STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

PAMELA KAY PORTILLO, )

)

Respondent. )

Case No. 00-1416

)

RECOMMENDED ORDER

On February 9, 2001, a formal administrative hearing was held in this case in Miami, Florida, before William R. Pfeiffer, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Timothy A. Pease, Esquire

Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132

For Respondent: Valerie Kiffin Lewis, Esquire

Valerie Kiffin Lewis, P.A.

4801 South University Drive, Suite 102 The Atrium Centre

Fort Lauderdale, Florida 33328 STATEMENT OF THE ISSUE

The issue presented is whether Respondent's termination of employment by the School Board of Miami-Dade County, Florida, was proper.

PRELIMINARY STATEMENT

By letter dated March 16, 2000, Petitioner, the School Board of Miami-Dade County, Florida ("School Board"), advised Respondent, Pamela Kay Portillo, that her employment contract was terminated effective March 15, 2000. Thereafter, Respondent timely requested an evidentiary hearing regarding the determination. On March 30, 2000, this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding. The School Board's Notice of Specific Charges of Unsatisfactory Performance was filed on April 27, 2000. Following several jointly agreed continuances, the case was transferred to Administrative Law Judge Pfeiffer in January 2001, and the formal administrative hearing was held on

February 9, 2001, in Miami, Florida.

At the hearing, the School Board presented the testimony of Dr. Thomasina O'Donnell, Dr. Ronnie Hunter, Paulette Covin, Andy Granados, and Edward Bethel. Respondent Pamela Kay Portillo testified on her own behalf and presented the testimony of Najura Khizer, Alex Garcia, Kevin Mallory, Candy Feliciano, Ivan Sanchez, June Edwards, Angel Cao, and Carmen Spangenberg.

Additionally, the School Board's Exhibits numbered 1-14 and Respondent's Exhibits 1-13 and 15 were admitted into evidence. Official recognition was taken of the collective bargaining agreement between the School Board and United Teachers of Dade.

The Transcript was filed April 2, 2001. Thereafter, Petitioner and Respondent filed Proposed Recommended Orders which were duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent was employed as a teacher at Charles R. Drew Middle School, pursuant to an annual contract and holds Florida Educators Certificate Number 188727.

2. Respondent holds a bachelor of science degree from Florida Atlantic University. She was employed by Petitioner in 1997 and has worked in the teaching profession for approximately

   30 years. Prior to 1997, Respondent was a substitute teacher in Broward County, Florida, and in other states. During the 1999- 2000 school year, Respondent taught eighth grade science.

3. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System ("TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and UTD. The identical TADS evaluations are used for all grade levels, subject areas, and teachers, whether new or veterans. TADS objectively measures 68 minimal behaviors necessary for teaching. At all times material hereto, TADS was used to evaluate Respondent's performance.

4. TADS includes the following factors in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. All teachers are contractually required to be informed of the criteria and procedures. At the beginning of each school year,

   school principals are required to review the assessment criteria with all faculty.

5. TADS observations and ratings are performed by school principals and assistant principals who are trained and certified. The TADS training encompasses four days and includes the following components: strategies for pre-observation, classroom observation, decision-making with the Classroom Assessment Instrument, post-observation interview, prescription/probation of professionals, recommendations for improvement (prescriptive activities), assisting teachers in the design of instruction and improvement activities, practical activities such as video assessment, and actual classroom teacher assessment under the supervision of a trainer.

6. The trained observer is responsible for recording any deficiencies identified during the observation period and providing a prescription plan for performance improvement. Within five work days, a post-observation conference is held with the teacher to discuss the prescription. The teacher has

   the right to provide a written response, either in the space provided in column 3 of the "Prescription for Performance Improvement" or by separate document that becomes part of the teacher's file. The teacher is required to comply with the activities provided in the prescription plan, which are usually obtained from the "Prescription Manual," and to meet the deadlines set forth in the column designated "Timeline" in the prescription performance improvement plan.

7. As a result of the statutory amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedures to comply with the new statutory requirements. Under the amended procedures, a "conference for the record" initiates a 90 calendar-day performance probation period. Each observation is independent, and there must be periodic observations during the performance probation period in which the employee is apprised of his or her progress and is provided assistance through prescription plans. After the performance probation period is concluded, a "confirmatory observation" occurs without a prescription plan.

8. On November 8, 1999, Respondent was formally observed by Assistant Principal Paulette Covin during science class. Respondent received an unsatisfactory rating in Category III,

   Classroom Management; Category IV; Techniques of Instruction; and Category V, Teacher-Student Relationships.

9. Respondent was rated unsatisfactory in classroom management because she did not effectively use verbal or non- verbal techniques to redirect off-task learners. Several students continuously misbehaved and violated classroom rules. Four students were engaged in drawing during the lesson. One student slept throughout the entire observation which lasted over one hour. Six students talked throughout the observation period. Several students left their seats without permission and walked around the classroom during the observation period. Respondent did not use techniques effectively to maintain the attention of off-task learners. Clear expectations of student behavior and a systematic approach to proper classroom discipline were not evident. Respondent blew a whistle in an attempt to redirect off-task behavior, but there was no connection between the whistle-blowing and the expected behavior. The students did not react at the use of the whistle. Classroom rules were referred to; however, disruptive students were not dealt with quickly and appropriately.

10. Respondent was rated unsatisfactory in techniques of instruction because Respondent failed to provide background information explaining why the topic of waves was being discussed. Respondent asked students if they remembered what

    they had learned about waves and electromagnetic spectrum. A student responded, "You did not teach us that." Moreover, lesson components were not properly sequenced. Without any segue or introduction from one activity to another, Respondent told the students to engage in jump-in reading and later, buddy reading. Respondent did not provide students with examples of demonstrations for the lesson she was teaching. Respondent did not provide students with feedback.

11. Respondent was rated unsatisfactory in teacher-student relationships because Respondent did not promote a positive interpersonal environment in her classroom. She did not encourage her students who had difficulty responding. She demonstrated a lack of empathy and understanding for students who responded poorly during the observation, and did not solicit involvement from students who appeared reluctant to participate. She failed to take corrective action when one student gave a response and another student yelled out, "Dummy that's not right."

12. During the post-observation conference for the record held on November 15, 1999, Respondent was advised that her performance was unacceptable, and effective immediately, was being placed on a 90 calendar-day performance probation period. She was informed that, at the end of her probation period, it

    was her responsibility to demonstrate that she had corrected the identified deficiencies.

13. On November 17, 1999, Respondent received a prescription for performance improvement. Assistant Principal Covin made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies.

14. The plan included observing a lesson taught by a fellow teacher and submitting a summary of the verbal and non- verbal discipline techniques used by that teacher to redirect off-task learners. Respondent was directed to create a classroom management plan for implementing techniques to redirect off-task learners, chart implementation for one week, and then discuss the results with Assistant Principal Covin. In addition, Respondent was directed to review reading strategies learned during in-service training sessions and submit a paper describing ways in which Respondent could provide instruction accommodations for more than one learning style. Additional resources, including administrators and fellow teachers, were also made available to Respondent.

15. Respondent submitted her completed prescription activities before the December 3, 1999, deadline.

16. On December 13, 1999, Respondent was formally observed in her science class by Assistant Principal Andy Granados as a

    subsequent evaluation to apprise Respondent of her progress. Respondent was found unsatisfactory in Category I, Preparation and Planning; Category III; Classroom Management; and Category IV, Techniques of Instruction.

17. Respondent was rated unsatisfactory in preparation and planning because she had failed to develop written lesson plans, as required. Instead, Respondent advised Assistant Principal Granados that "the lesson plans were in her head."

18. Respondent was rated unsatisfactory in classroom management because she was unaware that several students were engaged in off-task behavior. Three students left their seats without permission and went to other students' desks to talk casually. One student sat in his chair but did not attempt to complete any work. Seven students held private conversations and Respondent made no attempt to redirect them. Throughout the observation period, students walked aimlessly, sharpened pencils, visited with other students, and disturbed the class. Respondent failed to address their behavior. Although Respondent blew a whistle, there was no connection between the whistle blowing and any expected behavior. Respondent's use of verbal and non-verbal techniques to redirect the off-task behavior was completely ineffective.

19. Respondent was rated unsatisfactory in techniques of instruction because she failed to provide any background for the

    lesson at hand. The lesson began without introduction and the activities in the class were unrelated. Respondent distributed two worksheets. The first worksheet involved an exercise comparing energy and the second was an isolated word game. She did not provide the students with any explanation about either sheet. Students repeatedly asked, "Why are we doing this?"

20. Assistant Principal Granados held a post-observation conference with Respondent on January 10, 2000, to discuss his findings. Although the observation took place on Monday, December 13, 1999, Respondent, admittedly, was absent on December 14 and 15, 1999, and again on January 3-7, 2000. Furthermore, the holiday break extended from December 18, 1999, to January 2, 2000. Notwithstanding Respondent's testimony that she was present on two workdays, December 16 an 17, between the date of the observation and the post-observation conference held January 10, 2000, Petitioner complied with the five-work day time requirement for the post-observation conference.

21. During their post-observation conference, Assistant Principal Granados made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies.

22. The directions included writing and submitting daily lesson plans containing objectives, activities, procedures,

    assessments, and homework. Respondent was directed to observe a fellow teacher and identify instances where non-verbal techniques were used to maintain the attention of the students. She was also directed to prepare a plan for student behavior with rewards and consequences, to read specific pages for the TADS Prescription Manual, and to complete certain activities in that manual.

23. Additionally, Respondent was directed to create a written outline with an introduction to each lesson indicating the relationship between the written instructional objectives, and the planned activities. The written outline was required to be attached to Respondent's lesson plans.

24. Respondent's prescription plan activities were due on January 28, 2000. Respondent requested and received an extension of time to complete the activities until January 31, 2000, and completed the assigned activities on time.

25. On February 8, 2000, Respondent was formally observed again in her science class by Assistant Principal Edward Bethel. Respondent was rated unsatisfactory in Category III, Classroom Management, and Category IV, Techniques of Instruction.

26. Respondent was rated unsatisfactory in classroom management because there was no clear expectations for acceptable behavior. Students were engaged in off-task behavior. Four students left their seats without permission,

    while six students chewed gum and talked throughout the lesson. Respondent blew a whistle but the students continued to talk.

    Students who interacted inappropriately or interfered with the work of others were not disciplined appropriately. Two students fought over a stool, while a male student tried to remove a book from a female student. Respondent did not intervene.

27. Respondent was rated unsatisfactory in techniques of instruction because there was no background given for the lesson presented and lesson components were not properly sequenced. Respondent listed six unrelated activities on the board. The students were confused about the unrelated assignments and the relationship between the assignments and what they had learned in the previous lesson. In the middle of the lesson, Respondent interrupted the students and read to them about the life of Frederick Douglas. Respondent failed to explain the connection between the life of Frederick Douglas and the lesson objective of the day which involved an animal's environment influencing survival.

28. During the post-observation conference on February 15, 2000, Assistant Principal Bethel made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The assistance included observing a fellow teacher and identifying five verbal and five nonverbal

    techniques to maintain specific behaviors of learners. Respondent was instructed to submit to Assistant Principal Bethel techniques that could be used to develop clear expectations to deal with students appropriately. Respondent was instructed to list the name of each student who acted inappropriately, and to submit a written plan to Assistant Principal Bethel as to how Respondent would handle negative behavior in the classroom. In addition, Respondent was directed to read specific pages from the TADS Prescription Manual, and to complete certain activities in that manual. Respondent was directed to create a written outline with an introduction to each lesson indicating the instructional objectives, the planned activities, and a description of how those activities will assist the students in reaching the instructional objective.

29. Respondent submitted her completed activities in a timely manner.

30. On March 9, 2000, two days after Respondent's 90-day performance probation period ended, Principal Ronnie Hunter performed a confirmatory observation to determine if Respondent's deficiencies had been corrected. Principal Hunter formally observed the Respondent in her science class and rated her unsatisfactory in Category II, Knowledge of Subject Matter, Category III, Classroom Management; Category IV; Techniques of Instruction; and Category VI, Assessment Techniques.

31. After the confirmatory observation, Respondent was notified that she had failed to correct her performance deficiencies. Thereafter, on March 9, 2000, Principal Hunter forwarded to the Superintendent of Schools his recommendation that Respondent's employment be terminated. By letter dated March 10, 2000, the Superintendent notified Respondent that he was recommending to the School Board that her employment contract be terminated because she failed to correct performance deficiencies during her 90-calendar-day performance probation period.

32. The assistance provided to Respondent through her prescriptions was substantial and appropriate to remedy her cited deficiencies. Although she claims that in-service training opportunities to help correct the noted performance deficiencies were not provided, she was directed to and observed several fellow colleagues engaged in teaching. Dr. O'Donnell, a 31-year veteran with the school system and an expert in TADS and teacher assessment, specifically testified that in-service training is not limited to formal education or workshops, but includes observation of fellow teachers. Although the School Board provided sufficient and meaningful in-service training opportunities to Respondent, she failed to show improvement.

33. Respondent further claims that the School Board failed to meet TADS requirements after she was placed on a 90 calendar-

    day performance probation in October 1999, following the initial and rescinded observation conducted by Principal Hunter on October 12, 1999. Respondent claims that after she was initially placed on probation in October, Principal Hunter failed to notify her that she was being removed from probationary status due to a procedural error. Principal Hunter testified he rescinded the October 12, observation and verbally told Respondent that he was removing her from the 90-calendar- day performance probation because he did not get a required signature on the post-observation report. Respondent on the other hand, claims she did not receive notification and, as a result, believed the observation conducted by Paulette Covin on November 8, 1999, and the subsequent observations conducted on December 13, 1999, and February 8, 2000, were observations within the 90 calendar-day probation period.

34. Respondent's claim that she never received notice that she was no longer on probation following the October 1999 observation is disingenuous. Notwithstanding Principal Hunter's credible testimony that he verbally informed her that she was no longer on probation, Respondent was clearly placed on notice that she was on probation beginning November 17, 1999. Specifically, on November 15, 1999, a conference-for-the-record was held with Respondent following her unsatisfactory observation held on November 8, 1999, during which Respondent

    received a written prescription and was informed in writing that, as a result of that unsatisfactory observation, she was being placed on the 90-calendar-day performance probation period. Moreover, on November 17, Respondent signed the summary of the conference-for-the-record which clearly and unambiguously stated, "You were advised of the availability of personnel to assist you during the 90 calendar-day Performance Probation, which commences upon the date that you receive the written prescription."

35. In addition, the School Board committed no statutory violation of any TADS procedures by rescinding the October 12 unacceptable observation. In fact, under TADS the School Board could not rely on the October 12 unacceptable observation to dismiss Respondent because the post-observation report lacked a required signature. The School Board correctly rescinded the October 12 unacceptable observation.

36. The TADS' requirements and procedures were properly executed regarding the formal observations of Respondent and the evaluations of her teaching performance. Petitioner complied with all of the statutory time frames.

37. Respondent also failed to demonstrate that Principal Hunter created a hostile environment toward Caucasian female teachers that resulted in the termination of Respondent's employment. There was no reliable evidence that Principal

    Hunter discriminated against Respondent at any time including his formal observations of Respondent pursuant to TADS. While Principal Hunter performed two formal observations noting Respondent's deficiencies including the rescinded observation on October 12, 1999, and the confirmatory on March 9, 2000, three different assistant principals also objectively evaluated and rated her unsatisfactory prior to Principal Hunter's confirmatory observation finding Respondent's performance unacceptable. Moreover, Principal Hunter interviewed and hired Respondent as a teacher in 1997.

38. Finally, although the School Board's contract with UTD provides for a joint labor/management committee called the "TADS Monitoring Committee" to resolve evaluation and procedure disputes, Respondent never objected to the criteria, procedures, or assessments of the committee.

39. In sum, Respondent failed to demonstrate that TADS procedures were not followed, or establish that she was harassed or discriminated against by Principal Hunter. On the other hand, Petitioner presented competent substantial evidence that Respondent consistently performed at an unsatisfactory level and failed to correct her deficiencies during the probationary period.

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections

    120.569 and 120.57(1), and 231.29(3)(d)3.b., Florida Statutes.

    
    

41. Section 231.29, Florida Statutes, establishes a process for the evaluation of instructional personnel and requires that an employee who is performing unsatisfactorily be placed on a 90-day probation. Subsection 3(d)(2), Florida Statutes. If the employee fails to correct the deficiencies within that probationary period, termination of employment is appropriate.

42. Petitioner, in seeking to dismiss Respondent, has the burden of presenting competent substantial evidence to prove its charges against Respondent by a preponderance of the evidence. Section 120.68(10), Florida Statutes; Boyette v. State Professional Practices Council, 346 So. 2d 598, 600 (Fla. 1st DCA 1977).

43. Section 231.29(2)(a), Florida Statutes, provides the following:

    During the 90 calendar days, the employee who holds a professional service contract must be evaluated periodically and apprised of progress achieved and must be provided assistance and in-service training opportunities to help correct the noted performance deficiencies.

44. Section 231.29(2)(a)(b), Florida Statutes, provides the following:

    Within 14 days after the close of the 90 calendar days, the evaluator must access whether the performance deficiencies have been corrected and forward a recommendation to the superintendent of schools.

    
    

45. The School Board of Miami-Dade County, Florida, adheres to a policy of non-discrimination in employment and educational programs/activities and strives affirmatively to provide equal opportunity as required by: Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Age Discrimination in Employment Act of 1967 (ADE), Florida Educational Equity Act, and the Florida Civil Rights of Act of 1992.

46. School Board Rules 6GX13-4A0-1.01, 6GX13-4A-1.32, and 6GX13-5D-1.10, prohibit harassment and/or discrimination against an employee or student on the basis of gender, race, color, religion, ethnic or national origin, political beliefs, marital status, age, sexual orientation, social and family background, linguistic preference or disability.

47. The Contract between the Miami-Dade County Public Schools and the United Teachers of Dade provides the following:

    Article XXI (5)(b):

    
    

    During the "Performance Probation", the employee shall be provided assistance and in-service training opportunities to help

    correct the noted performance deficiencies. The employee shall also be evaluated periodically and kept apprised of progress achieved.

    
    

    Article XXI (C.) Harassment

    
    

    Employees shall be free from unnecessary, spiteful, or negative criticism or complaints by administrators and/or other persons. Under no conditions shall management representatives express such complaints or criticisms concerning an employee in the presence of other employees, students, or parents, nor shall anonymous complaints be processed.

    
    

    Article XXI (5.)

    
    

    A professional service contract shall be renewed each year, unless the Superintendent, after receiving the recommendations required by Florida Statutes, Chapter 231.29, charges the employee with unsatisfactory performance, as determined under provisions of Florida Statutes, Chapter 231.29 and notifies the employee in writing, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent ninety (90) calendar days of "Performance Probation".

    
    

    Article XXI (B.)(1.)(e)

    
    

    Any recommendation to suspend or dismiss an annual contract employee or an employee holding a professional service contract during the term of whatever contract is held by the employee shall comply with Florida Statutes.

    
    

    Chapter 231.36(6)(a), including the requirement that the specific charges against such employee must be based on just cause, and notification, in writing, of such specific charges must be made to the

    employee prior to any action being taken against the employee.

    
    

48. The School Board has met its burden of proving, by a preponderance of the evidence, that Respondent failed to perform in a satisfactory manner and failed to correct her deficiencies by the close of her 90-day performance probationary period. In addition, there is no reliable evidence that Petitioner discriminated against Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order terminating Respondent's employment and denying Respondent's claim for back pay.

DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001.

COPIES FURNISHED:

Valerie Kiffin Lewis, Esquire Valerie Kiffin Lewis, P.A.

4801 South University Drive, Suite 102 The Atrium Centre

Fort Lauderdale, Florida 33328

Timothy A. Pease, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132

Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132

Honorable Charlie Crist, Commissioner Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-001416

Orders for Case No: 00-001416