STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANATEE COUNTY SCHOOL BOARD,
Petitioner,
vs.
DONNA HOLLOWAY,
Respondent.
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) Case No. 11-5835TTS
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case on February 7 and 8, 2012, in Bradenton, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Erin G. Jackson, Esquire
Thompson, Sizemore, Gonzalez and Hearing, P.A.
Post Office Box 639
201 North Franklin Street, Suite 1600 Tampa, Florida 33602
For Respondent: Melissa C. Mihok, Esquire
Kelly and McKee, P.A.
1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638 STATEMENT OF THE ISSUE
The issue in this case is whether just cause exists to terminate Respondent, Donna Holloway's ("Holloway"), employment
with Petitioner, Manatee County School Board (the "School Board"), based upon:
Violation of Florida Administrative Code Rule
6B-4.009(3), specifically, misconduct in office so serious as to impair the teacher's effectiveness;
Violation of School Board Policy 6.2(2)(B)(2) regarding excessive absences;
Violation of Florida Administrative Code Rule
2B-4.009(4) and policy 6.11 concerning gross insubordination;
Violation of rule 6B-1.006(3)(a) concerning a teacher's duty to protect students;
Violation of rule 6B-4.009(1)(a) regarding repeated failures to perform duties; and/or
Violation of Policies and Procedures for Students with Disabilities, Part II, Section D.
PRELIMINARY STATEMENT
On October 19, 2011, Tim McGonegal, superintendent of Manatee County Schools, issued a letter to Holloway indicating that he intended to recommend termination of Holloway's employment at the next School Board meeting. An Administrative Complaint was attached to the letter. Holloway, through her legal counsel, requested a formal administrative hearing to contest the School Board's intended action. The matter was
referred to the Division of Administrative Hearings on November 15, 2011.
At the final hearing, the School Board called the following witnesses: Debra A. Horne, specialist with the Professional Standards Office; James Mennes, principal at Freedom Elementary School (the "School"); Erinn Zachariasen, exceptional student education ("ESE") specialist; Jim Drake, assistant superintendent for business services; Disa McClintock, teacher's aide; and Kathy Pickera, senior secretary. Petitioner's Exhibits 1 through 19 were admitted into evidence without objection. Respondent testified on her own behalf and offered her Exhibits 1 through 19 into evidence, all of which were admitted without objection.
(The exhibits were admitted by stipulation of the parties. However, hearsay contained within the exhibits is still subject to corroboration by competent, non-hearsay evidence or to supplement other competent evidence. To the extent such hearsay was not corroborated, it will not be used as a basis for any finding herein.)
The parties advised the undersigned that a transcript of the final hearing would be ordered. The parties were given ten days from the filing of the Transcript to submit proposed recommended orders (PROs). The Transcript was filed on February 17, 2012.
Thereafter, the parties requested and were granted additional time to submit their PROs. Each party timely submitted a PRO,
and both parties' submissions were given due consideration in the preparation of this Recommended Order.
FINDINGS OF FACT
The School Board is responsible for hiring, firing, and overseeing all employees at the School, an elementary school within the Manatee County school system. The School has grades K through 12, including ESE classes at various grade levels.
At all times relevant hereto, Holloway was employed at the School, having been hired initially in 2003 (the School's first year of operation) as a media specialist. She was then moved to a third-grade classroom in the 2008-2009 school year. At about the time of the Thanksgiving holiday in 2009, Holloway was transferred to an ESE pre-kindergarten (EPK) class the School had just been assigned by the District office. Holloway was one of the few teachers at the School who was already certified for
EPK, so she was a good fit for the position. There were from ten to 15 three-to-five-year-olds in the class initially.
Holloway's Performance Issues
Holloway was told there were complaints made by other teachers against her while she was working as a media specialist. No specific evidence of those complaints was presented at the final hearing in this matter. Upon her transfer to the
third-grade class, her principal, Mr. Holbrook, and then the subsequent principal, Mennes, advised Holloway that some
additional complaints had been lodged against her. Again, no evidence as to specific complaints was presented at final hearing. Beginning in the 2009-2010 school year, specifically just prior to Holloway's transfer to the EPK class, Holloway began to receive written directives and reprimands.
In October 2009, Holloway received a written reprimand, including an admonishment about not leaving her classroom during instructional time. Holloway was still teaching her third-grade class at that time. Then, after her transfer to the EPK class, she received a letter of reprimand in December that addressed complaints made by parents about Holloway's propensity to leave her classroom during instructional time. Holloway admits that she would often leave her classroom during the school day. Sometimes she was walking with students to provide a "teachable moment" due to the student's particular needs. Other times she was taking care of business in lieu of a regularly scheduled planning period. Holloway also admits that her absences from the classroom were contrary to the directive given her by the principal.
Excessive Absences
Holloway was assigned to the EPK class again for the 2010-2011 school year. Almost from the first day of that school year, Holloway began to receive admonishments about her work performance. On October 18, 2010, Holloway was reminded by her
principal that she had not worked a full week since the start of the school year. She had missed the Monday and Friday of the first week of school. The absences created problems for the School, especially when a substitute teacher had to be arranged on short notice.
When a teacher finds they are going to be absent, it is incumbent upon them to notify their school as early as possible in order for a substitute teacher to be found. There is an automated telephone system (called SUBS) that is supposed to allow a teacher to timely and effectively report their impending absence. Holloway would often experience problems using the SUBS system. When that occurred, she would instead leave telephone messages for various people in the School administrative offices. Many of her phone messages were considered by the principal and others to be sarcastic, rude, or unprofessional; Holloway described the calls as playful or done in a kidding fashion. The School administration and Holloway disagree as to whether Holloway timely arranged for substitutes when she was going to be absent. Holloway expressed frustration that the SUBS system she was supposed to use did not always work. The school staff expressed frustration that Holloway would not always provide adequate notice that she was going to be late or absent, causing problems in finding suitable substitutes.
In December 2010, Holloway was again counseled concerning excessive absences during the school year. None of Holloway's absences, however, were unexcused. Holloway recognized the importance of being at school as often as possible for the betterment of her students. However, she experienced a number of health problems that apparently caused her to be absent more frequently than other teachers.1/
Holloway had some health issues and missed numerous days during each of the school years in which she taught at the School. She suffered from and was on medication for anxiety and a depression disorder and also suffered from migraine headaches. The classroom environment exacerbated her depression. For the 2008-2009 school year, Holloway was absent from work 29.6 days, excluding Family Medical Leave Act (FMLA) absences, or about
14 percent of the school year. In 2009-2010, Holloway was absent
24.5 days (excluding FMLA), about 12 percent of the school year.
The 2010-2011 absences were 22.4 days (excluding FMLA days), about 11 percent of the school year. Holloway was then absent two of the first five working days of the 2011-2012 school year. Despite the large number of absences, none of them were unexcused.
Documentation Status and Performance Probation
After the winter break of the 2010-2011 school year, Holloway was given a letter saying her performance had been
unsatisfactory and that she was being placed on Documentation Status, a program that would include monitoring Holloway's performance in various delineated areas. She was admonished to improve in the areas of classroom management, attendance, organization, and planning.
While on Documentation Status, Holloway was advised, via letter from her principal, that she was still not remaining in the classroom with her students. The principal provided Holloway with specific break, lunch, and planning period times, and she was instructed to otherwise remain in the classroom. At about the same time, Holloway's teacher's aide began documenting all the times during the school day that Holloway would be absent from the classroom. Her absences from the classroom continued to be excessive despite the directive from her principal. Holloway was, however, aware that it was important for her to be in the classroom so as to provide consistency and continuity for the students.
Holloway's access to a reasonable break period and teacher planning period was an issue throughout her tenure as the EPK teacher. At first Holloway did not have a designated planning period and was expected to do her planning duties during the day as time permitted. Many teachers had planning periods during their students' lunch period, but the special needs children in Holloway's class needed her to be with them at lunch,
at least at first. After additional staff was assigned to her room, Holloway was able to leave her students in the care of her paraprofessional aides during the lunch period. Holloway was also offered the option of doing planning during the children's nap time. The nap time lasted approximately two hours, but not all students would be asleep for that entire period. During nap time, the classroom would be dimly lit, and it was important to maintain silence. Those conditions did not allow for an optimal planning period for Holloway. Ultimately, the principal established the definitive time for Holloway to take her break, eat her lunch, and engage in planning. The times were set forth in a written directive issued by the principal on March 3, 2011. Holloway did not particularly approve of the times set forth in the directive and suggested an alternative to the principal, who did not respond.2/
On May 3, 2011, Holloway was placed on Performance Probation. Performance Probation is a program established for the purpose of trying to improve a struggling teacher's performance to stave off the possibility of termination. Holloway was provided with a statement as to various areas of unsatisfactory performance and given until October 7, 2011, i.e.,
90 days, to correct her deficient practices. Holloway acknowledged receipt of the Performance Probation document.
The areas of unsatisfactory performance identified by the principal were: Planning, Management of Student Conduct, Instructional Organization and Development, Presentation of Subject Matter, Communication, and Employability. Specific issues were listed under each of those areas, and Holloway was given direction as to how she should improve.
The Individual Education Plans
In addition to the areas of concern listed in the Performance Probation document, Holloway was also struggling to complete Individual Education Plans ("IEPs") for her ESE students. Every ESE student must have an IEP each year, establishing what the student's needs are and how they are going to be addressed by the school. The IEPs are mandated by federal and state law and are an integral part of an ESE's educational program. The IEP is an important factor in determining the amount of funding a school will receive for particular ESE students. The higher the student's needs, as documented in the IEP, the more funds the school will expect to receive.
At the conclusion of the 2009-2010 school year, Holloway had not completed all the IEPs for her 11 ESE students. She was provided some assistance and guidance by an ESE specialist, but at the end of the school year, her IEPs were not finished. In order to avoid any penalty or sanction, the ESE specialist completed the IEPs for Holloway. When the 2010-2011
school year started, the ESE specialist provided additional assistance to Holloway. In fact, the specialist undertook the scheduling of conferences with the IEP team, the student, and the parents. In late November 2010, Holloway requested that she be allowed to retain the role of planning the conferences and completing the IEPs. The specialist conferred with the principal and Holloway's request was granted. After that, the specialist would do periodic reviews of Holloway's IEP files to make sure they were being done properly and timely.
On May 25, 2011, the specialist provided Holloway a letter outlining all items that were missing from her IEPs as the school year was winding down. One of the omissions was a matrix for each student. The matrix is a document that outlines the student's needs and the funding necessary to meet those needs, e.g., use of a speech therapist, assisted listening devices, etc. Holloway told the ESE specialist that she (Holloway) thought matrices only had to be done every three years. The specialist advised Holloway that according to the newly-created policies by the School Board, the matrices had to be done every year, especially if the student was undergoing any changes and particularly if a change of school assignment was involved. The matrices should be updated within two weeks of the implementation or alteration of an IEP. Holloway denies being provided prior notice about the change in the policy relating to matrices.
However, she was ultimately made aware of the District policy and that matrices were due for all of her ESE students each year.
On June 10, 2011, the date the IEPs were supposed to be complete, the ESE specialist followed up with another letter, thanking Holloway for what she had accomplished thus far, but pointing out a number of items still missing from the IEPs.3/ In addition, the IEP files were not in order, were not secured, and had duplicate pages. Holloway explained the duplicates as being drafts or work in progress. There is no prohibition against having duplicates in the file until the time the final IEP is prepared.
Due to the confidential nature of materials in the IEP files, at the end of the school year all the students' files were placed in a secure storage area within the School. Holloway was advised that the files were locked up in storage, so she believed she never had an opportunity to complete the IEPs. However, there is no indication that Holloway ever asked for access to the files so that she could complete the IEPs, nor did she ask her principal for additional time to complete the IEPs.4/ Once the files were placed in storage around June 15, 2011, Holloway did not access them again.
The ESE specialist did not complete the IEPs in storage at the end of the 2010-2011 school year as she had completed the prior year's IEPs. She does not know if the IEPs for the
2010-2011 school year were ever completed. She does know that as of June 10, 2011, the day the IEPs were supposed to be finished, there were still a number of outstanding items on six of the students' IEPs. On June 17, 2011, the principal notified Holloway via email that her IEPs and matrices still needed to be completed. Holloway did not comply with that directive.
Holloway maintains that she did not have ample time, i.e., a regular planning period, to complete her IEPs. Her testimony in that regard is not credible. According to Holloway, it would take about 45 minutes to complete an IEP, and she ignored other responsibilities while trying to complete the IEPs, but still did not finish them. She was given specific instructions and assistance by the ESE specialist over a period of time, and it seemed that Holloway was working on IEPs throughout the year. Thus, saying she did not have time to complete them is inconsistent with her other testimony.
The Check List
The day after Holloway was placed on performance probation, May 4, 2011, an end-of-year calendar and end-of-year check list (the "Check List") was distributed to all teachers and other staff. The Check List enumerated all items each teacher must have completed "before the luncheon on June 10th." The Check List included such items as returning textbooks and instructional materials, completing report cards and attaching
students' pictures to the cumulative file copies, turning in walkie-talkies and chargers, stacking chairs, removing items from windows, and clearing off desk tops. The Check List also provided all pertinent dates for end-of-school activities and events.
On June 11, 2011, Mennes did a walk-through of the School, checking each classroom to make sure the Check List items had been completed. Holloway had not turned in her Check List on June 10, 2011, as ordered; she was the only teacher at the School not to do so. When Mennes went to Holloway's classroom, he found that the room had not been cleaned. Rather, it was in disarray, and there was paper covering the windows with a note saying, "Sorry, not ready for you to see my mess." Holloway had not requested additional time to clean her room, although it is unclear whether Mennes would have granted such a request.
Holloway asserts that she did not have time to clean her room and complete the Check List, because she was concentrating on completing the student IEPs that were past due. Those IEPs, however, were not completed either. According to Holloway, she had not completed her IEPs because she did not have an acceptable planning period giving her sufficient time.
Holloway's prescribed 40-minute planning period was during the time her students were napping, i.e., for approximately two hours after lunch. Nap time was not
instructional time, so it was allowable for Holloway to be out of the room, leaving the students in the care of her aide or aides during that time. A caveat to that arrangement was that one of her students had behavioral problems. According to that student's behavioral intervention plan, there must be two adults in the room when he was sleeping. In approximately February 2011, a second aide was assigned to Holloway's class. When both aides were present, Holloway would have been free to leave the classroom to work on IEPs. However, she said that it was not easy to gather all the materials needed and move to another room when working on IEPs. If she stayed in the room to work on the IEPs in her classroom while the students were sleeping and her aide(s) watched the children, she would not have optimum lighting and it would have to be very quiet.
Failure to Protect Students
On August 22, 2011, Holloway was in her classroom attending to a student with behavior issues. An aide had taken the other children out to the playground area for recess. After Holloway completed her work with the behavioral student, she sent him out to the playground to join the others. Holloway says she radioed the aide on the walkie-talkie and received a short response indicating the aide understood the child was on the way. Holloway watched the child go up to the gate of the playground area. He stood there for a couple of minutes until Holloway told
him to call out to the aide. Once he had done so, Holloway saw the aide's hand on the gate and turned and went back into the classroom. The aide does not remember getting a call on her walkie-talkie from Holloway. She remembers seeing the child and that he called out to her. When she opened the gate for the child, she looked around toward the classroom, but did not see Holloway in the doorway.
Holloway would often leave her classroom during instructional times. This occurred so often that one of her aides began documenting all of Holloway's absences from class during the day. Mennes and others observed Holloway "wandering the halls" at times during the school day, sometimes accompanying a student and sometimes not. Holloway explained that she sometimes took students out of the class for a "teaching moment" that may involve outside stimuli. No specific examples were provided. Mennes issued a written directive advising Holloway not to be outside her classroom during instructional times. By her own admission, Holloway did not always follow that directive.
Clearly, Holloway did not have a completely satisfactory experience at the School despite having no unsatisfactory evaluations during her tenure. Her tendency to be out of the classroom more frequently than other teachers (and more often than her principal desired), coupled with her personal health issues that resulted in numerous absences, did not place
her in good stead with the School administration. Holloway seemed to make some efforts to comply with requirements of her position, but she seemed to fail frequently. Her inability to complete her IEPs, to complete her end-of-year Check List, and to remain in her classroom were unacceptable. Her absences affected the well-being of her students, and her insubordination concerning her principal's directives are "just cause" for the action taken against her.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to a contract with the School District of Manatee County. The proceedings are governed by sections 120.57 and 120.569, Florida Statutes (2011).5/
The superintendent of Manatee County Schools has the authority to recommend to the School Board that an employee be suspended or dismissed from employment. § 1012.27(5), Fla. Stat.
The School Board has the authority to terminate or suspend the employment of personnel without pay and benefits. See §§ 1012.22(1)(f) & 1012.42(2)(c).
The burden of proof in this proceeding is on the School Board to prove, by a preponderance of the evidence, that just cause exists to suspend or terminate Holloway's employment. McNeil v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA
1996). Preponderance of the evidence is evidence that more likely than not tends to prove the proposition set forth by a proponent. Gross v. Lyons, 763 So. 2d 276 (Fla. 2000).
The School Board has discretion to set standards which subject an employee to discipline. See Dietz v. Lee Cnty. Sch. Bd., 647 So. 2d 217 (Fla. 2d DCA 1994). Nonetheless, just cause for discipline must rationally and logically relate to an employee's conduct in the performance of the employee's job duties and be in connection with inefficiency, delinquency, poor leadership, lack of role modeling, or misconduct. State ex. rel. Hathaway v. Smith, 35 So. 2d 650 (Fla. 1948).
Just cause for purposes of discipline is discussed in section 1012.33:
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted and found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
Gross insubordination is defined in rule 6B-4.009(3), in part, as the constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
As to each of the six bases alleged by the School Board to warrant termination of Holloway's employment:
Rule 6B-4.009(3)--Misconduct in office: The School Board proved that Holloway was guilty of misconduct, but did not prove by a preponderance of evidence that Holloway's misconduct was so serious as to significantly impair her effectiveness as a teacher;
School Board Policy 6.2(2)(B)(2)--Excessive absences: The School Board proved by a preponderance of the evidence that Holloway was excessively absent, including short periods of absence from her classroom on a regular basis;
Rule 2B-4.009(4) and Policy 6.11--Gross insubordination: The School Board proved by a preponderance of the evidence that Holloway intentionally refused to obey direct orders concerning her absence from class and completion of her work;
Rule 6B-1006(3)(a)--Protection of students: There was insufficient evidence to support this claim as to the child sent to the playground unescorted, but there is some evidence that leaving her students with paraprofessionals might decrease the level of protection for some of her students;
Rule 6B-4.009(1)(a)--Repeated failures to perform duties: The School Board proved by a preponderance of the evidence that Holloway repeatedly failed to complete her duties, especially as related to the completion of IEPs; and
Policies and Procedures for Students with Disabilities: The School Board proved by a preponderance of the evidence that Holloway failed to complete IEPs for her ESE students.
There is, therefore, just cause to terminate Holloway's employment.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered by Petitioner, Manatee County School Board, dismissing Respondent, Donna Holloway, from her employment for "just cause," as set forth above.
DONE AND ENTERED this 27th day of March, 2012, in Tallahassee, Leon County, Florida.
S
R. BRUCE MCKIBBEN 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 27th day of March, 2012.
ENDNOTES
1/ There was no direct testimony at final hearing stating that Holloway's medical or psychological issues were the reason for her absences, but it is inferred that the two were related.
2/ Unfortunately, the principal often failed to respond to Holloway's emails. Although it is impossible to know all the communications that were going on between the two of them, it is clear there are no documented responses to several of Holloway's emails.
3/ There is no State requirement that IEPs be finished on the last day of school, but it is a policy of the District and the School.
4/ Holloway did ask the School's registrar if she could have additional time. The registrar said yes, but that person was not authorized to grant Holloway's request.
5/ Unless specifically stated otherwise, all references to Florida Statutes are to the 2011 codification.
COPIES FURNISHED:
Tim McGonegal, Ed.D., Superintendent Manatee County School Board
215 Manatee Avenue West Bradenton, Florida 34205-9069
Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Melissa C. Mihok, Esquire Kelly and McKee, P.A.
1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez
and Hearing, P.A. Post Office Box 639
201 North Franklin Street, Suite 1600 Tampa, Florida 33602
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 |
|---|---|---|
| May 16, 2012 | Agency Final Order | |
| Mar. 27, 2012 | Recommended Order | The School Board proved, by a preponderance of the evidence, that Respondent's employment should be terminated. |
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