STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LAKE COUNTY SCHOOL BOARD,
Petitioner,
vs.
KAREN HOLCOMB,
Respondent.
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) Case No. 11-1584
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RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on September 1, 2011, in Leesburg, Florida, before Lawrence P. Stevenson, the designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Steven W. Johnson, Esquire
McLin & Burnsed
Post Office Box 491357 Leesburg, Florida 34749-1357
For Respondent: Richard H. Weisberg, Esquire
Law Offices of Richard H. Weisberg, P.A. 2014 East Robinson Street
Orlando, Florida 32803 STATEMENT OF THE ISSUE
The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Karen Holcomb.
PRELIMINARY STATEMENT
On March 14, 2011, Petitioner Lake County School Board ("School Board") sent written notice to Respondent Karen Holcomb of its intent to terminate Ms. Holcomb's employment. The notice informed Respondent of her right to seek an administrative proceeding to contest the proposed agency action. Respondent timely filed a letter contesting the School Board's proposed action. On March 21, 2011, the School Board forwarded Respondent's hearing request to the Division of Administrative Hearings for the assignment of an Administrative Law Judge and the conduct of a formal evidentiary hearing. The hearing was scheduled for May 16, 2011, in Leesburg.
On April 25, 2011, Respondent filed a written objection to the School Board's request to take her deposition. Though she construed the proposed deposition as an "attack," Respondent did not at that time refuse to appear for a deposition. She requested that the deposition be set in the late afternoon and that a union representative be allowed to assist her. On the same date, Respondent filed a motion for summary judgment, based on the lack of evidence provided by the School Board and on the School Board's failure to follow the procedures set forth by section 1012.34(3)(d), Florida Statutes, during its evaluations of her performance as a teacher during the period of probation that preceded the decision to terminate her employment.
On April 29, 2011, Respondent filed a motion to allow her to answer written questions from the School Board rather than sit for an oral deposition. As grounds for the motion, she cited her precarious health and the constitutional principle that she should not be compelled to be a witness against herself.
On May 5, 2011, the School Board filed a written response to the motion for summary judgment. The response accurately pointed out that Respondent had established no material facts in the record of this case and that the matter therefore was unripe for summary disposition.
Also on May 5, 2011, the School Board filed a motion to compel discovery pointing out that, while citing poor health as a reason she was unable to attend a deposition, Respondent sought an immediate return to her position as a high school art teacher. Respondent was also apparently healthy enough to attend a mediation hearing on her workers' compensation claim against Petitioner on May 4, 2011. The only evidence Respondent had provided regarding the status of her health was a physician's note referring her for a consultation for "anxiety/depression."
On May 5, 2011, the undersigned entered an order disposing of Respondent's pending motions. The order denied Respondent's
motions for summary judgment and for a protective order preventing her deposition, and granted the School Board's motion to compel discovery. The order noted that "this is a case involving the termination of Respondent's employment with Petitioner on grounds of poor job performance. The Fifth Amendment right against self-incrimination is not an issue in this case. Respondent is therefore directed to cooperate in discovery and submit to an oral deposition. Should Respondent fail to appear for the deposition, she will be subject to the sanctions described in Rule 1.380(d), Florida Rules of Civil Procedure." The order directed Respondent to submit to a deposition during regular business hours at the offices of the School Board's attorney.
Also on May 5, 2011, the undersigned entered an order continuing the final hearing in this case to allow for discovery to proceed in an orderly manner.
On May 19, 2011, Respondent filed a motion for reconsideration of the order requiring her to sit for a discovery deposition. Respondent again complained that the School Board had yet to present proof of its case against her, and requested that this tribunal base its decision on the "facts of this case" rather than on a "hostile deposition."
On May 25, 2011, an order was entered setting this case for hearing on June 7, 2011.
On May 27, 2011, the School Board filed a motion for sanctions or for continuance. The motion stated that Respondent had failed to comply with the May 5, 2011, order on pending motions that directed her to cooperate in discovery and submit to an oral deposition during regular business hours at the offices of Petitioner's attorney. The School Board had properly noticed Respondent for deposition on May 24, 2011, and Respondent had failed to appear.
On May 31, 2011, Respondent filed a response to the School Board's motion for sanctions or for continuance in which she agreed to the continuance of the hearing, but only for purposes of advancing her own argument for a summary disposition of the case in her favor.
On May 31, 2011, the undersigned entered a second order of continuance. In light of Respondent's frequent demand for the School Board's proof against her and Respondent's repeated refusal to appear for a deposition, the undersigned wrote the following in an effort to make Respondent understand the discovery process:
Respondent appears to have a fundamental misunderstanding of the nature of this proceeding. The hearing before the Administrative Law Judge of the Division of Administrative Hearings is a de novo hearing. This means that the actions taken so far by the School Board against Respondent enjoy no presumption of correctness. The School Board must prove
its case against Respondent at the hearing. The Administrative Law Judge will base his recommended order solely on the evidence presented at the final hearing.
Respondent should understand that, because the decision will be based on evidence presented at the hearing, neither party has the obligation to prove its allegations or defenses before the hearing. At this time, statements made by the parties in their pleadings are merely allegations. Without sworn testimony or properly introduced documentary evidence, the Administrative Law Judge is in no position to decide whether either party's allegations are true or false and is therefore unable to make a summary ruling on the merits. This is the period of discovery, which may include the taking of Respondent's deposition.
Contrary to Respondent's stated fears, this case will not be decided based on a "hostile deposition." Respondent will have every opportunity to testify at the final hearing. If Respondent testifies fully at the final hearing, the School Board will have no occasion to use the deposition. Respondent must understand that if she continues to refuse to submit to a deposition, then the School Board will be entitled, at the very least, to an order that prevents Respondent from testifying on her own behalf at the hearing.
The order made clear that the May 5, 2011, order on pending motions remained in effect. Respondent was directed to submit to a deposition during regular business hours at the offices of the School Board's attorney. The order informed Respondent that failure to submit to a deposition meant that she would not be permitted to testify on her own behalf at the final hearing and
could be subject to other sanctions, including summary disposition of this case.
On June 1, 2011, Respondent filed a "response" to the order of May 31, 2011, that continued to state that Respondent would not sit for a deposition unless and until the School Board provided "verified proof" that it had complied with section 1012.34(3)(d) in proposing to terminate her employment.
Also on June 1, 2011, the School Board filed its notice of taking Respondent's deposition on June 9, 2011.
On June 6, 2011, Respondent filed a motion that the School Board be required to provide "verified proof" that it complied with statutory requirements before any summary disposition is made of this case.
On June 10, 2011, the School Board filed a renewal of its motion for sanctions, based on Respondent's continued refusal to permit the taking of her deposition. A telephonic hearing on the motion was held on June 24, 2011.
In an order dated July 12, 2011, the undersigned ordered as follows:
Because of Respondent's refusal to cooperate in discovery, the hearing will be limited to the School Board's presentation of its prima facie case in support of Respondent's termination. Respondent will be allowed to cross-examine the School Board's witnesses and to contest the School Board's documentary evidence. Respondent will not be allowed to testify on her own behalf at
the final hearing. Respondent will not be allowed to present the testimony of any other witnesses unless the School Board has been properly notified and given the opportunity to take their depositions.
The order also directed the parties to confer and advise this tribunal, no later than July 21, 2011, as to the length of time required for the final hearing and mutually agreeable dates for the hearing.
The parties filed a timely response to the order and the hearing was rescheduled for September 1, 2011.
On August 30, 2011, Respondent's counsel entered a notice of appearance and filed an emergency motion for continuance. As grounds for the motion, counsel stated that he had been hired on August 26, 2011, had received the file materials on August 29, 2011, and had not had sufficient time to prepare for the hearing.
By order dated August 31, 2011, the undersigned denied the motion, finding that there was no cognizable "emergency" justifying a third continuance of the hearing. The undersigned noted that the case had been pending since March 21, 2011, and had been continued twice due solely to Respondent's failure to cooperate in discovery. The undersigned concluded that Respondent's eleventh-hour decision to hire counsel was not grounds for further delay.
The hearing was convened as scheduled on September 1, 2011.
At the hearing, the School Board presented the testimony of Rebecca Nelson, supervisor of compensation and employee relations for the School Board; Marta Ramirez, an assistant principal at Eustis High School ("Eustis High") in Eustis; and June Dalton, the principal of Tavares High School in Tavares. The School Board's Exhibits 1 through 16 were admitted into evidence. The Respondent’s Composite Exhibit numbered 1 was admitted. By the terms of the July 12, 2011, order, Respondent was not permitted to testify on her own behalf. Respondent called no other witnesses and offered no exhibits into evidence.
The one-volume Transcript of the hearing was filed at DOAH on September 30, 2011. The parties timely filed Proposed
Recommended Orders.
FINDINGS OF FACT
Respondent Karen Holcomb is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.1/
Ms. Holcomb's complete employee file was not presented at the hearing. Performance evaluation documents that were
entered into evidence show that she was an employee of the School Board for at least the following periods and in the following capacities: eighth grade math teacher at Eustis Middle School for the 2002-2003 and 2004-2005 school years; guidance counselor at Mount Dora Middle School for the 2005-2006 school year; math teacher at South Lake High School for the 2007-2008 school year; and art teacher at Eustis High for the 2009-2010 and 2010-2011 school years.
The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board.
Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process.
Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida
Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected.
In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board.
The Observation/Assessment form contains six sections and 12 subsections. The subsections are further divided into sub-subsections.2/ The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection.
The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does
not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient.
A deficient Appraisal I results in probationary status for the teachers, triggering the NEAT procedure and further evaluations. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance Form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation.
Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process.
The record evidence indicates that Ms. Holcomb received a grade of 12 on her Appraisal I for the 2002-2003 school year, dated February 10, 2003, as a math teacher at Eustis Middle School and on her Appraisal I for the 2005-2006 school year, dated March 1, 2006, as a guidance counselor at Mt. Dora Middle School.
On March 21, 2006, Ms. Holcomb received an Appraisal II for her failure to timely update a student's accommodation
plan under section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794.
On April 25, 2006, Ms. Holcomb received two Appraisal IIs. One cited Ms. Holcomb for a failure to report to work, stating that she did not inform administration or school site personnel that she would not be at work on April 7, 19, 20, and 21, 2006. The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement in notifying her worksite of her absences. In response, Ms. Holcomb submitted an affidavit from her husband stating that on the dates in question, Ms. Holcomb was either sick with a severe headache or in the hospital for cardiac problems. Ms. Holcomb's husband took responsibility for any failure to contact the proper school authorities regarding
Ms. Holcomb's absences from work on those dates.
The other April 25, 2006, Appraisal II stated that Ms. Holcomb was "not able to perform her job requirements due to excessive absences. The total number of days out as of
April 21, 2006 is 31.5 days." The "recommended procedure for correction" was that Ms. Holcomb should "come to work on time and when required by work calendar designated by School Board and school site policy." The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement.
In response, Ms. Holcomb filed a memorandum explaining that her absences were due to legitimate illness and injury,
including a 15-day hospitalization for broken ribs and collarbone, two days missed due to severe headaches, and four days missed due to hospitalization with heart attack symptoms. Ms. Holcomb suggested that the Appraisal II was part of an effort by school administrators "to undermine my current Professional Services Contract with Lake County Public Schools and destroy my reputation, due to an unknown agenda."
As noted above, Ms. Holcomb began work as an art teacher at Eustis High during the 2009-2010 school year. On October 27, 2009, she received an Appraisal II from then- assistant principal Kristine Durias due to her classroom management. Ms. Durias explained the unacceptable aspects of Ms. Holcomb's classroom management as follows:
I noted on several occasions that students in your classroom were not abiding by District, school and classroom procedures and were without correction from you as their teacher. On my last visit to your classroom on 10/22/09, 3 students had iPods out, 5 students were wandering around the classroom not engaged in the project and 1 student had their head down, all without regard from the teacher.
Ms. Durias also provided Ms. Holcomb with a Prescription/Assistance Form setting forth the areas of performance that required improvement and providing resources to assist Ms. Holcomb in bringing her performance level up to the School Board's standards. These resources included page
references to the IPPAS Handbook section on "Classroom Management," in-service classes on "Effective Classroom Management Strategies" and "Classroom Management for Secondary Teachers." The Prescription/Assistance Form also stated that Ms. Durias would contact the instructional coach to assist Ms. Holcomb and would ask another staff member to mentor
Ms. Holcomb on school policies and procedures. The Prescription/Assistance Form provided that Ms. Holcomb's performance should show improvement "immediately," but also stated that her performance would be checked within three weeks.
On November 17, 2009, from 12:40 p.m. until 1:20 p.m., Ms. Durias observed Ms. Holcomb and scored her on the Appraisal I form. Ms. Durias gave Ms. Holcomb a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score.
Ms. Durias found Ms. Holcomb's performance deficient in two sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities."
Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." She was graded as unsatisfactory in four of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" "Recognizes response/amplifies/gives corrective feedback;" and "Directs lesson."
At a post-appraisal conference on December 2, 2009, Ms. Durias gave Ms. Holcomb a Prescription/Assistance Form. This form essentially directed Ms. Holcomb to continue with the recommendations set forth in the Prescription/Assistance Form issued on October 27, 2009.
Because the November 17, 2009, evaluation resulted in a score that was below the minimum IPPAS requirement of 12,
Ms. Durias designated it as an "Observation" rather than a formal Appraisal I that would immediately affect Ms. Holcomb's employment status.3/ In the Prescription/Assistance form,
Ms. Durias informed Ms. Holcomb that another IPPAS appraisal would be conducted within three weeks.
The appraisal was not conducted within the stated three weeks because Ms. Holcomb was out on sick leave from January 21, 2010, through April 20, 2010.
On April 23, 2010, two days after Ms. Holcomb returned to work from her lengthy absence, an Appraisal I of her performance was conducted by assistant principal Marta Ramirez, who joined the staff at Eustis High School in March 2010.
Ms. Ramirez testified that it is not at all unusual to evaluate a teacher who has been out of work for a long period of time.
Teachers are frequently out on maternity leave or due to illness. Ms. Ramirez stated that the School Board expects every teacher to perform at the level required to pass an IPPAS appraisal whenever she comes to teach, whether it is the first day of school or the first day back from an extended leave.
Ms. Ramirez observed Ms. Holcomb from 12:44 p.m. until 1:44 p.m. and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 8 on the appraisal, rating her unsatisfactory in four of the 12 subsections. The section "Teaching Procedures" contains four subsections, one of which is "Displays skills in making assignments." Ms. Ramirez found
Ms. Holcomb's performance deficient in that subsection due to an unsatisfactory score in the sub-subsection titled "Gives clear and explicit directions."
The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez
found Ms. Holcomb's performance deficient in three of the four sub-subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors."
Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in both subsections: "Demonstrates knowledge and understanding of the subject matter" and "Communicates and presents subject matter in a manner that enables students to learn." As to the first subsection, Ms. Holcomb was graded as unsatisfactory in one of two sub-subsections, "Sequence is logical." As to the second subsection, she was graded as unsatisfactory in three of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" and "Directs lesson."
At the hearing, Ms. Ramirez testified as to her observations of Ms. Holcomb's teaching methods. Ms. Ramirez stated that there is a standard procedure for ensuring a prompt start to the class. Before the students come into the classroom, the teacher writes a "bell ringer" on the blackboard, i.e., an activity that the students are expected to work on
while the teacher takes attendance. Ms. Holcomb had no bell ringer activity prepared for her students, who sat down at their tables with nothing to do. The students talked among themselves, a distraction that lengthened the process of taking attendance to six minutes. Ms. Ramirez found Ms. Holcomb's performance deficient in the areas of starting class promptly and being on task.
Ms. Ramirez stated that another standard classroom procedure is the teacher's stating the objective of the day's lesson. Ms. Holcomb stated no objective either orally or in writing. Because there was no stated objective, the lesson did not proceed in a meaningful, orderly fashion. Ms. Holcomb seemed to jump from one thing to another. Some students were confused, looking to Ms. Holcomb and trying to figure out what they were supposed to do.
Ms. Ramirez noted that the lack of a set procedure or guidance from the teacher naturally leads the students to lose focus and begin talking among themselves. Ms. Holcomb's students began chatting, which led Ms. Holcomb to attempt disciplinary measures. She began by saying "cut." Ms. Ramirez was not sure what "cut" meant, but surmised that it was
Ms. Holcomb's instruction to the students to stop talking. The instruction had no effect on the students.
Ms. Ramirez testified that there was still some confusion 20 minutes into the class period. The students still did not understand the assignment. They were blurting out questions such as, "What are we doing?" and "Is this for a grade?" They were asking each other what they were supposed to be doing. At some length, they understood the assignment and began work, though an undercurrent of confusion remained.
Ms. Ramirez attributed this undercurrent to Ms. Holcomb's failure to state an objective or purpose to the assignment.
Ms. Ramirez was also critical of Ms. Holcomb's interactions with the students. Ms. Ramirez stated that accepted practice is for the teacher to state a single question, wait for a moment, call on a student, and affirm the correct answer. If the answer is incorrect, the teacher provides feedback that steers the class toward the correct answer.
Ms. Ramirez testified that Ms. Holcomb allowed the students to shout out answers in a chaotic manner.
Ms. Ramirez stated that the class period lasted for 90 minutes, but that she left after an hour because the class "didn't seem to be headed any direction, just headed downhill." The students were not on task and were not learning anything.
As a result of the substandard Appraisal I score, Ms. Ramirez completed a Prescription/Assistance Form that she gave to Ms. Holcomb at a post-observation conference on
April 29, 2010. Eight areas for improvement were listed, corresponding to the eight sub-subsections for which Ms. Holcomb received unsatisfactory scores on the April 23 Appraisal I. Eight pages of the IPPAS Handbook were attached as reference resources to assist Ms. Holcomb to improve her performance.
The Prescription/Assistance Form also provided that an instructional coach would assist Ms. Holcomb in applying best teaching practices and that she could obtain in-service instruction in classroom management. The form also "encouraged" Ms. Holcomb to take staff development workshops provided by Lake County.
Also on April 29, 2010, Eustis High principal Al Larry issued a memorandum to Ms. Holcomb advising her of performance deficiencies in the areas of "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter," as reflected in the April 23 Appraisal I. Mr. Larry noted that as to the latter two areas, Ms. Holcomb had shown deficiencies in the observation of November 17, 2009, and that those deficiencies had not been corrected. Mr. Larry's memorandum closed as follows: "Based on the performance deficiencies, I am placing you on performance probation for 90-calendar days beginning on Monday, August 23, 2010. The 90-calendar days will end on Monday, November 22, 2010."
By letter dated May 7, 2010, Superintendent of Schools Susan Moxley warned Ms. Holcomb of the consequences of failure to correct her performance deficiencies:
Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies.
Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies.
Ms. Ramirez testified that she contacted Claude Pennacchia, a former principal who acts as instructional coach for eight schools. Mr. Pinnachia agreed to contact Ms. Holcomb and set up a meeting. Because she called Mr. Pennacchia near the end of the school year, Ms. Ramirez contacted him again at the start of the new school year in August to remind him of the need to provide training to Ms. Holcomb. Mr. Pennacchia told
her that he had tried to arrange a meeting with Ms. Holcomb, but they could not agree on a time.
Ms. Ramirez testified that to the best of her knowledge Ms. Holcomb never made herself available to meet with Mr. Pennacchia. Ms. Ramirez was not aware that Ms. Holcomb ever did anything that was recommended by the April 29, 2010, Prescription/Assistance Form.
Ms. Ramirez testified that Ms. Holcomb was in school for the first two weeks of the 2010-2011 school year, then became ill and was out until sometime in November 2010. The follow-up observation was conducted by Ms. Ramirez on December 1, 2010, after the running of the 90-day probation period.
Ms. Ramirez observed Ms. Holcomb from 10:23 a.m. until 11:00 a.m.4/ and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 7 on the appraisal, rating her unsatisfactory in five of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which
student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found
Ms. Holcomb's performance deficient in two of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time
effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities."
Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in one subsection, "Communicates and presents subject matter in a manner that enables students to learn." Within that subsection, Ms. Holcomb was graded as unsatisfactory in two of seven sub- subsections: "Uses questioning techniques" and "Recognizes response/ amplifies/ gives corrective feedback."
Under the section "Assessment Techniques," Ms. Holcomb was rated unsatisfactory in the sole subsection, "Uses assessment strategies to assist in the continuous development of the student." Within that subsection, Ms. Holcomb was graded as unsatisfactory in one of four sub-subsections, "Checks student progress based on the performance standards required of students in Florida public schools, analyses data, including annual learning gains at the classroom and school levels, and makes appropriate adjustments."
Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in one of three subsections, "Engages in continuous professional improvement for self and school." This subsection contained four sub-subsections, in two of which
Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress."
At the hearing, Ms. Ramirez explained that the sections of the Appraisal I document being scrutinized during the observation are "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter." The sections titled "Planning," "Assessment Techniques," and "Personal Characteristics and Professional Responsibilities" are covered in the post-observation conference with the teacher, at which time the teacher shares her portfolio or other evidence of compliance with IPPAS standards with the evaluator.
Ms. Ramirez testified that on this occasion
Ms. Holcomb had an assignment on the board as the students entered, but that the students still appeared confused. They did not seem to know what they were supposed to be doing. The students continued to talk among themselves even when
Ms. Holcomb began a review.
Ms. Ramirez noted that Ms. Holcomb was still using "cut" to end the students' conversations, and that it was still being ignored. Ms. Holcomb had posted rules of conduct in her
classroom that included raising one's hand and being called on by the teacher before asking a question. Ms. Ramirez testified that this rule was ignored by the students and Ms. Holcomb. The students would blurt out questions, and Ms. Holcomb would answer them. Ms. Ramirez found it highly problematic that Ms. Holcomb was not even attempting to enforce her own rule.
Ms. Ramirez noted that students walked into class several minutes after the bell and Ms. Holcomb took no notice. Students walked into the class with food and started eating. Other students simply stood up and walked out of class.
Ms. Holcomb did not address any of these misbehaviors.
Ms. Ramirez testified that before leaving the classroom, a student is supposed to ask permission, get a pass, and sign out. Ms. Holcomb seemed unaware that students were walking in and out of the classroom while she taught the lesson. Ms. Holcomb's failure to observe the hall pass protocol created a dangerous situation because there was no accountability for these children. They were without adult supervision outside the classroom and could go anywhere or do anything.
During cross-examination, Ms. Ramirez was questioned regarding the size and configuration of Ms. Holcomb's classroom in connection with the fact that Ms. Holcomb was using a wheelchair during this period. Counsel was attempting to demonstrate that at least some of the discipline problems were
not Ms. Holcomb's fault because the layout of her classroom ensured that she was unable to see all of her students from her position in the wheelchair.
Ms. Ramirez acknowledged that Ms. Holcomb's art class was large, between 35 and 40 students, and that Ms. Holcomb had to navigate the room in a wheelchair. However, Ms. Ramirez also testified that being in a wheelchair did not absolve Ms. Holcomb of her responsibility for the safety of the children in her classroom. More than one person in the Eustis High administration had urged Ms. Holcomb to rearrange the tables in her classroom to give herself a clear view of all the students. Ms. Holcomb had been advised to look at the classroom of the art teacher next door for ideas on how to arrange the tables. For some reason, Ms. Holcomb declined to change the configuration of the tables in a way that would curtail the students' ability to essentially hide from her.
Ms. Ramirez conducted a post-observation conference with Ms. Holcomb on December 6, 2010. Prior to the conference, Ms. Ramirez spoke to Mr. Larry about the results of the Appraisal I. She told Mr. Larry that Ms. Holcomb had requested that her union representative be present at the conference and that "it doesn't look good" for Ms. Holcomb because she received unsatisfactory scores in two of the same subsections she had failed on the April 23, 2010, Appraisal I. In light of this
information, Mr. Larry decided that he would attend the conference as well.
On December 7, 2010, Ms. Holcomb submitted written comments that provided as follows, in relevant part:
To begin, this is the culmination of
Mr. Larry's hostile attitude toward my... appointment to Eustis High School....
Mr. Larry has not spoken one kind word to me since the appointment in August of 2009.
Since my appointment to Eustis High School, I have had to work in a hostile environment where Mr. Larry has been using the Florida Statute 1012.34 assessment procedures as a weapon to fire me. Using an assessment procedure where nothing less than perfect is failing, Mr. Larry used his assistant principals to do his bidding where acceptable or unacceptable grades are completely subjective. In other words, the assessment is biased where any teacher that the principal does not like has no chance of passing and there is no supervisory protection or due process afforded to the teacher. . . (Emphasis in original.)
Ms. Holcomb also alleged that Mr. Larry "violated the intent of the ninety days rule" for performance probation when he did not extend the time for improvement of her deficiencies in light of her eight-week stay in the hospital. Ms. Holcomb also alleged that Mr. Larry refused her request to move to an open guidance counselor position that would not require her to show classroom management skills.
There was no record evidence that Mr. Larry held any grudge against Ms. Holcomb.5/ Ms. Ramirez denied receiving any
instruction or direction from Mr. Larry as to her evaluations of Ms. Holcomb's performance as a teacher. There was no record evidence that Ms. Holcomb applied for a guidance counselor position during the period in question.
By letter dated December 7, 2010, Mr. Larry informed Superintendent Moxley that Ms. Holcomb had failed to correct her performance deficiencies, that Mr. Larry did not believe
Ms. Holcomb capable of correcting those deficiencies, and recommending that Ms. Holcomb's employment be terminated.
In a letter to Ms. Holcomb dated December 10, 2010, Superintendent Moxley wrote as follows:
Pursuant to Florida Statute 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Please be advised that I will recommend to the Board that your employment be terminated as of January 10, 2011.
You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have.
Ms. Holcomb filed a grievance pursuant to School Board Policy 6.35. In light of that grievance, Superintendent Moxley rescinded Ms. Holcomb's termination until such time as
Ms. Holcomb could receive a second Appraisal I observation by an administrator from outside Eustis High.
June Dalton, the principal of Tavares High School, was selected by chief of curriculum Nancy Velez to conduct the observation. Ms. Dalton began teaching in Lake County in 1978 as a physical education teacher. After teaching for 13 years, Ms. Dalton became an administrator. She has served 14 years as a principal, including eight years at the high school level.
Ms. Dalton has been trained in use of the IPPAS Handbook and sat on a committee charged with updating the IPPAS program. She has trained administrators on the IPPAS system.
At the time she accepted the assignment from
Ms. Velez, Ms. Dalton had never met Ms. Holcomb. Ms Dalton met Ms. Holcomb for the first time at the pre-observation conference on January 11, 2011. They discussed the appraisal form, including every aspect of the observation and the areas on which Ms. Dalton would focus. Ms. Dalton assured Ms. Holcomb that she was there to help her meet the minimum standards in her appraisal.
Ms. Dalton testified that Ms. Holcomb had some concerns about the layout of her classroom and asked for her ideas. Ms. Holcomb told Ms. Dalton that she had trouble maintaining order with some of the students in her classroom. Ms. Dalton testified that Ms. Holcomb's classroom was long and
narrow, with tables arranged in such a way that at times some students were facing away from the teacher. Ms. Dalton suggested setting the tables end to end along the length of the room, so that Ms. Holcomb could lecture in front and be seen by all of the students. Ms. Dalton stated that when she came to the room for the observation, the tables had not been moved.6/
Ms. Dalton asked to see Ms. Holcomb's individual personal development plan ("IPDP"), a document that all teachers are required to complete that identifies individual goals and objectives designed to promote their personal growth. The teacher is required to state objectives that are feasible and primarily under her control, are measureable and/or observable, and are agreed to and signed by the teacher and her supervisor. Ms. Dalton stated that it is her practice at Tavares High School to review her teachers' IPDPs before their observations.
Ms. Holcomb told Ms. Dalton that she had turned in her IPDP to Ms. Ramirez, but that she could not find her copy of the signed document. Ms. Holcomb printed a copy of the IPDP to show to Ms. Dalton. After reviewing the IPDP, Ms. Dalton concluded that it was not a workable plan as written because there was no way that Ms. Holcomb could document the student progress that she intended to bring about. Ms. Dalton gave Ms. Holcomb some suggestions for making her IPDP into an acceptable document.
Ms. Holcomb agreed that she would rewrite the IPDP and have it
ready for Ms. Dalton at the time of the observation. However, on the day of the observation, Ms. Holcomb told Ms. Dalton that she had not had time to work on it.
Through his questioning of Ms. Ramirez, counsel for Ms. Holcomb insinuated that that Ms. Holcomb had turned in an IPDP to Ms. Ramirez in October 2010, but that Ms. Ramirez had lost the IPDP by the time she performed her Appraisal I on December 1, 2010. Ms. Ramirez testified that the first time she ever saw an IPDP from Ms. Holcomb was at the December 6 post- observation conference. The document was handwritten and was missing significant information. Ms. Holcomb had been notified that that the IPDP was part of her Appraisal I and that she needed to bring it to her post-observation conference.
Ms. Ramirez gave her an unsatisfactory mark for the incomplete IPDP.
The testimony of Ms. Dalton and Ms. Ramirez is credited as to the IPDP. It is apparent that Ms. Holcomb created a typed IPDP at some point between December 6, 2010, and January 11, 2011, but that she never gave it to her supervisor at Eustis High for review and approval. Ms. Holcomb tried to make Ms. Dalton believe that the IPDP she printed at the pre- observation conference on January 11 was an approved, finished product when in fact it was, at best, a draft IPDP.
After they finished with the pre-observation conference, Ms. Dalton and Ms. Holcomb discussed dates for the observation. Ms. Holcomb did not want the observation to take place until after semester exams. Ms. Dalton agreed that little would be gained from having her observe Ms. Holcomb as she proctored an exam. They agreed on a date, but Ms. Holcomb was out sick on the scheduled date. After a few reschedulings, the observation took place on February 17, 2011.
Ms. Dalton's observation lasted from the time the bell rang at 12:44 p.m. until class was dismissed at 2:14 p.m.
Ms. Dalton was in the classroom several minutes before the opening bell.
On the Appraisal I form, Ms. Dalton gave Ms. Holcomb a score of 6, rating her unsatisfactory in six of the 12 subsections. The section "Planning" contains a single subsection titled "Plans, implements, and evaluates instruction," for which Ms. Holcomb was given an unsatisfactory score. Within that subsection, Ms. Holcomb was given an unsatisfactory score on one of the four sub-subsections, titled "Develops short and long term personal and professional goals related to instruction as evidenced by an Individual Professional Development Plan."
The section "Teaching Procedures" contains four subsections, in two of which Ms. Dalton graded Ms. Holcomb's
performance as unsatisfactory. Under the subsection titled "Uses instructional materials effectively," Ms. Holcomb was graded unsatisfactory in the sub-subsection titled "Uses technology in the teaching and learning process." Under the subsection titled "Recognizes and provides for individual differences," Ms. Holcomb was given an unsatisfactory score in the sub-subsection titled "Attends to student needs."
The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which students are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Dalton found Ms. Holcomb's performance deficient in three of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors."
Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in two of the three subsections. The first subsection, "Engages in continuous professional improvement for self and school," contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory:
"Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." The second subsection was titled "Complies with Board rules, policies, contract provisions, and published school-site rules and policies consistent with Board rules and contract provisions" and contained no sub-subsections.
Ms. Dalton testified that Ms. Holcomb did not have a bell ringer activity to keep the students engaged while she took attendance. Ms. Holcomb frequently had to stop taking attendance to admonish talkative students. Ms. Dalton stated that Ms. Holcomb was still taking attendance at 12:53, nine minutes after the opening bell. She started entering the attendance into her computer at 12:58, and was not finished with marking attendance until 1:01, seventeen minutes into the class period.
Ms. Dalton found it apparent from the start that there was no class routine. The students had to be told what to do at every step of the way. At the end of attendance, Ms. Holcomb explained a journal assignment she had written on the board, but most of the students talked all the way through her explanation and some did not perform the assignment at all. There were no consequences for their misbehavior.
Ms. Holcomb held up samples of a project the class had begun in a previous session and was continuing to work on. The students in the middle of the room had a good view of the samples, but the students at the far end of the room had a hard time seeing. Ms. Dalton noted that some students were working on the project and some were not. Some were talking. Students at two different tables were texting or playing with their cell phones.
Ms. Dalton stated that Ms. Holcomb frequently stopped to announce that she was waiting for the class to be quiet. She also used a technique called "harsh desist," singling out a student to threaten with removal from class. One such student replied, "Good, get me out of here."
Ms. Holcomb called out to Table Five that she was taking away five points for talking, though not everyone at the table was talking. Ms. Dalton heard one of the students at the table say, "Well, it doesn't matter, she doesn't know our names anyway." Ms. Dalton took this statement as a sign that
Ms. Holcomb's method of correcting misbehavior was not effective.
Ms. Dalton noticed that Ms. Holcomb did not have current class rosters. The rosters and seating charts in her folder were from the previous semester. Ms. Holcomb did not know the names of the students at Table Five and therefore was
unable to deduct points from them. Ms. Holcomb told another table that she was awarding it bonus points, but Ms. Dalton wondered how Ms. Holcomb could do that when she did not know the students' names.
Ms. Dalton noted that Ms. Holcomb's voice was loud to the point of yelling. Ms. Dalton believed that if Ms. Holcomb would use a quieter voice, then the students who were not being intentionally disruptive might quiet down. Ms. Dalton testified that in her experience students will stop talking if they cannot hear what the teacher is saying. If they can hear the teacher over their own quiet conversation, then they will go on talking.
Ms. Dalton stated that Ms. Holcomb had some technology in the classroom but for some reason declined to use it.
Ms. Holcomb had a document camera that could have been used to show a document to the entire class. All of the components to the camera appeared to be present, but Ms. Holcomb failed to use
it.
Ms. Dalton observed three students at one table who
did nothing for 35 minutes but draw on their arms, talk, and play with their phones. Finally, Ms. Holcomb addressed two of the students. However, they continued to draw on their arms and not work even when Ms. Holcomb sat next to one of them.
Ms. Holcomb gave these students no further corrective feedback.
Ms. Holcomb attempted to gain control of the class by threatening detention for the next Tuesday. She stated that if a student receiving a detention became argumentative or disrespectful, she would escalate the discipline to a referral. Ms. Dalton saw Ms. Holcomb's threats as empty because the promised detentions were five days in the future. Ms. Dalton also noted that Ms. Holcomb had not yet contacted the parents of any of the disruptive students.
Ms. Dalton testified that Ms. Holcomb did some things well. She worked with some students individually. She gave them feedback. Overall, Ms. Dalton saw a class in which some students were trying to do their work, and in which many other students were talkative, did not seem to care about their work, and did not fear any consequences. Ms. Holcomb's method of dealing with the discipline problem was to make empty threats.
Ms. Dalton acknowledged that the score of six was "a bad score." The observation gave her concerns about
Ms. Holcomb's ability to teach in a classroom. Ms. Dalton stated, "It was a difficult class to watch." The students who wanted to learn were not getting what they needed because the teacher was spending so much time ineffectively trying to get minor misbehaviors under control.
Ms. Dalton testified that the post-observation conference, held on February 18, 2011, was uneventful. She
asked Ms. Holcomb whether she had called the parents of the students who were disrupting her class. Ms. Holcomb stated that she intended to commence calling them that evening. From
Ms. Holcomb's reply, Ms. Dalton concluded that Ms. Holcomb was not taking charge or involving the parents in getting the misbehaviors under control.
On February 22, 2011, Ms. Holcomb submitted her written comments on the evaluation. She again decried the subjectivity of the evaluation criteria and the fact that a perfect score is required for a satisfactory appraisal. She alleged that Eustis High and the School Board were "using the Florida Statute 1012.34 as a tool to fire me because I am a handicapped teacher in a wheelchair." Ms. Holcomb stated that she had turned in her IPDP more than once but that her administrator never signed it. She stated that the document camera did not work properly. She argued that the school had a faulty system for removing disruptive students and that her phone calls to parents had not improved the students' behavior. Ms. Holcomb argued that she could not properly manage the classroom when there were students in the room who did not want to be there but whom Mr. Larry would not permanently remove from her class.
Ms. Dalton testified that during the post-observation conference, Ms. Holcomb said nothing about the document camera
not working. Ms. Dalton saw only one student who expressed a desire to be out of Ms. Holcomb's classroom. She reiterated her opinion that the disciplinary problem in Ms. Holcomb's classroom was minor but that Ms. Holcomb escalated the problem through her mishandling of the disruptive students. Ms. Dalton saw nothing in Ms. Holcomb's comments that changed her mind about the scores she gave Ms. Holcomb on the Appraisal I.
In a letter to Ms. Holcomb dated March 14, 2011, Superintendent Moxley wrote as follows:
Pursuant to Florida Statutes 1012.33 and 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Due to the global nature of the identified performance deficiencies, you have demonstrated incompetence and the lack of the qualifications needed to be an effective teacher. Please be advised that I will recommend to the Board that your employment be terminated as of March 28, 2011.
You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have.
Ms. Holcomb timely requested a due process hearing by letter dated March 18, 2011. On the same date, Superintendent Moxley notified Ms. Holcomb in writing that she would recommend
that Ms. Holcomb be placed on unpaid suspension at the March 28, 2011, School Board meeting and that the suspension last until the conclusion of the due process proceeding.
The first duty of school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. The evidence established that the process followed by School Board personnel in evaluating Ms. Holcomb's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA.7/ The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook.
At the outset of the final hearing, the School Board announced that it intended to proceed exclusively pursuant to the "just cause" provision of section 1012.33. Therefore, there is no need for extensive findings as to whether the School Board met all of the substantive criteria for teacher dismissal set forth in section 1012.34(3).8/
The issue is whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1). On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment.
The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Holcomb for incompetency.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to section 120.569 and subsections 120.57(1) and 1012.34(3)(d), Florida Statutes (2011).
Respondent is an employee of the School Board, and holds a professional service contract pursuant to section 1012.33(3)(a).
The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty. Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. Sch.
Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA
1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).
There are two statutory mechanisms by which a school board may terminate the employment of an employee working under a professional service contract: termination for cause pursuant to section 1012.33, and termination for failure to correct performance deficiencies within the 90-day probation period
pursuant to section 1012.34. In this case, the School Board chose to proceed exclusively under section 1012.33.
Subsection 1012.33(1)(a) provides that a teacher's contract must contain provisions for dismissal during the term of the contract for "just cause," which includes "misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude," as those terms are defined by rule of the State Board of Education. The School Board in this case has argued that Respondent's incompetency provides just cause for the termination of her employment contract.
Florida Administrative Code Rule 6B-4.009(1) defines "incompetency" as follows:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes)9/; (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 (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
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. (Emphasis added).
Subsection 1012.34(3) authorizes the termination of contracts for the failure to correct performance deficiencies. Though the School Board is not proceeding under this subsection, the assessment criteria set forth in subsection 1012.34(3)(a)1.-
"enumerate important skills for a teacher to possess," and proof of deficiency in those skills over time constitutes just cause for termination of a teacher's professional service contract under section 1012.33. Pinellas Cnty. Sch. Bd. v. Ferrier, Case No. 10-1152 (DOAH July 29, 2010; Pinellas Co. Sch. Bd. September 29, 2010), Conclusion of Law 69. Subsection 1012.34(3)(a) provides as follows, in relevant part:
An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. The assessment must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee's
performance. Student performance must be measured by state assessments required under s. 1008.22 and by local assessments for subjects and grade levels not measured by the state assessment program. The assessment criteria must include, but are not limited to, indicators that relate to the following:
Performance of students.
Ability to maintain appropriate discipline.
Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.
Ability to plan and deliver instruction and the use of technology in the classroom.
Ability to evaluate instructional needs.
Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement.
Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.
In three separate appraisals and one observation conducted between November 17, 2009, and February 17, 2011, Ms. Holcomb consistently displayed an inability to maintain basic decorum in the classroom. Little to no instruction occurred in Ms. Holcomb's classroom because there was no
effective supervision or discipline. Ms. Holcomb consistently failed to implement basic teaching techniques despite repeated counseling from her observers. She gave no indication of having a plan for her class. There was little order. Her students never appeared to know what they were supposed to be doing.
Ms. Holcomb at times appeared not to know what the students were doing, as they played with cell phones, chatted, or even left the classroom.
None of the faults found by the observers appeared uncorrectable, but Ms. Holcomb gave no indication of a willingness to make the corrections or to diligently seek to improve her performance. Both Ms. Ramirez and Ms. Dalton counseled her on configuring her classroom to no avail.
Ms. Ramirez provided Ms. Holcomb with access to an experienced instructional coach, but Ms. Holcomb did not make the necessary effort to meet with him. Ms. Holcomb also declined in-service training opportunities. Based on the evidence presented at the hearing, the School Board was fully justified in concluding that Ms. Holcomb could not or would not make the effort necessary to improve her performance as a classroom teacher to meet the IPPAS standards.
It is unfortunate that Ms. Holcomb chose not to participate in the discovery process and thereby deprived herself of the opportunity to testify on her own behalf at the
hearing. As indicated in the findings of fact, Ms. Holcomb was away from work for long periods of time due to illness. The undersigned was deprived of detailed knowledge of her illnesses and their possible continuing effects, which could have provided extenuation for her poor performance during observations.
Ms. Holcomb also made allegations that her principal, Mr. Larry, was hostile toward her, improperly employed the evaluation process against her, and used her art class as a dumping ground for students with disciplinary and/or academic problems. Though Ms. Ramirez and Ms. Dalton credibly denied being a part of any plan by Mr. Larry to fire Ms. Holcomb, the undersigned would have preferred to hear directly from Ms. Holcomb on the issues she raised regarding Mr. Larry.
In summary, Ms. Holcomb failed to maintain proper discipline in her classroom. She failed to employ adequate techniques of instruction in her classroom. She failed to create a classroom environment conducive to learning. She failed to establish and maintain a positive collaborative relationship with the parents of her students. She failed to correct her performance deficiencies despite being given multiple opportunities to do so, and despite receiving explicit recommendations on how to improve her performance in the classroom.
A preponderance of the evidence presented at the hearing demonstrated a "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." The demonstration of this aspect of incompetency is sufficient to establish just cause to terminate Ms. Holcomb's professional service contract.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency.
DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011.
ENDNOTES
1/ Unless otherwise indicated, references to the Florida Statutes are to the 2010 edition.
2/ The IPPAS Handbook employs the terms "categories," "standards" and "indicators" for sections, subsections, and sub- subsections, respectively. The undersigned has concluded that the terminology employed in this Recommended Order is easier for the uninitiated reader to follow.
3/ Under IPPAS procedures, the initial observation becomes a formal appraisal only if the score is a perfect 12. If the score is less than 12, it is documented as an "observation," prescriptive assistance is given, and a follow-up observation is scheduled in no less than three weeks. Eustis High assistant principal Marta Ramirez testified that it would not be fair to the underperforming teacher to formalize the first observation without giving her a chance to correct her deficiencies.
4/ The IPPAS Handbook provides that a formal observation "must last a minimum of twenty (20) minutes."
5/ Ms. Holcomb's failure to cooperate in discovery ensured that she would be unable to prove her allegations against Mr. Larry. The School Board listed Mr. Larry as a witness at the hearing but decided not to call him. Counsel for Ms. Holcomb objected and orally moved for a continuance in order to serve a witness subpoena on Mr. Larry. The undersigned denied the motion, on the ground that Ms. Holcomb herself was the author of her evidentiary predicament.
6/ Ms. Holcomb would not have been expected to move the tables herself. The school's maintenance crew could have arranged the room for her. Ms. Dalton noted that she has seen teachers enlist the help of the students in moving tables and chairs in the classroom.
7/ Ms. Holcomb argued that the School Board failed to provide "assistance and inservice training opportunities to help correct the noted performance deficiencies" as required by section 1012.34(3)(d)2.a. The evidence established that assistance and training opportunities were provided to Ms. Holcomb, but that she failed to take advantage of the opportunities. Ms. Ramirez testified at length about her efforts to provide instructional coaching and in-service training opportunities for Ms. Holcomb.
Ms. Holcomb also argued that she was not provided with practice observations during her probationary period.
Ms. Holcomb pointed to no provision of the IPPAS Handbook or the CBA that requires the school administrators to provide practice observations, though Ms. Dalton testified that it is her usual practice to perform practice observations in order to give the teacher feedback on her classroom performance. Section 10 of Article XI of the CBA provides that a teacher "may make reasonable requests in writing to the principal for additional classroom observation and written evaluation by other managerial personnel." No evidence was presented that Ms. Holcomb requested additional classroom observation, aside from the grievance that resulted in the Appraisal I by Ms. Dalton.
8/ See, e.g., Lake Cnty. Sch. Bd. v. Harkleroad, Case No. 11- 0238 (DOAH June 24, 2011; Lake Co. Sch. Bd. August 12, 2011) at
¶ 125-126. In that case, the undersigned found that the School Board had failed to satisfy the statute's substantive criterion of proving that Ms. Harkleroad's teaching performance adversely affected the academic performance of the students assigned to her classroom, though the School Board had satisfied the procedural criteria of section 1012.34(3), the IPPAS Handbook and the CBA. In the instant case, the evidence produced at hearing established that the School Board met the procedural criteria of section 1012.34 even though the School Board ultimately chose to proceed against Ms. Holcomb only under section 1012.33.
9/ Prior to the repeal of chapter 231, Florida Statutes, by section 1058, chapter 2002-387, Laws of Florida, section 231.09, Florida Statutes (2001) set forth the duties of instructional personnel as follows:
The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher's duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board.
Florida Administrative Code Rule 6B-4.009 has not been updated to reflect the change in the statutes. The continuing validity of the rule has not been questioned in this proceeding.
COPIES FURNISHED:
Stephen W. Johnson, Esquire McLin & Burnsed
Post Office Box 491357 Leesburg, Florida 34749-1357 stevej@mclinburnsed.com
Richard H. Weisberg, Esquire
Law Offices of Richard H. Weisberg, P.A. 2014 East Robinson Street
Orlando, Florida 32803 terry@rhwpalaw.com
Susan Moxley, Superintendent Lake County Schools
201 West Burleigh Boulevard· Tavares,·Florida 32778-2496
Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street 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 |
|---|---|---|
| Apr. 16, 2012 | Agency Final Order | |
| Mar. 14, 2012 | Recommended Order | The School Board demonstrated by a preponderance of the evidence that it followed proper assessment procedures and that Respondent's employment should be terminated due to incompetency. |
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