Cynthia Lee: The Price of Justice is Too High in a Fairfax County Public Schools Teacher Firing Case

By  Candi Peterson, WTU Gen. Vice President

Statements or expressions of opinions herein 'do not' represent the views or official positions of DCPS, AFT, Washington Teachers' Union (WTU) or its members. Views are my own. 

It’s easy to take for granted the rights and benefits we have as union members. That is, until we need the support of our local union. It’s like insurance. No one ever thinks they are going to need insurance until you get sick, you are in an accident or your house burns down.

Working in education carries risk and none of us, even tenured teachers aren’t immune anymore. From accusations of corporal punishment, workplace disputes, imperfect evaluation ratings, bully principals, suspensions and terminations, teachers regularly face a myriad of problems in the workplace, like never before.

Imagine if you had to seek redress on your own. The price of justice would be way too high for most of us to afford. Not to mention, most people need technical assistance in  interpreting their union contract or help with understanding all the rules and time lines governing the grievance and arbitration process.

I get a lot of calls regularly from DC teachers ranging from questions about the contract to how to approach their boss to advice on how to deal with an administrative investigation to requests to grieve a workplace dispute, suspension or termination.

 It caught me off guard when I received a voicemail from Cynthia Lee, a former African American Fairfax County Public School teacher who had been terminated in 2012 after 13 years. I couldn’t imagine how I could be of help. So it seems my blog, The Washington Teacher caught Lee’s attention and she thought I could offer her some media coverage about her termination.

I guess I always thought the grass was greener on the other side and that teachers in Fairfax County Public Schools somehow had it better. On the national front, in my opinion there seems to be a push to rid our schools of veteran teachers and teachers of color. What a pity for the children we serve.

In many ways, Cynthia Lee’s story is similar to another African-American teacher Fairfax County Public Schools tried to fire in 2012. Violet Nichols, a 30 year veteran tenured teacher also faced threats of termination due to allegations of incompetence.

Virginia law says that teachers may be dismissed for incompetency, immorality, noncompliance with school laws and regulations, conviction of a felony or crime of moral turpitude, or other good and just cause. Regardless of whether a teacher in the state of Virginia is tenured and has a long history of good evaluations, one administrator can throw all that out the window and deem a teacher incompetent.

Some of the reasons cited for Nichols incompetence was that she used too many worksheets and had poor use of technology which she rebutted. Let’s say for a minute we believe these allegations, doesn’t sound like a very high bar to label a teacher incompetent.

Nichols story appeared several times in the Washington Post beginning in June 2012. Although personnel proceedings are confidential, according to the Post-Nichols decided to make her fact finding hearing open to the public , “because she wanted to shine a light on what she felt was a witch hunt.”

Nichols was eventually vindicated after a public fact finding hearing in which evidence was presented and many supporters testified (parents, students). She was later reinstated. Thank God for union representation and media coverage.

Unlike Lee, Nichols was a union member and held a leadership role in her union. Her union membership status afforded her certain rights that non-members in the Virginia Education Association (VEA) aren’t entitled to including representation during the grievance process and payment of her attorney fees as well as hearing costs, which can be quite exorbitant in Virginia (roughly $8000 assessed as the teacher’s responsibility plus payment of half of the panels’ salaries during the hearing).

The Virginia Education Association (VEA) represents more than 50,000 teachers and support personnel in the Common Wealth of Virginia. According to VEA website , “union members are entitled to a hearing. Either the teacher or the school board can ask a fact-finding panel (made up of one school employee nominated by the superintendent, one school employee nominated by the teacher, and a neutral chairperson) to conduct a preliminary hearing and offer findings and recommendations. However, the final decision to dismiss the teacher for cause rests with the school board.”

Cynthia Lee describes herself as the poster child for becoming a union member. Lee said “teachers should join the union, the minute they walk in the door.” She dropped her membership for financial reasons thinking she was safe as a tenured teacher in Fairfax County Public Schools. In hindsight, Lee now knows differently.

There are some parallels to both Nichols and Lee’s cases. Both were African American tenured teachers with advanced degrees and a history of good evaluations. Both had letters of support from parents. Both demonstrated student tests results that supported student achievement gains, no worse than their peers. Both filed discrimination cases that their negative treatment was racially motivated. Both were placed on probation.

In Virginia, once a teacher is placed on probation they must accept a plan of assistance to help them improve. Fairfax County Public Schools provided Lee a coach as well as a committee that helped her to improve her teaching. Lee reports she passed with flying colors and was quite excited about her success and recommendations that her conditional status as a teacher be removed. 

Subsequently, Lee’s principal arbitrarily recommended her for termination due to incompetence in spite of the recommendations by her coach/committee to have her conditional status removed. The principal’s recommendation was made during Lee's mid-year evaluation in January.

Lee states she had a presentation ready to show her principal during her evaluation and was stunned when the principal and her assistant refused to see the presentation. Lee was escorted to the back of her classroom by the principal. At that time, the principal gave her the news that she would be "fired" at the end of the school year. Lee asked the principal, “Is there anything I can do to improve between now and June so I won’t be fired? The principal responded,“no”.

What followed next is unconscionable. Lee attempted to file a grievance about her recommended termination at the Step 1 level with the principal but Fairfax County public schools denied her right to file steps 1-4 because she was a non-union member. Nichols, on the other hand- a union member was able to grieve her recommended termination with the support of the union by her side during the various stages of the process.

“Every time I called the union for help, they told me they couldn’t help me because I wasn’t a union member”, Lee said. The school district advised Lee that she could only appeal her recommendation for her termination at the Step 5 level which is an advisory fact finding hearing. 

Initially Lee had no idea that her cost to pay the arbitrator alone would be more than $8,000, until she hired an attorney who advised her of the fee-splitting costs charged by Fairfax. Ultimately, she spent thousands of dollars on attorney fees.

 According to a Fairfax County Public Schools regulation 4461.1 “the employee shall bear his or her own expense. The school board will bear the expenses of the superintendent. The expenses of the panel shall be borne one half by the school board and one half by the employee.” Lee was livid when she learned that non-union members also were required to pay for the panel members’ salaries during the course of the hearing. Had Lee been a union member, the union would have subsidized these costs.

Fairfax officials also told Lee that in order to appeal using the Step 5 hearing, she would have to waive her right to grieve her termination (using steps 1-4 that had no cost). So Lee wrote the letter to waive her rights.. Even with an attorney, Fairfax refused to allow Lee to use the grievance steps to appeal her termination.

As you can imagine having to make this kind of choice is no choice at all. Lee was unable to afford the costs of the Step 5 fact finding hearing and had to forgo it.Lee admits to signing a settlement agreement with Fairfax County Public Schools under duress, so she wouldn’t be fired and agreed to take a lesser job as an instructional assistant with a $25,000 pay reduction. She remained 1 ½ years in that position. 

 “Thank--you for helping to get the word out about my case. Most minorities cannot afford the high costs of litigation so when employers put fees in their grievance and arbitration procedures, it produces a disparate impact.  Just like the poll tax. We need to lobby congress to create laws that regulate fee-splitting.  Two good teachers with two different results.  By going public with a comparison of my case (no union - no due process - no money to pay for "Fact Finding Panel" - no vindication) and Violet Nichols case (union paid all costs – due process- vindication) it will get the word out to the public that unions are necessary and that law makers need to intervene,” Lee said.

In time, Lee retired and was able to hire another attorney with some of the proceeds from her retirement funds. It’s a shame it had to come to this. She has had several attorneys working on her behalf and remains committed to pursue her case by filing a petition for an en banc hearing (heard by the full court) with the 4^th circuit in the hopes they will address the fee-splitting clause in Fairfax's grievance procedure. Hope this helps.

New and veteran teachers, this could be you. Take Lee’s advice, join a union.

© Candi Peterson 2015