Harwood paraeducator Denise Fuoco was unjustly terminated and should be re-instated and made whole, according to binding arbitration completed last week.
The Harwood Union School Board, which terminated Fuoco, is exploring its options and has 30 days to respond to the arbitration.
Fuoco was dismissed from her paraeducator job at Harwood Union in mid-October 2010. Fuoco had been working as a paraeducator in the Washington West Supervisory Union for more than 11 years. She worked from 1999 to 2008 at the Moretown Elementary School and then at the Harwood Union Middle School from 2008 to 2010 when she was terminated.
According to the arbitration report, written by Lawrence Katz, Esq., Fuoco was terminated because she did not have credentials currently required of paraeducators working at schools receiving federal No Child Left Behind (NCLB) funds.
At issue is whether Fuoco had a “highly qualified professional” (HQP) credential and portfolio or not. Paraeducators who were already working but lacked that credential were given a timeline to attain it. There are several ways to attain the HQP designation, including an associate’s degree, two years of college level course work or an equivalency rating or test as a formal assessment of a paraeducator’s knowledge and ability being equivalent to two years of college.
To go deeper, the U.S. and Vermont departments of education recognize three options for the equivalency testing. Two involve online training and testing and the third is a locally developed portfolio process demonstrating the appropriate degree of knowledge and ability.
In 2007, while Fuoco was working at the Moretown Elementary School, the Washington West Supervisory Union set out credentialing requirements for paraeducators calling for those hired prior to 2002 to pass an equivalency test by fall 2005. Between that time and Fuoco’s dismissal in 2010, paraeducators were hired in the Washington West Supervisory Union district who did not have HQP status and those already employed who did not have the status were retained.
During 2007, Roberta Barone was principal at the Moretown Elementary School when Donarae Pike, WWSU’s director of student support services, issued notification that Fuoco would have to take the test. According to the arbitration document, Barone told Pike that Fuoco had dyslexia and reservations about taking the test.
“Pike indicated that efforts were made to set up a test for the grievant, but in the end, it proved to be too emotionally difficult for her. As a result, she did not take the test,” wrote arbiter Katz.
“Grievant Fuoco, while acknowledging her dyslexia as well as her reluctance to take the test, did not recall any such testing arrangements having been made for her while she was at Moretown. To the contrary, she recalled herself having satisfied the HQP requirement in another manner,” Katz wrote.
“Without regard to the apparent fact that Moretown has not officially adopted the ‘portfolio’ alternative for achieving HQP status, the grievant indicated that when the issue first arose (in 2004) she discussed the HQP test with Ms. Barone. As a result, instead of taking the test, she developed a portfolio demonstrating her knowledge, skills and abilities. It appears that Ms. Barone was satisfied with her portfolio. . . . Based upon the treatment which Barone afforded her, the grievant indicated that she believed she had HQP status while at Moretown,” he continued.
Her job at Moretown ended at the end of the 2007-2008 school year and the families of the two students with whom she had worked requested that she follow them to Harwood Union Middle School, which she did and worked under a one-year contract for the 2008-2009 school year. During that time there were no issues raised about her HQP status and at the end of the year, she received a positive evaluation which recommended her for renewal.
She was given a second one-year contract, for the 2009-2010 school year, completed that year, received another positive evaluation and recommendation for renewal with no issues being raised about her HQP status. Fuoco received a third one-year contract at Harwood for the 2010-2011 school year.
Harwood began receiving Title 1 funds through NCLB during the 2009-2010 school year and Brigid Scheffert, who became superintendent of the district in July 2009, became aware of NCLB credentialing issues at the beginning of the 2010-2011 school year. She learned that there were five paraeducators who lacked the HQP credential, including Fuoco, and Pike informed those educators of their need to attain that status.
On September 20, 2010, Pike sent a memorandum to Fuoco informing her that she needed to complete the HQP assessment test or provide HQP documentation by October 15, 2010.
According to the arbitrator, Fuoco spoke to Pike about her problems taking the test unless specific accommodations were made for her dyslexia.
“In any event, it does not appear that the grievant received an immediate response with respect to the issue. In the interim, she did not take the test,” Katz found.
On October 13, Fuoco received a letter from Pike that addressed the accommodations issue as well as failure to pass the test. That letter said that the only allowable accommodations available would be those necessary to get and take the test. There would be no accommodations for the reading test or the math test.
Fuoco’s employment was terminated on October 15 and she took the matter to the Vermont-NEA where the matter was grieved. During the grievance process there was discussion of how and whether accommodations for dyslexia should be provided and Fuoco’s former principal Barone provided her understanding of Fuoco’s HQP status in writing.
“During her tenure at Moretown Elementary School, Denise Fuoco met the criteria for [HQP] based on her job responsibilities as a paraeducator to individual students with Special Needs. Additionally, her comprehensive portfolio detailed extensive professional development training, workshops and seminars. Denise was exemplary in all facets of her position and her performance was consistent with those rare individuals who are outstanding in their field,” Barone wrote.
Barone also indicated in a subsequent email, dated November 21, 2010, that she could not recall the criteria that were utilized in making this determination. However, she suggested that the ultimate decision as to whether the grievant would be permitted to continue working at Moretown would have been made by Pike, who would also know the criteria that were utilized.
The school board maintained throughout the grievance process that a fundamental tenet of working as a paraeducator is the ability to read at a sixth-grade level and that it was unfortunate that Fuoco has dyslexia and that that may prevent her from passing the test and attaining HQP status.
The union maintained that Fuoco had been found to be HQP-qualified during the 12 years of her WWSU tenure and further argued that when Fuoco moved to Harwood from Moretown the issue of HQP was not raised and she continued to receive contracts and exemplary evaluations.
The union argued that there was no reason to give Fuoco only 25 days to take the test and that the issue of accommodations for her dyslexia should have been addressed by the board.
The arbitrator found that Fuoco’s termination did not meet the just cause standard of her employment contract and found that the district was obligated to give her more time to prepare for the test and determine what modifications could be made.
Moreover, he points out that there is no indication that Fuoco was advised that her credentials were inadequate.
“In sum, from July, 2004, until August, 2010 – a period of more than six years – the grievant was permitted to continue working notwithstanding her apparent lack of HQP status. Then, seemingly out of the blue, the district decided not only that the HQP requirement would be strictly enforced, but that it would be enforced subject to the penalty of termination, within a relatively short period of time (10 days; subsequently extended to 25 days),” Katz wrote.
He concluded that Fuoco had been dismissed without just cause and that the board has only cause to issue a written warning. As a remedy, he found that Fuoco is to be reinstated and made whole for any lost pay or benefits – including seniority. He ruled that Fuoco should have been given a reasonable amount of time to prepare for HQP testing and to arrange accommodations for the testing process. Katz spells out that six months is an appropriate amount of time for Fuoco to prepare for and take the HQP test with accommodations.
Neither Fuoco nor the VNEA including her attorney and the union rep for Harwood would comment on the case. WWSU issued the following statement by Superintendent Brigid Scheffert regarding the case:
“The HUHS School District is in the process of considering and responding to the arbitration decision. The district has 30 days to file a response and we plan to do so. Arbitration is only one step in the process. I cannot comment on any specific employment dispute. That information is confidential.
“I can say, however, that federal law requires that all of our instructional assistants be highly qualified as defined by the Department of Education. In our Supervisory Union that means that an employee must pass a test demonstrating that the employee is able to read and solve math problems on a fourth to sixth grade level. I expect the federal law would say that if the instructional assistant cannot master these skills at a fourth to sixth grade level, it will be difficult to meaningfully participate in the instruction of students.
“If an employee cannot demonstrate competence on the test, we are in violation of the law if we continue to employ that person. Even where we wish to keep the employee, the law forbids it. There are absolutely serious financial risks and consequences for the Supervisory Union if we violate the law. We are not in a position to pick and choose the laws we will obey.
“It is similar to a teacher without a license. No matter how good that teacher might be, if there is no license to teach, the teacher cannot continue to be employed. If an instructional assistant cannot meet the requirement of highly qualified by taking the test, the instructional assistant cannot continue to be employed.”