STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 94-1765
)
FLOSSIE M. EDWARDS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, a formal hearing was conducted in this case on May 9, 1995, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Johnny Brown, Esquire
Dade County School Board
1450 Northeast Second Avenue, Suite 301
Miami, Florida 33132
For Respondent: Stephen K. Loffredo, Esquire
Suite 216, Shoreview Building 9999 Northeast Second Avenue Miami Shores, Florida 33138
STATEMENT OF THE ISSUE
The basic issue in this case concerns whether the Respondent's employment as a teacher with the School Board of Dade County should be terminated for reasons alleged in a Notice of Specific Charges. The principal grounds for termination alleged in the Notice of Specific Charges are incompetence and gross insubordination.
PRELIMINARY STATEMENT
The case began on March 23, 1994, when the School Board of Dade County, Florida, acted to suspend and initiate dismissal proceedings against Respondent, Flossie M. Edwards. Following a request for formal hearing, the matter was forwarded to the Division of Administrative Hearings for assignment of a Hearing Officer. The matter was originally scheduled for formal hearing on October 7, 1994. The Respondent requested and obtained several continuances of the formal hearing. On May 9, 1995, the formal hearing was conducted, at which time all parties were represented by counsel.
At the hearing on May 9, 1995, the Board presented the testimony of nine witnesses, as follows: Marie F. Harrison, Principal at South Hialeah Elementary; Patricia Grimsley, Principal at Charles R. Drew Middle School;
Dorothy Perrin, Assistant Principal at Springview Elementary; Marguerite Radencich, Reading Supervisor; Juan Lengomin, Region III Director; Gwendolyn Bryant, Assistant Principal at South Hialeah Elementary; Norma Bossard, Executive Director, Language Arts/Reading; Aylin Mendiola, former Assistant Principal at South Hialeah Elementary (on sabbatical leave); and Dr. Joyce C. Annunziata, Executive Director of the Academy for Instructional Leadership. The Board's Exhibits numbered 1 through 41 were admitted into evidence, and the Hearing Officer took official recognition of Chapter 231, Florida Statutes, and portions of Chapter 6B-4, Florida Administrative Code.
Respondent testified in her own behalf and presented the testimony of the following witness: Reginald Bell. Respondent offered one exhibit which was admitted into evidence.
At the conclusion of the hearing the parties requested, and were granted,
15 days from the filing of the transcript within which to submit their proposed recommended orders. The transcript was filed on July 13, 1995, and thereafter all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposed recommended orders have been carefully considered during 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.
To facilitate an understanding of the basis for the findings of fact which follow, it is noted that the Hearing Officer found the Respondent to be an unreliable and unpersuasive witness. Accordingly, in all material instances in which the Respondent's testimony conflicts with the testimony of other witnesses or conflicts with the documentary evidence, the conflicts have been resolved consistent with the School Board's version of the events. During the preparation of the findings of fact which follow, the Hearing Officer has drawn extensively from the findings proposed by the School Board. With a few minor editorial changes, the findings of fact which follow incorporate all of the findings proposed by the School Board. The findings of fact which follow also include a number of additional facts proposed by the Respondent.
FINDINGS OF FACT
Background facts
At all times material hereto, Petitioner was a duly constituted School Board, charged with the duty to operate, control and supervise all free public schools within the School District of Dade County, Florida.
The Teacher Assessment and Development System (TADS) is the official instrument utilized by the Dade County Public Schools to measure the performance of teaching behaviors.
The Respondent, Flossie M. Edwards, was first employed by the Petitioner in 1969 as a teaching assistant. She continued to be employed in that capacity until 1985. In 1985 the Respondent sat for a test offered by the Petitioner to certain members of her race, which, if passed, would permit her to assume a position as a fully certified classroom teacher. The Respondent passed the test, and became a certified teacher.
Shortly thereafter, the Respondent became a teacher at South Hialeah Elementary School, where she taught for eight years.
During her career with the School Board from 1969 until February 17, 1993, the Respondent did not receive a single disciplinary report, reprimand, prescriptive assessment, remediation requirement, or other formal or informal School board action indicating unsatisfactory or deficient job performance.
At all times material to the issues in this case, the Respondent was employed as a teacher by the School Board and was assigned under a Professional Service Contract to South Hialeah Elementary School. The Respondent is a black female.
The 1992-93 school year
In September of 1992, Marie Harrison was assigned by the School Board to be the new principal at South Hialeah Elementary School. This was Ms. Harrison's first assignment as a school principal and it was the first time she had worked at South Hialeah Elementary School. Prior to her assignment as principal at South Hialeah Elementary School, Ms. Harrison had worked for the School Board for 18 years; 14 years as a teacher at Liberty City Elementary and
4 years as an assistant principal at Holmes Elementary. Ms. Harrison is a white female.
On February 17, 1993, Respondent was formally observed in her mathematics classroom by Ms. Harrison. Respondent was rated unacceptable in preparation and planning and assessment techniques. Respondent did not have her lesson plans and the graded papers in the students' folders did not match the grades in her gradebook. Respondent refused to sign acknowledging receipt of a copy of the observation report.
On February 19, 1993, the Respondent wrote and delivered a handwritten letter to Ms. Harrison. The letter read as follows:
Dear Mrs. Harrison:
I think that you are a wonderful principal. You certainly have made a difference at South Hialeah. But I felt as though I have let you down by taking the grade book and lesson plan
book home. I feel as though I should turn myself in to the police for breaking that rule. I can't face you any more. I am scared. I am having panic attacks. I would never disrespect authority
or be disobedient. I am afraid to face you any more.
On February 18, 1993, I left school to be alone, because I have had a hectic week. So now I have become scared to death of you. I do not know what to do. When I see you I tremble and shake because I am feeling that I have let you down. I wouldn't want anyone to know this, but I do not know where my grade book is any more. I went home and could not sleep at all, because I am the type of person who likes to cooperate and do my best.
F. Edwards
On February 23, 1993, a conference-for-the-record was held with Respondent to discuss the February 17, 1993 observation and the Respondent's
performance to date. During the conference, Ms. Harrison informed Respondent that she walked out on an observation scheduled for February 16, because Respondent had left her gradebook and lesson plans at home. Respondent was directed to turn them in the following morning, but failed to do so. It was noted that her student folders containing formal assessments, none of which matched grades in her gradebook, were grades posted for the second grading period. Respondent, through the Union Steward, requested and was allowed to produce identified student folders containing formal assessments; however, the graded papers produced by Respondent were inappropriately filed, making correlation to the gradebook impossible. Additionally, Respondent was reminded that due to a recent letter received, her name had been submitted to a community support agency. Respondent declined the assistance and indicated that there was nothing the school administration could do to ensure that her next observation was successful. The conference concluded with Respondent refusing to sign acknowledging receipt of a copy of the Memorandum summarizing the conference.
Respondent was referred to the Employee Assistance Program, a program which offers assistance to employees in overcoming personal problems that may be affecting their work, because of Ms. Harrison's concern after receiving the letter from Respondent dated February 19, 1993. Ms. Harrison became concerned because Respondent referred to herself as not wanting to let her down, getting upset about her gradebook and having panic attacks because she was afraid of her. Respondent did not avail herself of this assistance.
On March 22, 1993, Respondent was formally observed in her mathematics classroom by Ms. Dorothy Perrin, who was an Assistant Principal at South Hialeah Elementary at the time. Respondent was found to have satisfactorily completed all categories of assessment of that math class observation.
On March 22, 1993, Respondent received a Summative Assessment and was rated deficient in preparation and planning and assessment techniques because Respondent was found unacceptable in maintaining lesson plans, student folders and maintaining a gradebook. A Summative Assessment is required after two consecutive classroom observations to aggregate data to determine whether each behavior category is acceptable or unacceptable. The Summative Assessment was based on observations of February 17, 1993 and March 22, 1993.
On April 15, 1993, Respondent was formally observed in her language arts class by Ms. Harrison and was rated unacceptable in assessment techniques. The Respondent's gradebook and student folders containing formal assessments of pupil learning and progress did not match or reflect the objectives of the instruction. Respondent failed to make more than one type of assessment in the area of composition for the students (only paragraph writing was tested and used for grades for the third grading period for all students), and there were only two or three grades found for each student for the entire nine weeks grading period.
Respondent was given a record of Observed Deficiencies/Prescription For Performance Improvement (prescription) to help her remediate her deficiencies. She was to submit her gradebook and student folders to the principal each Monday with the preceding week's grades recorded. She was to submit test assessment and lesson plans in the area of reading, composition and mathematics each Friday for the upcoming week. The prescription commenced April 26, 1993, and was to be completed by May 6, 1993. Respondent did not comply with the prescription as directed.
On April 15, 1993, a Summative Assessment was prepared, indicating that Respondent was rated unacceptable in the area of assessment techniques because the students' work in the folders did not match the grades in the gradebook and Respondent had not recorded one grade per week as required. This Summative Assessment was based on aggregate data of the observations of March 22, 1993 and April 15, 1993. Respondent refused to sign acknowledging receipt of a copy of this assessment.
On April 23, 1993, a conference-for-the-record was held with Respondent. The conference was held to discuss Respondent's violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, and to discuss her status with the School Board at this time. It was noted the grades in Respondent's gradebook did not reflect the same grades marked on papers in the corresponding student folders and that many report card grades did not match the grades in the gradebook, once averaged. Also, it was noted that there were no grades posted in basic skills on a weekly basis, as required by the school system, and in some areas there were only four grades per student for the entire marking period. These did not match the grades in the gradebook.
Respondent was offered assistance by the Union Steward and was referred to her grade level chairperson to help remediate her deficiencies. On April 23, 1993, Respondent was given a prescription to help her remediate her deficiencies in the area of professional responsibilities. She was not complying with the directive to keep her student records properly. Respondent was directed to submit to the principal each Friday test assessments and lesson plans for the upcoming week in the areas of reading, composition and mathematics. She was also directed to submit her gradebook each Monday along with student folders with the preceding week's grades recorded. Respondent was required to read School Board Rule 6Gx-13-4A-1.21,V, and submit an outline to the principal for review. She was to read the UTD/DCPS contract, Article 10, page 24, and submit a summary for review and discussion. Respondent was directed to review the South Hialeah Elementary Faculty Handbook regarding the school procedures and prepare an outline and submit it to the principal for review and discussion. Respondent was directed to maintain an updated gradebook with at least two grades per week per subject, with the grades labeled, and to submit the gradebook to the principal on a weekly basis for review. Respondent sporadically met with the principal to review the planned activities. The time line for completing the prescribed activities was by the end of the school year, June 17, 1993. Respondent refused to sign acknowledging receipt of a copy of this prescription.
On April 29, 1993, Respondent was informed that the prescriptive activities submitted by her on April 27, 1993, did not comply with the activities required by the April 23, 1993 prescription. Respondent was directed to submit her gradebook along with student folders reflecting the correct grades for the areas of reading, composition and mathematics for the week of April 19 through 23 and that failure to do so would constitute violation of TADS Category VII, Professional Responsibilities, and could require additional prescriptive activities. Respondent failed to comply.
On May 5, 1993, it was noted that Respondent was not complying with the requirements of the April 23, 1993 prescription. Ms. Harrison gave Respondent an extended prescription deadline of September 30, 1993. Respondent refused to sign acknowledging receipt of a copy of the memorandum extending the time line.
On May 10, 1993, it was noted that the prescriptive activities required for May 7, 1993 were not submitted to Ms. Harrison.
On May 12, 1993, Respondent was formally observed in her language arts class by Patricia Grimsley, Principal of Charles Drew Middle School, and found to be unacceptable in preparation and planning and techniques of instruction. During this external observation, Respondent did not cover in her lesson what was written in the lesson plan and there was no indication that the lesson would be different. Respondent failed to provide students equal opportunity to participate in class by failing to call upon certain students with raised hands throughout the lesson.
Respondent was given a prescription to help her remediate her deficiencies described immediately above. Respondent was directed to develop lesson plans using certain formats and submit them to the principal and to read and complete certain activities in the TADS Prescription Manual. The time line for completing these activities was May 24, 1993.
On May 12, 1993, a Summative Assessment was prepared by Ms. Harrison, and Respondent was rated unacceptable in preparation and planning and teacher- student relationships based on a combination of the data of classroom observations of May 12, 1993 and April 15, 1993.
On May 26, 1993, an External Review of Respondent's performance was performed by Marguerite Radencich, District Reading Supervisor, and Dorothy Perrin, Assistant Principal at South Hialeah. This External Review was conducted by the two observers because Respondent had been rated unacceptable in two consecutive observations. Both external observations were conducted at the same time, with one observer coming from outside the particular school. Respondent was rated unacceptable in knowledge of subject matter and techniques of instruction. It was observed that Respondent made numerous oral grammatical errors, presented fiction to the students as if it were factual, made imprecise communication with the students in this lesson dealing with homonymns by failing to spell the words so that the students could recognize the differences. (i.e., "red" and "read", "missed" and "mist", and "razed" and "raised"). This resulted in confusion for students because they were unable to know which words were used at a given point in time. Respondent's communication was also imprecise in terms of giving directions to students.
On May 26, 1993, in connection with the External Review, a Summative Assessment was prepared and Respondent was rated unacceptable in knowledge of subject matter and techniques of instruction for the reasons set forth immediately above.
Respondent was prescribed activities to help her remediate her deficiencies. She was directed to read and complete activities in the TADS Prescription Manual and submit them to the Assistant Principal for review. She was directed to review the teacher's manual prior to commencing instruction, make a list of examples and major points to be emphasized, compile a list for a one-week period and turn it in with her lesson plans to the Principal. The time line for completing these activities was September 17, 1993.
On June 3, 1993, a conference-for-the-record was held with Respondent. The purpose of this conference was to discuss Respondent's future employment status and job performance to date. During the conference, Respondent's External Review was reviewed with her. It was noted that because of Respondent's failure to remediate her deficiencies, she would receive an
unacceptable Annual Evaluation and she was informed of the non-renewal of her Professional Service Contract. Respondent was informed that she had two years to be taken out of the prescriptive mode and that her failure to correct performance deficiencies during the subsequent year might result in termination. Respondent had no reply when she was asked how the administration could help to ensure that her next External Review would be successful.
Respondent's Annual Evaluation for the 1992-1993 school year was overall unacceptable and was unacceptable in the categories of knowledge of subject matter, techniques of instruction and professional responsibility. This evaluation was based on all formal observations that took place during the school year. Respondent refused to sign acknowledging receipt of a copy of the Annual Evaluation.
Respondent received a letter dated July 12, 1993, from the Office of Professional Standards advising that the unacceptable Annual Evaluation had resulted in a freezing of her salary level until she had satisfactorily fulfilled the terms of the prescriptions resulting in the unacceptable ratings.
The 1993-94 school year
On September 1, 1993, Respondent was formally observed in her language arts class by Ms. Harrison and was rated unacceptable in the areas of preparation and planning, classroom management and assessment techniques. Respondent did not have any lesson plans for her language arts lessons and the graded papers in students' folders did not correspond to grades in her gradebook.
Respondent was given a prescription to help her remediate her deficiencies. Respondent was directed to submit to the Principal the upcoming week's test assessment for reading, composition and mathematics along with her gradebook and student folders with the preceding week's grades recorded. Respondent was directed to work with the grade level chairperson to develop weekly lesson plans to be submitted to the Principal. She was directed to complete activities in the TADS Prescription Manual and submit written responses to the Principal. Respondent was directed to videotape herself teaching a lesson to be reviewed with the grade level chairperson along with a summary of findings involving techniques used to maintain student attention obtained from viewing the videotape and submit it to the Principal. The time line for completing these prescriptive activities was October 25, 1993. Respondent refused to sign acknowledging receipt of a copy of the observation report and prescription.
On September 22, 1993, Respondent was informed of her noncompliance with prescriptive activities regarding her Category VII professional responsibilities prescription because Respondent failed to submit lesson plans and test assessments to the Principal; failed to submit her gradebook along with student folders to the Principal; and failed to maintain an updated gradebook with at least two grades per week per subject with skills labeled. Respondent was reminded of her failure to keep student attendance records and was directed to comply with the areas of noncompliance by September 28, 1993.
On September 29, 1993, it was indicated that Respondent did not comply with the time line to submit materials requested on September 21, 1993, but Ms. Harrison found the materials the following day. Because of this, Ms. Harrison
asked Respondent in the future to submit requested materials by 3:00 o'clock on the due date. Respondent refused to sign acknowledging receipt of a copy of this notice.
On October 20, 1993, Respondent was advised by memorandum that the time lines for complying with the prescription for professional responsibilities issued on April 23, 1993, would be extended until January 30, 1994, due to Respondent's continued noncompliance with directives regarding this prescription. Respondent was advised that her continued noncompliance would be deemed insubordination resulting in referral to the school district for disciplinary action. Respondent refused to sign acknowledging receipt of a copy of the memorandum extending the time line.
On November 2, 1993, Respondent was formally observed in her math classroom in an external observation by Juan Lengomin, Region Director, and was rated unacceptable in classroom management and techniques of instruction. An external observation is conducted when an observer from outside the school staff is called in to make an observation utilizing the same instruments as an administrator in the school uses when conducting an official observation.
Respondent was rated unacceptable in techniques of instruction because she consistently failed to correct students who had wrong answers on several addition problems. She failed to identify and address areas of confusion among students in the class. She rewarded students for inappropriate behavior.
Respondent was rated unacceptable in classroom management because of unnecessary delays during instruction, causing activities not to begin promptly. Respondent failed to maintain order in the classroom, students were constantly calling out answers and Respondent was constantly telling them to be quiet. Students were not paying attention and Respondent constantly called to them to pay attention throughout the class.
Respondent was provided a prescription to help remediate her deficiencies. She was directed to observe the grade level chairperson and devise a list of three to five examples of activities designed to clear up areas of confusion, to utilize different words and ideas in clarification, and tailor clarification to individual students rather than the entire class, when necessary. Respondent was directed to meet with the grade level chairperson to critique the lesson and discuss the list of activities and to submit a summary of this meeting and list of examples to the Principal. She was to read and complete activities in the TADS Prescription Manual and submit them to the Principal by November 29, 1993. Respondent failed to comply with the prescription.
On November 2, 1993, a Summative Assessment was prepared by Ms. Harrison based on the observations of September 21 and November 2, 1993, and Respondent was rated unacceptable in classroom management and techniques of instruction.
Respondent was unacceptable in classroom management because many of her students were off task in their behavior, and after being redirected by Respondent the behaviors would continue or new behaviors would emerge without redirection by Respondent, resulting in many students in the classroom remaining off task during the lesson.
Respondent was unacceptable in techniques of instruction because she failed to clearly explain and clarify directions and instructions to students.
Respondent refused to sign acknowledging receipt of a copy of the Summative Assessment Form.
On November 16, 1993, Respondent was notified of her noncompliance with the prescription connected with the September 21, 1993, observation in that Respondent failed to submit prescriptive activities as required. Respondent refused to sign acknowledging receipt of a copy of this Memorandum.
On December 1, 1993, Respondent was formally observed in her language arts class by Gwendolyn Bryant, Assistant Principal at South Hialeah, and was rated unacceptable in preparation and planning and techniques of instruction.
Respondent was rated unacceptable in techniques of instruction because students were working on a ditto on antonyms and Respondent failed to provide necessary background or any direct instruction on the concept of antonyms before requiring students to do the ditto sheet.
Respondent was rated unacceptable in preparation and planning because she did not follow her lesson plans. The lesson plan stated that she was going to have the students read a story silently and follow up with guided questions. It never took place because the lesson was a worksheet on antonyms.
Respondent was provided a prescription to help remediate her deficiencies in those areas. She was directed to read and complete activities in the TADS Prescription Manual and submit them to the Assistant Principal for review. She was to observe Ms. Karen Pollack during a language arts lesson, confer with her to discuss the strategies used, and submit a written summary to the Assistant Principal for review. She was directed to work with the Assistant Principal and Ms. Pollack to develop a step-by-step teacher-directed plan to be followed for each language arts lesson. The time line for completing the prescription was February 7, 1994. Respondent refused to sign acknowledging receipt of a copy of the observation report prescription.
On December 1, 1993, a Summative Assessment of Respondent was prepared by Gwendolyn Bryant, based on observations of November 2, 1993, and December 1, 1993. Respondent was rated unacceptable in preparation and planning and techniques of instruction. Respondent was found unacceptable in these areas for the reasons set forth in the two immediately preceding paragraphs. Respondent refused to sign acknowledging receipt of a copy of the Summative Assessment Form.
On December 7, 1993, Respondent was directed to report for a conference-for-the-record in the Principal's Office on December 10, 1993. The purpose of this meeting was to address Respondent's performance assessment and future employment status with Dade County Public Schools. Respondent refused to sign acknowledging receipt of a copy of this directive.
On December 16, 1993, a conference-for-the-record was held in the region office because Respondent refused to attend the conference-for-the-record scheduled on December 10, 1993. During the conference, it was noted that Respondent had remained at a frozen salary status because her Annual Evaluation was unacceptable. It was noted that throughout the year she had been provided with many opportunities to help remediate her areas of unacceptable performance; however, she refused to avail herself of these opportunities. During the conference, she was informed that her deficiencies and performance remained unremediated. Respondent was advised that after two consecutive years of unremediated deficiencies, her case would be reported to the Department of
Education and the District for termination procedures. It was recommended that she apply for redirection to a less stressful position. It was noted that she was continually out of compliance with prescriptive activities for Category VII, Professional Responsibilities. She was informed that this noncompliance constituted insubordination and the District would be requested to take appropriate action. During the conference, Respondent stated that she preferred not to discuss anything at this time and that "all these observations would not do any good," and that "from the time this administrator had called her names, everything had gone downhill." Respondent was reminded that following UTD/DCPS guidelines for grievances, her allegations regarding name-calling were determined to be unfounded. During the conference, Respondent stated that she could not comply with the prescriptive activity to videotape a lesson since she did not have a camcorder. However, it was noted that arrangements for taping the lesson had already been made for Respondent but she had failed to avail herself of this opportunity. It was pointed out to Respondent that the charge of insubordination was based on her refusal to comply with directives given by the administrators at the school. Respondent refused to sign acknowledging receipt of a copy of the Memorandum summarizing the conference-for-the-record.
Respondent was formally observed in her language arts classroom under an External Review conducted by Norma Bossard, Executive Director of Language Arts and Reading, and Aylin R. Mendiola, Assistant Principal at South Hialeah. She was rated unacceptable in the areas of preparation and planning, classroom management and techniques of instruction.
Respondent was unacceptable in preparation and planning because she failed to follow the objectives and activities outlined in her lesson plan. There were several things specifically written in the lesson plan that did not take place during the lesson which showed evidence of not having effective instructional planning.
Respondent was rated unacceptable in classroom management because too much of the time allotted for the lesson was spent on unnecessary delays and organizational activities such as distributing papers, collecting papers, getting ready, and sharpening pencils.
Respondent was rated unacceptable in techniques of instruction. She failed to establish necessary background knowledge before beginning the lesson. The sequence of the lesson was confusing. Even though the lesson plan suggested that she would do vocabulary development prior to reading a story, Respondent went right into the story. A story was read, then she had students do an activity that was totally unrelated to the story and the follow-up to the story was done 30 minutes after that activity. The students were confused and did not understand what was happening and Respondent did not attempt to make any corrections or clarify their confusion.
On February 14, 1994, a Summative Assessment prepared by Ms. Bossard and Ms. Mendiola rated Respondent unacceptable in the areas of preparation and planning, classroom management and techniques of instruction for the reasons set forth in the preceding paragraphs.
Respondent was provided a prescription to help remediate her deficiencies. She was directed to meet with the grade level chairperson to discuss and complete lesson plans and submit them to the Assistant Principal on Mondays. She was to review a videotape entitled "Third Grade Language Arts" provided by the Management Training Office, and to submit a list of three examples of approaches to doing lessons in language arts, and submit them to the
Assistant Principal for discussion and review. She was to observe a reading/language arts lesson by another third grade teacher at Miami Springs Elementary School and record the strategies relating to provision of the necessary background and sequencing of instruction, and submit it to the Assistant Principal for review. She was also directed to observe the grade level chairperson, identify strategies that promote a smooth transition without unnecessary delays, and submit them to the Assistant Principal for discussion. Additionally, she was directed to tape herself and make a list of instances in which interruptions to instruction occurred and submit the tape and analysis to the Assistant Principal for review and discussion. Although Respondent indicated that she completed these activities and turned the materials in to the grade level chairperson, the prescription directed that she turn the materials in to the Assistant Principal, and this was not done.
On March 11, 1994, Respondent was advised by Ms. Harrison that the prescriptive activities due on March 5, 1994, were never submitted. She was also told that this continuous noncompliance with prescriptive activities constituted gross insubordination and would be referred to the District for appropriate action.
On March 14, 1994, Respondent received official notification from the school district that the Superintendent would be recommending to the School Board suspension and dismissal of Respondent at the meeting of March 23, 1994, for just cause, incompetency and gross insubordination.
On March 21, 1994, a conference-for-the-record was held with Dr. Joyce Annunziata, Director of the Office of Professional Standards. The conference was held to discuss the pending dismissal action to be taken by the Board at its meeting of March 23, 1994. During the conference, various options were reviewed with Respondent in lieu of dismissal.
The School Board suspended Respondent and took action to initiate dismissal proceedings against her on March 23, 1993.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
In a case of this nature the Petitioner bears the burden of proving the essential allegations of its case by a preponderance of the evidence.
The Notice of Specific Charges alleges that Respondent is guilty of incompetency and gross insubordination, within the meaning of Section 231.36(4), Florida Statutes, and that such acts of incompetency and gross insubordination constitute just cause to dismiss Respondent pursuant to Sections 231.36(1)(a) and (6)(a), Florida Statutes. Incompetency and gross insubordination are defined by Rule 6B-4.009, Florida Administrative Code, in pertinent part, as follows:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency. Such
judgment shall be based on the existence of one
or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes). . . .
(4) 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.
As referenced in Rule 6B-4.009(1)(a) above, Section 231.09, Florida Statutes, provides the following:
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 ful- filling the terms of any contract, unless released from the contract by the school board.
In implementing the above provision, Petitioner adopted rule 6Gx13-4A- 1.21, which reads, in pertinent part, as follows:
Permanent Personnel RESPONSIBILITIES AND DUTIES
I. Employee Conduct
All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a
manner that will reflect credit upon themselves and the school system.
As to the allegation of incompetency, Petitioner has met its burden by the greater weight of the competent evidence. Respondent's incompetency is demonstrated by Petitioner's showing that Respondent acted inefficiently while performing her duties as a classroom teacher. The proof shows that Respondent violated Rule 6B-4.009(1)(a)(1), Florida Administrative Code, due to her repeated failures to conduct herself in a manner that reflects credit upon herself and the school system, failure to perform efficient and faithful teaching, and failure to maintain appropriate student records, all to such an extent that students were deprived of a minimal educational experience and the educational program was seriously impaired. Accordingly, Petitioner demonstrated by the greater weight of competent, substantial evidence that Respondent acted incompetently during the 1992/93 and 1993/94 school years.
To constitute gross insubordination, a teacher's conduct must be more than an isolated incident of refusing to comply with an order. Rather, such conduct must be on a constant or continuing basis. Smith v. School Board of Leon County, 405 So.2d 183, 185 (Fla. 1st DCA 1981). As noted in the findings of fact above, Respondent failed on numerous occasions to comply with administrative directives to comply with prescriptive activities in order to remediate her deficient and unacceptable performance in the classroom. The constant and continuing pattern of the Respondent's failure to comply with administrative directives and with prescriptive activities is sufficient to support an inference that such failures were intentional. Accordingly, the
evidence is sufficient to show that the Respondent is guilty of gross insubordination within the meaning of Rule 6B-4.009(4).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, issue a Final
Order sustaining the suspension without pay of Flossie M. Edwards and dismissing
her as an employee of the School Board of Dade County, Florida, without back pay.
DONE and ENTERED this 15th day of November, 1995, at Tallahassee, Florida.
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 15th day of November, 1995.
APPENDIX
The following are the specific rulings on all proposed findings of fact submitted by all parties.
Findings submitted by Petitioner:
As noted in the Preliminary Statement, all proposed findings of fact submitted by the Petitioner have been incorporated into the findings of fact in this Recommended Order.
Findings submitted by Respondent:
Paragraphs 1, 2, 3, and 4: Accepted and included in findings of fact. Paragraph 5: Rejected as irrelevant to the issues in this case.
Paragraphs 6 and 7: Accepted in substance and included in findings of fact.
Paragraph 8: The first six lines of this paragraph are accepted and included in the findings of fact. The remainder of Paragraph 8 consists of nine lettered sub-paragraphs. Those sub-paragraphs are addressed immediately below.
Sub-paragraph a: Rejected as irrelevant or as subordinate and unnecessary details. Further, the Respondent's testimony about the bookshelf incident is rejected as unreliable and the remaining evidence about that incident is too sketchy to be useful.
Sub-paragraphs b, c, and d: Rejected as not supported by persuasive competent substantial evidence and as being contrary to the greater weight of the evidence. In light of all of the circumstances, the Hearing Officer found
Ms. Harrison's denials to be more persuasive than the testimony of the Respondent and Mr. Bell regarding the subject matter of these sub-paragraphs.
Sub-paragraph e: Rejected as subordinate and unnecessary details in view of the disposition of sub-paragraphs b, c, and d.
Sub-paragraph f: The first sentence is accepted and the mentioned denial has been found to be credible. The second sentence is rejected because the testimony of Mr. Bell has not been found to be credible.
Sub-paragraphs g, h, and i: Accepted and included in findings of fact. Paragraph 9: Accepted and included in findings of fact.
Paragraph 10: The first sentence is rejected as subordinate and unnecessary details because, although it is true that the Respondent complained about the way she was treated by Ms. Harrison, there is no persuasive evidence that the matters complained about actually occurred. The second sentence is rejected as contrary to the greater weight of the evidence; the complaints were investigated and found to be unfounded.
Paragraphs 11 and 12: Accepted and included in findings of fact.
Paragraph 13: First sentence accepted in substance and findings have been made consistent with Ms. Harrison's testimony. Second sentence rejected as contrary to the greater weight of the persuasive evidence.
Paragraph 14: Rejected as subordinate and unnecessary details or as irrelevant to the issues in this case.
Paragraph 15: Accepted in substance and findings have been made consistent with the referenced testimony.
Paragraph 16: Accepted in part and rejected in part. It is accepted that the Respondent's performance was acceptable on March 22, 1993. However, the Respondent had at least one instance of unacceptable performance prior to March 22, 1993.
Paragraph 17: Rejected as being a statement of position or argument, rather than proposed findings of fact.
Paragraphs 18, 19, and 20: Rejected as being primarily argument, rather than proposed findings of fact. Further, most of the arguments are based on conclusions that are not warranted by the greater weight of the persuasive evidence.
COPIES FURNISHED:
Johnny Brown, Esquire School Board of Dade County
1450 Northeast Second Avenue Number 301
Miami, Florida 33132
Stephen K. Loffredo, Esquire Suite 216, Shoreview Building 9999 Northeast Second Avenue Miami Shores, Florida 33138
Mr. Octavio J. Visiedo, Superintendent Dade County School Board
1450 Northeast Second Avenue Number 403
Miami, Florida 33132-1308
Frank T. Brogan Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
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.
| Issue Date | Proceedings |
|---|---|
| Dec. 18, 1995 | Final Order of the School Board of Dade County, Florida filed. |
| Nov. 15, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 05/09/95. |
| Jul. 31, 1995 | Notice of Service of Respondent`s Proposed Findings of Fact and Conclusions of Law; Respondent`s Proposed Finding of Facts and Conclusions of Law filed. |
| Jul. 28, 1995 | Notice of Filing Petitioner`s Proposed Recommended Order; Petitioner`s Proposed Recommended Order (for Hearing Officer Signature) filed. |
| Jul. 14, 1995 | Memorandum to Counsel of All Parties from MMP sent out. (RE: notification that transcript was filed 7/13/95, deadline for PRO's will be 7/28/95) |
| Jul. 13, 1995 | (Respondent) Notice of Filing Transcript filed. |
| Jul. 13, 1995 | (2 Volumes) Transcript filed. |
| May 09, 1995 | CASE STATUS: Hearing Held. |
| Feb. 15, 1995 | Fourth Notice of Hearing sent out. (hearing set for 5/9/95; 10:30am;Miami) |
| Feb. 06, 1995 | Letter to SML from F. Edwards (RE: request for expedited hearing) filed. |
| Jan. 30, 1995 | Order sent out. (hearing date to be rescheduled by subsequent order) |
| Jan. 24, 1995 | Letter to SML from F. Edwards (RE: request for continuance) filed. |
| Nov. 28, 1994 | Third Notice of Hearing sent out. (hearing set for 1/27/95; 8:45am; Miami) |
| Nov. 21, 1994 | (Petitioner) Response to Order filed. |
| Nov. 18, 1994 | Letter to SML from F. Edwards (RE: available date for hearing) filed. |
| Nov. 09, 1994 | Ltr. to Edwards from J. McCrary filed. |
| Nov. 07, 1994 | Order sent out. (McCrary`s Motion to withdraw as counsel of record granted; hearing cancelled; parties to file status report on available hearing dates with 15 days.) |
| Nov. 07, 1994 | Petitioner`s Proposed Prehearing Stipulation filed. |
| Nov. 04, 1994 | Motion to Withdraw as Counsel of record (filed by McCrary) filed. |
| Oct. 17, 1994 | (Petitioner) Response to Request for Production filed. |
| Oct. 14, 1994 | (Respondent) Request for Production filed. |
| Sep. 30, 1994 | Second Notice of Hearing sent out. (hearing set for 11/9/94; at 8:45am; in Miami) |
| Sep. 28, 1994 | (Respondent) Response to Order of September 19, 1994 filed. |
| Sep. 19, 1994 | Order sent out. (no later than 10 days from the date of this order the parties shall advise the hearing officer of estimated length of final hearing and dates which they are available) |
| Sep. 15, 1994 | Respondent`s Motion for Continuance filed. |
| Aug. 22, 1994 | (Petitioner) Response to Petition for Preliminary Procedural Review filed. |
| Aug. 19, 1994 | Order sent out. (Respondent`s petition is hereby denied) |
| Aug. 12, 1994 | (Petitioner) Notice of Specific Charges filed. |
| Aug. 08, 1994 | (Respondent) Petition for Preliminary Procedural Review filed. |
| Jun. 23, 1994 | Order sent out. (foregoing stipulation is hereby accepted by the Hearing Officer) |
| Jun. 13, 1994 | (Respondent) Stipulation for Substitution of Counsel; Order Substituting Counsel filed. |
| Apr. 25, 1994 | Notice of Hearing sent out. (hearing set for 10/7/94; at 8:45; in Miami) |
| Apr. 25, 1994 | Order Requiring Prehearing Stipulation sent out. (prehearing stipulation due no later than 5 days before hearing) |
| Apr. 21, 1994 | (Petitioner) Response to Initial Order filed. |
| Apr. 08, 1994 | Initial Order issued. |
| Apr. 05, 1994 | Agency referral letter; Request for Administrative Hearing, letter form; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 13, 1995 | Agency Final Order | |
| Nov. 15, 1995 | Recommended Order | Evidence was sufficient to prove that teacher should be terminated for incompetence and gross insubordination. |
