TEA DOCKET No. 346-LH-0611

HOUSTON INDEPENDENT SCHOOL § BEFORE J. L. "LARRY" HINOJOSA,

DISTRICT §

§

§

VS. § INDEPENDENT HEARING EXAMINER,

§

§

THELMA DAVIS § TEXAS EDUCATION AGENCY

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

Statement of the Case

Pursuant to chapter 21 of the Texas Education Code, Thelma Davis, the respondent ("Ms. Davis" or "Respondent"), appeals the decision of the Houston Independent School District ("HISD" or "Admin."), the petitioner, to terminate her continuing contract as a teacher at Jackson Middle School.

After being notified of her termination, Ms. Davis timely requested the appointment of an independent hearing examiner, and the Commissioner of Education appointed J. L. "Larry" Hinojosa to hear the appeal. Amanda L. Reichek, of The Reichek Firm, PLLC, represents Ms. Davis, and Monetta Kaye DeWalt, of Littler Mendelson, P.C., represents HISD.

The notice of termination, dated May 31, 2011 (HISD EX. 56), states five reasons for the proposed termination:

1. Inefficiency or incompetency in performance of duties.

2. Failure to comply with such reasonable requirements as the employer may prescribe for achieving professional improvement and growth.

3. Good cause.

4. Repeated failure to comply with official directives and established school board policy.

5. Repeated and continuing neglect of duties.

The Examiner called the case to order in the presence of a court reporter on August 29, 2011 and the hearing continued on August 30 and concluded on September 1, 2011.

Findings of Fact

After consideration of the evidence and matters officially noted, the Independent Hearing Examiner finds the following facts have been proven by a preponderance of the evidence. Citations to evidence are not exhaustive and are intended to indicate some of the basis for the particular finding of fact.

Background

  1. Ms. Davis started her employment with HISD as a permanent teacher in 1968. (Tr., p. 570).
  1. Ms. Davis received a continuing contract on May 11, 1970. (HISD EX. 1).
  1. Ms. Jackson has worked at Jackson Middle School since 1982. (TR. p. 570). She teaches P.E.

History Prior to the 2010-2011 School Year

  1. In February of 1993, Ms. Davis was admonished by then Assistant Principal, Ann Davis, to admit students assigned to her class and to not tell them she did not want them in her class. (HISD EX. 2.)
  1. In January of 1994, Ms. Davis was informed by Larry Moore, a school administrator, that her students were to remain with her at all times and were to be supervised at all times. If students did not dress out, they should still be allowed to participate in class activities and lesson plans should be rewritten if the objectives in the plan cannot be met. (HISD EX. 3.)
  1. In November of 2000, Ms. Davis was directed by Assistant Principal, Sandra Acosta, to not send students to the office without a pass or discipline report and was again informed that students were to be supervised at all times. She was further directed to follow the standard procedures at Jackson Middle School. (HISD EX. 6.)
  1. On February 22, 2003, Sandra Acosta provided Ms. Davis with a written memorandum that students must not be left unattended in the dressing rooms and she was "directed to perform the duties and responsibilities required of you in your teaching assignment and to supervise your students at all times in accordance with HISD Board policy." (HISD EX. 7).
  1. On February 24, 2003, Sandra Acosta, sent another memorandum to Ms. Davis with the subject line "REPEATED FAILURE TO COMPLY WITH ADMINISTRATIVE DIRECTIVES". Ms. Davis was directed to supervise her students at all times and permit her students to enter her classroom. She was further directed to require students to sign a tardy log if they are late to class and to communicate with parents of those students who arrive late to class and who do not follow the classroom rules. (HISD EX. 8.)
  1. Ms. Davis was placed on an Intervention Plan for Teacher In Need Of Assistance on February 5, 2004 through April 6, 2004, by her then appraiser, Lyn Landrum. (HISD EX. 9). In the plan, she was directed to complete various professional improvement activities and to provide evidence of completion by April 6, 2004. Ms. Davis failed to complete the intervention plan and the plan was extended through October 31, 2004. (HISD EX. 11.) Ms. Davis failed to complete the extended intervention plan and she was directed to prepare a grade book to be reviewed by her appraiser. (HISD EX. 12.)
  1. In December of 2004, a Conference for the Record Summary was issued by then Principal Flor Blanco-Perfettio. The conference itself was held on December 7, 2004 and discussed the results of a student complaint and the review of Ms. Davis' work performance. She was directed, inter alia, to stop refusing to allow students to enter her class if they have been assigned to her and to comply with campus procedures and all administrative directives, written or verbal and to complete her intervention plan. (HISD EX. 13.)
  1. Ms. Davis was again placed on an intervention plan by her appraiser, Lyn Landrum, at the end of the 2004-2005 school year from May 4, 2005 through December 1, 2005, to address ongoing concerns. (HISD EX. 14.)
  1. Dr. Alfredo Diaz, an assistant principle at Jackson, had been Ms. Davis' primary appraiser for a number of years, including the 2009-2010 school year. (TR. p. 30). Dr. Diaz left Jackson Middle School in September of 2010. (TR. p. 29).
  1. Dr. Diaz did Ms. Davis' Professional Development and Appraisal System (PDAS) for 2009-2010. (TR. p. 32; HISD EX. 15). She was rated as "Proficient" in all domains and rated "Exceeds Expectations" in Domain I. (TR. p. 35; HISD EX. 15). Although rated proficient in Domain IV, Management of Student Discipline, Instructional Strategies, Time, and Materials, Dr. Diaz made the following comments: "Students cannot be sent out of class without supervision or without a discipline report." (TR. p. 36; HISD EX. 15). In "Areas to Address", Dr. Diaz noted that "P.E. department detentions and parent conferences are required for all students exhibiting chronic behavior problems." Id. Dr. Diaz stated in his testimony that it is not proper procedure to send a student out of class unsupervised. (TR. p. 39).

2010-2011 School Year

  1. In July 2010, Dr. Kregg Cuellar was hired as the new principal of Jackson Middle School. (TR. p. 78).
  1. The Dean of Students for 2010-11 was Dr. Deirdre Sharkey who started working at Jackson Middle School the same time as Dr. Cuellar. Other assistant principals on campus when Dr. Cuellar arrived were Mr. Cesar Alvarez, and Ms. Sabrina Cuby-King. (TR pp. 81-82).
  1. During the first week of school in 2010-2011, the faculty, including Ms. Davis, received professional development in different areas including “rigor, relevance, and relationships.”(TR p. 489). The faculty had a bank of strong instructional tools that support teachers, including the document on Rigor/Relevance Framework at Respondent’s Exhibit 14. (TR. p. 495; RESP. EX. 14).
  1. During both the Fall 2010 and the Spring 2011 semesters, the faculty received professional development on various other topics including classroom management. The school ordered videos and several books on classroom management strategies. Dr. Sharkey also employed job-embedded professional development, working one-on-one with teachers in the area of classroom management. (TR. p 490).
  1. Dr. Cuellar had weekly meetings with his administrators (sometimes twice a week) to discuss various issues and concerns about the campus; planning for assessments and interventions; and examining data on students as well as data regarding individual teachers. (TR p. 86).
  1. Prior to leaving Jackson, Dr. Alfredo Diaz helped Ms. Davis put her Individual Professional Development Plan (IPDP) together and they both discussed and agreed upon it. (HISD EX. 16); TR. pp. 46-47). The plan was designed to enhance Ms. Davis’ overall performance and increase student performance in the specific areas targeted in the plan. (HISD EX. 16 and TR p. 57). All teachers at Jackson Middle School were required to have an IPDP. (TR p. 58).
  1. Terry Lynch replaced Dr. Diaz as assistant principal when Dr. Diaz left Jackson. (TR. p. 82). Mr. Lynch became Ms. Davis’ new assessor. (TR p. 236).
  1. The first time Principal Cuellar had to address concerns specific to Ms. Davis occurred on September 17, 2010, when he received notice that students in Ms. Davis’ P.E. class did not eat lunch. The time was approximately 2:45 p.m. His first response was to purchase food to feed the students since the lunch period had ended. (TR. p. 98). When Dr. Cuellar met with Ms. Davis to find out what happened, her response was that she forgot. She said that she and the students got confused about the bell schedule, and that they were caught up in the activity. (TR. p. 190).
  1. As a result of the missed lunch incident, Dr. Cuellar issued a performance directive to Ms. Davis which stated she should have notified an administrator immediately when this type of issue arises. (HISD EX. 17; TR. pp. 100-101). Ms. Davis notified the principal's secretary. (TR. p. 711).
  1. Ms. Davis ran to the cafeteria to get the students lunch but the cafeteria was closed. During this time, the students were left unsupervised in the locker room. (TR. p. 714).
  1. On October 7, 2011, Mr. Terry Lynch conducted an informal walk-through in Ms. Davis’ class using the C.A.R.E. form (Community, Alignment, Rigor and Engagement) form. (TR. p. 239; HISD EX. 18). Mr. Lynch noted the areas of Community, Alignment and Engagement were below expectations; he found her proficient in the area of Rigor. There were no objectives posted for the class; most of the students were sitting and talking while Ms. Davis worked with 3 to 4 students at a time; Ms. Davis was seated during the activity; there was no supervision in the locker room at the end of the class; the students who had not dressed out had to run at the end of the class. Mr. Lynch indicated on the form that he gave Ms. Davis a copy. (HISD EX. 18).
  1. On October 15, 2010, Terry Lynch conducted a formal walk-through using a Professional Development Appraisal System (PDAS) walk-through form. (HISD EX. 19). Domain I was rated "below expectations" for the requirement that 80% of the students are successful. A number of students were not participating and others were just walking when they should have been running. (HISD EX. 19; TR. p. 260).
  1. Under Domain II, Mr. Lynch rated her "proficient" even though Ms. Davis did not have goals or objectives posted. (HISD EX.19; TR. p. 261). She received a “proficient” rating in Domains III and IV even though one student was sick and throwing up and Ms. Davis did not notice; students were off-task when not participating; another student was singing; and others students engaged in the use of profanity without redirection from Ms. Davis. (HISD EX.19; TR. p. 261-263). Ms. Davis signed HISD EX. 9 on October 26, 2010.
  1. A performance directive was issued to Ms. Davis by Terry Lynch on November 9, 2010, concerning fights during her class and directing her to use proactive classroom management practices during instructional time. (HISD EX. 20).
  1. Ms. Davis had been given verbal and written directives to release students from her class in a timely manner. (HISD EX. 17, 20; TR. p. 379).
  1. Ms. Davis was placed on an intervention plan dated November 9, 2010 to December 17, 2010. The Domain in which she was in need of professional growth was “IV. Management of student, discipline, instructional strategies, time and materials." Various activities she was supposed to accomplish and complete were outlined in section 2, including observing the classroom management strategies used by two assigned teachers, interviewing those teachers about those strategies and writing a summary of her observations and discussions with the two teachers. Ms. Davis was also directed to read resource materials provided to her and implement classroom management strategies outlined in those materials. She was further directed to prepare weekly lesson plans and post the plans on the school’s common drive for review by Mr. Lynch. Ms. Davis wrote "Disagree" on the intervention plan next to her signature. (HISD EX. 21).
  1. Ms. Davis felt this plan was not justified and she was taken by surprise. (TR. p. 601).
  1. On December 13, 2010, Terry Lynch conducted an informal walk-through which resulted in all “below expectations” ratings on the C.A.R.E. form. (HISD EX. 22).
  1. Ms. Davis did not complete the intervention plan dated November 9 through December 17, 2011. (HISD EX. 22 & 35; TR. p. 318).
  1. Ms. Davis felt she had submitted everything to Mr. Lynch. (TR. p. 605).
  1. The copies of the written submissions she submitted in response to an intervention plan are dated February 18, 19, and 25, 2011. (RESP. EX. 13).
  1. On January 6, 2011, Mr. Lynch and other school staff responded to a big disruption in the gym. Ms. Davis was pointing a bullhorn toward the students’ ears and blasting a siren sound. Students were covering their ears with their hands. He asked her to stop blowing the siren on the bullhorn. Ms. Davis stopped and told him it took that to get the students quiet. (TR. p. 285-287).
  1. On January 7, 2011, Mr.