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Powell v. Rapides Parish School Board

Court of Appeals of Louisiana, Third Circuit

December 20, 2017



          Robert Lloyd Hammonds Hammonds, Sills, Adkins & Guice, LLP FOR DEFENDANT/APPELLANT: Rapides Parish School Board

          Mildred Ellen Methvin FOR PLAINTIFF/APPELLEE: Patricia Powell

          Allison Anne Jones Downer, Jones, Marino & White FOR PLAINTIFF/APPELLEE: Patricia Powell

          Jacques Maurice Roy Attorney at Law FOR PLAINTIFF/APPELLEE: Patricia Powell

          Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.


         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.


         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 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. 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 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.

         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. 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 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 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 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 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.


         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 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.

         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.

         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 substantial evidence of record presented during the tenure hearing to support the decision of the School ...

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