TEA DOCKET NO. 122-LH-0608
PASADENA INDEPENDENT*BEFORE AN INDEPENDENT
SCHOOL DISTRICT*
*
HEARING EXAMINER
- *
*
* FOR THE STATE OF TEXAS
PATRICIA RAYBURN
RECOMMENDATION OF CERTIFIED HEARING EXAMINER
PetitionerPatricia Rayburn requested the assignment of a certified hearing examiner
under Chapter, 21, Subchapter F, of the Texas Education Code, for the purpose of conducting a
hearingconcerning the proposed termination of Patricia Rayburn. The hearing was held on
August 14, 2008, at the Pasadena Independent School District (PISD) Administration Building in
Pasadena. Ms. Rayburn appeared at the beginning of the hearing with Attorney Peter Costea.
However, after filing a Motion for a Continuance, which was denied, Ms. Rayburn and Mr.
Costea left the hearing prior to the calling of witnesses. Ms. Rayburn later re-appeared at the
hearing to offer her Motion for a Continuance as an Exhibit. She thereafter left the hearing.
PISD was represented by Attorney David Hodgins, of Houston. Appearing as witnesses at the
hearingwere Associate Superintendent DeeAnn Powell,Assistant Principal Louis Byron,
Principal Chris Bolyard and Deputy Superintendent Vicki Thomas.
At issue is the PISD’s termination of Ms. Rayburn’s contract and employment.
According to the May 28, 2008 notice of proposed termination, her termination is being
recommended pursuant to the Texas Education Code Chapter 21. Ms. Rayburn appealed the
proposed termination, and thismatter was set for hearing. ThisRECOMMENDATION contains
this Hearing Examiner’s finding and conclusions from said hearing.
FINDINGS OF FACT
After due consideration of the evidence and matters officially noted in my capacity as
Hearing Examiner, I find that the following Findings of Fact have been proven by a
preponderance of the evidence. (Citations to evidence are not exhaustive or exclusive, but are
intended to indicate some basis for the particular finding of fact.)
1. Ms. Patricia Rayburnis a teacher who was assigned to teach English during the
2007-2008 school year at Pasadena High School (PHS), a school within the Pasadena
Independent School District (PISD).
- Ms. Rayburn is employed by the PISD on a three year term contract for the school
years 2006-2007, 2007-2008, and 2008-2009. (Pet. Ex. 2)
- By letter dated May 28, 2008, Ms. Rayburn received proper notice of her proposed
termination and her right to request a hearing, in accordance with state law and District
policy, and pursuant to paragraph 14 of her contract. (Pet. Ex. 1)
- PISD proposed good cause and termination of Ms. Rayburn’s employment on the
basis of five (5) separate and independent grounds as outlined below:
- A decision by the campus intervention team under Texas Education Code
§39.1324 that the employee not be retained at a reconstituted campus;
b. Deficiencies pointed out in observation reports, appraisals or evaluations,
supplemental memoranda, or other communications;
c. Failure to fulfill duties and responsibilities;
d. Failure to comply with official directives;
e. Incompetency or inefficiency in the performance of duties. (Pet. Ex. 1)
- For the 2007-2008 school year, PHS was rated Academically Unacceptable for the
second year. (Testimony of DeeAnn Powell, Transcript (TR.) 57-58)
- As required by the Texas Education Code § 39.1324, because PHS
was identified as Academically Unacceptable for two consecutive school years, the
Commission of Education ordered the reconstitution of the campus and the
assignment of a campus intervention team (CIT). See TEX. EDUC. CODE §
39.1324; (Pet. Ex. 8; Testimony of DeeAnn Powell, Tr. 58-59)
- The PHS CIT was made up of Lin Kuzmich and Ray McNulty as the external CIT
members, and DeeAnn Powell and Vicki Thomas as the internal CIT members.
(Testimony of DeeAnn Powell, Tr. 59-60; Testimony of Vicki Thomas 163-164)
- According to Texas Education Code § 39.1324, the CIT shall decide which educators
may be retained on the PHS campus. See TEX. EDUC. CODE §39.1324.
- A teacher of a subject assessed by an assessment instrument under § 39.023, may
be retained only if the CITdetermines that a pattern exists of significant improvement by
students taught by the teacher. See TEX. EDUC. CODE § 39.1324.
- As an English teacher, Patricia Rayburn is a “teacher of a subject assessed by an
assessment instrument under Section 39.023” of the Texas Education Code. (Testimony
of DeeAnn Powell, Tr. 61)
- Pursuant to the Texas Education Code § 39.1324, the CIT developed a campus
improvement plan for Pasadena High School. (Testimony of DeeAnn Powell Tr. 60-61)
- The proposed campus improvement plan for Pasadena High School (PHS) was
adopted bythe Pasadena ISD Board of Trustees. (Testimony of DeeAnn Powell and
Vicki Thomas, Tr. 62-64, 164; Pet. Ex. 9)
- In order to make retention decisions, the PHS CIT team developed and applied a
specific and detailed process to all of the educators from PHS. (Testimony of DeeAnn
Powell, Tr. 62)
- The evaluation process included the development and execution of a professional
action plan for all educators on the high school campus. (Testimony of Dee Ann Powell,
Tr. 63) The board adopted campus improvement plan provided a professional action plan
for each teacher on the campus. (Pet. Ex. 9, p. PISDPR0225) Each PHSteacher was
required to meet the responsibilities and goals on the professional action plan in order to
be retained at the campus. (Testimony of DeeAnn Powell), Tr. 64)
- The teacher professional action plan outlined specific tasks and activities required of
each teacher so that each educator knew what was expected of them regarding their
involvement in improving the campus. (Testimony of Dee Ann Powell, Tr. 64- 65) The
goal for each teacher, including Rayburn, under the teacher professional action plan was
to: “Implement Research Based Instructional Strategies and Practices in my classroom
and to improve student achievement and engagement, meet the needs of diverse learners,
and build relationships.” (Pet. Ex. 9, PISDPR0225; Testimony of DeeAnn Powell, Tr. 65)
- The teacher professional action plan required each teacher to certain tasks and/or
activities designed to lead to successful student growth such as “(1) Use well researched
instructional methods that increase student engagement and achievement including:
* SIOP strategies, hands on learning, demonstrations, projects, simulations, real world problem based assignments, and small group TAKS tutoring.
* The Rigor and Relevance model and methods for planning units of instruction
* Each of the following strategies were to be used a minimum of three (3) times
per week in the classroom;
º Graphic organizers
º “Quick Writes” and short constructed response methods to increase writing and thinking fluency.
* Cooperative learning strategies (Pet. Ex. 9, p. PISDPR0225; Testimony of DeeAnn Powell, Tr. 64-65)
- The teacher professional action plan also required each teacher to “(2) Use positive
behavior management techniques, feedback and reinforcement on a daily basis to enhance
student engagement and relationships.” (Pet. Ex. 9, PISDPR0026;Testimony of DeeAnn
Powell, Tr. 65-66)
- All teachers were provided training opportunities and provided access to various
resources and examples to assist in the implementation of the plan. (Pet. Ex. 9,p.
PISDPR0225; Testimony of DeeAnn Powell, Tr. 66-67) Between the school district and
the Pasadena High School campus, hundreds of training opportunities were made
available for the teaching staff. (Testimony of DeeAnn Powell, Tr. 67)
- The teacher professional action plan proscribed “Evidence of Success” under the
plan. (Pet. Ex. 9, p. PISDPR0225)
- The evidence of success for “Use well researched instructional methods that increase
student engagement and achievement…..” included:
- Walkthroughs by administrators, rigorous and relevant instruction reflected in lesson and unit planning and instructional delivery, student performance on class and curriculum assessments, dated student work samples, and department meeting minutes reflecting dialogue and sharing mastery of curriculum as measured by one or more of the following:
º Failure rate not to exceed 15%
º Student performance on curriculum based assessments at equal to or greater than the district average specific to the teacher’s content area
ºMarch released TAKS with expectations for English/Language Arts to be 80% passing. (Pet. Ex. 9, p. PISDPR0225; testimony of DeeAnn Powell, Tr. 67-69)
- The evidence of success for “Use positive behavior management techniques, feedback
and reinforcement on a daily basis to enhance student engagement and relationships”
included walkthroughs by administrators, individual teacher discipline referrals, student
and/or parent interviews, work samples, student demonstrations, department meeting
minutes reflecting problem solving and assistance by peers and administrators, as well as
attendance data related to student absences. (Pet, Ex. 9, p. PISDPR0226; Testimony of
DeeAnn Powell, Tr. 69-70)
- Excessive discipline referrals indicate poor classroom management. (Testimony of
DeeAnn Powell, Tr. 70)
- The PHS CIT team examined each of these areas to determine whether or not a
teacher appropriately implemented the mandated professional action plan. (Testimony of
DeeAnn Powell, Tr. 67)
- All PHS teachers were required to implement, execute and follow PHS campus
improvement plan, and the teacher profession action plan. (Testimony of DeeAnn Powell
and Chris Boylard, Tr. 71, 152) All PHS teachers were accountable for the directives
outlined in the PHS campus improvement plan, and the teacher professional action plan.
(Testimony of DeeAnn Powell, Tr. 71)
- Information from the teacher professional action plan provided data and information
to the PHS CIT team that assisted the CIT in determining which educators should be
retained or not retained. (Testimony of DeeAnn Powell, Tr. 71-72)
- Under the Texas Education Code, when making CIT decisions, the CIT team may
use “any research-based data or information obtained from a data collection process to
assist the team in executing the improvement plan and recommending actions regarding
it.” (See TEX. EDUC. CODE § 39.1323: Testimony of DeeAnn Powell; Tr. 71-72)
- Under the authority of the Texas Education Code §§ 39.1323 – 39.1324, and based
on the information from the teacher professional action plan, the PHS CIT team
established a fair and appropriate criteria and decision making process to be applied to all
educators on the PHS campus. (Testimony of DeeAnn Powell and Vicki Thomas, Tr. 71-
72, 165-166).
- The criteria established by the CIT team for all PHS educators included the
following eleven (11) criteria points: (1) walkthrough data, (2) curriculum base
assessment scores, (3) results from release TAKS, (4) research based strategies, (5) work
samples, (6) failure rate of students, (7) student engagement, (8)
planning/pacing/alignment, (9) communication, (10) discipline and (11) other/PDAS
appraisal information. (Pet. Ex. 11, Tr. 73-74)
- For each criteria item, after reviewing all of the relevant data, the CIT team gave
each educator a plus, a check, or a minus. A plus meant that the educator met the district
approved criteria and goal plan performance level; a check meant that the educator made
significant progress on the approved criteria and goal performance level, and a minus
meant that an educator failed to meet the established criteria. (Testimony of DeeAnn
Powell, Tr. 71-72; Pet. Ex. 11)
30. The CIT team established a rubric of decision making that ranked each educator on a
1-4 scale, with 4 being the highest and 1 being the lowest. Educators ranked with a 4 met
at least85% of the established criteria; those ranked with a 3 met at least 75% of the
established criteria; those ranked with a 2 met at least 50% of the established criteria: and
those ranked with a 1 met less than 50% of the established criteria. (Pet.Ex. 11;
Testimony of DeeAnn Powell, Tr. 75-76)
- Any educator that was rated a 1 by the CIT team was not retained at the PHS campus.
(Testimony of DeeAnn Powell, Tr. p. 76)
- Out of the 168 educators assessed, only 19 received a ranking of 1 under the rubric of
decision making. All of the 19 educators, other than Rayburn, have been separated from
employment and no longer work for PISD. (Testimony of DeeAnn Powell, Tr. p. 77)
- The age of the individual educator played no role in the decision making process of
determining whether an educator would be retained, nor was age considered in Rayburn’s
termination process. (Testimony of DeeAnn Powel, Chris Boylard, and Vicki Thomas,
Tr. p. 77, 162, 168)
- The CIT team reviewed Rayburn’s performance in Marchof 2008. Rayburn was
given a 1 ranking. (Testimony of DeeAnn Powell, Tr. . 76-78)
- Rayburn’s job performance was again reviewed by the CIT team in May of 2008.
Rayburn’s job performance did not improve, it regressed. (Testimony of DeeAnn Powell,
Tr. p. 77-79)
- Rayburn’s end of the year PDAS appraisal demonstrated numerous below
expectations in multiple domain areas and overall poor job performance. (Testimony of
DeeAnn Powell, Tr. p. 79, 88-89, Pet. Ex. 3)
- Multiple examples from different appraisers of Rayburn walk through data from
September of 2007 through April of 2008, indicated her poor job performance in several
areas. (Testimony of DeeAnn Powell, Louis Byron and Vickie Thomas, Tr. 79, 115-117,
195-210; Pet. Ex. 7)
- Through walk through data and other communications, Rayburn was encouraged to
remediate and improve her job performance, but she failed to do so. (Testimony of
DeeAnn Powell, Tr. 84-85, 87, 106-107) Rayburn failed to take advantage of training
opportunities for most of the school year. Her first professional development activity was
not until March 30, 2008. Her second and final one for the year was on April 9, 2008.
(Testimony of DeeAnn Powell and Louis Byron, Tr. 106 -111, 121; Pet. Ex. 14)
- Rayburn’s failure to take advantage of available and needed professional
development was not acceptable. (Testimony of DeeAnn Powell and Chris Boylard, Tr.
p. 111, 155; Pet. Ex 14).
- Rayburn’s poor performance on her January PDAS formal observation resulted in the
development of a teacher in need of assistance plan. (Testimony of DeeAnn Powell, Tr.
90; Pet. Ex. 4)
- Rayburn’s final end of the year PDAS appraisal reflected numerous below
expectations and poor job performance. (Testimony of Louis Byron, Tr. 125-141)
- Rayburn was directed to sign the teacher in need of assistance plan, but failed to do
so. (Testimony of Louis Byron, Tr. p. 123, Pet. Ex. 4) On other occasions, Rayburn
refused to sign school documents when she was directed to do so, including her
summative report and PDAS observation. (Testimony of DeeAnn Powell and Louis
Byron, Tr. 91, 100-101, 123-124; Pet. Exs. 3, 4, 12) Rayburn was directed to sign her
personal action plan, but failed to do so. (Testimony of Chris Boyard, Tr. p. 151)
Rayburn was directed to conduct certain activities a minimum of three times per week in
her classroom, and she failed to do so. (Testimony of Chris Boyard, Tr. 156-158)
- Besides the directives outlined in the campus improvement plan and the directives to
sign documents, Rayburn failed to follow other directives given to her by her supervisors
including letting students exit class without proper paperwork, failing to timely submit
her teacher report information for her PDAS appraisal, and failing to timely schedule a
summative conference. (Testimony of Louis Byron, Tr. 133-139)
- Rayburn’s submitted work samples from her class to the CIT were poor work product,
unacceptable, and not age appropriate. (Testimony of Vickie Thomas, Tr. 182-186)
- The CIT Team used appropriate data, and fairly applied the criteria to all educators.
(Testimony of Vicki Thomas, Tr. 165)
- The CIT team decided that Rayburn should not be retained and should not be
employed or teaching any longer in the school district. (Testimony of DeeAnn Powell and
Vicki Thomas, Tr. 111, 166-167)
- Both school base members of the CIT team, Ms. Powell and Ms. Thomas, support
the recommendation to terminate the employment of Rayburn. (Testimony of DeeAnn
Powell and Vicki Thomas, Tr. 111, 167)
- The CIT team appropriately determined that Rayburn should not be retained at PHS.
- The CIT team had the option to recommend to the Superintendent, that Rayburn be
reassigned to another position within the school district, but the CIT team elected not to
do so. (Testimony of Vicki Thomas, Tr., 166)
- The CIT did not recommend that Rayburn be reassigned because such an action was
not in the best interest of the school district, or the children served by the school district.
(Testimony of Vicki Thomas, Tr. 166) Ms. Thomas could not make a reassignment
recommendation based on Rayburn’s poor job performance. (Id.)
- Principal Bolyard is not supportive of Rayburn teaching anywhere else in the school
district. (Testimony of Chris Bolyard, Tr. 153) If Principal Bolyard were a principal at
another high school, he absolutely would not accept Rayburn as an employee, because
in his opinion there is clear evidence that her performance was substandard and it would
not be beneficial at all to the students involved for her to be an instructor. (Testimony of
Chris Bolyard, Tr. 154)
- The Superintendent does not have authority to transfer/reassign an employee under
these circumstances without acceptance by another campus principal (Testimony of
Vicki Thomas, Tr. p. 166, 217-219) In the judgment of Deputy Superintendent Thomas,
no principal in the PISD, would agree to such an assignment for his/her campus.
(Testimony of Vicki Thomas, Tr. 219)
- Under the circumstances, if an educator is not retained and not reassigned, than the
only option for the school district is to terminate the employment of the educator.
(Testimony of Vicki Thomas, Tr. 167)
- By letter dated May 28, 2008, Rayburn received proper notice of her proposed
termination and her right to request a hearing in accordance with state law, District
policy, and pursuant to paragraph 14 of her term contract. (Pet. Ex. 1, Texas Education
Code)
- Section 21.211 of the Texas Education Code, and PISD Board Policy DFBA
(LEGAL), provide that a teacher employed on a term contract may be terminated at any
time during the term of the contract for good cause as determined by the Board of
Education. (Pet. Ex. 17)
- The Pasadena ISD Board of Trustees, in PISD Board Policy DFBB, previously
determined that a decision by a CIT, under the Texas Education Code § 39.1324, that an
employee not be retained at a reconstituted campus, constitutes good cause grounds to
non-renew the employment contract of an employee in the school district. (Testimony of
Vicki Thomas, Tr. 173, Pet. Ex. 18)
- The PISD CIT appropriately decided under the Texas Education Code § 39.1324, that
Rayburn should not be retained at a reconstituted campus, nor transferred to another
position within the school district, and that her employment should be terminated.
- Numerous deficiencies pointed out in observation reports, appraisals or evaluations,
supplemental memoranda, or other communications, exist regarding Rayburn.
(Testimony of Chris Bolyard, Tr. 159, Pet. Ex. 3, 4, 7)
- Rayburn was given adequate notice of her deficiencies, and adequate opportunities to
remediate her performance. (Testimony of Chris Bolyard, Tr. 159)\