TEA DOCKET NO. 122-LH-0608

PASADENA INDEPENDENT*BEFORE AN INDEPENDENT

SCHOOL DISTRICT*

*

HEARING EXAMINER

  1. *

*

* 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).

  1. 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)

  1. 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)

  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:

  1. 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)

  1. For the 2007-2008 school year, PHS was rated Academically Unacceptable for the

second year. (Testimony of DeeAnn Powell, Transcript (TR.) 57-58)

  1. 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)

  1. 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)

  1. 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.

  1. 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.

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. The teacher professional action plan proscribed “Evidence of Success” under the

plan. (Pet. Ex. 9, p. PISDPR0225)

  1. The evidence of success for “Use well researched instructional methods that increase

student engagement and achievement…..” included:

  1. 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)

  1. 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)

  1. Excessive discipline referrals indicate poor classroom management. (Testimony of

DeeAnn Powell, Tr. 70)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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).

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. The CIT team reviewed Rayburn’s performance in Marchof 2008. Rayburn was

given a 1 ranking. (Testimony of DeeAnn Powell, Tr. . 76-78)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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).

  1. 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)

  1. Rayburn’s final end of the year PDAS appraisal reflected numerous below

expectations and poor job performance. (Testimony of Louis Byron, Tr. 125-141)

  1. 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)

  1. 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)

  1. 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)

  1. The CIT Team used appropriate data, and fairly applied the criteria to all educators.

(Testimony of Vicki Thomas, Tr. 165)

  1. 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)

  1. 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)

  1. The CIT team appropriately determined that Rayburn should not be retained at PHS.
  1. 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)

  1. 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.)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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)

  1. 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.

  1. 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)

  1. Rayburn was given adequate notice of her deficiencies, and adequate opportunities to

remediate her performance. (Testimony of Chris Bolyard, Tr. 159)\