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Good Georgia Lawyer Wins Reduction In Force Hearing, Successfully Argues DeKalb County School District Illegally Implementing RIF Plan and Violating Georgia Law (Part One):

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In a recent Fair Dismissal Hearing, the Tribunal published its “Findings of Fact and Recommendations to the DeKalb County Board of Education” stating that it “rejects the recommendation to terminate the contract” of a media specialist educator based upon the Reduction in Force plan.

Ms. Oinonen successfully argued that Dekalb County School District’s (DCSD’s) implementation of the Reduction in Force (RIF) plan is illegal and a violation of the new law, OCGA 20-2-948. This legislation, recently enacted in May 2012 holds it illegal to consider length of service as the primary factor in a RIF. Rather school districts must consider “performance of the educator” as the primary factor in implementing a reduction in force.

Ms. Oinonen argued that this is exactly what DCSD is violating although they denied it— using a seniority “first in last out system” by claiming that everyone is equal because everyone supposedly has an “overall” satisfactory performance evaluation.

However, under cross examination, the Chief Human Resources officer admitted that DCSD retained people who currently have “Needs Improvements” on their evaluations and who had been on Professional Development Plans (“PDPs”) compared to our client with a perfect record.

The Tribunal agreed with Ms. Oinonen’s argument and stated in their findings that they “believed that job performance was not fully and properly investigated to differentiate between employees.” Additionally, the Tribunal stated the following:

“[T]he Superintendent failed to properly evaluate the final 13 Media Specialists concerning performance, but instead found these 13 to be `equal on performance based solely on an annual evaluation of “satisfactory” without any further review and investigation of these employees. The Tribunal believes it is crucial to further evaluate these employees to weigh and quantify them on performance standards. Failure to do so disregards the intent of OC.G.A. § 20-2-948 which requires the Board to consider performance as the primary factor in implementing a RIF action. Accepting only the annual evaluation of “satisfactory ” fails to even minimally comply with this requirement and limits the ability of the District to maintain quality personnel.”

The following are two brief excerpts of the cross examination of Dr. Ward Smith, Chief Human Resources Officer during the tribunal hearing and Ms. Oinonen’s closing argument:

Excerpt of the Cross Examination of Dr. Ward Smith:

Q. Okay. Now, reminding you that you’re under oath, Dr. Ward-Smith, I’d like to ask you would you admit to me that there are some media specialists currently still employed with DeKalb County that have actually been on a PDP at one point in their career?

A. Yes, one point in their career. That is the key phrase.

Q. And would you agree with me that there are some media specialists currently employed with DeKalb County School District that have been on a PDP while as employees of the School District, DeKalb County?

A. I just answered it. Yes.

Q. Well, let me clarify just for the point of the record. I earlier asked would you agree with me that there are currently some media specialists that are still employed with your School District who have been over the course of their entire career in the United States of America have been on a PDP. And I believe you answered yes, correct?

A. Yes. Uh-huh (affirmative).

Q. And now, my second question, just to clarify: Would you also agree with me that there are still media specialists that are going to go back to work this fall who have also been on a PDP while under the auspices of employment within the DeKalb County School District?

A. Yes.

Q. Would you agree with me that Mr. Lynch has never been on a PDP at DeKalb County School District?

A. I cannot confirm, but I would say I don’t have information in front of me.

Q. Okay. You don’t have the information — you’re saying today under oath that you have no idea whether Mr. Lynch has ever been on a PDP?

A. I’m saying I did not have a PDP for Mr. Lynch.

Q. Okay. And you are also saying, and, again, I’m not trying to be difficult, I just want to understand for the purpose of advocating for my client that you are stating under oath today that you have no knowledge whether he’s ever been on a PDP before in his life?

A. I am saying I did not have a PDP for Mr. Lynch.

Q. You don’t have one today or you don’t —

A. I do not have one —

Q. — have knowledge?

A. I don’t have knowledge of a PDP for Mr. Lynch.

Q. Okay. Thank you. Would you admit, Dr. Ward-Smith, that there are some media specialists that are currently still employed with your School District who have received an NI, needs improvement, on their annual performance evaluations at one point during their career over the past year at DeKalb County School District?

A. Yes, ma’am.

Q. Okay. So there are actually media specialists going back to work this fall who have an NI on their annual performance evaluations?

A. I would say yes, there are.

Q. Okay. And you know that Mr. Lynch has never gotten an NI at DeKalb County School District?

A. Over the last three years, the annual evaluation overall ratings that we reviewed — and like I say, I can’t answer that. But at that particular point, I have no knowledge of Mr. Lynch having an NI.

Q. Okay.

A. Over the last three years.

Q. Do you have any knowledge of Mr. Lynch’s annual performance evaluation, period?

A. Yes, ma’am. I have knowledge that it was overall satisfactory.

Q. Okay. Now, let’s go back to this RIF evaluation that’s now required by Georgia law since May of 2012, regarding considering the primary factor the performance of the educator. So I’d like to talk about this. Now, I think you’ve already admitted that media specialists — there’s media specialists that are still employed at DeKalb who don’t have dual certifications like Mr. Lynch and who have been on Needs Improvement, unlike Mr. Lynch, and who have been on PDPs, unlike Mr. Lynch. So I want to ask you how many media specialists, to your know- — media specialists, it’s like a librarian, right?

A. Library media specialist. Yes, ma’am.

Q. Okay. Okay. So how many library media specialists, to your knowledge, have a 4.0 masters degree in Library Information Sciences?

A. I’m not aware.

Q. Okay. Would you agree that certainly there’s probably just a small percentage of them out of the whole 130 folks that you evaluated?

A. I’m not aware of an exact number.

Q. So you don’t have that data today that you can show us whether —

A. I do not.

Short Excerpt of Ms. Oinonen’s Closing Argument:

“We’re 85 million dollars in deficit. But at least, let’s do it right. We have enough problems in DeKalb County than screwing up this whole thing and not even complying with Georgia law, and for goodness sake, our own policy, our own policy that our Superintendent and our School Board approved, which states: “The criteria and the evaluation is to be based on professional expertise and certification and performance based upon annual evaluation and seniority only after the aforementioned factors have been considered and found to be equal.” That’s in addition to the requirement of the law.

And that’s why you must reverse this RIF, because they’re violating Georgia law. They are not following RIF statute, they are not following their own RIF policy.
But, again, they have the burden of proof to prove that they are. And what did they prove? Did they show us this magical database that I was stammering over when I was trying to think of Dr. Fletcher’s excellent question about the rubric? Did they even bring one personnel file to show about these 13 people that were RIF’d? Not once did they present any kind of statistical analysis, did they show us the percentages or any type of formula based on number of satisfactory evaluations to unsatisfactory? No, they didn’t do any of that.

But I tell you what they did do. They showed you that something really screwed up is going on. And I say this respectfully, because I think these are all nice people. But why? I can’t testify, but I represent educators. And I know what goes on. Why are they keeping people that are on PDP? We all know what that means. Why are keeping people that have a bunch of NI’s? You heard her testifying under oath that the people that they kept that didn’t RIF, the media specialists, the 130 people that they all said were equal or, you know, were all satisfactory, why were they keeping people that are on current Professional Development Plans or receiving NI rankings and RIFing the people that have absolutely satisfactory evaluations?

This stinks to high Heaven. Something is going on. And it’s up to you all to address this issue and to let them know that we understand we’re in deficit. We understand we have to RIF people, and it’s difficult and it’s hard decisions. But when we’re going to make these hard decisions, my God, at least let’s make them right so they don’t end up getting reversed and we end up being in a deeper hole. Let’s at least follow our own policy, and let’s do it as educators.

We’re educators. My God. We’ve trained on how to do these things. I mean, isn’t that what we taught constantly as educators, about learning assessments and evaluations, and we can’t even evaluate our own properly? There’s something that’s going on here. And I’m asking you today to address it and nip this in the bud, because if they’re doing this to media specialists, then what are they going to do with the teachers?

Think about that when that comes down the pipe, when 250 teachers get passed, and the Board recommends that they’re laid off. Is this how they’re going to evaluate? If you don’t say something now, they’re going to do it to all the teachers in the DeKalb County School District. They’re going to RIF the people with satisfactory evaluations, and they’re going to keep the people on PDP and with NI’s in their record. And what outcome for results is that going to be to the children of DeKalb County? Think about that.

The School District failed to meet their burden of proof. I did not see one chart. I did not see one graph. I did not see one personnel file, which by the way, is subject to the Opens Records Act, and if they were concerned about confidentiality, they could have redacted some names. I didn’t see any of that. I didn’t see anything, anything, not one single document that really analyzed the criteria according to who should be RIF’d and who shouldn’t.

All I heard was Dr. Ward-Smith say a quote that I wrote down to be sure I quoted. She used four words, all things are equal. No, they’re not. They’re not. They’re not following. They’re not doing what they’re supposed to do. They’re not complying with RIF policy, and they’re not complying with Georgia law.

I’m not asking you to please play favorites on Mr. Lynch. I’m asking you to do the right thing. I’m asking you to do the right thing that he is afforded as a Georgia educator under O.C.G.A. 20-2-940, and I’m asking you to do the right thing regarding Georgia law concerning the reduction in force and concerning our own School District policy.
You’ve seen his résumé. And you all know whether this is average or not, a 4.0 Master’s degree, Honor’s Dean List from UGA, Community Service, Obama Organizing Fellow, English Honor’s Society Member, Delta Epsilon Iota Honor’s Society Member, UGA Honor’s Program Member.

The only reason I — the only thing that I didn’t do that I probably should, I mean, I should have asked Mr. Lynch how much he loves teaching. But I didn’t talk about — I didn’t ask him about how much he loved the students. So I can’t really go into that, because I didn’t present it as evidence, and I wish I had.

But I’m asking you to reverse his RIF. I know it’s a big thing, but it’s the right thing to do. And if it doesn’t get done, and if we just rubber stamp this decision, mark my word, they’re not going to just do it to Mr. Lynch, they’re going to do it to every teacher. Mark my words, you’re going to send a message today. And I just ask you to send the right one. And I ask you sincerely to think carefully what I said and to review all the evidence, and to reverse Mr. Lynch’s reduction in force and termination.”