STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 01-1921
)
YOLANDA CABRERA, )
)
Respondent. )
________________________________)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on November 6 and 7, 2001, in Miami, Florida, by Florence Snyder Rivas, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Luis M. Garcia, Esquire
Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
For Respondent: Leslie A. Meek, Esquire
United Teachers of Dade 2200 Biscayne Boulevard
Miami, Florida 33137 STATEMENT OF THE ISSUE
Whether Respondent's termination of employment as a teacher should be upheld.
PRELIMINARY STATEMENT
On May 16, 2001, Petitioner, Miami-Dade County School Board ("Petitioner" or "School Board") took action to terminate the professional services contract of Yolanda Cabrera (“Respondent” or “Cabrera”), an elementary school Spanish teacher at Bel-Aire Elementary School ("Bel-Aire").
Cabrera timely asserted her contractual and statutory rights to contest the termination, and requested a formal hearing before the Division of Administrative Hearings.
Petitioner's Notice of Specific Charges was furnished to Cabrera's counsel on August 2, 2001.
At the final hearing, Petitioner presented the testimony of Dr. Barbara Moller (Bel-Aire Assistant Principal), Kathleen Lopez (Bel-Aire chairman of bilingual education), Melvin Dennis (Bel-Aire principal), and Dr. Thomasina O’Donnell (District Director of Office of Professional Standards, and expert in the fields of performance appraisal and personnel management). Petitioner's Exhibits 1-2, 9-12, 14-16, 18, 19,
20-28, 30-32, 34-40, 41, and 42-45 were admitted into evidence.
Cabrera testified on her own behalf and presented the testimony of Mario Rivera, Lourdes Sotolongo, and Mattie Williams, all teaching colleagues of the Petitioner at Bel-
Aire. Cabrera’s Exhibits 2, 4-6, 8, 10, 13-14, and 16 were admitted into evidence.
In accordance with Rule 28-106.215, Florida Administrative Code, the parties were granted leave to file Proposed Recommended Orders within ten days of the filing of the transcript. The transcript was filed on November 29, 2000. Thereafter, an unopposed motion was filed by Petitioner and granted by the undersigned, extending the time for filing Proposed Recommended Orders up to and including December 21, 2001. The parties' Proposed Recommended Orders were timely filed and have been carefully considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Since 1990, Cabrera has taught elementary school Spanish within the school district of Miami-Dade County, Florida.
Cabrera began her career with Petitioner as a substitute teacher. In 1993 she was offered the first of several permanent postings. She has been assigned to Bel-Aire from 1996 to the date of her termination.
At all times during which Cabrera has been so employed, teachers in the Miami-Dade County school system were evaluated annually 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 the United Teachers of Dade ("UTD").
The same TADS evaluation procedures are used for all grade levels, subject areas, and teachers.
TADS purports to objectively measure 67 minimal behaviors necessary for teaching. TADS includes in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques.
TADS observations and ratings are performed by school supervisory personnel. TADS observers are trained and certified.
The observer records deficiencies noted during the observation period, if any. In addition, the observer provides a so-called "prescription," or plan, for performance improvement in each of the areas in which deficiencies are noted. A post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response.
Under the School Board's contract with the UTD, the teacher is required to comply with the prescription plan,
performing all activities specified in the prescription and meeting the deadlines set forth.
Miami-Dade County's TADS assessment system was implemented to fulfill the legislative mandate of Section 231.29, Florida Statutes. The statute requires the superintendent of each of Florida's school districts to establish procedures for assessing, on an annual basis, the performance of all instructional personnel employed by the district.
At all times material to this case, TADS was used to evaluate Cabrera's performance.
Miami-Dade County's TADS procedures include all of the statutorily required elements, and Cabrera received the benefit of each of the statutory requirements, including notice in writing of each deficiency observed; assistance and recommendations designed to help correct those deficiencies; and a reasonable period of time in which to correct deficiencies.
As a result of certain 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 procedure to comply with new statutory requirements. Under the amended procedures, a
meeting known as a conference for the record ("CFR") initiates a 90 calendar-day performance probation period.
From the beginning of her employment at Bel-Aire through and including the 1998-99 school year, Cabrera's TADS evaluations were satisfactory.
Notwithstanding her annual passing TADS scores, the evidence establishes that dealing with classroom discipline had never been Cabrera’s strong suit. Yet, for reasons not revealed in the record, Cabrera had never been in fear for her job, nor had her deficiencies in managing classroom discipline previously bothered administrators enough to cause them to take meaningful action to assist her, or get her out of the classroom.
In the summer school session of 2000, Cabrera ran into especially difficult discipline problems from at least two students, and was dissatisfied with the level of support she received from her principal, Melvin Dennis (Dennis), in dealing with those students.
Cabrera took the extraordinary step of going outside the school chain-of-command to complain to the central administration about what she perceived to be a lack of appropriate disciplinary support at the school level.
On January 8, 2001, Cabrera received the first of that year’s formal TADS evaluations. The observer was assistant principal Dr. Barbara Moller (Moller).
At that time, Moller found Cabrera’s performance unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, and assessment techniques.
More specifically, Moller found, among other things, that Cabrera’s lesson plans did not include a method for monitoring student progress; that she failed to maintain student’s attention and to redirect those students who were “off-task”; that Cabrera failed to provide instructional materials that were appropriate for her students; and that Cabrera failed to provide formal assessments of her students’ progress.
A timely post-observation CFR was held to discuss the results of the January observation. At that time, Cabrera was advised that due to her unsatisfactory performance, she would be placed on a 90 calendar-day performance probation period.
Also during the conference for the record, Respondent was given suggestions on how to improve her performance and correct her deficiencies in the form of
written prescriptive activities appropriate to the noted deficiencies.
The assistance provided to Cabrera included, but was not limited to: reviewing her lessons plans with the assistant principal; working with the Bilingual Department chairperson to formulate acceptable lesson plans; developing a behavior modification plan with the assistance of two fellow teachers and the school district’s instructional supervisor for bilingual education; and providing instructional materials, assessment devices, and commercially prepared tests.
Also during the CFR, Cabrera was advised that at the conclusion of the 90 calendar-day performance probation period, a determination would be made as to whether the performance deficiencies identified during the probationary period have been satisfactorily corrected and that a recommendation by the school principal would be made to the Superintendent of Schools, which could lead to the termination of Respondent’s employment contract if performance deficiencies were not corrected.
On February 22, 2001, a second TADS observation was conducted by Principal Dennis.
At that time, Dennis deemed Cabrera’s performance unacceptable in the categories of classroom management, techniques of instruction, and assessment techniques.
Dennis observed, among other things, that Cabrera’s class was disorganized. Students were not all in their seats and working within the type of orderly routine expected in a properly managed classroom. Cabrera continued to lack control over her class, as demonstrated by the fact that students were off task and Cabrera was unable to redirect them.
Behavior problems may well have been exacerbated by her continued deficiency in techniques of instruction. Rather than tailor materials and instructional techniques to the differing needs of the students, Cabrera was observed to be deficient in this category because she used a rote style of presentation that was not appropriate to all students.
In addition, Cabrera failed at this observation to use appropriate assessment techniques to determine how much of the lesson was being absorbed by students.
As a result of Cabrera’s continuing unsatisfactory classroom performance, on February 28, 2001, Cabrera was again given formal written notice that she had been placed on a
90 calendar-day performance probation status. She was further informed that, due to her unsatisfactory performance, her professional service contract may not be renewed and that her
performance would continue to be monitored throughout her probationary period.
On March 1, 2001, a post-observation conference was held with Cabrera to address the deficiencies noted in the formal classroom observation. At this time, Cabrera was again presented with a written prescription and a performance improvement plan in order to assist in correcting her deficiencies.
In an effort to further assist Cabrera, on March 9, 2001, Dennis requested that the school district’s instructional supervisor for bilingual education visit Cabrera at the school for the purpose of assisting her in improving her performance deficiencies.
The school principal also provided the assistance of staff members and teachers to help Cabrera in planning her lessons, developing a positive reinforcement and rewards system and on setting up her classroom in order to provide students with a positive learning environment.
In a further effort to provide assistance, Cabrera was referred to the school district’s Employee Assistance Program (EAP). Cabrera was not required to take advantage of the EAP, and she did not do so.
By spring, the strain of the probationary status was taking a visible toll on Cabrera, and the relationship between
her and the Bel-Aire administration was fast becoming untenable.
On March 27, 2001, Cabrera took her entire class to the main office to complain that she could not begin her lesson because her students did not have pencils. This childish bit of theater was met with an equally silly straight-faced memorandum issued to Cabrera advising that her
responsibility for preparation and planning included assisting her students with having the appropriate supplies for class.
Two days later, Cabrera was again formally observed in the classroom by Moller.
During the formal classroom observation conducted on March 29, 2001, Moller found Cabrera’s performance unacceptable in the categories of classroom management, techniques of instruction, and in teacher-student relationships.
Moller documented that Cabrera ignored or was unaware of her students’ inappropriate and disruptive behavior, that she did not provide feedback to students regarding the expected behavior in the classroom, and that she did not sequence the components of her lesson properly.
On April 12, 2001, a post-observation conference was held with Cabrera to address the deficiencies noted in the March formal classroom observation. At this time she was
again presented a written prescription and a performance improvement plan in order to assist in correcting her deficiencies.
On April 18, 2001, the school district’s instructional supervisor for bilingual education met with Cabrera to assist her in correcting her performance deficiencies and offered Cabrera numerous suggestions on how to improve her classroom teaching performance.
On May 3, 2001, Cabrera was again formally observed in the classroom by Principal Dennis.
At that time, Dennis rated Cabrera’s performance unacceptable in the categories of classroom management and in techniques of instruction. Since a deficiency in even one TADS category, if not corrected within the 90-day period, requires termination, the fact that Cabrera had corrected two areas of deficiency identified in her January evaluation was not enough to save her job.
Cabrera believes that she is being unfairly criticized for being unable to manage the behavior of students who, she claims, are beyond the ability of any teacher to manage. In her view, the students who disrupted her classroom “needed professional help, not from a teacher, but from someone else.”
Cabrera testified, quite sincerely, that she did the best she could in terms of trying to fulfill her responsibility to create a orderly classroom in which learning could take place. She contends that the decision to place her on prescription in 2001 was an ambush.
The evidence did establish that Petitioner’s knowledge of Cabrera’s shortcomings as a disciplinarian were well known at Bel-Aire long before the administration acted upon that knowledge.
Cabrera argues that had she been given assistance, inside or outside the TADS process, long before she was, she could have improved her performance and saved her job. This argument requires the fact-finder to engage in impermissible speculation. While the evidence established that Cabrera was motivated to keep her job, complied with all recommended prescriptive activities and, in two out of the four categories in which she was determined by TADS observers to be deficient, had been able to elevate her performance to a passable level within the 90-day compliance period, it is impossible to know whether she could have remedied her deficiencies in the area of classroom discipline had she been forced to try years earlier.
If Petitioner was inclined to overlook Cabrera's deficient classroom management prior to last year, Cabrera was
similarly inclined to overlook unacceptable behavior in her students when it first manifested itself. In both cases, the willingness to accept sub-standard behavior worked to the detriment of all concerned.
The most damaging testimony regarding Cabrera’s classroom management problems came not from School Board witnesses, but from Cabrera herself. She testified that it was her practice to give misbehaving children one or two months to “let them adjust. . . . Maybe they are not used to me. It’s an unfamiliar face. So I wait. Then, when I see that I get to the point where I just can’t take it . . . then that’s when I take action and I start writing referrals and start calling parents.” By that time, the evidence established, it was too late for Cabrera to exercise control over students whom she had allowed to ignore her.
As a result of Cabrera’s unsatisfactory performance, on May 3, 2001, Dennis notified the Superintendent of Schools that Cabrera had not satisfactorily corrected her performance deficiencies during her 90 calendar-day performance probation period and recommended that Cabrera's employment be terminated.
On May 16, 2001, the School Board acted upon the Superintendent's recommendation and terminated Cabrera's employment contract.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Sections 120.569, 120.57(1), and 231.29(3)(d), Florida Statutes (2000).
Section 231.29, Florida Statutes (2000), establishes a process for the evaluation of instructional personnel and requires that an employee on a professional service contract who is performing unsatisfactorily be placed on a 90 calendar- day probation period. Section 231.29(3)(d)2, Florida Statutes (2000). If the employee fails to correct deficiencies within that probationary period, termination of employment is required. Section 231.29(3)(d)2.b, Florida Statutes (2000).
Petitioner has the burden of establishing by a preponderance of the evidence that Cabrera failed to correct her deficiencies and should not be issued a new professional service contract. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).
Petitioner has met its burden of proving by a preponderance of the evidence that Cabrera failed to perform in a satisfactory manner in the areas of classroom management and techniques of instruction, and failed to correct her deficiencies by the close of her 90 calendar-day performance
probation period as required by Section 231.29, Florida Statutes (2000).
In arriving at its decision to terminate Cabrera, Petitioner afforded her legally sufficient assistance and services, through prescription plans established for Cabrera’s performance improvement that were appropriate under the circumstances. Petitioner otherwise complied with all of the procedures prescribed under TADS in fulfillment of the statutory requirements of Section 231.29, Florida Statutes (2000).
Even if it could be demonstrated that Cabrera would have been able to remedy her deficiencies had she been required to attempt to do so prior to 2000-2001 school year, there is no legal requirement that Petitioner place a teacher on prescription each and every time it could legitimately do so.
Instead, the union contract and statutory scheme
which governs these proceedings embodies the notion that Florida’s teachers do not enjoy tenure. Rather, every teacher must prove herself every year under the objective standards then lawfully in place.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Cabrera's employment and denying her claim for reinstatement.
DONE AND ENTERED this 3rd day of January, 2002, in Tallahassee, Leon County, Florida.
___________________________________ FLORENCE SNYDER RIVAS
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 3rd day of January, 2002.
COPIES FURNISHED:
Leslie A. Meek, Esquire United Teachers of Dade 2200 Biscayne Boulevard
Miami, Florida, 33137
Luis M. Garcia, Esquire
Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
Merritt R. Steirheim, Superintendent Miami-Dade County School Board
1450 Northeast Second Avenue Miami, Florida 33132
Honorable Charlie Crist Commissioner of Education Department of Education
The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
James A. Robinson, General Counsel Department of Education
The Capitol, Suite 1701 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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 14, 2002 | Agency Final Order | |
| Jan. 03, 2002 | Recommended Order | Termination of Respondent upheld for failure to remedy deficiencies in classroom management. |
