STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4316

)

ELOISA SACERIO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 6-8, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Twila Hargrove Payne, Esquire

Patricia D. Bass, Esquire

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Respondent: Ronald S. Lieberman, Esquire

NationsBank Building, Penthouse 2 9350 South Dixie Highway

Miami, Florida 33156 STATEMENT OF THE ISSUE

The issue presented is whether Respondent should be terminated from her employment by Petitioner based upon the allegations contained in Petitioner's Amended Notice of Specific Charges as Corrected.

PRELIMINARY STATEMENT

By letter dated July 28, 1994, Petitioner advised Respondent that she was suspended from her employment effective July 27 and that this proceeding for dismissal was being initiated. Respondent timely requested a formal hearing regarding the allegations against her, and this cause was transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Petitioner filed its Notice of Specific Charges on October 31, 1994, its Amended Notice of Specific Charges on November 21, 1994, and Petitioner's Amended Notice of Specific Charges as Corrected on March 13, 1995.

Petitioner presented the testimony of Dr. Joyce Annunziata, Dr. Joe Carbia, Valerie Swanson, Margarita Alemany, Dr. Jean Moeller, Mercedes Toural, Diana Urbizu, Wally Lyshkov, Aida Helbig, Florine Curtis, Anna Grijalva, Audrey Dillaman, Susan Davis, and Dr. Desmond Patrick Gray, Jr. Respondent testified on her own behalf and presented the testimony of Ann Costello, Shirley Johnson,

Yvonne Perez, and Dr. Sandra Lee Woods. Additionally, Petitioner's Exhibits numbered 1-20 and 22-26 and Respondent's Exhibits numbered 1-4, 6, 10, 12, 24, 28, and 31-34 were admitted in evidence.

Both parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent Eloisa Sacerio has been employed by Petitioner as a classroom teacher for approximately 20 years pursuant to a continuing contract. Respondent is certified to teach Spanish in kindergarten through 12th grade, elementary education, English for Speakers of Other Languages, English, and middle school. Respondent has primarily taught Spanish.

   
   

2. During that 20 years of service, she has been assigned to approximately

   11 different work sites due to Respondent being "surplused" from site to site. Surplusing is a contractual procedure that arises when there are not enough students to fill a class for an elective subject. Spanish is an elective subject.

   
   

3. Respondent's first five years of service were at the elementary school level. During these first five years, her performance was satisfactory. During the following 13 years, Respondent taught at three different middle schools.

   Her performance at the middle school level was "mixed" in that she had some performance problems at two of those schools.

   
   

4. Respondent experienced some difficulties in her teaching performance during the 1987-88 school year and a portion of the 1988-89 school year when she was teaching at McMillan Middle School. Although she brought her teaching skills up to an acceptable level thereafter, she was surplused from McMillan at the end of the 1991-92 school year because not enough students signed up for her classes.

   
   

5. She was assigned to the elementary school level for the 1992-93 school year since she was trained and certified to teach at the elementary school level and had taught at that level without difficulty. For the next two years, Respondent was assigned to Coral Reef Elementary School and Howard Drive Elementary School as a teacher of Spanish as a Second Language (Spanish SL) and Spanish for Spanish Speakers (Spanish S).

   
   

6. A teacher assigned to two schools is an itinerant teacher. One of those schools is designated as the teacher's home school, the one primarily responsible for evaluating the teaching performance of an itinerant teacher such as Respondent. Coral Reef was the home school for Respondent. It is not unusual for a Spanish teacher to be an itinerant teacher.

   
   

7. At the beginning of the 1992-93 school year, Respondent attended a faculty meeting at Coral Reef. At that meeting, she received a faculty handbook which contained School Board rules, policies, procedures and labor contract provisions. Howard Drive also gave Respondent its faculty handbook at the beginning of the school year.

   
   

8. Just prior to the 1992-93 school year, Hurricane Andrew struck Dade County. Its aftermath impacted both Coral Reef and Howard Drive, affecting scheduling for the schools and the teachers. Coral Reef started the school year

   operating on double shifts paired with Perrine Elementary School. Many schedule adjustments were made until well into the school year.

   
   

9. Respondent was given half as much planning time as the other Spanish teachers at Coral Reef since she taught there only half of the school day. Respondent filed a grievance alleging insufficient planning time. The grievance was resolved during a meeting between the administration of Coral Reef and members of the teacher's union to which Respondent belongs. The schedule Respondent had grieved was no longer in place and had been revised prior to that meeting.

   
   

10. Respondent's performance in the classroom during the 1992-93 and 1993-

    94 school years was evaluated utilizing the Teacher Assessment and Development System (TADS). TADS is an objective instrument used to observe minimal teaching behaviors. The categories of teaching behaviors evaluated by TADS are preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relations, and assessment techniques. These six categories are evaluated during a formal class observation of the classroom teacher. A seventh category, professional responsibility, reflects the duties and responsibilities of a teacher in complying with School Board rules, contractual provisions, statutes and regulations, site directives and the policies and procedures that deal with record keeping and attendance.

    
    

11. The union filed grievances on behalf of Respondent with the TADS Monitoring Committee (TMC) for ten or eleven formal observations of Respondent's teaching during the 1992-93 and 1993-94 school years. The TMC was established by contractual stipulation between the union and the School Board. The committee was set up to monitor the TADS process for procedural irregularities, by reviewing only the records and the paper process resulting from a formal observation. It does not review the judgment of the observers who conducted the formal observation. Even after Respondent utilized the TMC process to scrutinize the formal observations of her, she was still found to be unacceptable in classroom management and techniques of instruction for both the 1992-93 and 1993-94 school years.

    
    

12. On October 27, 1992, Respondent was formally observed in the classroom and rated unsatisfactory in techniques of instruction by Joe Carbia, principal of Coral Reef. The students in the class did not appear to possess the preliminary skills or background to be successful in the lesson being taught and did not understand the material. The lesson observed had no beginning and no closure. It ended simply by Respondent telling the students to do their homework. The entire class period was spent trying to elicit answers to questions taken from the workbook although none of the students were able to answer the questions presented by Respondent.

    
    

13. Respondent was prescribed activities to help her overcome her deficiencies in her techniques of instruction. She was to observe two other Spanish SL teachers as scheduled by the assistant principal Valerie Swanson in order to give Respondent an opportunity to observe good instructional techniques. She was to read, discuss and implement guidelines from the TADS Prescription Manual. She was to meet with Swanson to receive assistance on the materials that dealt with teaching techniques. Carbia held a post-observation conference with Respondent and discussed the deficiencies observed and the prescribed activities. Prescriptive activities are directives.

    
    

14. Swanson met with Respondent to offer support and to discuss the various prescriptive activities assigned to Respondent as a result of the

    October 27, 1992, observation. Specifically, Swanson met with Respondent on November 1, 10, 16, 18 and 25, 1992. Swanson answered any questions posed by Respondent.

    
    

15. On November 14, 1992, Respondent was present at Coral Reef but failed to appear to teach one of her regularly-scheduled classes. Principal Carbia taught the class in Respondent's place. Elective teachers are required to check in with the classroom teacher at the beginning of the class period. Respondent did not check in as she was required to do.

    
    

16. Respondent's explanation was that when she went to her prior class, she was told by that classroom teacher that the students were watching a closed circuit television program so Respondent did not have to teach that class that day. Respondent concluded that her next class would also be watching the program. Respondent never asked anyone if that were the case. Respondent's assumption was incorrect.

    
    

17. Carbia informed Respondent that the class rules she sent home to students' parents were inappropriate for elementary school students. These rules were the same class rules Respondent used when she taught middle school. Respondent was directed not to send the parents any communication without prior administrative approval. Respondent sent subsequent communications to parents without prior approval.

    
    

18. Parents complained to the administrators at Coral Reef about Respondent's teaching, both orally and in writing. Some children did not like Respondent's Spanish class and did not want to go to school because they were in Respondent's class. Those children were crying, getting stomachaches and going home upset. When advised by administrators of these complaints, Respondent replied that the students were spoiled and not used to studying. She accepted no responsibility for the problems the children experienced.

    
    

19. Conferences were held with complaining parents, Respondent, and the administration at Coral Reef concerning Respondent's grading policy. In these conferences, Respondent was unable to explain the grades she had given students. Carbia changed some students' grades because Respondent's gradebook did not justify the grades she had given the students.

    
    

20. On November 12, 1992, Carbia held a conference-for-the-record with Respondent to address the parental complaints received by the Coral Reef administration regarding Respondent. Carbia gave Respondent copies of several written complaints he had received. The parents complained about Respondent's instruction, inappropriate grade level homework, and the manner in which Respondent dealt with the children. Respondent admitted that she screamed at the children.

    
    

21. On November 25, 1992, Swanson held an informal conference with Respondent. She gave Respondent suggestions on how to organize her gradebook in a manner that would substantiate the grades Respondent gave her students. Conduct, class work, homework, and tests were to be specifically and clearly labeled in the gradebook for each student.

    
    

22. On December 4, 1992, Respondent was absent. Respondent failed to comply with the directive contained in the Coral Reef Faculty Handbook to have emergency lesson plans on file in the main office at Coral Reef. Respondent is required by Petitioner and state law to have emergency lesson plans on hand.

23. On December 10, 1992, Respondent was again formally observed in the classroom by Carbia and was rated unacceptable in knowledge of subject matter and techniques of instruction. Respondent was rated unacceptable in knowledge of subject matter because the lesson was taught at one cognitive level, i.e., the students were merely involved in recall activities.

    
    

24. Respondent was rated unacceptable in techniques of instruction because twenty-five minutes of the thirty-minute class time was devoted to Respondent attempting to elicit responses from the students. The students could not give Respondent the correct answers, and she made no attempt to give feedback to the students. Respondent made no provision for closure to the lesson. The students exhibited a great deal of confusion regarding the activity and repeatedly requested clarification. Respondent offered no clarification. She only gave reprimands.

    
    

25. Respondent was prescribed activities to help her in overcoming her deficiencies in knowledge of subject matter and techniques of instruction. She was directed to read, discuss and implement guidelines for improvement found in the TADS Prescription Manual. She was directed to observe two other classroom teachers' techniques of instruction. She was to meet with Swanson to receive assistance in understanding the reading materials and to discuss any questions she had regarding her observations of the other teachers.

    
    

26. On or about December 17, 1992, a conference-for-the-record was held. Respondent was placed on prescription for Category VII of TADS, professional responsibilities. There was also a review of her performance on the formal observations of October 27 and December 10, 1992. Respondent was rated unacceptable in Category VII, because she failed to obey the directive to observe Ms. Navarro's Spanish SL class (she observed only part of the class), failed to attend her regularly-scheduled Spanish S class, sent home communications without prior administrative approval, did not maintain gradebooks which could be used to substantiate the grades she gave students, and did not have emergency lesson plans available in the office.

    
    

27. Respondent was prescribed activities to help her overcome these professional responsibility deficiencies. Respondent was to read and review the Code of Ethics of the Educational Profession in Florida. Swanson continued to assist Respondent with her gradebook and emergency substitute folder.

    Respondent was to observe a master Spanish teacher, Rebecca Sosa at Kendale Elementary School.

    
    

28. On February 8, 1993, Respondent was again formally observed by Carbia and was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent was rated unacceptable in preparation and planning because the lesson plan objective was not an instructional objective for Spanish SL but was only a listing of activities. No attempt was made by the teacher to make the lesson meaningful to the students. The only involvement of the students in the activity was limited to filling in blank items on two xeroxed worksheets.

    
    

29. Respondent was prescribed activities to help her overcome her deficiencies in preparation and planning. Under the direction of Swanson, Respondent was to read and discuss the preparation and planning unit in the TADS Prescription Manual. Respondent was to review samples of other teachers' lesson plans.

30. Respondent was rated unacceptable in knowledge of subject matter because the entire instruction was at one cognitive level, i.e., recall and responses. Respondent was prescribed activities to help her overcome her deficiencies in knowledge of subject matter. She was to read, discuss and implement the guidelines for improvement found in the TADS Prescription Manual. Respondent was also to observe other Spanish SL teachers and regular classroom teachers, as scheduled by Swanson.

    
    

31. Respondent was rated unacceptable in techniques of instruction because there was no variety in her instruction. The materials used in the lesson were merely two xeroxed sheets with fill-in-the-blank recall items. The activities were not related to the instructional objectives. Several students in the class were confused by Respondent's instructions, but Respondent made no attempt to clarify.

    
    

32. Respondent was prescribed activities to help her overcome her deficiencies in techniques of instruction. Respondent was to read and discuss the guidelines for improvement found in the TADS Prescription Manual. Swanson assisted Respondent in those prescriptive activities and was available for conferences regarding those activities.

    
    

33. Carbia held a post-observation conference with Respondent to go over the prescription. Respondent was still exhibiting the same deficiencies as before. At the conference, Respondent gave no explanation for her failure to improve her performance. Respondent was told that she had not incorporated in her teaching the prescriptions previously given to her.

    
    

34. On March 15, 1993, a conference-for-the-record was held with Respondent. Although Respondent had been provided assistance to help her overcome the deficiencies in her gradebook, her gradebook remained unacceptable. Respondent was placed on prescription for Category VII and was prescribed activities to assist her. Respondent was to submit her gradebooks to Swanson on a weekly basis for review. She was also provided with samples of good gradebooks.

    
    

35. On March 16, 1993, Respondent was formally observed by Swanson and Wally Lyshkov, a foreign language supervisor. That formal observation was an external review. In an external review, there are two certified observers: one from the school site and the other from outside the school site. The observers complete the TADS observation forms independently. Respondent was rated unacceptable in knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated unacceptable in knowledge of subject matter because there was no logical sequencing of the material presented in the observed lesson. The lesson was based on furniture vocabulary. There was no attempt made by Respondent to contextualize the vocabulary. The lesson was at one cognitive level, i.e., simple choral repetition.

    
    

36. Respondent was rated unacceptable in techniques of instruction and assessment techniques because the lesson lacked sequence and was inappropriate for that grade level. Although the students were confused by Respondent's instruction, she provided no clarification to the confused students. Further, there was no evidence of formal assessment of the students in her gradebook or work folders. Respondent was prescribed activities. She was directed to read and discuss certain materials.

37. A post-observation conference was held with Respondent to discuss the prescriptive activities. Thereafter, Swanson met with Respondent on numerous occasions to assist her with these prescriptive activities.

    
    

38. On May 4, 1993, Respondent was formally observed by Florine Curtis, the principal of Howard Drive, and Diana Urbizu, an outside observer. Respondent was rated unacceptable in classroom management during that external review because the class was chaotic. Respondent appeared unaware that several students were off-task while she taught the lesson. The students were not properly instructed because of the lack of classroom management.

    
    

39. After the observation, Urbizu and Curtis discussed the types of activities that would assist Respondent to improve her performance. Curtis wrote the prescription to help Respondent overcome her deficiencies. Respondent was directed to read certain materials, to complete a specified activity and submit the activity to Curtis, to observe the other Spanish teacher at Howard Drive conduct a Spanish SL class, to write a brief summary of her observation, and to develop a plan for effective classroom management with suitable consequences and submit the plan to Curtis for review.

    
    

40. Curtis held a post-observation conference with Respondent and discussed with her all of the prescribed activities and areas of deficiency. Respondent was given the opportunity to explain her performance. Curtis submitted the rough draft of the TADS observation form to Dr. Joyce Annunziata to review. Annunziata reviewed the form to assure that all the deficiencies were procedurally correct and faxed it back to Curtis with her notations. Annunziata did not make any substantive changes to the evaluation.

    
    

41. Curtis worked informally with Respondent at Howard Drive to help Respondent improve her performance. Respondent could not be placed on a second formal prescription at Howard Drive since she was on prescription at Coral Reef, Respondent's home school.

    
    

42. Spanish teachers at both schools are not assigned a classroom. Since elementary school students remain in the same classroom, these teachers travel from classroom to classroom and conduct a thirty-minute lesson. Respondent wanted the classroom teachers to manage the classroom while she conducted the Spanish lesson. Classroom management is always the responsibility of the teacher conducting the lesson. It does not matter whether the teacher travels to the classroom to conduct the lesson or whether the students travel to the teacher.

    
    

43. On May 28, 1993, a conference-for-the-record was held to notify Respondent of her unacceptable annual evaluation for the 1992-93 school year and to remind Respondent of the negative implications for her future employment with Petitioner if she failed to remediate her deficiencies. Respondent indicated in the conference that the prescriptions had been a waste of time. She indicated that her only motivation for getting off prescription was to transfer to another school since she never wanted to teach at Coral Reef.

    
    

44. During the 1992-93 school year, Swanson, while performing her routine duties, informally observed Respondent in the classroom. During these occasions, Respondent was observed yelling at the students and using a negative approach to teaching. Respondent would demean children, make derogatory remarks, and call them stupid.

45. Curtis informally observed Respondent in the classroom during the 1992-93 school year. During these occasions, Respondent was observed to lack classroom management skills and to use inappropriate methods of instruction. Respondent's classroom was always noisy. Her method of instruction was to "teach to a test" rather than to teach the objective of the lesson. Respondent spent the week going over material that would be on the Friday test.

    
    

46. Curtis held numerous informal conferences with Respondent to help Respondent improve her performance. Curtis suggested specific classroom management skills and techniques of instruction. She also suggested that Respondent properly maintain her gradebook by labeling the entries.

    
    

47. Aida Helbig, the Bilingual Supervisor for Foreign Language Skills, visited Respondent at Coral Reef and Howard Drive in order to help Respondent improve her performance. During the 1992-93 and 1993-94 school years she met with Respondent nine times. Helbig informally observed Respondent to be unsatisfactory in classroom management and techniques of instruction.

    
    

48. Audrey Dillaman taught third grade at Coral Reef during the 1992-93 school year. Respondent taught Spanish SL to Dillaman's class. Respondent's instruction was composed of primarily worksheets and conjugating verbs which was inappropriate for the grade level. The students and parents became frustrated, and the parents withdrew their children from Respondent's class. Only seven of Dillaman's students remained in Respondent's class at the end of the second grading period although 18 had started out at the beginning of the year.

    
    

49. Respondent wrote in cursive on the blackboard for third grade students who had not yet learned to read or write cursive. Respondent expected first grade students who had not learned to read English, to read Spanish words from the blackboard and charts.

    
    

50. The goal of teaching Spanish to elementary school students is to expose them to a foreign language. The emphasis is on an oral program. The sequence of learning a language is oral, reading, and then writing. Respondent's emphasis was on a written program. Respondent required second- grade students to have a Spanish/English dictionary although the district curriculum does not.

    
    

51. In September of 1993, Swanson had a discussion with Respondent concerning written communications sent home to parents. Swanson suggested methods Respondent could use to communicate with parents. Swanson even typed a sample letter for Respondent which explained Respondent's classwork to parents.

    
    

52. On October 1, 1993, Respondent was formally observed in the classroom by Carbia and rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because more than fifty percent of the class period was spent passing out and collecting an assignment, with much confusion and disorder. Sixty to seventy percent of the students were off-task, and Respondent did not redirect those off-task students. Instead, Respondent used verbal threats to address inappropriate behavior.

    
    

53. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet. The only instructional methodology used was a game of questions and answers among students. During the game, the students were not clear about what team they were on. There was a great deal of inattention, stumbling, and wrong answers during the game. Respondent did not attempt to clarify the students' confusion.

54. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. Respondent was to visit other Spanish SL classes at Coral Reef and Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson.

    
    

55. Coral Reef and Howard Drive continued to receive parental complaints about Respondent's performance. At Coral Reef students dropped Respondent's classes, and parents requested that their children be switched to another Spanish teacher. Respondent's gradebook continued to be a problem. These concerns were discussed at a November 1, 1993, conference-for-the-record.

    
    

56. On November 2, 1993, Respondent was formally observed in the classroom by Swanson and rated unacceptable in classroom management and techniques of instruction. She failed to obey the directive to post her classroom behavior rules during the class time and failed to refer to her classroom rules until just prior to the end of the class time. Students were off-task and Respondent failed to redirect them. The students attended to Respondent only when individually asked a specific question. During the lesson Respondent did not mention the strengths and weaknesses of the students. The majority of the lesson was devoted to one-on-one teacher-to-student dialogue while the rest of the students were inattentive. There were no opportunities for the students to contribute ideas, make comments, or ask questions of the Respondent.

    
    

57. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. She was to visit other Spanish SL classes at Coral Reef and at Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson.

    
    

58. Swanson provided Respondent with the Competency Based Curriculum (CBC). During the 1993-94 school year, Petitioner began phasing in its CBC. The phasing in of this curriculum is not a factor that would effect the evaluation and assessment of teaching competency under TADS.

    
    

59. In November 1993, Swanson discussed with her Respondent's gradebook. Swanson gave Respondent written instructions on how to set up her gradebook and class rules. However, Respondent's gradebook remained unacceptable throughout the 1993-94 school year.

    
    

60. On December 2, 1993, Respondent was formally observed by Jean Moeller, assistant principal at Howard Drive, and was rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because she did not use non-verbal techniques to obtain the students' attention from the beginning of the lesson. During the first fifteen minutes of the lesson, i.e., half of the class period, students were off-task. Several of the students were involved in activities other than Spanish. There was no attempt by Respondent to redirect off-task behavior.

    
    

61. Respondent was unacceptable in techniques of instruction because she used inappropriate teaching materials. Respondent had two xeroxed sheets in Spanish that were incorrectly utilized. She wrote English on the chalkboard and the students were required to copy English responses to some of the Spanish phrases on the xeroxed papers. The Spanish SL objectives avoid English translation activities. This is stated in the teacher's guide. At this level, children should be responding primarily in Spanish.

62. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was required to read the TADS Prescription Manual on classroom management. She was to make a list of non-verbal techniques that could be implemented in her class to effectively increase on-task behavior and submit the list to Moeller. She was to discuss her reading with Moeller. Respondent was to turn in her daily lesson plans to Moeller a week in advance from December 8, 1993, to January 12, 1994, on Wednesdays.

    
    

63. Moeller recommended both Spanish teacher Grijalva and Spanish SL specialist Helbig as resources to assist Respondent in overcoming her deficiencies. Respondent was to observe Grijalva in the classroom. Grijalva is an excellent Spanish teacher who has good classroom management skills and techniques of instruction. Grijalva also knows the curriculum and utilizes appropriate assessment techniques. Grijalva is a specialist in CBC and has trained teachers in CBC. Grijalva provided assistance to help Respondent improve her performance.

    
    

64. Respondent observed Grijalva playing a tic-tac-toe game with her students. Respondent attempted to play the same game with her students. However, the game as Respondent structured it resulted in the brighter students repeatedly asking difficult questions of the same student that was least likely to know the answers to the questions. When that student did not know the answers, Respondent made demeaning comments to the student. The student put her head down and cried.

    
    

65. On December 8, 1993, a conference-for-the-record was held with Respondent to address her performance, the continuing parental complaints about her performance, and her future employment with Petitioner. Respondent was reminded that she had been on prescription since October 1992 and continued to be unacceptable in classroom management and techniques of instruction. Respondent was given an opportunity to address all the concerns noted. Respondent's written explanation was not responsive to any of the concerns that came up at the conference.

    
    

66. On January 27, 1994, Respondent was formally observed at Howard Drive by Principal Curtis and Mercedes Toural, an outside observer. Respondent was rated unacceptable in classroom management and techniques of instruction. Respondent did not have control of the classroom. The children appeared to be in control, and Respondent did not use strategies to prevent, identify, or redirect off-task behavior. Further, the lesson involved having an answer to a test item as opposed to being a lesson with an objective, an activity, and a means of assessment. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was to read the TADS manual, complete written activities, and observe Grijalva.

    
    

67. That external review was the second formal observation by Curtis. It occurred almost a year after the first formal observation done by Curtis. Respondent's performance continued to be deficient despite the guidance and assistance provided during that time.

    
    

68. At Howard Drive, Respondent used food to reward and punish students in her class. The use of food to reward good behavior and/or to punish inappropriate behavior is a poor teaching technique.

    
    

69. After the observation of January 27, 1994, Curtis met with Respondent informally on numerous occasions. Respondent remained deficient in classroom

    management and techniques of instruction for the 1993-94 school year. There was no improvement in her performance at Howard Drive.

    
    

70. On April 29, 1994, there was an external review observation done by Margarita Alemany and by Carbia at Coral Reef Elementary. Carbia rated Respondent unacceptable in classroom management and techniques of instruction. Alemany rated Respondent unacceptable in knowledge of subject matter, classroom management, and techniques of instruction.

    
    

71. Respondent was unacceptable in classroom management because a substantial number of students were off-task at different times, and students were inattentive. Respondent used no verbal techniques to redirect the students who were off-task and no techniques to maintain the attention of the students. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet entitled "First Grade Vocabulary of April 25." None of the students were able to read the sheet and provide correct responses.

    
    

72. Respondent was prescribed activities to assist her in overcoming her deficiencies. Respondent, under the direction of Swanson, was to read, discuss, and implement guidelines for improvement found in the TADS Prescription Manual.

    
    

73. On June 6, 1994, a conference-for-the-record was held at Coral Reef to review the annual evaluation and its consequences. Respondent over the two school years, 1992-93 and 1993-94, had numerous classroom observations and four external reviews. Respondent had been provided assistance to improve her performance by both the administration of Howard Drive and that of Coral Reef. Yet, Respondent remained unacceptable in classroom management and techniques of instruction for the 1993-94 annual evaluation.

    
    

74. Respondent failed to turn in her gradebooks for the 1992-93 and the 1993-94 school years. Respondent was required to turn in her gradebooks from both school locations to the individual school at the end of each school year. This is required by School Board policy and was addressed in the end-of-the-year directives.

    
    

75. Respondent kept the gradebooks in her possession until they were given to Petitioner on February 16, 1995. By that date, the gradebooks had been altered to include labeling and more grades which were not in the gradebooks when they were formally evaluated.

    
    

76. During the 1992-93 and 1993-94 school years, many students withdrew from the Respondent's Spanish classes. Classroom teachers complained to the administrators of Howard Drive and Coral Reef concerning Respondent's rapport with the students, her classroom management techniques, and her methods of instruction.

    
    

77. Respondent exhibited a negative approach to teaching that did not change over the two-year period. Her approach negatively impacted the Spanish program at both schools because students chose not to take Spanish if Respondent was their teacher.

    
    

78. Respondent did not accept responsibility for any problems and deficiencies she had in the classroom. She always blamed others. Although Respondent completed all the prescribed activities, she did not incorporate what she learned into her performance.

79. Petitioner provided substantial assistance to Respondent to help her improve her performance. She received assistance from the administrators of two schools and from other teachers and district personnel. For 1993-94 Respondent was assigned to teach the same grade levels as the prior year to allow her to build on her experiences from 1992-93. All the Spanish teachers at Coral Reef had the same planning time during 1993-94 in order to make it convenient for Respondent to get assistance from them.

    
    

80. Yet, Respondent failed to communicate with and relate to her students to such an extent that she deprived them of a minimum educational experience. She also taught inefficiently and ineffectively and failed to comply with Petitioner's prescribed course of study using appropriate materials and methods.

    
    

    CONCLUSIONS OF LAW

    
    

81. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

82. The Amended Notice of Specific Charges as Corrected contains two Counts. Count I alleges that Respondent is guilty of incompetency, and Count II alleges that Respondent is guilty of gross insubordination and willful neglect of duty. Petitioner has met its burden of proving by a preponderance of the evidence that Respondent is guilty of the allegation contained in the Amended Notice of Specific Charges as Corrected.

    
    

83. Section 231.36(4)(c), Florida Statutes, provides that a teacher who is under continuing contract may be suspended or dismissed for, inter alia, incompetency, gross insubordination, and willful neglect of duty. Those terms are defined by Rule 6B-4.009(1) and (4), Florida Administrative Code, as follows:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required

       duty as a result of inefficiency or incapacity. . . .

       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; or . . .

       2. Incapacity: (1) lack of emotional stability;

    2. lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

       * * *

       (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.

       
       

84. Section 231.09, Florida Statutes, provides as follows:

    
    

    Duties of instructional personnel.--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.

    
    

    Although Petitioner argues in its proposed recommended order specific School Board rules Respondent is alleged to have violated as well as certain provisions of the contract between Respondent's labor union and Petitioner, none of those rules or contract provisions were alleged in the Amended Notice of Specific Charges as Corrected. They cannot, therefore, form the basis for finding Petitioner guilty of incompetency based on Section 231.09, Florida Statutes.

    
    

85. However, Petitioner has proven that Respondent is guilty of incompetency due to her repeated failure to communicate with and relate to children in her classroom to such an extent that her students were deprived of the minimum educational experience and that Respondent lacks an adequate command of her area of specialization. For two school years Respondent was observed formally and informally by two principals, two assistant principals, other classroom teachers, and various District personnel external to the schools at which Respondent taught. Respondent consistently was unable to deliver a lesson which was appropriate to the grade level of the class, was unable to obtain and maintain control of the students in her classes, was unable to vary her style beyond the presentation of a lesson at one cognitive level, was unable to present material consistent with the prescribed curriculum, and was unable to involve her students in the process of learning.

    
    

86. Although Respondent is certified to teach Spanish, is certified to teach in the elementary school, and is experienced in doing so, the evidence demonstrates that Respondent is unable to teach Spanish on the elementary school level in a way that children are able to learn from her teaching. Parents complained about her teaching style and withdrew their children from her classes. Those who remained in her classes paid little attention to her. Respondent was either unable or unwilling to improve her teaching style so as to involve her students in the learning process. Accordingly, Petitioner has proven that Respondent is incompetent due to her inability to discharge her duties as a result of her inefficiency and/or incapacity.

    
    

87. Respondent argues that she was unfairly evaluated, that her evaluators failed to consider her version of what they observed in her classroom, that the principal of Coral Reef was determined to punish her for filing a grievance, that that principal influenced other evaluators in rating her as unacceptable, that she had to repeatedly involve her union in protecting her from her principal, and that, essentially, this proceeding results from that principal's desire to terminate her employment. Respondent further argues that her deficiencies were caused by others and that Petitioner has failed to fulfill its obligation to assist her in every way possible to remediate her deficiencies. Respondent's arguments are not persuasive.

    
    

88. Respondent contends that Petitioner should have hired a college professor to observe her and work with her in Respondent's classes until each deficiency was overcome, working on only one deficiency at a time. Petitioner assigned a number of experts to work with Respondent, and they did so freely. Petitioner also arranged for Respondent to observe master teachers during Respondent's normal working hours. Petitioner directed her to read materials

    related to the specific deficiencies observed in Respondent's performance, and the administrators at her schools discussed with her what she learned in her readings in order that she could implement those suggestions and techniques.

    Yet, Respondent's performance did not improve.

    
    

89. The lack of improvement may well be related to Respondent's desire not to teach at Coral Reef or on the elementary school level, as expressed by Respondent from the beginning of her assignment through the next two years, both verbally and in writing. Respondent admitted that the only reason she wanted to improve her performance so she was no longer on prescription was so that she could transfer away from her assigned schools. There is, therefore, no reasonable basis for believing that hiring a college professor to work with Respondent would have caused Respondent to improve her performance when all the other persons assigned to assist her could not. Further, requiring Petitioner to employ Respondent and another teacher to teach Respondent's classes is not a reasonable expectation.

    
    

90. Similarly, Petitioner has proven Respondent guilty of gross insubordination and willful neglect of duties as a result of her constant and intentional refusal to obey direct orders which were reasonable in nature and given with proper authority. Respondent was ordered on several occasions to properly maintain a gradebook so that it was possible for her to explain the grades she gave to her students and so that the gradebook itself would justify any grade given. She failed to do so. Respondent was directed on several occasions to obtain prior approval of correspondence she sent to parents. Respondent failed to do so. She was directed to maintain emergency lesson plans. She failed to do so. She was directed to observe a particular Spanish teacher for a particular class period, and she failed to do so. She was directed to turn in her gradebooks on the last day of the school year. She failed to do so for both the 1992-93 and 1993-94 school years.

    
    

91. Respondent argues that each instance of failure to follow a direct order was the result of a misunderstanding or that she substantially complied with each instruction. Respondent's argument is not persuasive, and her testimony regarding many of those instances was not credible. As she offered excuses and not changes regarding her classroom performance, Respondent offers excuses for not complying with directives. For example, although directed to observe another Spanish teacher's 30-minute lesson, which commenced at 10:15 a.m., Respondent was observed on the telephone at 10:23 a.m. She explained that she had to call the parent of a student who could only be reached on that one particular day at that one particular time. No evidence was offered as to the time that Respondent did finally arrive at that teacher's class.

    
    

92. Respondent also argues that each instance of failure to obey direct orders was only a minor incident, insufficient to justify terminating her employment. However, the definition of gross insubordination or willful neglect of duty is not limited to major incidents of insubordination. Rather, the definition also includes "a constant or continuing" refusal to obey. Petitioner has met its burden.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in Petitioner's Amended Notice of Specific Charges as

Corrected, sustaining Respondent's suspension without pay, and dismissing her from her employment.

DONE and ENTERED this 2nd day of October, 1995, at Tallahassee, Florida.

LINDA M. RIGOT, 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 2nd day of October, 1995.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4316

1. Petitioner's proposed findings of fact numbered 2, 4-23, and 25-117 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

3. Petitioner's proposed findings of fact numbered 3 and 24 have been rejected as being subordinate to the issues herein.

4. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order.

5. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues under consideration in this cause.

6. Respondent's proposed findings of fact numbered 13 and 17 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

7. Respondent's proposed findings of fact numbered 5, 8-12, 15, and 18 have been rejected as being subordinate to the issues herein.

8. Respondent's proposed findings of fact numbered 4, 6, 7, 14, and 19-22 have been rejected as not being supported by the weight of the competent evidence in this cause.

COPIES FURNISHED:

Twila Hargrove Payne, Esquire Patricia D. Bass, Esquire Madelyn P. Schere, Esquire

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

Ronald S. Lieberman, Esquire NationsBank Building, Penthouse 2 9350 South Dixie Highway

Miami, Florida 33156

Mr. Octavio J. Visiedo Superintendent of Dade County

School Board Suite 403

1450 Northeast Second Avenue 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.

=================================================================

DISTRICT COURT OPINION

=================================================================

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION

AND, IF FILED, DISPOSITION OF.

ELOISA C. SACERIO, IN THE DISTRICT COURT OF APPEAL OF FLORIDA

Appellant, THIRD DISTRICT

JULY TERM, A.D. 1996

vs.

CASE NO.

SCHOOL BOARD OF DADE COUNTY, LOWER TRIBUNAL NO. 94-4316

Appellee.

/ Opinion filed September 18, 1996.

An appeal from The School Board of Dade County, Florida. Eloisa C. Sacerio, in proper person.

Twila hargrove Payne, for appellee.

Before JORGENSON, GERSTEN, and Green, JJ. PER CURIAM.

Affirmed.

MANDATE

DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

DCA No. 95-2897 ELOISA C. SACERIO

vs.

SCHOOL BOARD OF DADE COUNTY

This cause having been brought to this Court by appeal, and after due consideration the Court issued its opinion;

YOU ARE HEREBY COMMANDED that such futher proceedings be had in said cause in accordance with the opinion of ths Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida

Case No. 94-4316

WITNESS the Honorable ALAN R. SCHWARTZ

Chief Judge of said District Court and seal of said Court at Miami, this 22nd day of November, 1996.

(seal) Louis J. Spallone

Clerk, District Court of Appeal of Florida, Third District

Docket for Case No: 94-004316

Orders for Case No: 94-004316