemmed from the
article criticizing RPSB in connection with the settlement of the case with the
former Superintendent. Therefore, RPSB’s first contention in this assignment of
error is without merit.
RPSB further contends that Ms. Powell’s retaliation claim was not
specifically addressed in Ms. Powell’s petition for review timely filed in the
district court on September 20, 2002. In her petition for review in the district court,
Ms. Powell seeks de novo review and assigns “as fault the following non-exclusive
particulars or errors in this request for a de novo review or plenary hearing before
this court to adduce additional evidence and consider the record made below[:]”
a) Failing to properly provide notice and grant administrative rights prior to the full board hearing in violation of custom, practice, and law;
b) Failing to treat your Petitioner in a similar fashion vis-à-vis other tenured teachers of a similar position and relatedly using discriminatory tactics to “run off” your Petitioner in violation of substantive and procedural due process rights;
c) Failing to provide teaching tools required to fulfill teaching duties in an arbitrary and capricious fashion, and failing to accommodate legitimate medical conditions of your Petitioner or properly consider such conditions at the tenure hearing;
d) Improperly considering stale charges or cumulating charges violating due process and fundamental fairness[.]
In essence, RPSB is claiming that Ms. Powell failed to state a cause of
action for retaliation in her petition for review. However the cited portions of her
petition do reflect her allegation that she had been unfairly treated and that RPSB
had tried to “run her off.” Considering the specific findings of the district court
that shortly after her criticism of RPSB she was transferred from her gifted class at
36 Tioga to Aiken, we find that the allegations of the petition in this case must be
construed liberally in favor of Ms. Powell. Rubin, 649 So.2d at 1003. As noted, in
her opening statement at the teacher tenure hearing, Ms. Powell specifically
claimed “political retaliation,” and RPSB’s bad faith efforts to try and get her to
resign.
The TTL was enacted in 1922 and amended in 1936 with the central
purpose to offer “the protection of teachers against political vengeance and
reprisals,” and to afford protections “for the benefit of the teacher, not the school
boards.” Rousselle v. Plaquemines Parish Sch. Bd., 93-1916 (La. 2/28/94) 633
So.2d 1235, 1241-42. Accordingly, our jurisprudence is well-established that the
provisions of the TTL are to be liberally construed in favor of teachers. Id. We
find no merit to RPSB’s claim that Ms. Powell’s complaints of “political
retaliation” were beyond the scope of the district court’s authority to review.
RPSB also claims that the issue of retaliation was not addressed at the
teacher tenure hearing. Again, as previously found by the district court, and as we
discussed infra, Ms. Powell raised the issue of retaliation both in her opening
statement and during her testimony at the teacher tenure hearing. Also, as
previously stated, none of the members of RPSB or counsel for the Superintendent
questioned Ms. Powell about her allegations of retaliation at the tenure hearing,
though they clearly had the opportunity to do so.
Finally, RPSB claims that any claim of retaliation is beyond the scope of
judicial review granted to the district court. Based on the foregoing determinations
and findings of fact made by the district court, we cannot agree. The district court
made specific findings of fact that RPSB failed to both comply with the statutory
formalities of the TTL and to present substantial evidence to support its charges.
37 More importantly, the district court found, and we agree, that RPSB’s decisions
were motivated by “political retaliation” and were not in good faith. Therefore, we
affirm the portion of the district court’s judgment reversing the termination of Ms.
Powell by RPSB effective September 20, 2001.
Assignment of Error Number Six- Back Pay and Retirement Benefits3
RPSB urges that the district court erred in awarding Ms. Powell full back
pay and retirement benefits through 2014 by exceeding the scope of relief
authorized by the TTL. Further, RPSB argues that the medical evidence indicated
Ms. Powell was disabled and receiving Social Security Benefits as of March of
2006.
Louisiana Revised Statutes 17:443(B) provides in pertinent part:
If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board.
As this case has gone on for approximately fifteen years, it is impossible for
Ms. Powell to return to her position as a teacher with RPSB.
Therefore, the judgment of the district court awarded damages to Ms. Powell
for wages from September 20, 2001, the effective date of her termination, through
August 18, 2014, the date of her sixty-second birthday. However, the judgment
does not state the specific amount being awarded to Ms. Powell. It additionally
awarded future teacher retirement benefits based on the expert report of Dr. Robert
C. Eisenstadt, Ph.D. and referenced “Powell Supp. Exhibit 49.” The district
court’s judgment failed to award a sum certain, and its reference to Dr. Eisenstadt’s
expert report is not allowed in a final appealable judgment.
3 RPSB’s Assignment of Error Number 5, which was urged in the alternative, has been addressed by this court previously and is moot.
38 A panel of this court in Thomas v. Lafayette Parish Sch. Sys., 13-91, p. 2
(La.App. 3 Cir. 3/6/13), 128 So.3d 1055, 1056 (emphasis added) stated:
However, we note that this court has stated that “[a] valid judgment must be precise, definite, and certain. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.” State v. White, 05- 718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146. Moreover, a judgment cannot require reference to extrinsic document or pleadings in order to discern the court’s ruling. Vanderbrook v. Coachmen Industries, Inc., 01-809 (La.App. 1 Cir. 5/10/02), 818 So.2d 906.
Therefore, for the foregoing reasons, the portion of the district court’s
judgment of October 19, 2016, awarding damages to Ms. Powell is remanded to
the district court for a determination of the exact amount of damages awarded,
along with appropriate interest and costs to Ms. Powell with proper decretal
language.
CONCLUSION
For the foregoing reasons, the district court’s judgment of October 19, 2016,
reversing the termination, as of September 20, 2001, of former teacher Patricia
Ellyn Powell by the Rapides Parish School Board is affirmed. The portion of the
district’s court’s judgment awarding damages to Patricia Ellyn Powell is remanded
to the district court for a proper assessment of damages and execution of a final
judgment with proper decretal language. All costs of this appeal are assessed to
the Rapides Parish School Board.
AFFIRMED IN PART AND REMANDED IN PART.
Related
Cite This Page — Counsel Stack
Patricia Powell v. Rapides Parish School Board, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patricia-powell-v-rapides-parish-school-board-lactapp-2017.