STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS J. MILLS, )

Superintendent of Schools, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2307

)

TERESA CALLAHAN, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in West Palm Beach, Florida, on August 21, 22, 23, 24 and 31, 1990, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Hazel L. Lucas, Esquire

Thomas J. Mills, School Board of Palm Beach County Superintendent of 3970 RCA Boulevard, Suite 7010 Schools: Palm Beach Gardens, Florida 33410

For Respondent: Robert A. Miles, Esquire Theresa Callahan: Chamblee, Miles & Grizzard

202 Cardy Street Tampa, Florida 33606

STATEMENT OF THE ISSUES

The basic issue in this case is whether the Respondent, Theresa Callahan, should be dismissed as a member of the instructional staff of the Palm Beach County School Board. Respondent's dismissal has been recommended by the Petitioner, Thomas J. Mills, Superintendent of Schools, on the basis of allegations set forth in an Amended Petition For Dismissal in which it is alleged that the Respondent was incompetent and guilty of misconduct in office, willful neglect of duty, and gross insubordination, and subject to dismissal pursuant to Section 231.36, Florida Statutes. Petitioner based these charges on allegations of the Respondent's repeated failure to perform duties prescribed by law as requested by her supervisor(s), her repeated failure to communicate and relate to her students in the classroom to such an extent that they were deprived of a minimal educational experience, her continued verbal abuse of her co-workers, her continued denial of basic rights to her ESOL students and her discriminatory application of discipline to Haitian students. Numerous sub- issues are set forth at pages 15 through 18 of the Parties' Joint Pre-hearing Stipulation.

PRELIMINARY STATEMENT

At the final hearing official recognition was taken of Sections 231.09,

231.29 and 231.36, Florida Statutes. School Board Directive Number 3.27 was offered by Petitioner, and received into evidence. Petitioner called the following persons as witnesses: Dr. Norman Shearin, Jr., Marie St. Cry, Meginn Menard, Michelle Dacus, Jean Civil, Rosselene Antonine, Anaica Fequire, Robert Cartlidge, Carole Shetler, Diane Larange, Dr. Clara DeFrank, Jean Ann Thurber, James Williams, Dr. Robert Murley, Bettye T. Dawson, Dr. Jeanne Burdsall, Calvin Taylor, Dr. Mary Gary and Inga D'Orazio. Petitioner also offered Exhibits 1-21, 23, 24, 27-33, 35, 36, and 38, and they were received into evidence. Respondent testified on her own behalf and called Rosange Annord, Ana Pichorscha, Carol Rice, Mildred Roberts, Willard Robinson, Warren O'Toole, and Harvey Lee as witnesses. Respondent offered Exhibits 1-3, 4a, 4b, 6a, 6b, 6c, 7a, 7b, 8 and

10 and they were received into evidence.

By stipulation of the parties, the deposition of Ivonne Cadiz was received into evidence. Over the objections of Respondent, the depositions of Samuel Menard, JoeAnne J. Cox, Maria Montiel, Roxana Delbarco, and Inga D'Orazio were admitted into evidence. Over the objection of Petitioner, the Affidavit of Sylvia Linus was admitted into evidence for corroboration.

The transcript of the hearing was filed October 2, 1990. By an Order dated October 11, 1990, the Hearing Officer gave the parties until November 1, 1990, to submit their proposed recommended orders. In response to Respondent's October 30, 1990, Motion to Extend Filing Date of Parties Proposed Recommended Orders, the Hearing Officer extended the time for serving the proposed recommended orders to November 16, 1990. In response to a further motion by Respondent the deadline for serving proposed recommended orders was extended to November 26, 1990.

Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposed recommended orders have been carefully considered in the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on the parties' stipulations and on the credible evidence received at the hearing, the following facts are found:

Stipulated facts

1. The Respondent has been employed as a classroom teacher with the Palm Beach County School Board since August 21, 1967. Respondent received her continuing contract of employment in November 1971.

   
   

2. The Respondent was initially employed by the District as a Television Studio Teacher from August 1967 until June 1, 1970. In October 1970, the Respondent served in the capacity of an Elementary Education Teacher with the District. She held that position until June 1973. From August 1973 through November 1976, the Respondent worked as a Resource Teacher within the School Board's Bilingual Project. In August 1976, she was assigned to Pine Grove Elementary School where she worked as a bilingual teacher until November 1978. Effective December 1, 1978, through the present, the Respondent worked as a Bilingual Education Teacher at Atlantic High School and Boca Raton High School.

3. Respondent is currently assigned and is fully certified to teach ESOL (Bilingual Education) to students in grades seven through twelve at Atlantic High School and Boca Raton High School.

   
   

4. Respondent's present principals, Ms. Carole J. Shetler, Atlantic High School, and Dr. Norman Shearin, Boca Raton High School, are both charged with assessing the performance of duties and responsibilities of all employees at their schools, including the Respondent.

   
   

5. Respondent acknowledges the receipt in January 1986 from the principal of Atlantic High School of a mid-year evaluation of her performance as a classroom teacher identifying that she needed to improve her performance in the following areas:

   
   

   1. Planning for Instruction;

   2. Communication, Verbal and Non-Verbal;

   3. Effective Working Relationship with Associates;

   4. Accepts Constructive Suggestions; and

   5. Submits Reports on Time.

      
      

6. However, Respondent disagreed with the content of that evaluation. Respondent also received a mid-year evaluation from the principal at Boca Raton High School in which she was rated "Very Good" in five areas, "Satisfactory" in eleven areas and "Improvement Needed" in only one area which pertained solely to submitting timely reports.

   
   

7. In the Respondent's annual evaluation for the 1985-1986 school year, the principal at Atlantic High School noted that she needed to improve her performance in the areas of:

   
   

   1. Instructional Organization and Development;

   2. Communication, Verbal and Non-Verbal;

   3. Climate; and

   4. Effective Working Relationship with Associates.

      
      

      The areas titled "Planning for Instruction" and "Accepts Constructive Suggestions" had gone from improvement needed in the 1986 mid-year evaluation to unsatisfactory in the 1986 annual evaluation. Respondent acknowledged agreement with the content of that evaluation.

      
      

8. In February 1987, the Respondent received another mid-year evaluation from the principal of Atlantic High School. The areas noted for improvement needed were:

   
   

   1. Planning for Instruction;

   2. Management of Student Conduct;

   3. Instructional Organization and Development;

   4. Presentation of Subject Matter;

   5. Climate;

   6. Effective Working Relationship with Asso-ciates; and

   7. Organizes for Efficient Use of Resources.

      
      

      The area titled "Accepts Constructive Suggestions" was still noted as unsatisfactory.

9. However, Respondent disagreed with the content of that evaluation which she so noted thereon. She also forwarded the District and the Atlantic High School Principal her letter dated March 12, 1987, stating her disagreement with the mid-year evaluation.

   
   

10. In the recommendation section of the 1987 mid-year evaluation, the principal of Atlantic High School gave the Respondent four directives:

    
    

    1. Comply with request to take Assertive Discipline Training;

    2. Develop an Assertive Discipline Plan;

    3. Work in a positive and professional way with associates; and

    4. Complete appropriate lesson plans and utilize time for instruction.

       
       

11. In May of 1987, the principal of Boca Raton High School, the Respondent's other work site, completed an annual evaluation of the Respondent's performance. The areas noted as improvement needed were:

    
    

    1. Planning for Instruction; and

    2. Organizes for Efficient use of Resources.

       
       

       The area titled "Submits Reports on time" was noted as unsatisfactory. The two areas noted as problem areas (Planning for Instruction and Organizes for Efficient use of Resources) were also addressed in the Respondent's 1987 mid- year evaluation by the principal of Atlantic High School.

       
       

12. However, also noted in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was also rated as "Outstanding" in two areas, "Very Good" in four areas and "Satisfactory" in eight areas.

    
    

13. The Respondent's annual evaluation from the principal of Atlantic High School reflects that the Respondent failed to improve the deficiencies noted in her 1987 mid-year evaluation. The Respondent still had seven areas which were classified as improvement needed. Those areas were:

    
    

    1. Management of Student Conduct;

    2. Instructional Organization and Development;

    3. Communication, Verbal and Non-Verbal;

    4. Climate;

    5. Effective Working Relationship with Asso-ciates;

    6. Accepts Constructive Suggestions; and

    7. Organizes for Efficient Use of Resources.

       
       

14. However, as reflected in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was rated as "Outstanding" in two areas (Adheres to Defined Duty Days and Is Punctual) and "Very Good" in four areas (Management of Student Conduct, Communication, Verbal and Non-Verbal, Effective Working Relationship With Parents, and, Accepts Constructive Suggestions).

    
    

15. The Respondent received an overall "Satisfactory" annual evaluation in May 1988 from the principal/assistant principal at Atlantic High School, although she did receive three areas of concern titled:

    1. Management of Student Conduct;

    2. Instructional Organization and Development; and

    3. Establishes an Appropriate Classroom Climate.

       
       

16. In May 1988, Respondent also received her annual evaluation from the principal/assistant principal at Boca Raton High School. Every area was marked as "Acceptable" (satisfactory) and Respondent was given two commendations ("Accepting atmosphere - students from many cultures appear relatively comfortable" and "Practical application of English to the business world and their world").

    
    

17. In the Respondent's January 1989 mid-year evaluation by the principal/assistant principal at both Atlantic High School and Boca Raton High School, five areas of concern were reflected. They were:

    
    

    1. Management of Student Conduct;

    2. Instructional Organization and Develop-ment;

    3. Establishes an Appropriate Classroom Climate;

    4. Demonstrates Self Control; and

    5. Demonstrates Effective Working Relationship with Co-Workers.

       
       

18. At or about that same time, the principal of Atlantic High School also tendered Respondent with a deficiency notice dated January 24, 1989, stating that Respondent failed to use her assertive discipline plan, delayed her lesson a significant part of the class period, failed to use appropriate language when she communicated with her students and her Aide, and refused to help a student who said they did not understand.

    
    

19. About that same time, Respondent was also placed on a Professional Development Plan ("PDP") by both school administrations with respect to each identified area of concern, instructed to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP.

    
    

20. Respondent disagreed with the content of the Boca Raton High School evaluations/PDP but nonetheless did comply with and satisfactorily complete the specified instructional strategies set forth therein timely within the 30-day timeline schedule.

    
    

21. The Respondent remained on both mid-year PDP's until the end of the school year.

    
    

22. In June 1989 the principal at Atlantic High School tendered Respondent her annual evaluation also identifying the previous five areas of concern.

    
    

23. In May 1989 the principal at Boca Raton High School tendered Respondent her annual evaluation identifying the previous five areas of concern as well as an additional one titled "Adheres to and Enforces School Policies."

    
    

24. About the same time as tender of the respective annual evaluations, both principals again issued Respondent another PDP, each enumerating the respective annual evaluation areas of concern cited therein. Both PDP's again instructed Respondent to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP.

25. By letter dated June 8, 1989, to the District, with copies to the principal and assistant principal (her evaluator) at Boca Raton High School, Respondent stated her disagreement with the annual evaluation, acknowledged the earlier problem with the former aide, objected to the alleged deficiency in the annual evaluation on that issue since it was already identified on the mid-year evaluation, and agreed to work to improve on the areas noted in the annual PDP to demonstrate satisfactory performance.

    
    

26. About September 1989, the Respondent attended District Level Remediation pursuant to the PDP's as directed by both schools. The workshops were scheduled for September 12, 1989, on Instructional Organization and Development and Communication Verbal and Non-Verbal; and September 13, 1989, on Management of Student Conduct and Classroom Climate.

    
    

27. By letter dated December 6, 1989, the principal of Boca Raton High School informed the Respondent that her "performance in the classroom remains unsatisfactory" and stated the reason for the principal's decision and attached the evaluation instruments.

    
    

28. In January 1990, the principal of Atlantic High School reviewed the Respondent's performance based on the results of her observations, the observations of Respondent in the classroom by the assistant principals, and the ESOL program coordinating teacher. The principal advised the Respondent that the five concern areas cited in her January and June 1989 evaluations were still areas of concern. The principal also informed the Respondent that two additional areas had been identified. The seven areas noted as concern on the 1990 mid-year evaluation and in the deficiency notice were:

    
    

    1. Management of Student Conduct;

    2. Instructional Organization and Development;

    3. Establishes an Appropriate Classroom Cli-mate;

    4. Demonstrates Ability to Plan Effectively;

    5. Demonstrates Self Control;

    6. Demonstrates Effective Relationship with CoWorkers; and

    7. Adheres to and Enforces School Policies.

       
       

29. Thereafter, in March 1990 Respondent was suspended and has remained suspended without pay since about mid-March 1990. The original petition and the instant Petition were later filed seeking Respondent's removal from/termination of her continuing contract teaching position with the District.

    
    

30. During all times material, Respondent was the only teacher teaching English for Speakers of Other Languages (ESOL) at Atlantic and Boca.

    
    

    Facts established at the hearing

    
    

    The Respondent's ESOL Educational/Teaching Background

    
    

31. Before she began teaching ESOL at Atlantic High School and Boca Raton High School about the 1978-79 school year, Respondent worked in the District's bilingual program where she wrote the grant for funding the bilingual program and trained teacher aides for that program.

    
    

32. Respondent holds a Florida teaching certificate in ESOL, and is also certified through about 1996 in supervision, Spanish, and bilingual education. She has a Bachelor of Arts in Humanities, with a major in Spanish, a Master of

    Arts in Education, both from FAU, two and one-half years completed toward a 3- year Doctorate at Nova University in the field of administration and supervision, and various extension courses. She has been active in various bilingual and/or ESOL education organizations and activities (including Gulf TESOL and the ESOL Leadership Conferences) which include supervisors, coordinators, and other teachers, and her activities included providing advisory input concerning developments in bilingual/ESOL education to school districts, the Department of Education, and various universities which educate/train other such persons.

    
    

33. At all times material, Respondent's classes were comprised of limited English proficient (LEP) students who had various English speaking, reading, and writing skill levels, which required Respondent to provide individualized and/or small group instruction and rotate between such persons and/or groups. Such "multi-level" instruction is the biggest challenge to ESOL educators.

    
    

    The Administrators who supervised, evaluated, or observed Respondent

    
    

34. The ESOL Program for which Respondent was responsible was part of the English Department. The Chairperson of the English Department was Warren O'Toole. Although department chairpersons may be involved in some situations involving teachers, they are not involved with evaluation problems. Department chairpersons are not an official part of the administration, since they are members of the same bargaining unit as teachers. Department chairpersons lack the authority to conduct formal evaluations of teachers, or to recommend the termination of a teacher.

    
    

35. Carole J. Shetler, the current principal at Atlantic High School, has been employed by the Palm Beach County School Board for sixteen years. She has served in the capacity of a classroom teacher, an assistant principal, an administrative assistant, and for the past six years as the principal of Atlantic High School.

    
    

36. Ms. Shetler holds certificates from the State of Florida in the areas of English and Administration and Supervision. Ms. Shetler's duties require her to hire and evaluate personnel, manage the budget of the school, supervise student discipline and to supervise the instructional program at Atlantic High School.

    
    

37. Since Ms. Shetler first became aware of the Respondent's teaching, in 1984, five administrators at Atlantic High School, including herself, have participated extensively in the Respondent's evaluation process. They were Ms. Shetler, Mr. Perlman, Mr. Williams, Ms. Dawson, and Ms. Thurber.

    
    

38. Ms. Shetler observed the Respondent directly in the classroom and she also reviewed observations conducted by her assistant principals and district personnel who were called in to observe the Respondent.

    
    

39. Dr. Clara DeFrank was the principal of Boca Raton High School from the 1986-87 school year through the end of the 1988-89 school year. Prior to the 1986-87 school year she worked as a principal at Boca Raton Middle School, an assistant principal, the director of guidance, and as a counselor. Dr. DeFrank was employed by the Palm Beach County School Board for 27 years.

    
    

40. Dr. DeFrank has doctorate degrees in Education and Administration and Supervision. She also has a Masters Degree in Guidance Counseling and a Bachelor's Degree in Journalism. Dr. DeFrank is certified by the State of

    Florida in the areas of: (1) Administration & Supervision; (2) English; (3) Journalism; (4) Speech; (5) Social Studies; and (6) Guidance and Counseling.

    
    

41. When Dr. DeFrank was assigned as the Principal of Boca Raton High School her duties required her to supervise the entire staff. Her supervisory responsibilities included the hiring of staff, the giving of assistance and recommending termination of staff when necessary.

    
    

42. Dr. DeFrank has known the Respondent since the early 1970's. Dr. DeFrank and the Respondent have been able to communicate on an informal basis.

    
    

43. For all three years that Dr. DeFrank was assigned to Boca Raton High School, Dr. Robert Murley, an assistant principal, evaluated the Respondent. Dr. Murley has a B.A. Degree in English, a Masters of Education Degree in Personnel and Organizational Behavior, and a Doctorate in Administration of Higher Education and Organizational Behavior. Dr. Murley is certified by the State of Florida in English, as an Assistant Principal, and as a Supervisor.

    Dr. Murley monitors and assists all of the beginning teachers at Boca Raton High School.

    
    

44. Dr. Norman Shearin, the current Principal at Boca Raton High School, has been employed by the Palm Beach County School Board for 24 years. He has served in the capacity of a classroom teacher, department chairman, activities director, athletic coach, dean, assistant principal, and for approximately ten years as a principal. Dr. Shearin has been assigned as Boca Raton High School's Principal since July 1, 1989.

    
    

45. Dr. Shearin has a Bachelor Degree in Mathematics and Social Studies, a Masters Degree in Educational Administration and Supervision and a Doctorate Degree in Educational Leadership and Behavioral Research. Dr. Shearin currently holds a Graduate Certificate from the State of Florida which certifies him in Educational Leadership, Mathematics and several other subjects. In addition to Dr. Shearin's employment with the Palm Beach County School Board, he has also served as an Adjunct Professor for Florida Atlantic University and Nova University. Dr. Shearin presently serves as the Senior Faculty Member for the Educational Staff at Nova University.

    
    

46. Respondent's evaluator at Atlantic High School for the 1987-88 school year was James O. Williams. He currently holds a teaching certificate and a certificate in Administration and Supervision. Mr. Williams has been employed by the Palm Beach County School System for 25 years.

    
    

47. Respondent's evaluator for the 1988-89 school year at Atlantic High School was Ms. Betty Dawson. Ms. Dawson has served in the position of assistant principal for seven years. Ms. Dawson is certified by the State of Florida in the areas of English and Administration and Supervision.

    
    

48. Respondent's evaluator for the 1989-90 school year at Atlantic High School was Ms. Jean Thurber. Ms. Thurber has been employed as a teacher and as an assistant principal during her fifteen years of employment with the School Board. Ms. Thurber has a Bachelor's Degree in Art Education and English, and a Master's Degree in Administration and Supervision. Ms. Thurber is certified as an administrator.

    
    

49. Ms. Diane Larange observed the Respondent on September 11, 1989. Ms. Larange has served as the ESOL Program Coordinating Teacher for nine of the twenty years she has worked for the School Board. Ms. Larange is an expert in

    bilingual education. She has a Master's Degree in Bilingual Education and a Bachelor's Degree in French with a Minor in Spanish and Foreign Language Education.

    
    

    Periodic Observations/Evaluations/PDP's 1/

    
    

50. Teachers are notified in the pre-school week of the evaluation forms which will be used and the basis upon which the teacher will be evaluated. Boca Raton High School also utilizes a mid-year evaluation, in addition to the final evaluation, to assist teachers by pointing out deficiencies prior to the end of the school year. Teachers are notified of the approximate date when the formal observation will take place.

    
    

51. The periodic evaluations issued before the 1987-88 school year at Atlantic High School and Boca Raton High School did not reflect an overall satisfactory or unsatisfactory rating but did provide for the teacher to state agreement or disagreement with the content.

    
    

52. The mid-year evaluation and the annual evaluation of Respondent's performance at Atlantic High School during the 1985-86 school year reflected the school administrators' concern about their perception of Respondent's interaction with Lloyd Taylor, her ESOL Aide.

    
    

53. Respondent was given a letter of expectation by Ms. Shetler, dated October 7, 1986. The purpose of the letter was to set expectations for the new school year so that the problems noted in the prior school year could be avoided. Ms. Shetler was willing to assist Respondent with her noted problems.

    
    

54. On February 17, 1987, Ms. Shetler had a conference with Respondent to review progress since the October 7, 1986, Letter of Expectation. During this conference, Respondent interrupted Ms. Shetler and stated that she wished Ms. Shetler "would stop talking about it because it was going in one ear and out the other." Ms. Shetler confirmed the discussion in a letter dated February 24, 1987.

    
    

55. During the conference of February 17, 1987, and after the conclusion of the conference, Ms. Shetler felt that Respondent's performance, from the start of the year through their conference, had not improved. Ms. Shetler also believed that the Respondent was unwilling to cooperate with attempts to remediate her performance and behavior.

    
    

56. When Ms. Shetler gave the Respondent the evaluation for the 1986-87 school year, she had another conference with the Respondent to discuss the areas that were noted as improvement needed. The specific problems discussed were:

    (1) The Respondent's waste of classroom time; (2) Respondent's negative classroom climate; (3) Respondent's failure to use the positive aspects of the assertive discipline training which she had been given; (4) Respondent's working relationship with professional staff and (5) Preparing lesson plans.

    
    

57. After the evaluation format change in the 1987-88 school year, Respondent's May 1988 annual evaluation by assistant principal James Williams and principal Carole Shetler was overall "satisfactory" (like her May 1988 Boca evaluation), and Respondent received a commendation expressing her willinginess to accept suggestions and grow professionally.

58. It has not been alleged and there is no record evidence that Respondent's performance at Boca before the 1988-89 school year was deemed anything but satisfactory.

    
    

59. In the 1987-88 school year, Respondent was evaluated at Boca Raton High School by assistant principal Robert Murley and principal Clara DeFrank when she was rated fully "satisfactory" and awarded two commendations.

    
    

60. Respondent's 1988-89 evaluator was assistant principal Betty Dawson who prepared the overall unsatisfactory January 1989 and June 1989 evaluations along with principal Carole Shetler.

    
    

61. On October 10, 1988, Ms. Dawson had one of her many conferences with Respondent. Present during the conference were Ms. Shelter, the Respondent, and Ms. Kennedy, the Respondent's Classroom Teachers Association Representative. During the conference, Respondent agreed to use a letter grading system, to make her daily objectives for the students clearer, and to note the objectives on the board. While the meeting was being conducted, the Respondent spoke to her evaluator, Mrs. Dawson, in a manner which indicated that she was upset.

    
    

62. On January 11, 1989, Atlantic High School completed a mid-year evaluation of Respondent's performance. The Respondent received five (5) areas of concern on this mid-year evaluation. Attached to Respondent's mid-year evaluation were: (1) October 21, 1988, observation notes, (2) Respondent's November 28, 1988, summative observation instrument, and (3) Summary of the conference which Ms. Dawson had with Respondent on December 1, 1988, which directed Respondent to "work on beginning class on time and handling material."

    
    

63. With respect to her January 1989 mid-year evaluation at Atlantic High School, Respondent expressly noted thereon that it was a review of previously discussed ideas and that she disagreed with some of it. She was then placed on her first PDP with a 30-day timeline to complete the remediation prescribed.

    The numerical concerns on the mid-year evaluation correlate with the "criterion" numbers/areas of concern cited on the PDP.

    
    

64. The Respondent's first PDP at Atlantic High School directed the Respondent to: (1) Read Domains 2, 3, and 5, in Domains of the Florida Performance Measurement System; (2) Visit with Ms. Tarkinson's and Ms. Fail's class; (3) "Demonstrate professionalism at all times;" and (4) "Make a sincere positive effort in working toward positive relations with co-workers."

    
    

65. Assistant Principal Robert Murley and Principal Clara DeFrank at Boca Raton High School also evaluated Respondent in the 1988-89 school year when a mid-year evaluation was also conducted. Respondent was then cited with five areas of concern (identical to the 5 cited in her Atlantic mid-year evaluation).

    
    

66. Like Atlantic's January 1989 mid-year evaluation, since Respondent also had five areas of concern cited at Boca Raton High School, she was placed on a 30-day PDP which she timely complied with and satisfied all of the remediation strategies.

    
    

67. Attached to the Respondent's mid-year evaluation at Boca Raton High School in January of 1989 were (1) Summative observations for October 26, 1988, and January 18, 1989; (2) A Deficiency notice dated January 23, 1989; and (3) The Respondent's Professional Development Plan. The concerns expressed in the January 1989 mid-year evaluation at Boca Raton High School were based on the administrators' belief that: (1) The Respondent behaved unprofessionally with

    her students; (2) The respondent behaved unprofessionally with Ms. DelBarco;

    1. The Respondent failed to start class on time; and (4) The Respondent behaved inappropriately during a parent conference.

       
       

68. The Respondent's first PDP at Boca Raton High School directed the Respondent to: (1) Read Domains 2 and 3 in Domains of the Florida Performance Measurement System; (2) Complete "Classroom Management Professional Growth Component;" (3) Display a positive professional demeanor at all times; and

    1. Demonstrate professional relationship with noninstructional personnel.

    
    

69. In a conference which was held on June 12, 1989, the Respondent received her annual evaluation from Atlantic High School. Attached to the Respondent's evaluation were: (1) A deficiency notice dated June 6, 1989; (2) A summary of conferences held with the Respondent from February 23, 1989, through May 11, 1989; (3) Several incident reports involving students; (4) Respondent's summative observations dated February 28, May 1, and June 5, 1989; and (5) The Respondent's up-dated Professional Development Plan which recommended "district level remediation in the Fall." The observation documents reported that during the observations the Respondent either started late or that she had "very little instruction going on." At the time of the conference, Ms. Dawson still had concerns about the Respondent's performance.

    
    

70. Although Respondent had successfully complied with and otherwise completed the remediation set forth in her January 1989 (first Atlantic) PDP timely, within the prescribed thirty days, Respondent was nonetheless again cited in those same five areas on her June 1989 evaluation by Dawson and Shetler.

    
    

71. The areas of concern/criteria (C-12, self control, and C-13, effective working relationships with coworkers) were cited on both the 1988-89 mid-year and annual evaluations and related PDP's solely because of the September 8, 1988, Delbarco incident even though no other comparable incidents had occurred with any aide, coworker, or administrator.

    
    

72. With 5 areas of concern cited (rather than 4 or less), Respondent's annual evaluation was "unsatisfactory' and she was necessarily placed on her Atlantic PDP.

    
    

73. Had the areas of "concern" C-12 and C-13 not again been cited on her evaluation, Respondent would not have been placed on her June 1989 second (1988-

    1. annual) PDP since she would have had an overall "satisfactory" evaluation. However, since she was again placed on a PDP, she was the subject of District remediation at the beginning of the 1989-90 school year, increased observations, and a mid-year evaluation.

       
       

74. Later, in May 1989, Respondent was tendered her annual, and last Boca evaluation, which was also completed by Murley and DeFrank, again citing the same five concerns set forth in the mid-year evaluation, as well as another titled "Adheres to and Enforces School Policies."

    
    

75. On September 11, 12, and 13, 1989, the Respondent received District level remediation at the request of both schools. The Respondent was referred for District level remediation because the Administrators at both schools felt like they had exhausted their resources with regard to the workshops, reading, and suggestions they could offer.

76. On September 11, 1989, the Respondent was observed and counseled by Ms. Diane Larange, the ESOL Program Coordinating Teacher. At a later date, Ms. Larange sent Ms. Shetler and the Respondent a list of ESOL teachers she felt the Respondent should visit. Ms. Larange was of the opinion that the observation was overall satisfactory, although there were some minor things that could have been improved. Ms. Larange had previously observed the Respondent on several occasions in prior years and all of those observations were generally satisfactory.

    
    

77. On September 12 and 13, 1989, the Respondent received assistance from Dr. Mary Gray, an expert in teacher education. The Respondent was assisted in the areas of: (1) Instructional organization and development; (2) Verbal and nonverbal communication; (3) Management of student conduct; and (4) Classroom climate. During the remediation sessions the Respondent was, in general, unenthusiastic. This was largely because the Respondent did not feel that the remediation offered was addressing any specific professional need relevant to her. The Respondent had requested assistance specifically addressed to the teaching of ESOL classes, which assistance was not provided.

    
    

78. At no time prior to December 14, 1989, did Murley or any other Boca administrator or designee discuss with Respondent the results of any of the observations or summatives preceding that date in the 1989-90 school year, including her last (11-1-89) fully satisfactory observation/summative.

    
    

79. Ultimately, about January 5, 1990, Respondent was tendered her mid- year evaluation and later a letter with attachments from Shetler dated January 8, 1990, referencing the evaluations and attachments, and advising that further assistance would not be recommended.

    
    

80. Except as to her June 1986 annual evaluation, Respondent expressly disagreed with the material content of most of her periodic evaluations setting forth areas allegedly needing improvement, unsatisfactory areas, and/or areas, of concern, from January 1986 through January 1990.

    
    

81. In each instance where Respondent disagreed with the material content of those evaluations before the evaluation format change in the 1987-88 school year, Respondent expressly noted her disagreement by marking the box stating "I disagree with the content of this evaluation," and on two such instances she forwarded letters expressing the substance of her disagreement.

    
    

    ESOL Experts and Unique Nature of ESOL Instruction

    
    

82. ESOL is an educational program which uses the English language exclusively to teach English to speakers of other languages. ESOL teachers are not required to know the languages spoken by their students. ESOL classes should ideally be taught in a non-threatening manner using fun activities. The field of ESOL encourages the "buddy system." The buddy system pairs a beginning level ESOL student with a higher level ESOL student who speaks the same language. ESOL advocates cooperative learning, in which students help one another.

    
    

83. Yvonne Cadiz is an expert in ESOL education such as observing, assessing, evaluating, and providing expert training and teaching, implementing the currently accepted newer ESOL teaching methodologies to ESOL teachers, in advising and assisting county school districts in implementing the service plan containing such newer methodologies and training techniques, and in advising the State Board of Education in those areas to develop rules to implement on-going

    changes in ESOL education. Ms. Cadiz is the past president of Gulf TESOL and a past sponsor of the ESOL Leadership Conference.

    
    

84. The evaluation instrument and related summative used by the District to evaluate teachers is geared primarily to regular classroom teachers, not to teachers of "multi-level" ESOL instruction, which contains unique teaching methodologies. Administrators performing the observations and evaluations using those instruments generally lack the specialized ESOL background to recognize or adequately evaluate ESOL instructional skills or otherwise make effective recommendations on how to improve ESOL educational techniques.

    
    

85. At all times material, none of the District's principals or assistant principals assigned to observe or evaluate Respondent had any of the requisite ESOL educational background or knowledge of the unique nature of ESOL education or its teaching methodologies.

    
    

86. Accordingly, the criticisms directed to Respondent by such evaluators in their observation summatives, related documents, and periodic evaluations cannot be fully credited as valid and accurate criticisms. Such evaluators or other District administrators do not appear to have adequately observed and/or evaluated Respondent's teaching abilities or to have otherwise suggested or offered competent, adequate, suggestions for improvement or related remediation of perceived performance deficiencies.

    
    

87. Accordingly, I credit the opinion of ESOL experts Yvonne Cadiz and Diane Larange that Respondent's classroom teaching skills were satisfactory.

    
    

    Respondent's treatment of work associates

    
    

88. An ESOL Aide named Roxana DelBarco was hired for the 1987-88 school year to be an aide in the Respondent's ESOL classes at both Boca Raton High School and Atlantic High School. 2/ Ms. DelBarco apparently worked as the Respondent's ESOL aide for the entire 1987-88 school year without any significant incident.

    
    

89. Ms. DelBarco returned in the same capacity for the 1988-89 school year. On September 8, 1988, an incident occurred in which the Respondent became annoyed or frustrated by Ms. DelBarco's inability to successfully complete an errand. In the course of sending Ms. DelBarco on the errand a second time, the Respondent raised her voice or otherwise spoke harshly to Ms. DelBarco in front of the students. The manner in which the Respondent spoke to Ms. DelBarco hurt the latter's feelings and caused her to cry.

    
    

90. As a result of the September 8, 1988, incident, Ms. DelBarco decided she no longer wished to work with the Respondent and reported her decision to resign to the school administrators. A conference was held to try to persuade Ms. DelBarco to change her mind. During the course of the conference, the Respondent admitted she had raised her voice, apologized for doing so, and offered to talk to Ms. DelBarco about changing her decision to resign. Ms. DelBarco did not change her mind.

    
    

91. As a result of the September 8, 1988, incident involving Ms. DelBarco, the Respondent was given written reprimands by both Atlantic High School and Boca Raton High School. Atlantic High School provided the Respondent with two recommendations: (1) Treat future aides in a "courteous and professional manner," while discussing differences of opinion in private and (2) Communicate with students in a courteous and kind manner, while refraining from "sarcasm or

    humiliating remarks as a means of discipline." Boca Raton High School advised the Respondent that she was to behave with staff and her students in a manner which demonstrated "positive, courteous interactions free from sarcasm, unnecessary loudness/harshness, or embarrassment in front of others."

    
    

92. At the time of the September 8, 1988, incident, the two schools could have disciplined the Respondent by at that time placing her on a PDP, citing "criterions" 12 and 13. Both schools elected not to do so at that time. However, even though there were no similar incidents, both schools cited "criterions" 12 and 13 in the Respondent's mid-year evaluations at both schools, and placed her on PDP's.

    
    

93. The Respondent timely and satisfactorily complied with and completed the prescribed remediation set forth in her 1988-89 mid-year PDP's (her first PDP's) without any further incidents relating to "criterions" C-12 or C-13 during the 30-day period specified in the PDP's or during the remainder of the 1988-89 school year.

    
    

94. The foregoing notwithstanding, the Respondent's annual evaluations at the end of the 1988-89 school year cited "criterions" C-12 and C-13. As a direct result of these repeat citations, the Respondent was placed on a second PDP at both schools, even though there had been no similar incidents since the DelBarco incident. Had these two "criterions" not again been cited, the Respondent's annual evaluations at both schools would have been satisfactory. In view of the time of and the nature of the September 8, 1988, incident with Ms. DelBarco, and in view of the fact that there were no similar incidents during the remainder of the 1988-89 school year, the Respondent should have received satisfactory annual evaluations at both schools for the 1988-89 school year. 3/

    
    

95. At the beginning of the 1989-90 school year, an ESOL Aide named Maria Montiel was assigned to be the aide in the Respondent's ESOL classes at Atlantic High School. From the very beginning, the Respondent was apparently annoyed by the fact that Ms. Montiel seemed to be somewhat lacking in initiative, energy, and direction, even though Ms. Montiel was, generally, a sweet, warm-hearted, caring person. 4/ The Respondent went to one of the administrators, Ms. Thurber, to explain that she was having problems getting Ms. Montiel to follow instructions. Among other things, Ms. Montiel had questioned whether she was required to perform certain tasks the Respondent had asked her to do; tasks Ms. Montiel seemed to regard as work more appropriate for custodians than for teacher aides. As a result of being dissatisfied and annoyed with Ms. Montiel's performance, on a couple of occasions during the first three weeks of the 1989-

    1. school year, the Respondent spoke to Ms. Montiel in a loud voice or in a harsh tone of voice. The Respondent had good reasons for being annoyed on both occasions. After about three weeks, Ms. Montiel decided that she did not wish to work as the Respondent's aide. At Ms. Montiel's request, she was transferred to work at another school. Ms. Montiel's primary reason for not wanting to work with the Respondent was that she felt under-appreciated and under-utilized.

    
    

96. During the 1989-90 school year, after Ms. Montiel left, Harvey Lee, Jr., was assigned to work as an aide at Atlantic High School in the Respondent's first period class and for part of the Respondent's planning period. Early in their relationship there was an incident in which the Respondent spoke harshly to Mr. Lee. Mr. Lee discussed the incident with the Respondent, the Respondent apologized to Mr. Lee, and for the remainder of that school year Mr. Lee and the Respondent had a harmonious relationship.

97. During the 1989-90 school year on one occasion the Respondent raised her voice to a substitute teacher, Inga D'Orazio, in front of the class. The Respondent was admonishing the substitute for not following instructions the Respondent had left. 5/

    
    

    Respondent's treatment of her students

    
    

98. The Respondent appears to have a tendency to be impatient with students who are disruptive or who otherwise appear not to be trying to learn. As a result of this tendency, she probably refers more students to the office than the average teacher. 6/ But the evidence in this case does not show that the Respondent regularly engages in inappropriate or excessive disciplinary referrals. 7/

    
    

99. It is probable that the majority of the students the Respondent referred to the office for disciplinary reasons were of Haitian origin. 8/ It is clear that the majority of the students in the Respondent's classes were of Haitian origin. The Respondent's discipline referrals were all based on Respondent's evaluation of the conduct of each student referred. The Respondent did not discriminate on the basis of race or place of national origin in her discipline referrals.

    
    

100. The Respondent did not prohibit her students from going to the bathroom during class. She did, however, discourage them from doing so. Her discouragement was consistent with school policy at both schools which generally discouraged teachers from issuing restroom or hall passes to students, absent an emergency.

     
     

101. The Respondent provided reasonable assistance to her students at reasonable times and permitted her aides to do likewise. The Respondent would refuse to assist students or to answer student's questions during the course of such activities as lectures or testing. Such refusals were reasonable.

     
     

102. At all times relevant to this case, the Respondent communicated with and related to the students in her classrooms to such an extent that the students received at least a minimum educational experience.

     
     

     Miscellaneous Findings

     
     

103. The School Board of Palm Beach County, Florida, has entered into an Agreement with the Classroom Teachers Association (CTA), the representative of the teachers' bargaining unit. Said Agreement delineates terms and conditions of employment for teachers and provisions of this Agreement are applicable to Respondent's employment.

     
     

104. Teachers at Atlantic High School are expected to have their grade book, attendance book, and lesson plans available for substitute teachers. On one or two occasions during the 1989-90 school year the Respondent may have failed to have a lesson plan available or may have had an inadequate lesson plan available for a substitute. 9/

     
     

105. During the 1986-87 school year, the Respondent was slow in complying with written instructions that she complete her course expectation and class rules. She did, however, ultimately comply.

     CONCLUSIONS OF LAW

     
     

106. Based on the foregoing findings of fact and on the applicable legal precedents and authorities, the following conclusions of law are reached:

     
     

107. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

     
     

108. Section 231.36(4)(c), Florida Statutes, provides in part:

     
     

     (c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal,

     who is under continuing contract may be suspended or dismissed at any time during the school year, however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension

     by the school board or by the superintendent,

     the school board shall determine upon the evidence submitted whether the charges have been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he may be reinstated.

     
     

     In this case, the Petitioner has charged Respondent with misconduct in office, incompetency, gross insubordination and willful neglect of duty.

     
     

109. Petitioner's Administrator's Directive #D-3.27 details grounds for suspension and termination which are similar to the grounds set forth in Section 231.36, Florida Statutes.

     
     

110. In promulgating Rule 6B-4.09, Florida Administrative Code, the State Board of Education defined all of the aforementioned charges for the purposes of Section 231.36(4)(c), Florida Statutes. Pertinent to this case, Rule 6B-4.09, Florida Administrative Code, provides:

     
     

     The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36,

     Florida Statutes. The basis for each of such charges is hereby defined:

     
     

     1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case

        may be made on the basis of testimony by members

        of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing

        the existence of one (1) or more of the following.

        
        

        1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience;

     
     

     1. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession

        as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession

        in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

        
        

     2. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

     
     

     In this case, Petitioner's charge of incompetency is based upon inefficiency. Accordingly, the issues are whether Respondent repeatedly failed to perform duties prescribed by law (Section 231.09, Florida Statutes) or repeatedly failed to communicate with and relate to children in the classroom, to such an extent that pupils were deprived of a minimal educational experience.

     
     

111. Section 231.09, Florida Statutes, provides:

     Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

     
     

112. Article II, Section A, of the contract between the Petitioner and The Classroom Teachers Association (Contract), outlines teacher responsibilities which includes the duty to "assist in the smooth functioning of a school center in compliance with Florida Statute 231.09 dealing with the duties of instructional personnel."

     
     

113. Article II, Sections F(4) and (6) of Respondent's Contract state:

     
     

     (4) Employees assume the responsibility for taking a positive approach to discipline and to maintain constructive classroom control.

     An employee may impose prudent classroom discipline consistent with the school's student Code of Conduct and disciplinary procedure.... Any discipline imposed by an employee must be consistent with Board Policy and State and Federal Law".

     (6) In order to facilitate better coordination between the principal and the teacher regarding disciplinary action taken by the teacher and the principal, each school shall use this report to maintain an adequate report of classroom discipline. The teacher shall use this report to maintain an adequate report of classroom discipline.

     
     

114. Section 231.29(2) and (8), Florida Statutes, discusses the "procedure for assessing the performance of duties and responsibilities of all instructional... personnel employed" in a school district. The pertinent subsections noted above state the following:

     
     

     (2) For the purpose of improving the quality of instructional, administrative and supervisory services in the public schools of the State, the superintendent shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative and supervisory personnel employed in his district.

     
     

     (8) Locally developed or selected assessment systems shall be initially reviewed and annually approved by the State Board of Education for a determination of compliance with the provisions

     of this Section beginning no later than July 1, 1987.

     
     

115. Article II, Section G, of Respondent's Contract codifies Petitioner's assessment procedure. Subsection (3) speaks to the need to conduct observations of instructional personnel but does not require written or oral feedback to be given within a ten-day period when it would be inappropriate. Subsection (7) prohibits administrators from discussing "any matter relating to the performance of any employee in the presence of... employees not directly affected."

     
     

116. The Florida courts have recently clarified that in a proceeding of this nature, the Petitioner has the burden of proving its allegations by a preponderance of the evidence. See Dileo v. School Bd. of Dade County, 15 FLW D2781 (Fla. 3d DCA 1990); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986).

     
     

117. It is also clear that the Florida courts have equated the term "continuing contract" with "tenured" status for Florida teachers. See Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978). More recently, it has been held that those terms are used "synonymously." Duval County School Board v. State Department of Administration, 500 So.2d 158 (Fla. 1st DCA 1986), at footnote 3. And in Gainey v. School Board of Liberty County, 387 So.2d 1023, 1029 (Fla. 1st DCA 1980), the court held that Section 231.36(4), Florida Statutes, "is in effect a penal statute, which must be strictly construed, and any ambiguities must be construed in favor of the employee."

     
     

118. With regard to allegations of "misconduct," the courts have emphasized that impairment of the individual's effectiveness in the school system is an independent element of the charge and, as such, must be alleged and proved in addition to the allegation and proof of the substantive act or acts of misconduct. See, Boyette v. State, Professional Practices Council, 346 So.2d

     598 (Fla. 1st DCA 1977); Smith v. School Board of Leon County, 405 So.2d 183

     (Fla. 1st DCA 1981); Braddock v. School Board of Nassau County, 455 So.2d 394 (Fla. 1st DCA 1984). To similar effect see also Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984).

     
     

119. Contemplation of the totality of the evidence in this case brings to mind the following lyrics from a recent popular song: "All along, there were incidents and accidents, there were hints and allegations." 10/ There are many incidents, accidents, hints, and allegations in the record in this case, a record quite full of opportunities for inferences and innuendos; opportunities enough to cause a reasonable school administrator to believe that with this much smoke there must be a fire somewhere. But when the smoke is all blown away and one takes a good clear look at what is left, there is a dearth of convincing evidence to establish the charges brought against the Respondent. Certainly, there were shortcomings in the Respondent's performance during the relevant time period -- shortcomings which warranted some intervention and corrective action by school administrators. But the record in this case does not establish any conduct by the Respondent that constitutes incompetency, misconduct in office, willful neglect of duty, or gross insubordination, nor does it support any other basis for dismissing the Respondent.

     
     

120. Much of the evidence the School Board seeks to rely upon in support of its position has been disregarded in formulating the Findings of Fact in this case, because it addresses matters that are not alleged in the Amended Petition For Dismissal. Such evidence is, in the final analysis, irrelevant because proof of matters not charged in the Amended Petition For Dismissal cannot be used as a basis for suspension or termination of a teacher. It is clear from the language of Section 231.36(4)(c), Florida Statutes, that a teacher can only be suspended or dismissed on the basis of "the charges against him." It is also clear that Section 231.36(4), Florida Statutes, must be strictly construed. See Edgar v. School Board of Calhoun County, 549 So.2d 726 (Fla. 1st DCA 1989); Gainey v. School Board of Liberty County, 387 So.2d 1023 (Fla. 1st DCA 1980). Misconduct not charged cannot be the basis for suspension or termination of a teacher, even where the uncharged misconduct is proved at the hearing. See Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978), in which at footnote 2 the court noted:

     
     

     There was one finding of more serious conduct....

     This finding, however, had no predicate in the charges filed against her. Such a finding, in the absence of notice, may not be a lawful basis for discharge.

     
     

     To similar effect, see Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984), in which the court noted:

     
     

     Although a complaint filed by an administrative agency is not required to fulfill the technical niceties of a legal pleading, it must be specific enough to inform the accused with reasonable certainty of the nature of the charges.

     
     

121. With regard to what was charged, much of the Petitioner's evidence is simply unpersuasive. Specifically, as noted in the Findings of Fact and in the Appendix, much of the evidence regarding the observations and evaluations of the Respondent's classroom teaching is unpersuasive. The greater weight of the evidence is to the effect that the Respondent was doing a better job than is reflected in many of the observations and evaluations. 11/ And with regard to

     the other charges in the Amended Petition For Dismissal, much of the evidence was either unpersuasive or incomplete. As noted in Laney v. Board of Public Instruction, 153 Fla. 723, 15 So.2d 748 (1943), "there must be evidence which supports a substantial basis of fact from which the fact in issue can be reasonably inferred. It must do more than create a suspicion of the fact to be established...." The evidence in this case raises a number of doubts and suspicions, but for the most part it is ultimately unpersuasive on the relevant factual issues. And although it is true that the Petitioner has proved some shortcomings in the professional conduct of the Respondent, none of what has been proved is sufficient to establish any of the statutory grounds for suspension or dismissal. Accordingly, it must be recommended that the charges be dismissed and that the Respondent be reinstated.

     
     

122. The Respondent has devoted extensive argument to the proposition that, in addition to back pay, a teacher who prevails in a case of this nature is entitled to an award of costs and attorney fees. 12/ Of the many cases cited by Respondent in support of an award of costs and attorney fees, all but one appear to be readily distinguishable. The one case that appears to be on point, Krueger v. School District of Hernando County, 544 So.2d 331 (Fla. 5th DCA 1989), also appears to be an unintelligible aberration. The Krueger decision clearly finds fault with the failure of a DOAH Hearing Officer to address the issue of a teacher's request for an attorney fee. The Krueger decision also clearly directed the School Board "to remand appellant's request for attorney's fees to the hearing officer for a formal evidentiary hearing in accordance with Sec. 120.57, Florida Statutes (1987)." But the Krueger court never said why it was remanding the case and it never identified any basis for concluding that a school teacher in a case of this nature is entitled to an award of costs and attorney's fees.

     
     

123. It is well settled in Florida that all parties to litigation are responsible for their own costs of litigation and attorney fees, except where there is some rule or statute specifically providing for recovery of such costs and fees from an opposing party. There is no rule or statute authorizing an award of attorney fees in a case of this nature. The only statutorily authorized remedy is reinstatement with back pay. Accordingly, there is no basis upon which to recommend that the Respondent be awarded her costs of litigation and attorney fees in this case.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that the School Board of Palm Beach County issue a final order in this case dismissing all charges in the Amended Petition For Dismissal, restoring the Respondent to her position of employment on the instructional staff, and awarding the Respondent back pay from the date of her suspension without pay until the day she is restored to her position of employment.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June 1991.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June 1991.

ENDNOTES

1/ Many of the facts regarding the periodic observations and evaluations of the Respondent were stipulated to by the parties. In this regard, see paragraphs 5 through 28 of the previous Findings of Fact.

2/ See DelBarco desposition, page 18, lines 20-24.

3/ For reasons that are not clearly revealed in the record of this case, it appears that Ms. DelBarco over-reacted to a relatively minor incident and that her over-reaction was ultimately blown all out of proportion by the administrators at Atlantic High School and Boca Raton High School.

4/ Ms. Montiel also appears to have been a person whose feelings were easily hurt and who was easily offended.

5/ This incident with Ms. D'Orazio, as well as the incident with Mr. Lee, appear to be trivialities that in the normal course of events would have been overlooked and would normally never have become the basis for any disciplinary action.

6/ The Petitioner's evidence regarding the Respondent's disciplinary referrals was incomplete, to a large extent hearsay, and, for the most part, unpersuasive. Many inferences the Petitioner seeks to draw from the evidence are simply unwarranted.

7/ The record in this case contains evidence of a few disciplinary referrals that appear to be questionable, but the evidence is too vague and incomplete to reach any firm conclusions about the propriety of those episodes. It is also noted that the Petitioner had available in its files information from which it could have documented all of the Respondent's disciplinary referrals. Instead of offering all of that information the Petitioner only presented selected items. The failure to offer all of the referrals casts doubt upon the validity of drawing any generalized conclusions based upon the small sample.

8/ On the record in this case it cannot be said with certainty that the majority of the students referred by the Respondent were of Haitian origin because, as noted in the immediately preceding footnote, the evidence regarding the Respondent's referrals was incomplete and was based more on impressions and appearances rather than a complete review of the records of the Respondent's referrals.

9/ The Petitioner's proposed findings imply that the Respondent hardly ever had any lesson plans. However, the finding made above is the most that can be made on the record in this case. The evidence is ambiguous and uncertain in some respects. (See for example, D'Orazio deposition, page 12, lines 24-25; page 17, lines 5-6 and lines 22-24.) Just as ambiguities in penal statutes must be resolved in favor of respondents, ambiguities in the evidence must be resolved in favor of respondents in this type of proceeding.

10/ Paul Simon, "You Can Call Me Al," The Graceland Album, Side 2, Cut 1.

11/ The Respondent argues that the unfavorable observations and evaluations were part of a plot or conspiracy to get rid of her. No plot or conspiracy is proved by the evidence. More likely than not, the unfavorable observations and evaluations resulted from a combination of a failure of the observers and evaluators to have a good understanding of appropriate ESOL teaching methods and a failure of the Respondent and her administrators to communicate effectively.

12/ See pages 3 through 9 of "Respondent's Memorandum of Law in Support of Her Proposed Findings of Fact, Conclusions of Law and Recommended Order," which was filed with the Respondent's proposed recommended order.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2307

The following are my specific rulings on all proposed findings of fact submitted by all parties:

Findings proposed by Petitioner: Paragraphs 1 through 4: Accepted.

Paragraph 5: Rejected as subordinate and unnecessary details.

Paragraph 6: Accepted.

Paragraphs 7 and 8: Rejected as irrelevant because the Respondent has not been charged in the Amended Petition For Dismissal with failure or refusal to use the School Board's approved textbooks. Fundamental notions of due process require that the Respondent in a case of this nature be given notice of all reasons upon which a proposed dismissal is based. Reasons not stated cannot be a basis for dismissal.

Paragraph 9: Rejected as irrelevant because the Respondent has not been charged in the Amended Petition For Dismissal with refusing to allow students to take books home. (The charge that she disciplined students for taking books home is a different matter, which is addressed elsewhere in this Recommended Order.) Paragraph 10: Rejected as not fully supported by competent substantial evidence, and as, in any event, irrelevant because Ms. Cadiz' testimony that copying the important part would be acceptable has not been shown to be at substantial variance from what the Respondent was doing.

Paragraph 11: Rejected as irrelevant because the Respondent's "beliefs" about discipline are not at issue in this case; only her conduct is at issue.

Paragraph 12: Rejected as irrelevant, because the fact that there were "complaints" is of no moment in the absence of competent substantial evidence that there was some merit to the complaints. The merits of the complaints are addressed elsewhere in this Recommended Order.

Paragraph 13: Rejected as rhetoric, speculation, and argument, rather than proposed findings of fact.

Paragraph 14: First two sentences accepted, last sentence rejected as contrary to the greater weight of the evidence.

Paragraph 15: Rejected as contrary to the greater weight of the evidence. (Two experts in ESOL instruction, Ms. Cadiz and Ms. Larange, are of the opinion that the Respondent has at least satisfactory ESOL teaching skills; the administrators who evaluated her concluded otherwise. I have credited the opinions of the ESOL experts.)

Paragraph 16: Accepted.

Paragraph 17: Accepted, with exception of last sentence. Last sentence is rejected as irrelevant.

Paragraphs 18 and 19: Accepted.

Paragraph 20: First sentence accepted. The remainder is rejected as not fully supported by competent substantial evidence.

Paragraph 21: Accepted in substance.

Paragraph 22: Rejected as in part irrelevant and in part contrary to the greater weight of the evidence. The greater weight of the evidence is that the Respondent did not have any rule prohibiting students from asking for assistance or prohibiting students from going to the bathroom. (The evidence to the contrary is largely hearsay and, in any event, unpersuasive. The Petitioner appears to have drawn unwarranted inferences from a few isolated episodes.) Paragraphs 23 through 29: Accepted.

Paragraph 30: Accepted in substance with the exception of the last line, which constitutes argument rather than a proposed fact.

Paragraphs 31 and 32: Accepted.

Paragraph 33: Rejected as irrelevant because the Respondent has not been charged in the Amended Petition For Dismissal with late submission of her objectives.

Paragraph 34: Rejected as irrelevant because the Respondent has not been charged in the Amended Petition For Dismissal with failing to use the approved textbook.

Paragraph 35: The first sentence of this paragraph is accepted. The remainder is irrelevant because there is no persuasive competent substantial evidence as to how the Respondent treated Mr. Taylor. (The only evidence regarding how Mr. Taylor was treated is either hearsay or rather vague and more editorial than factual in nature.)

Paragraph 36: Rejected as constituting subordinate and unnecessary details. Paragraph 37: All but last sentence accepted. Last sentence is rejected as irrelevant.

Paragraphs 38-40: Accepted.

Paragraph 41: Irrelevant in light of the disposition of the proposed findings in Paragraphs 42, below.

Paragraph 42: Rejected as not supported by persuasive competent substantial evidence. The testimony about the Respondent's treatment of both Mr. Graham and Mr. Taylor was at best vague and was more editorial than factual.

Paragraph 43: Rejected as not fully supported by persuasive competent substantial evidence. As noted above, there are shortcomings in the evidence regarding the Respondent's treatment of Mr. Graham and, in any event, there were also other reasons for reassigning Mr. Graham.

Paragraphs 44 through 51: Accepted.

Paragraph 52: Rejected as irrelevant because the Amended Petition For Dismissal does not charge the Respondent with failing to use the adopted textbook.

Paragraph 53: Accepted.

Paragraph 54: Rejected as subordinate and unnecessary details.

Paragraph 55: First and last sentences accepted. The remainder is rejected as irrelevant.

Paragraph 56: For the most part rejected as not supported by persuasive competent substantial evidence. Ms. DelBarco's deposition testimony is not very persuasive and has not all been taken at face value. Much of Ms. DelBarco's testimony is subjective and imprecise and appears to be somewhat exaggerated.

The Respondent's version of the DelBarco incident appears to be more reliable. On the whole, it appears that a single incident involving Ms. DelBarco has been blown out of proportion.

Paragraph 57: Accepted in substance, but with somewhat different inferences drawn from the evidence.

Paragraph 58: Accepted in substance.

Paragraph 59: First three sentences accepted. Last two sentences rejected as irrelevant.

Paragraphs 60-64: Accepted.

Paragraph 65: Accepted in substance, but with some additional clarifying findings.

Paragraphs 66 and 67: Accepted. Paragraphs 68-70: Accepted in substance.

Paragraph 71: Rejected as for the most part constituting subordinate and unnecessary details. Last sentence also rejected as not fully supported by the evidence.

Paragraph 72: Accepted.

Paragraph 73: Rejected because the majority of what is proposed here is supported only by hearsay evidence. The few details that are supported by competent substantial evidence are irrelevant in the absence of competent substantial evidence of what happened in the classroom.

Paragraph 74: Rejected as constituting a summary of the contents of Ms. DelBarco's resignation letter and a summary of Ms. DelBarco's deposition testimony, rather than proposed findings of fact. Also rejected as for the most part not supported by persuasive competent substantial evidence or as contrary to the greater weight of the evidence. As noted elsewhere in this Appendix, Ms. DelBarco's deposition testimony is not very persuasive and has not all been taken at face value. Much of Ms. DelBarco's testimony is subjective and imprecise, and appears to be somewhat exaggerated.

Paragraph 75: Rejected, because a finding that the Respondent "mistreated her Haitian students" (which is the central thesis of this proposed finding) is contrary to the greater weight of the evidence. While the record indicates that from time to time there may have been some shortcomings in the way the Respondent handled student discipline, there is no persuasive evidence of any serious shortcoming in her student discipline practices. Specifically, there is no persuasive evidence that the Respondent treated her Haitian students any differently than she treated any of her other students.

Paragraph 76: First two sentences rejected as not supported by persuasive competent evidence and as contrary to the greater weight of the evidence. I have credited the Respondent's testimony to the effect that her disciplinary referrals were not discriminatory and were not punitive. The third sentence is rejected as not supported by persuasive competent substantial evidence. The last two sentences are rejected as irrelevant.

Paragraphs 77 and 78: Accepted in substance, with some unnecessary details omitted, and many additional details added for clarity and accuracy.

Paragraph 79: First sentence accepted in substance, but with additional details. Second sentence rejected as irrelevant because the Respondent has not been charged in the Amended Petition For Dismissal with any incident involving room keys. As an aside, it is noted that the testimony about the key incident was a triviality based more on a misunderstanding than anything else. The last sentence is rejected as irrelevant.

Paragraph 80: Rejected as irrelevant because the Respondent has not been charged in the Amended Petition For Dismissal with failing to move her class to another room. As an aside it is noted that this "odor in the room" issue also appears to have been a triviality.

Paragraph 81: Rejected as not supported by competent substantial evidence; all of the evidence regarding Myrvey Elien's reasons for leaving school was uncorroborated hearsay.

Paragraph 82: Rejected as irrelevant, because the greater weight of the evidence regarding the fire drill incident is that there were logical permissible reasons for the differences in the discipline meted out.

Specifically, the greater weight of the evidence is to the effect that the differences in the discipline were not based on the race or nationality of the students involved.

Paragraph 83: Rejected as for the most part not supported by persuasive competent substantial evidence, and as, in many respects, contrary to the greater weight of the evidence. What little in this paragraph is supported by competent substantial evidence is largely irrelevant or out of context. The conclusion that the Respondent was prejudiced against Haitian students is not supported by the record in this case.

Paragraph 84: Rejected as constituting argument, rather than proposed findings of fact.

Paragraph 85: Accepted, with the exception of the last sentence. The last sentence is rejected as irrelevant.

Paragraph 86: Accepted in substance, with some clarifying details added and some irrelevant details omitted.

Paragraph 87. Rejected as constituting, for the most part, subordinate and unnecessary details.

Paragraphs 88-89: Accepted in substance.

Paragraph 90: Accepted in substance, with the exception of the last sentence. The last sentence is rejected as irrelevant.

Paragraphs 91 and 92: Accepted in substance.

Findings submitted by Respondent: Paragraphs 1 through 29: Accepted.

Paragraphs 30 and 31: Rejected as constituting conclusions of law rather than findings of fact.

Paragraphs 32 through 38: Accepted. Paragraph 39: Accepted in substance. Paragraphs 40 through 49: Accepted. Paragraphs 50 and 51: Accepted in substance. Paragraphs 52 through 58: Accepted.

Paragraph 59: Rejected as argument, rather than a specific proposed finding of fact.

Paragraph 60: Rejected as unduly repetitious. Paragraph 61: Accepted in substance.

Paragraph 62: First three lines rejected as irrelevant. Last two lines accepted in substance.

Paragraph 63: Accepted.

Paragraphs 64 through 68: Accepted in substance, but with much of the editorial language modified or omitted.

Paragraph 69: Rejected as constituting argument or conclusions of law, rather than proposed findings of fact. (The merits of this argument are addressed in the Conclusions Law portion of this Recommended Order.)

Paragraphs 70 and 71: Accepted in substance. Paragraph 72: Rejected as unduly repetitious. Paragraph 73: Accepted in substance.

Paragraphs 74-78: Rejected as primarily constituting argument, rather than proposed findings of fact. (The merits of these arguments are addressed in the conclusions of Law portion of this Recommended Order.)

Paragraphs 79 and 80: Accepted in substance with some argumentative portions omitted.

Paragraph 81: Accepted in substance.

Paragraphs 82-84: Rejected as constituting argument and legal conclusions, rather than proposed findings of fact.

Copies furnished:

Hazel L. Lucas, Esquire

School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, Florida 33410

Robert A. Miles, Esquire Chamblee, Miles & Grizzard

202 Cardy Street Tampa, Florida 33606

Mr. Thomas J. Mills, Superintendent Palm Beach County School Board

3323 Belvedere Road

West Palm Beach, Florida 33402

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002307

Orders for Case No: 90-002307