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  • Date: November 9, 2022

Vol. 20-004, February 19, 2020

(OAH Case No. 2018100560 (2019).)

The Gist
While evidence of an employee’s underlying misconduct that occurred more than four years prior to the issuance of dismissal charges is not admissible in a CPC hearing, evidence that the district issued disciplinary letters and took corrective measures to remediate the employee’s conduct more than four years prior to the dismissal action is admissible to establish that the employee failed to comply with the district’s directives and to show that an employee persistently failed and/or refused to follow directives.

The Details
In 2012, an elementary teacher received a Conference Summary Memorandum and a Letter of Warning when he required students to give him shoulder massages. In the memorandum and letter, the teacher was directed to refrain from inappropriate physical contact with students.

In 2014, the district issued the teacher a Letter of Reprimand following complaints of inappropriate physical contact with students. Again, the district directed the teacher to refrain from physical contact with students, including initiating or permitting physical contact with students, and to report any physical contact he had with students.

Despite the district’s efforts, and in violation of the directives contained in the prior disciplinary notices, in 2018, the teacher again engaged in inappropriate physical contact with multiple students including tickling students, allowing students to give the him shoulder massages, tousling students’ hair, flicking girls’ ponytails, hugging, and placing his cheek against a student’s face. Consequently, the district moved for the teacher’s dismissal on the basis of unprofessional conduct, unsatisfactory performance, evident unfitness for service, and persistent violation or refusal to obey board regulations. 

Following a prehearing motion filed by the teacher, the CPC excluded evidence of the 2012 incidents because the conduct at issue occurred more than four years before the filing of the case. However, the CPC permitted the district to admit evidence that the teacher received directives to refrain from engaging in the underlying conduct. These directives established the circumstances surrounding the teacher’s misconduct in 2014.  

Ultimately, the CPC determined that the teacher’s inappropriate contact with students was intentional and constituted unprofessional conduct, unsatisfactory performance, evident unfitness for service, and persistent violation or refusal to obey board regulations. The CPC rejected the teacher’s defense and found that his conduct was not a momentary lapse in judgement. Instead, because he received multiple warnings and directives to abstain from such conduct, the CPC found the teacher was either unwilling or incapable of refraining from unnecessary physical contact with students. Moreover, the CPC noted that the district specifically directed the teacher to stop his behavior, yet the violations repeated, evidencing intentional misconduct.

Practical Pointers
School site leaders should issue clear disciplinary letters designed to correct an employee’s misconduct. These letters should contain detailed directives designed to prevent the misconduct from reoccurring. Further, these disciplinary letters should reference any similar past misconduct and identify whether the previously issued directives were satisfied. These letters may serve as evidence of persistent violation of school policy or directives if formal disciplinary proceedings become necessary. 

Dismissal Upheld.