Preponderance of Evidence

The federal DOE's Office of Civil Rights determines that TUSD officials retaliated against a whistleblower

It took 2 1/2 years for Rose Hamway to get official confirmation of what she felt in her heart: She was doing the right thing by advocating for Tucson Unified School District special-education students.

But that doesn't mean the school psychologist feels fully vindicated.

On Tuesday, Aug. 28, Hamway received formal findings by the U.S. Department of Education's Office for Civil Rights, regarding a discrimination complaint she filed on March 2, 2010. An OCR investigation concluded that TUSD officials did indeed retaliate against her, and that she is entitled to a settlement of $180,000, despite the school district's claims that Hamway failed to follow the chain of command and didn't get along with her co-workers.

"I was numb, and I really was sad. It put me right back in there," Hamway said about the findings. "I have difficulty reading it, because it is still so sad how they treated me and, by extension, how they treated the kids. ... That finding speaks volumes."

The last we heard from Hamway—before she left Tucson to spend time with family in Michigan last week—she was still waiting to see whether TUSD would abide by the settlement negotiated between the district and the OCR.

When we first spoke to Hamway (See "Not-So-Special Education," Aug. 23), she had just gone public regarding her discrimination complaint after her case was placed on the Tuesday, Aug. 14, school-board agenda for discussion during executive session.

Hamway, who was hired by TUSD in 2009 after a 10-year stint with the Douglas Unified School District, told the Weekly she confronted co-workers and administrators about special-education students at Rincon and Sahuaro high schools being denied services or being misdiagnosed. She also said she witnessed one student being manhandled by an aide.

Hamway said she followed the chain of command in reporting her concerns. In December 2009, she was placed on administrative leave, although shortly after that, she was approved for medical leave. But in early 2010, the district decided not to renew her contract.

Advocating on behalf of students with disabilities, which was part of Hamway's job at TUSD, is considered an activity protected from retaliation, according to the 12-page OCR report.

"The advocacy by you and the events leading up to your non-renewal all transpired within an approximately four-month period of time," the report said. "Therefore, we find there are abundant and sufficient facts to clearly establish a causal connection between your advocacy for disabled students and the adverse employment action taken against you."

District officials, according to the OCR report, told federal investigators Hamway failed to follow the chain of command in communicating her concerns with the administration, and that she was the one who violated procedures and district policy. The district also alleged that Hamway failed "to establish good working relationships with staff."

None of that jelled with the OCR.

"We note that all of the witnesses the district identified to support its position that you failed to establish a good working relationship with staff members, are the same individuals you had identified as not following federal disability laws either with the district or the state Department of Education," the report said.

Hamway said she knew it was important to follow the chain of command. She first filed a grievance in September 2009 with Shannon Roberts, TUSD's equal employment opportunity representative. Hamway also sent a copy to TUSD's lead psychologist. The OCR report said the district never responded.

Hamway then discussed her concerns with then-Assistant Superintendent Lupita Cavazos-Garcia, who resigned from TUSD last month, and former TUSD Exceptional Education Director Lorraine St. Germain, who retired last year.

Hamway said that before she filed her discrimination complaint with the OCR, she also tried to air her concerns with former state Superintendent of Public Instruction Tom Horne, now the state attorney general; John Huppenthal, now the superintendent of public instruction; former TUSD Superintendent Elizabeth Celania-Fagen; and current Superintendent John Pedicone, as well as TUSD governing-board members.

No one responded, she said.

Now, Hamway says she wonders if any real change will come about from the OCR findings, including how special-education students are served.

"For them to abide by the settlement—that's what I am waiting to see," Hamway said. "There are many people who have quickly retired or taken leave right before the findings came out, and there are people who remain."

Hamway said she is particularly interested to see whether change occurs in the district's EEO office, where she first went with her concerns in 2009. She claims the office has a reputation for not offering help when employees go there with a grievance or concern. "That moment when you go in there and say, 'Help,' that's when you are labeled a troublemaker and become a target," Hamway said.

Hamway is also unsure who made the final decision to fire her. The OCR looked at that, too, and determined that when the board voted to not renew her contract, it did so based on state statutes that consider a negative performance evaluation. If that was the case, a copy of the evaluation should have been presented to Hamway for review.

The OCR report said: "The first time you saw the negative performance evaluation was when you reviewed the documents the district submitted in response to your unemployment claim. There is also no evidence that anyone from the district attempted to confer with you after the evaluation was completed on March 17, 2010," the report said.

In the resolution agreement, signed by Pedicone on Monday, Aug. 27, TUSD agreed to write a check to Hamway for $180,000 by Friday, Aug. 31. The district is also required to distribute copies of its policy on retaliation to staff and administrators, and provide training on the district's discrimination grievance procedure. The agreement also says that "at a minimum, this training will be provided to all employees in the Exceptional Education Department and Equal Employment Opportunity Office."

Hamway said that when you file a complaint with the OCR, you are asked what you want as resolution. Hamway asked for an apology, for the board and staff to receive training on grievance procedures and retaliation, and to get her job back.

"I knew I probably wasn't going to get my job back," she said.

Hamway said she also hoped the school board would receive the training, and she's disappointed it's not part of the resolution.

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