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Meier v. Salem-Keizer School District

Court of Appeals of Oregon

March 22, 2017

Debi MEIER, Respondent,

          Argued and submitted January 19, 2016

         Fair Dismissal Appeals Board FDA1301

          Paul A. Dakopolos argued the cause for petitioner. On the briefs were Rebekah R. Jacobson and Garrett Hemann Robertson P.C.

          Noah T. Barish argued the cause for respondent Meier. With him on the brief were John S. Bishop and McKanna Bishop Joffee, LLP.

          Denise G. Fjordbeck waived appearance for respondent Fair Dismissal Appeals Board.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

          EGAN, J.

         The Salem-Keizer School District seeks judicial review of an order of a panel of the Fair Dismissal Appeals Board (FDAB), contending that the FDAB erred in reversing an order of the district dismissing respondent from her position as a full-time contract teacher and counselor at McNary High School. The facts are not in dispute. In reviewing the FDAB's order for substantial evidence and errors of law, see ORS 183.482(8)(a); ORS 342.905(9) (providing for review of FDAB orders under the Oregon Administrative Procedures Act), we conclude that the FDAB did not err and therefore affirm.

         We take our summary of the facts from the parties' stipulations, from the undisputed facts stated in the record, and from the FDAB's findings, which are not challenged on judicial review. Jefferson County School Dist. No. 509-J v. FDAB, 311 Or 389, 393 n 7, 812 P.2d 1384 (1991) (unchallenged findings are the facts for purposes of judicial review of FDAB's order). Respondent has worked as a teacher or counselor since 1986, and she has a master's degree in counseling. She began working for the district as a counselor in 2005. At the end of the 2008-2009 school year, respondent's supervisor described her as "an excellent counselor and a professional educator that really cares about kids."

         As a school district employee, respondent was a "mandatory reporter" and had a duty under ORS 419B.010[1]and under district policy to make a report to the Oregon Department of Human Services (DHS) or to law enforcement when she had "reasonable cause" to believe that a child with whom she had come into contact had suffered abuse within the meaning of ORS 419B.005(1)(a).[2] The district has adopted the identical requirement in its policies.[3] The district also has a "Sexual Incident Response Committee protocol, " which requires district employees to initiate certain steps upon hearing of a sexual incident. The district's training materials include a statement that the failure to report suspected abuse is a violation of policy that could result in disciplinary action. During her employment with the district, respondent has attended all required trainings relating to the mandatory reporting obligation and has regularly filed reports of suspected abuse.

         The circumstances of respondent's dismissal arose out of her decision not to initiate the district's protocol process or to report to DHS or to law enforcement a report of an alleged incident of abuse made by a 17-year-old girl who was an eleventh grader at McNary High School during the 2011-2012 school year. The child has a relatively low IQ and is enrolled in special education classes. Respondent was the child's guidance counselor. Although respondent had never counseled her before, the child was an aide in the school's counseling office during the 2011-2012 academic year, and respondent had periodically visited with her. Respondent testified that the child was not shy toward her and was always smiling and bubbly.

         One morning in May 2012, the child arrived at her first period class in tears and upset. She told the teacher that she and her mother had had a fight. She would not enter the classroom, and an instructional assistant escorted the child to the counseling office. When the child arrived, respondent came out and brought the child to her office. Respondent testified that the child smiled when she saw respondent and that at that time she did not show any sign of being upset and seemed "fine, mood wise."

         In her office, respondent asked the child what she needed to talk about, and the child abruptly stated, "A little more than a year ago my brother molested me." Respondent observed that the child seemed like she always did and did not seem upset. She was aware that the child had relatively low cognitive abilities. To understand what the child meant by "molested, " respondent asked, "Well, tell me what that means to you. When you say that, what does it mean?" The child said that her brother had touched her. When respondent asked where the child had been touched, the child gestured with her hand in a circular motion in front of her upper torso area, making a large circle in the air from approximately her neck down to her stomach area. The child did not use words to describe the touching and did not say that she had been touched on her breasts.

         Although not mentioned by the FDAB in its findings, on cross-examination at the hearing, respondent acknowledged that she told an investigating police officer that she had asked the child whether there had been any inappropriate touching by her brother and that the child had responded, "Yeah." Nonetheless, respondent testified that, based on her conversation with the child, her familiarity with the child, and her experience and training, she had concluded that the touching had not been sexual in nature. At the time of the described conduct, the child's brother would have been 11 or 12 years old. Respondent testified that, in describing the conduct, the child had not seemed distressed in the way one might expect from someone reporting sexual abuse, which the child said she had been able to stop. Respondent concluded that the interaction was a matter of a little brother being a "little pill" or "kind of a jerk." Respondent told the child that she intended to contact the child's mother, and the child did not object. The child appeared to be fine, and appellant sent her back to class.

          At the end of the school day, respondent related her conversation with the child to Smith, her immediate supervisor, and reported her plan to contact the child's mother. Respondent testified that she made no report to DHS or to law enforcement "[b]ecause from the conversation I had with [the child], there was nothing sexual about what was going on or no abuse of any kind. It seemed more like a younger brother harassing an older sister." Respondent also did not initiate the district's Sexual Incident Response Committee process, because she concluded that the child had not reported a "sexual" incident to her.

         The child's parents are divorced, and the child lives with her mother, regularly visiting her father. In the school's database, the mother's contact information came up first. Respondent spoke with the mother by telephone, explaining that the child had used the word "molested" to describe her brother's actions a year before. The mother said that she doubted it had happened and that she needed to talk with the child. Respondent also encouraged the mother to talk with the younger brother and with the child's father. The mother explained that she and the father did not communicate well, but that she would talk to him. The next week, the child and her mother followed up with respondent in a personal meeting at respondent's office.

         In October 2012, the child told her father and stepmother that she had been sexually abused by her brother and that she had reported the abuse to respondent. At a meeting between the child's father, respondent, and a district administrator, the father related the child's report that she "had been molested, sexually abused, by her brother at her mother's house, " and expressed anger at not having been contacted by respondent. He accused respondent of failing to fulfill her statutory duties and threatened legal action. Respondent related to the father her conversations with the child and the child's mother in May 2012, but denied that the child had reported that she had been sexually abused. Several days after the meeting, the father filed a complaint with the school district that resulted in this disciplinary process.

         The district placed respondent on administrative leave and began an investigation of the father's allegations.

          In November 2012, district superintendent Husk notified respondent that she would recommend respondent's dismissal from the district's employment. The district's board upheld the superintendent's recommendation and voted to dismiss respondent on the grounds of neglect of duty and insubordination, based on respondent's failure to initiate a report of suspected sexual abuse of the child to DHS or to law enforcement as required by ORS 419B.010, or to follow the district's sexual abuse response protocol.

         Under ORS 342.905, when a district school board dismisses a teacher, the teacher may appeal the dismissal to the FDAB. Respondent appealed the district's decision to the FDAB. At the conclusion of the hearing, the FDAB issued a written decision pursuant to ORS 342.905(6) and (7).[4]

          The FDAB noted that the district's factual allegations were subject to a preponderance of the evidence standard of proof. OAR 586-030-0055(5). In a lengthy order, the FDAB made the findings that we have summarized. Those findings, which include a finding that respondent was a credible witness, are not challenged on judicial review.

         In the "conclusions of law" section of it order, the FDAB rejected each of the alleged grounds for dismissal.[5]Underlying the FDAB's rejection was its disagreement with the district's assertion that the child's report to respondent that she had been "molested, " accompanied by the child's description of the physical location of the touching, constituted a report of sexual abuse as a matter of law. The FDAB concluded that, in considering whether she had been presented with a report of sexual abuse, respondent could rely on her familiarity with the child, her conversation with the child, her years of experience as a counselor, her training, and the fact that the child had not explicitly reported sexual touching.[6] The FDAB further determined that, based on respondent's description of the child's answers and demeanor during their conversation, respondent could reasonably conclude that the child was not describing sexual contact, i.e., that although there was evidence that the child had been touched, there was no evidence that she had been touched in an intimate area or ...

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