THE SEBREE FIRM

==================================================================== TO: FROM: DATE: SUBJECT: TERRY MEISENBURG, Director of Labor/Employee Relations, Human Resources, Seattle Public Schools Curman Sebree, Attorney October 24, 2012 Investigation Report Regarding Cynthia J. Willey and Brian Vance/Roosevelt High School

I. INTRODUCTION

The Seattle Public Schools (SPS or the District) Director of Labor and Employee Relations, Terry Meisenburg, retained the above firm to investigate allegations regarding job performance and inappropriate/unprofessional conduct against Cynthia J. Wiley (CJW), a Social Studies teacher at Roosevelt High School (RHS), and allegations of harassment, bullying, and retaliation against Principal Brian Vance by Ms. Wiley.

SUMMARY OF FINDINGS 1. Wiley refused to attend scheduled meetings with her supervisor to discuss workrelated issues. 2. Wiley made comments to students about being on probation, that she was leaving school so that she would not be fired, that the District was firing all the senior teachers with their higher paychecks so it could hire new, less expensive teachers, that the administration wants her to put learning targets on the board and follow lesson plans, but she [Wiley] is going to teach the way she always has, and that all the administrators coming into her classroom are doing so in hopes of getting rid of her because she is too old, and costs too much money as compared to a younger teacher.. 3. The alleged bullying and harassing behavior consisted of legitimate work-related

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efforts to supervise an employee, more specifically, an employee who was on a PIP plan which mandated that certain procedural steps be followed. The heightened level of effort and persistence was mostly due to Wileys refusal and/or failure to follow established procedures. While Wiley may have perceived these efforts to be harassing and bullying, from an objective viewpoint, in light of the totality of the circumstances, the principals efforts appear to be in proportion to Wileys recalcitrance. The number of emails and Vances persistence in attempting to schedule meetings were for the most part caused by Wileys behavior in ignoring and/or refusing to read the emails, refusing to show up for scheduled meeting; refusing to communicate whether she would attend the meetings, and refusing to attend any meeting unless one of her lawyers and Vances supervisor attended. Regarding the last item, after receiving notices of scheduled meetings, Wiley made no effort to have her lawyer present at any of the scheduled meetings before October 9, 2012. The investigation failed to uncover evidence of bullying and harassing behavior by Principal Brian Vance in violation of SPS policies. 4. The disparate treatment allegations consisting, inter alia, of Vance giving Wiley deadlines, requiring Wiley to allegedly obtain permission to use old AP books in her class, accusing Wiley of unprofessional conduct by contacting parents, and telling Wiley she needed to provide lesson plans for the substitute assigned to her classroom, fail to constitute disparate treatment discrimination because (a) there is no evidence that the actions were motivated by an animus based on a protected category; (b) Wiley did not suffer a tangible adverse employment action; and (c) there are no similarly situated employees as Wiley who were treated differently. Moreover, based on the evidence gathered during the investigation, Principal Vances actions were appropriate and based on legitimate non-discriminatory reasons. 5. Wileys retaliation allegations are substantially the same conduct as the harassment, bullying, and disparate treatment allegations. However, the retaliation claim fails because there was no protected activity, there is no causal connection to any alleged protected activity, and

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Wiley could not have reasonably believed that her conduct constituted opposition to an unlawful employment practice. II. A. Investigative Process The following individuals were interviewed during this investigation: Brian Vance, Principal, Roosevelt High School; Karen Grace, Social Studies Department Head, Roosevelt High School, Marjorie Gamble, School Secretary, Roosevelt High School, Sarah Chapman, Counselor, Roosevelt High School, Cynthia J. Wiley, Social Studies teacher at RHS, John (Jack) Rousso, Substitute teacher at Roosevelt High School, four (4) students from Ms. Wileys class at RHS, and Sue Means, SPS HR Manager. The following documents were reviewed as part of the investigation: 1. Annual Evaluation for Cynthia J. Wiley dated 05/26/2011 for 2010-2011 school year 2. Danielsons 4 Domains Framework 3. Observation Report Form dated 02/02/2012 for Cynthia Wiley by Ronald E. Timmons; 4. Progress Report for Cynthia Wiley dated February 17, 2012 by Ronald E. Timmons; 5. Mid-Year Evaluation for Cynthia J. Wiley dated 01/13/2012; 6. Observation Report Form dated 02/29/12 for Cynthia Wiley by Ronald E. Timmons; 7. Observation Report Form dated 03/21/12 for Cynthia Wiley by Ronald E. Timmons; 8. Progress Report dated March 26, 2012 for Cynthia Wiley by Ronald E. Timmons; 9. Observation Reported Form dated02/10/12 for Cynthia Wiley by Ronald E. Timmons; 10. Support Plan for Cynthia Wiley dated February 10, 2011 with handwritten notes; 11. Support Plan for Cynthia Wiley dated 4/26/2011 with handwritten notes; 12. Support Plan for Cynthia Wiley dated September 12, 2011 13. Support Plan for Cynthia Wiley dated October 18, 2011; Numerous emails, including but not limited to: 14. Email dated August 20, 2012 from Brian Vance to Cynthia Wiley re need to meet before beginning of school year to discuss probation and teaching assignment 15. Email dated August 31, 2012 from Brian Vance to Cynthia Wiley re meeting scheduled for Tuesday, September 4, 2012 to discuss PIP, lesson plans, and course syllabi 16. Email dated September 5, 2012 from Brian Vance to Cynthia Wiley re rescheduling September 4 meeting to a mandatory September 10, 2012 meeting 17. Email dated September 7, 2012 from Brian Vance to Cynthia Wiley re confirmation of scheduled 9/10 meeting; SUMMARY OF EVIDENCE

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18. Email dated September 7, 2012 from Cynthia Wiley to Brian Vance stating the conditions under which she will meet with Vance; 19. Email dated September 10, 2012 and Outlook Invite from Brian Vance to Cynthia Wiley re rescheduling mandatory meeting to September 14, 2012; 20. Email dated September 10, 2012 from Cynthia Wiley to Brian Vance accusing Vance of harassment and bullying and restating conditions under which she will attend meeting with Vance; 21. Email dated September 13, 2012 from Brian Vance to Cynthia Wiley re confirmation of 9/14 meeting and whether her lawyer will attend meeting; 22. Email dated September 17, 2012 from Brian Vance to Cynthia Wiley re scheduling of Pre-Observation conference, Observation, and Post-Observation conference; 23. Email dated September 17, 2012 from Brian Vance to Cynthia Wiley re follow up to Letter of Reprimand; 24. Email dated September 18, 2012 from Cynthia Wiley to Superintendent Banda attaching letter to superintendent 25. Email dated September 24, 2012 from Brian Vance to Cynthia Wiley re mandatory PreObservation conference scheduled for September 25 at 2:30 P.M. 26. Email from parent dated September 25, 2012 regarding Ms. Wileys communications to students regarding her employment with SPS and other complaints about the class; 27. Email dated September 26, 2012 from Brian Vance to Cynthia Wiley re meeting to discuss parent complaint scheduled for October 1 at 2:45 p.m.; 28. Email dated October 3, 2012 from Cynthia Wiley to Sue Means re letter on behalf of the Superintendent; 29. Email dated October 4, 2012 and Outlook Invite from Brian Vance to Cynthia Wiley rescheduling meeting to discuss parent complaint to October 9; 30. Email dated October 5, 2012 from Cynthia Wiley to Brian Vance refusing to meet with Vance to discuss parent complaint citing alleged violations of the CBA; 31. Email dated October 5, 2012 from Brian Vance to Cynthia Wiley confirming mandatory meeting scheduled for October 9 at 11:45 a.m.; 32. Email dated October 10, 2012 from Brian Vance to Cynthia Wiley requesting that PreObservation conference be conducted on October 15 at 2:45 p.m. and seeking additional information regarding the documents Wiley provided to him on 10/9 representing her lesson plans; 33. Email strand dated October 10 and 11, 2012 between Brian Vance to Cynthia Wiley re request for text books for AP World History 34. Letter of Reprimand dated September 17, 2012 from Brian Vance to Cynthia Wiley; 35. Letter dated October 1, 2012 from Sue Means on behalf of the Superintendent to Cynthia Wiley responding to Wileys letter to Superintendent; 36. Provisions of the Collective Bargaining Agreement between SPS and SEA;

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37. Observation Report Form for Cynthia Wiley dated 10/05/2011 by Brian Vance; 38. Teacher Observation Report Form for Cynthia Wiley dated 11/9/11 by Brian Vance; 39. Observation Report Form for Cynthia Wiley dated 11/30/11 by Brian Vance; 40. Letter dated January 13, 2012 from Superintendent Enfield to Cynthia Wiley placing Wiley on probation from January 17, 2012 through April 25, 2012; 41. Performance Improvement Plan dated 01/17/12 for Cynthia Wiley effective January 17, 2012 through April 26, 2012; 42. Observation Report Form dated 02/01/12 for Cynthia Wiley by Brian Vance; 43. Observation Report Form dated 02/10/12 for Cynthia Wiley by Brian Vance; 44. Unsigned Progress Report 1 dated 02/15/12; 45. Observation Report Form dated 03/01/12 for Cynthia Wiley by Brian Vance; 46. Observation Report Form dated 03/21/12 for Cynthia Wiley by Brian Vance; 47. Progress Report 2 dated 03/22/12; 48. Investigation Report dated May 30, 2012 by Denise Williams-Saunders re Principal Brian Vance; 49. Notes of interviews with RHS students re Vance investigation; 50. Letters dated March 28 and 29, 2012 from Dr. Ken Anderson and Patricia Kalafus requesting medical leave for Cynthia Wiley; 51. Superintendent Briefing Summary Recommendation for Teacher Probation 2011-12; 52. Letter dated January 25, 2012 from Superintendent Enfield extending the end of the probationary period to April 27, 2012; 53. Policy No. 3207 54. Policy D51.00 Anti-Retaliation Policy

III.

WILEYS EMPLOYMENT WITH SPS

The District hired Wiley in February 1989. She resigned in August 2000. She was rehired by SPS in August 2007 and assigned to RHS. Both Wiley and Principal Brian Vance arrived at RHS in school year 2007-2008. Wiley is currently employed as a High School Social Studies teacher at RHS. In school years 2007-2008 and 2008-2009, an Assistant Principal, Terrance Mims, was assigned as Wileys evaluator. Mims rated Wileys performance as Satisfactory the first year. However, in school year 2008-2009, Mims rated Wiley as Unsatisfactory. The Unsatisfactory rating was removed after SEA challenged missed deadlines.

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Beginning in school year 2009-2010, Principal Brian Vance became Wileys evaluator. In school year 2009-2010, Vance rated Wiley as Satisfactory. However, the evaluators comments included: Over the course of the year, Ms. Wiley has remained engaged with the APHG teachers in keeping the curriculum aligned and on track in preparing students for success on the AP test. In her other classes, she has faced some challenges with student behavior and some of the classroom dynamics. In 2010-2011, after placing her on a Support Plan in February 2011 and providing a Human Resources Consulting Teacher (HRCT), on May 26, 2011, Vance rated Wileys performance as Unsatisfactory citing concerns which included: Lessons not having clear structure Questioning not pushing students to higher level thinking Activities not being varied and/or engaging for students Limited use of strategies to check for understanding throughout the lesson Not providing students with clear understanding of some of the evaluation criteria for assignments

In January 2012, Vance rated Wileys Mid-Year evaluation as Unsatisfactory and she was placed on probation by Superintendent Enfield, effective January 17, 2012 through April 25, 2012.1 Wiley was placed on a Performance Improvement Plan (PIP) requiring classroom observations, with Pre-Observation and Post-Observation conferences, and Progress Reports. The PIP addressed three (3) criteria in Professional Preparation and Scholarship, three (3) criteria in Instructional Skill, and one (1) criterion in Professional Responsibility/Effort Toward Improvement. A second evaluator, Ronald E. Timmons, also observed and evaluated Wiley during her probation.
1

By letter dated January 25, 2012, the end date of the evaluation period was extended by April 27, 2012 because of school days missed due to inclement weather.

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IV.

EVIDENCE GATHERED AND FINDINGS

The allegations contained in the Investigation Report are divided into five (5) main subsections: (A) Failure to Attend Scheduled Meetings/Follow Directives; (B) Inappropriate and Unprofessional Communications; (C) Harassment and Bullying; (D) Disparate Treatment; and (E) Retaliation. A. Failure to Attend Scheduled Meetings (1) Allegations Principal Vance made repeated attempts to meet with Wiley to discuss her conditions of employment after an extended leave of absence that began in late March 2012. Vance notified Wiley that he wanted to discuss her return to school, her new teaching assignment, the PIP, lesson plans, and course syllabus. After receiving a parent complaint on September 25, 2012, Vance attempted to schedule a meeting with Wiley to discuss the complaint. Vances efforts are documented by emails beginning August 20, 2012 through October 4, 2012.2 Wiley failed to attend several scheduled meetings, failed to submit lesson plans for her classes in accordance with the PIP, and failed to provide course materials. Vance maintains that Wileys actions in this regard constitute insubordination. (2) Wileys Response Wiley said that she did not attend the scheduled meetings for several reasons. Regarding the email notifications in late August 2012, Wiley initially stated that she did not receive these emails because she had trouble accessing her school emails from home for about three (3) weeks during that time period. She also stated that she does not check her emails on a daily basis, that

See Appendix A.

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she generally checks her emails in the evenings or early mornings around 6 a.m., 3 to 4 times per week. After returning to school on August 31, Wiley stated she did not check her school emails because the emails triggered her PTSD symptoms.3 Wiley said she became afraid to open her emails, and afraid to open her mail for fear of getting another complaint or something negative from Principal Vance. Karen Grace reported that Wiley told her she was diagnosed with PTSD in late August and that the emails are a trigger for the PTSD. Grace said Wiley later told her she could not access her school emails because her email system was broken. Grace asked her what they needed to do. Wiley told Grace she was having someone from the building review her emails and send Wiley the important emails. Wiley asked the school nurse, Roslyn Lane to screen her emails. Grace said Wiley was starting a new curriculum and she was unable to get information to her. Wiley did attend the Social Studies training at the end of August. Finally, Wiley stated she told Vance that she would only attend meetings with Vance with one of her lawyers and Vances supervisor present.4 Wiley acknowledge that she did not make any effort to ascertain whether one of her lawyers was available to meet on the days meetings were scheduled. Her current lawyer reported that he had not been retained by Wiley before September 10, a date for one of the mandatory scheduled meetings. Regarding her school mailbox, Wiley said that she checks her mailbox whenever she remembers. She described most of the information in her mailbox as Junk mail, that she never
3

Wiley reported that she was diagnosed with Post Traumatic Stress Disorder by her psychiatrist during the time she was off on medical leave late March 2012 through August 2012. She described the traumatic event necessary for the PTSD diagnosis as the series of emails she received from Principal Vance which she considered harassment and bullying. 4 It appears Wiley first unilaterally imposed these conditions via an email to Vance on September 7, 2012. See Appendix A.

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received any mail of any importance in her mailbox. She said that email is generally used to communicate important information. Wiley admitted that she did not want to receive any communication from Vance. She stated that her outcome is predetermined so she sees no need to meet or communicate with Vance, and she considers meeting and communicating with Vance as harassing. She stated she has nothing to lose. She described her communications with Vance as not effective and not safe (emotionally). Wiley admitted she did not attend any scheduled meetings or provide any lesson plans for her class this school year until October 9, 2012. (3) Findings re: Failure to Attend Scheduled Meetings Wileys failed to attend meetings with her supervisor properly scheduled for legitimate business reasons. She did not provide weekly lesson plans to Vance in accordance with the PIP. The general rule for employees who are confronted with a work order they believe is objectionable, unfair, improper, illegal or a violation of the union contract is work now, grieve later. There are some exceptions to this rule, such as when an employee has a reasonable belief that carrying out the work order will endanger the health or safety of herself or others. Wileys reasons for refusing to attend meetings with her supervisor are not within the exceptions to the general rule. B. Inappropriate/Unprofessional Conduct (1) Allegations Wiley is alleged to have engaged in inappropriate/unprofessional conduct by improperly communicating to students in her classroom and staff, inter alia, that she is on probation, that the

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District wants to get rid of her and other older teachers and hire younger less expensive teachers, that she has a lot of sick leave and wants to use as much as she can before she gets fired, and that all the administrators coming into her classroom are doing so in hopes of getting rid of her because she is too old, and costs too much to keep, compared to a younger teacher. On March 2, 2012, the Head Counselor emailed Principal Vance reporting that a student from Ms. Wileys LA 10 class approached her reporting that she felt uncomfortable about the information she has been hearing from Wiley in the classroom. According to the counselor, the student reported that Wiley told students that all the administrators who are coming into the classroom are doing so in hopes of getting rid of her because she is too old, and costs too much to keep, as compared to a younger teacher. The student further reported to the counselor that Wiley told her about the Moslem student who turned in a corner stone based 100% on Wikipedia, and when Wiley would not grade it, the student redid the cornerstone, and complained to Principal Vance. The student reported that Wiley also shared with her why the student left Wileys classroom. Vance met with the student the next school day, confirmed the information the student had reported to the counselor, and confirmed the comments were made during class with other students present. Vance met with Wiley who attempted to deflect her behavior by focusing on the student. According to Vances notes, Wiley admitted she may have had a conversation regarding the things stated. However, she was unclear about the specifics. On March 21, 2012, three (3) students met with Vance and presented him with a list of complaints regarding Wiley. Most of the complaints stemmed from perceived problems with Wileys teaching methods and confusion in the classroom. The next day, March 22, Vance met

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with Wiley and shared the students concerns with her. Later that day, Wiley pulled two (2) of the three (3) students out of class and questioned them about going to the principal. She told the students that she would be contacting their parents and scheduling a meeting with the parents. Wiley was able to contact the parents of two of the students and schedule meetings. After the parents were contacted, the students and parents expressed concern to Vance about Wileys contacting the parents, and feared their grades would be impacted after Wiley knew the students had complained to the principal about her. One student reported she did not want to go back to class. However, the following Monday, March 26, 2012, Wiley announced to the class she was leaving, that she would not be back, and that people were saying she didnt know how to teach. Wiley left on a medical leave and did not return to RHS until August 31, 2012. On September 25, 2012, Vance received a parent complaint. One of the complaints was regarding negative comments Wiley made to her last period class. The parent reported in an email to Principal Vance what her daughter had told her, making a conscious effort to use her daughters words. According to the email: Ms. Wiley has been making very negative comments to her last period class. For example, one day she told everyone she was leaving the school so she wouldnt be fired, and that the district was firing all the senior teachers with their higher paychecks, so they could hire new teachers who werent paid as much. She said it was a terrible thing, but that she was going to try to keep her interactions with the students on a professional level. After a few days, Ms. Wiley was backand made more comments about how the administration wants her to put learning targets on the board and to follow lesson plans, but she is going to teach the way she always has During an investigative interview, the student confirmed the above comments were made by Wiley. She also stated that Wiley told the class that Vance would do anything to keep his $100,000 job, and that the reason he was firing her was so he could keep his job.

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(2) Wileys Response Wiley admitted that when one student asked her whether she was on probation she told the student the truth. According to Wiley, the student (MF) knew she was on probation and asked her why people were in her classroom. Wiley said she told the student the people wanted to watch her teach. She believed the student then asked her if it was because she was on probation and she said yes. Wiley also admitted telling staff that she was on probation, and admitted that she may have told the school secretary that she had been threatened with termination when she requested a substitute and went on sick leave on September 17, 2012. (3 Findings The evidence establishes that Wiley made several of the alleged statements to students and to staff, including but not limited to, that she was placed on probation, that she was going to quit before she was fired, discussing one students performance with another student, that the District was firing all the senior teachers with their higher paychecks, that the administration wants her to put learning targets on the board and to follow lesson plans but that she is going to teach the way she always has, and that one of the reasons Vance is firing her is so he can keep his job. C. Harassment By Brian Vance (1) Allegations Wiley alleges that she has been subjected to harassing and bullying behavior by Brian Vance, including the following:

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Putting Wiley on a Support Plan in February 2010; Coming into Wileys classroom frequently and sending her emails telling her how she should be teaching; Having other unknown people come into Wileys classroom and talking to her students; Sending her emails during the summer insisting that Wiley meet with him; Coming into Wileys classroom telling her she was on probation and that she needed to sign the probation documents; Accusing Wiley of unprofessional conduct for calling parents when teachers call parents all the time; Vances scrutiny of her Lesson Plans and requesting her to submit more detailed lesson plans; Scheduling mandatory meetings after Wiley told him that she was represented by counsel; Coming into Wileys classroom telling her she is expected at a meeting; The things Vance tells her to do are harassing because he does not know what he is talking about; Imposition of a deadline to submit the Scope and Sequence for Wiley only; and More work than anyone could possibly do.

(2) Vances Response Vance denies that Wiley has been subjected to harassment, bullying, or that she has been treated differently than other employees on probation and on a PIP. Wiley was offered and received the services of an HRCT, and was evaluated by a second evaluator, which is done with all teachers on probation. The PIP requires Wiley to submit lesson plans to Vance on a weekly basis. All teachers are expected to create and base their instruction on written lesson plans, and when deficiencies in instruction are observed and identified, it is typical for the PIP to require

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that the lesson plans be provided to the evaluator. The PIP also required Wiley to meet with Vance for pre-observation and post-observation conferences.5 (3) Findings There was no evidence uncovered in the investigation that substantiates or suggests that any conduct that Principal Vance engaged in constituted discrimination based on a protected category. The evidence gathered during the investigation supports the conclusion that Vances actions were appropriate and in accordance with District policies and the collective bargaining agreement for an employee on probation. D. Disparate Treatment By Brian Vance (1) Allegations Wiley alleges the following conduct constitutes disparate treatment by Principal Vance: Requesting her scope and sequence in a shorter period than the department head allowed for other teachers; Vance telling Wiley she needed permission from him and her peers to use old AP books in her class; Vance telling Wiley that all of her activities need to be at the upper level of variety; Vance accusing Wiley of unprofessional conduct by contacting parents after students complained to Vance about Wiley; Vance telling Wiley she needed to provide lesson plans for the substitute when she is absent;

RCW 28A.405.100(4)(b) requires that certificated employees on probation meet at least twice monthly with the evaluator to supervise and make a written evaluation of the progress, if any, made by the employee.

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Wiley stated that she could only speculate why Vance is allegedly discriminating against her, citing it could be the way she looks, her seeking union representation, the fact that she is a gay woman, or the fact that she is a woman over 50. (2) Response The above described actions and other work-related actions taken by Principal Vance were done to improve Wileys performance, to assist Vance in his supervisory and statutory role as her evaluator, and to better serve Wileys students. Regarding the old AP books, Vances email to Wiley seeks clarification of her request for the books and how she intended to use the books. If Wiley intended to offer an AP option to her class (which is what Vance understood from his communications with Scottie Nash), Vance advised Wiley that she needed to discuss this with Vance and the department chair. Regarding Wiley contacting students parents after the students had complained to the Principal about her, Wiley seems oblivious to the students concerns and consternation about her actions and that her actions could be viewed as retaliation against the students for complaining to the students about her. (3) Findings Wiley has little respect for her supervisors position or skills, resists his authority over her, and is quick to blame him for many of her own actions and actions. There is no evidence that Vances actions toward Wiley are motivated by animus related to any protected category. Moreover, the above described actions do not constitute adverse employment actions. E. Retaliation By Brian Vance (1) Allegations

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Wiley alleges that the PIP she was placed on does not provide a path to success, that the and Vances scrutiny and oversight of her teaching responsibilities constitute retaliation for her complaint against Vance about issuing the probation documents to her (and telling her she was on probation) in January 2012 in her classroom while students were present. Wiley also speculates that Vances alleged retaliation could be tied to her support of two (2) students who were subject to disciplinary actions, one for allegedly selling drugs. Wiley stated she believed these incidents occurred in Spring 2010, before she was placed on a support plan. (2) Vances Response Vance could not recall the incidents involving disciplinary actions against the two students Wiley referenced. He maintained that the PIP and his conduct in managing the probation process, which are in accord with District policies and the collective bargaining agreement, were done to improve Wileys performance, and to assist Vance in his evaluator role. (3) Findings Assuming Wiley engaged in the above described activities and that the activities constitute protected activity, there is no causal connection between the activities and Wileys performance issues. There were documented concerns about Wileys teaching performance before Spring 2010. At the end of school year 2008-2009, Wiley received an Unsatisfactory rating from then assistant principal Terrance Mims. The unsatisfactory rating was removed because of alleged contractual violations. However, the language expressing concerns about Wileys performance issues remained in the document.

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