Ritzert v. Bd. of Educ. of the Acad. Sch. Dist. No. 20

• Decision Date: 23 November 2015
• Citation: 361 P.3d 966,2015 CO 66
• Docket Number: 13SC930
• Parties: Cathy RITZERT, Petitioner, v. BOARD OF EDUCATION OF the ACADEMY SCHOOL DISTRICT NO. 20, Respondent.
• Court: Colorado Supreme Court

361 P.3d 966

2015 CO 66

Cathy RITZERT, Petitioner,

v.BOARD OF EDUCATION OF the ACADEMY SCHOOL DISTRICT NO. 20, Respondent.

Supreme Court Case No. 13SC930

Supreme Court of Colorado.

November 23, 2015

Attorneys for Petitioner: Colorado Education Association, Charles F. Kaiser, Denver, Colorado.

Attorneys for Respondent: Caplan and Earnest LLC, W. Stuart Stuller, Boulder, Colorado.

Opinion

JUSTICE HOODdelivered the Opinion of the Court.

¶ 1 The petitioner, Cathy Ritzert, has been a teacher for more than twenty years. During the events at issue here, Academy School District No. 20 (“the District”) employed her at Air Academy High School in Colorado Springs teaching children with severe special needs.

¶ 2 After receiving a complaint about Ritzert from a student's parents, the District placed her on paid administrative leave and told her that it would recommend her dismissal to the District's Board of Education (“the Board”) unless she resigned. She refused.

¶ 3 After several months passed without the District acting on its pledge to fire her, and with another school year looming, Ritzert eventually took a new job teaching special needs students in a neighboring district. She claims that she did this to mitigate her damages. She still wanted the District to prove it had a legitimate basis for terminating her. So again, she refused to quit.

¶ 4 Despite telling Ritzert that she would be fired and encouraging her to look for other work—and despite having done nothing in over three months to suggest she would be asked to return in any capacity—the District changed course. Once it discovered she had started the new job, it suddenly ordered her to report for work as a floating substitute. When Ritzert did not comply, the District initiated formal dismissal proceedings against her, claiming in part that her refusal to return to work constituted insubordination.

¶ 5 The Teacher Employment, Compensation, and Dismissal Act of 1990 (“TECDA”), §§ 22–63–101to –403, C.R.S. (2015), sets forth the process for dismissing a nonprobationary public school teacher such as Ritzert. It enumerates grounds for dismissal and gives the teacher notice and an opportunity to be heard by a neutral hearing officer who is tasked with making findings of historical fact and findings of ultimate fact. When the allegation is insubordination, that officer must consider whether the teacher has intentionally refused to obey a “reasonable order.” While the hearing officer makes a recommendation, the Board makes the final administrative decision to dismiss, retain, or place the teacher on probation. But it must do so based on the evidentiary findings of the hearing officer.

¶ 6 The hearing officer recommended that Ritzert be retained, finding in part that the District's insubordination allegation was pretextual and unreasonable under the circumstances. The Board dismissed Ritzert for insubordination anyway. In doing so, it said nothing about the complaint that triggered placing her on leave in the first place.

¶ 7 We hold that under TECDA whether a school district's order is reasonable is a finding of ultimate fact within the discretion of the governing school board. Still, that finding must be fully warranted by the hearing officer's evidentiary findings of fact. Thus, a board must assess reasonableness on a case-by-case basis after consideration of all the facts found by the hearing officer. Because the Board abdicated that responsibility here, we conclude that its decision to dismiss Ritzert for insubordination on these facts was arbitrary and capricious. Therefore, we reverse the judgment of the court of appeals and remand this case to the Board to reinstate Ritzert.

I. Facts and Procedural History

¶ 8 Ritzert taught in the District from 1991 until the Board dismissed her in 2013. She obtained tenure status in 1994, and, in 1999, she began teaching severe special needs students at Air Academy High School in Colorado Springs.

¶ 9 In February 2012, the parents of N.S., an autistic and nonverbal child, complained that Air Academy was failing to provide N.S. with the appropriate level of support to meet his educational needs. N.S.'s parents also complained that Ritzert had improperly reduced the number of service hours for his federally mandated individualized education program.¹Though Ritzert had received excellent reviews, the complaints from N.S.'s parents caused the school to question whether she was providing adequate accommodations for special education students in compliance with federal law.

¶ 10 On May 10, 2012, the District's Assistant Superintendent for Human Resources, Dr. David Peak, placed Ritzert on paid administrative leave. The same day—and again two days later—Peak asked Ritzert to resign. If she refused, he told her, the Board would terminate her at its June meeting. Warning her that resignation would be better for her than termination, he also suggested that she begin looking for employment elsewhere. About the same time, Air Academy's principal, Toria McGill, told Ritzert that she would not be returning to Air Academy from leave. Ritzert did not resign.

¶ 11 Despite not recommending Ritzert's dismissal at the Board's June, July, or August meetings, neither Peak, McGill, nor any other District employee gave Ritzert any indication that the District's intention to recommend her termination had changed or that the District might summon her back to work. She remained on paid leave during this time. But nothing had happened to change her belief that her dismissal was imminent. Therefore, she searched for new work.

¶ 12 On August 3, 2012, Ritzert signed a contract as a special education teacher with the neighboring Falcon School District (“Falcon”). She did not resign from her position at Air Academy. The District learned of her employment and, on August 10, inquired about her intentions. Notably, August 10 was also the District's teacher-report date, yet the District had not asked Ritzert to return in any capacity, nor had it suggested it might.

¶ 13 On August 14, 2012, Ritzert's attorney informed the District that Ritzert took the job with Falcon to mitigate her damages in the event the Board dismissed her. Ritzert offered to receive only the difference between what she was earning at Falcon and what she had been earning with the District until the District decided whether it would act on its months-old pledge to fire her. She also apprised the District that if she prevailed in a dismissal proceeding, she would give Falcon the statutorily required thirty-day notice and return to work for the District.

¶ 14 Despite all of this, Peak called Ritzert on August 20 and left a voicemail ordering her back to work as a floating substitute. The next day, he wrote her a letter insisting that she resign from Air Academy or report for duty. He also upped the stakes by telling her that if she did neither, the District would not only recommend her dismissal at the Board's upcoming September meeting, but it would also ask the State Department of Education to suspend her teaching license,²a threat which it carried out. In addition, Peak warned her that the District could seek to recover wages for the period of time in which she did not work as a substitute.

¶ 15 Rather than simply mailing the resign-or-report letter to Ritzert, the District arranged for in-person delivery at Ritzert's new school, by a man whom the hearing officer later described as “physically imposing.” The following week, the District had another letter delivered to Ritzert at the new school, again instructing her to return to the District as a floating substitute. The letter informed her that if she did not return by September 5, the District would assume she had abandoned her teaching position. Ritzert did not return, and on September 6, the District's superintendent filed formal dismissal charges with the Board, recommending that it dismiss her for insubordination, neglect of duty, and other good and just cause. See§§ 22–63–301, –302.

¶ 16 Per TECDA, Ritzert requested a hearing before an impartial hearing officer, who recommended that she be retained. See§ 22–63–302(3) (permitting a teacher who objects to the grounds given for a dismissal to request a hearing). The hearing officer concluded that the District's order for Ritzert to return to work was unreasonable because it was simply a pretext to fire her: “[The District's] decision to order her back to duty was made ... with an eye to developing an additional basis to dismiss her for insubordination” because it “had to have known” she would be forced to choose between abandoning her new job and students and disobeying the District's directive. The hearing officer identified several facts demonstrating the District did not want her back, thus revealing the order's pretextual nature:

• The District's lack of interest in having her come back to work until it learned she had found other employment;

• its attempts to convince her to resign and to avoid a public hearing;

• its need to tell her that it was going to try to have her license sanctioned;

• its attempt to have her license sanctioned; and

• its efforts to embarrass and intimidate her at her new workplace.

The hearing officer found that Ritzert was not insubordinate for failing to comply with the District's order to return to work.³He rejected the Board's neglect of duty claims and further concluded that Ritzert had not given the District any good and just cause for termination and found her decision to seek employment elsewhere understandable because she had “every reason to believe that firing was imminent.” In its opening brief, the Board acknowledges that it was reasonable for Ritzert to seek new employment because “[t]his is precisely what the [Assistant Superintendent for Human Resources] counseled her to do prior to the start of summer vacation.”⁴

¶ 17 Despite the hearing officer's recommendation, the Board concluded that Ritzert was insubordinate. The Board determined that it was not bound by the...