STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD,
vs.
Petitioner,
Case No. 13-447TTS
ELIZABETH KRISTAL,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013), before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"), on
September 13, 2013, by video teleconference at sites in Miami
and Tallahassee, Florida.
APPEARANCES
For Petitioner: Heather L. Ward, Esquire
Miami-Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
For Respondent: Mark Herdman, Esquire
Herdman & Sakellarides, P.A. Suite 110
29605 U.S. Highway 19, North
Clearwater, Florida 33761
STATEMENT OF THE ISSUES
The issues in this case are: (1) whether Respondent failed to correct performance deficiencies, thereby justifying termination of her employment as a teacher pursuant to section 1012.34; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
PRELIMINARY STATEMENT
On or about January 16, 2013, Petitioner took action against Respondent to suspend her without pay and terminate her employment as a teacher. Respondent timely requested an administrative hearing to contest Petitioner's action, and the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1).
The hearing initially was set for April 15, 2013, but pursuant to motions for continuance, was rescheduled for June 21, 2013, then for September 13, 2013.
On September 10, 2013, Respondent filed a Motion in Limine to Limit Testimony from Employees who Provided Assistance to Respondent ("Motion"). Upon reviewing the Motion and considering argument from the parties presented at the final hearing, the undersigned denied the Motion.
The final hearing was held on September 13, 2013.
Petitioner presented the testimony of Concepcion Santana,
Marybel Baldessari, Gisela Feild, Mariela Rapp, Lynn Carrier, and Anne-Marie DuBoulay. Petitioner's Exhibits 1 through 17 and
20 were admitted into evidence without objection, and Petitioner's Exhibit 27 was admitted into evidence over objection. Respondent testified on her own behalf.
Respondent's Exhibits 1 through 20 were admitted into evidence over objection and Exhibit 21 was admitted into evidence without objection.
The two-volume Transcript was filed on November 12, 2013. Pursuant to Petitioner's unopposed Motion for Extension of Time to File Proposed Recommended Orders, the parties were given until December 6, 2013, to file their proposed recommended orders. The parties timely filed their Proposed Recommended Orders on December 6, 2013; both Proposed Recommended Orders were duly considered in preparing this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner is a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1001.32, Florida Statutes.
At all times relevant to this proceeding, Respondent was employed as a teacher in the Miami-Dade County Public School District pursuant to a professional services contract.
Respondent has been a teacher for approximately 14 years. She began teaching full-time at Gulfstream in the 2004- 2005 school year. During her years at Gulfstream, she taught fifth, third, and second grades, and in the 2010-2011 school year she was a co-teacher assigned to assist other teachers in instructing their students.
In the 2011-2012 school year, and in the 2012-2013 school year until she was suspended pending the outcome of this proceeding, Respondent was a first grade teacher at Gulfstream.
At all times relevant to this proceeding, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies and procedures, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade.
The Events Giving Rise to this Proceeding
Section 1012.34(3), Florida Statutes, mandates that instructional personnel, including classroom teachers, be evaluated for performance at least once a year.
Pursuant to section 1012.34(3), the performance evaluation consists of two components: a student performance component and an instructional practice component. The former
is based on student scores on the Florida Comprehensive Assessment Test ("FCAT"), or, for subjects and grade levels not measured by the FCAT, on school district assessments as provided in section 1008.22(8). The latter is based on instructional performance indicators that are evaluated based in part on classroom teaching observations.
2011-2012 School Year
March 27, 2012 Evaluation
In the 2011-2012 school year, approximately 17 students were assigned to Respondent's first grade class.
Pursuant to section 1012.34(3)(a)2., in connection with Respondent's annual evaluation, Gulfstream Principal Concepcion Santana conducted a formal observation of Respondent's instructional practices in her classroom on March 27, 2012, as she taught reading/language arts. She observed Respondent for
40 minutes.
In evaluating Respondent, Santana followed the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used throughout the Miami-Dade County Public School District to evaluate instructional personnel.
IPEGS consists of eight performance standards that constitute the minimum standards a teacher must meet in classroom instruction. These standards are based on the Florida
Educator Accomplished Practices adopted by the State Board of Education, as required by section 1012.34(3)(a)2.
Four of the IPEGS performance standards are observable during the classroom instruction portion of the evaluation. The other four are "not observable," meaning that they target performance standards that may not necessarily be observed at the time of the classroom instruction performance evaluation.1/
Santana found that Respondent's instructional practices were deficient with respect to the four observable performance standards ("PS"): Knowledge of Learners (PS 2), Instructional Planning (PS 3), Instructional Delivery and Engagement (PS 4), and Learning Environment (PS 8).
PS 2 requires the teacher to identify and address the needs of learners by demonstrating respect for individual differences, cultures, backgrounds, and learning styles.
Santana observed that Respondent failed to meet PS 2.
Specifically, Respondent did not tailor her teaching to address the various learning styles and levels of the students in her classroom; rather, she presented the lesson in a manner that addressed only one learning level, so that some of the students were not learning.
PS 3 requires the teacher to use appropriate curricula, instructional strategies, and resources to develop lesson plans that include goals and/or objectives, learning
activities, assessment of student learning, and home learning in order to address the diverse needs of students.
Respondent failed to meet PS 3. The activities she conducted did not directly conform to her written lesson plan. Specifically, the students were reading a story that was not identified on the lesson plan, and completing workbook pages that were not identified in the lesson plan while skipping others that were identified in the plan. As a result, the focus and purpose of the lesson being taught was not addressed in the lesson plan. Additionally, the lesson plan did not incorporate multiple instructional strategies to meet the learning needs of all of the students. Respondent failed to use a variety of resources and questioning techniques to cater to the range of learning styles and levels of her students and encourage higher level thinking; rather, the instruction presented that day catered to rote learning.
PS 4 requires the teacher to promote learning by demonstrating accurate content knowledge and by addressing academic needs through a variety of appropriate instructional strategies and technologies that engage learners.
Respondent also failed to meet PS 4. She did not deliver the instruction at a pace appropriate to engage all students. Additionally, her instructional delivery failed to incorporate a range of strategies so that again, not all
students were engaged in the lesson. As a result, many students were off-task, and frequent interruptions distracted students who otherwise were on-task.
PS 8 requires the teacher to create and maintain a safe learning environment while encouraging fairness, respect, and enthusiasm.
Respondent failed to meet PS 8. Santana noted that there appeared to be little evidence of specified classroom procedures that the students understood and followed, so as to create an environment conducive to learning. As a result, students were up out of their seats, asking to go to the restroom, and fiddling with their papers and pencils.
Following the observation, Santana documented her observations on a form titled "IPEGS Observation Standards Form- Teacher" ("IPEGS Form").
In compliance with section 1012.34(3)(c), Santana notified Respondent in writing of a scheduled support dialogue meeting.
The purpose of the support dialogue meeting was to provide feedback regarding the classroom observation and to discuss strategies and supportive actions that could be provided to Respondent to assist her in remediating her deficiencies and improving her instructional performance.
Santana's support dialogue meeting with Respondent took place on March 29, 2012. Present at the meeting, in addition to Santana and Respondent were a UTD representative; a reading coach, Mariela Rapp; and an assistant principal.
Santana provided the completed IPEGS form for the March 27 classroom observation to Respondent and discussed with her the observed deficiencies, including instructional strategies that she could have incorporated into the lesson to make it more effective. Rapp and another reading coach, Lynn Carrier, were assigned to provide support to Respondent, and strategies to assist her were devised. Respondent was informed that she had 21 days in which to implement the actions prescribed in the support dialogue meeting, and that at the end of that period, Santana would conduct another classroom observation.
April 25, 2012 Evaluation
Santana conducted another formal classroom observation of Respondent's teaching on April 25, 2012. This time, she observed Respondent for the entire reading/language arts instructional block lasting two hours.
Respondent did not meet PS 2. Again, she did not incorporate instructional strategies to cater to the learning styles and levels of all students in her class. Santana noted
that Respondent's instructional performance on this standard was very similar to that she had observed on March 27, 2012.
Respondent also failed to meet PS 3. Specifically, she did not incorporate a variety of instructional strategies in her lesson plans to meet the varied needs of the students in the class. As a result, she failed to address the diverse learning needs of her students as required by PS 3.
Similarly, Respondent failed to meet PS 4. Once again, Respondent's instructional delivery and engagement techniques failed to keep many students on-task. Santana attributed that to Respondent's failure to adequately pace the lesson or to effectively provide differentiated learning experiences to meet the students' varied learning styles and levels. Santana further noted that the lesson was disorganized. Respondent created differentiated learning centers at which the students would engage in various learning activities; however, she provided no guidance, so the students were unable to effectively engage in the activities for which the centers were prepared. Specifically, at the computer-based learning center, the computers were not prepared for the instructional activity, so time was wasted logging onto the computers; consequently, the students had little time to work on the activity. At another learning center involving a device called "Leap Pad," the books and accompanying cassette cartridges were not grouped together,
so the students spent time trying to find the matching books and cartridges and, as a result, wasted what was supposed to be instructional time. Because of these problems, students repeatedly interrupted the teacher-led instructional center, interfering with learning at that center.
Respondent again failed to meet PS 8. Respondent's failure to establish classroom procedures for the various learning centers and her lack of success in redirecting off-task students to reengage in the assigned learning activities created a disruptive environment that did not promote student learning.
Following the April 25, 2012, observation, Santana completed another IPEGS Form.
Because Respondent showed no improvement from the March 27, 2012, observation, Santana scheduled a conference for the record ("CFR"). A CFR is a formal meeting to discuss a teacher's performance deficiencies and develop a plan to remediate those deficiencies. Respondent was notified in writing of the CFR, which was rescheduled per Respondent's request. Respondent attended the meeting with two UTD representatives; also attending were Rapp and an assistant principal.
By written notice and at the CFR, Respondent was informed that she was being placed on 90-day performance
probation, pursuant to section 1012.34(4), as of the date of the
CFR.
An IPEGS Improvement Plan ("IP") was developed to
assist Respondent in remediating her instructional performance deficiencies.
An IP is a written document that discusses each performance deficiency; identifies specific resources available to assist the teacher in remediating each specific deficiency; sets forth remedial activities specific to each deficiency in which the teacher and assisting persons are to engage; and establishes deadlines for completing the specified activities.
In the IP, Respondent and reading coaches Rapp and Carrier were directed to work collaboratively to improve Respondent's instructional techniques and pacing so as to engage all students in the lessons. To this end, Rapp and Carrier were to assist Respondent in developing lesson plans and identifying instructional strategies and activities to meet the learning needs of all of her students.
Additionally, Respondent was given the opportunity to engage in collaborative planning with her peer professionals (i.e., other first grade teachers) and with the reading coaches. She also was provided access to a nationally board certified teacher at Gulfstream who assists teachers in improving their teaching performance.
The IP further directed the reading coaches and peer professionals to observe Respondent and provide constructive feedback and assistance to Respondent as she attempted to implement instructional techniques and strategies.
The IP also identified Common Core Standards, reading/language arts pacing guides, and reading/language arts planners as resources available to assist her in developing appropriate planning objectives, appropriately pacing her lessons to address her students' needs, and developing her lesson plans.
As part of the IP, Santana directed Respondent to prepare a written plan addressing how she would tailor her instruction to address student learning styles; use appropriate instructional materials and techniques; and use differentiated instructional groups and learning centers. The written plan was to be submitted to Santana by May 29, 2012.
Respondent was further directed to develop lesson plans to improve her instructional delivery strategies. Those plans were to be submitted to the assistant principal.
The IP directed Respondent to read the book "How to be an Effective Teacher: The First Five Days of School" and to submit to an assistant principal a reflective summary discussing effective strategies for addressing inappropriate student behavior and managing the learning environment. Respondent also
was directed to consult with the reading coaches and peers to develop effective strategies for redirecting inappropriate student behavior.
To assist Respondent in implementing her IP, Santana prepared a support calendar that detailed, on a weekly basis for a 21-day period, the activities in which Respondent was to engage. The support calendar specifically identified the reading coaches, peers, and other professionals responsible for working with Respondent as she performed the assigned activities.
During the first week of the IP implementation period, Rapp provided assistance to Respondent in planning for the reading/language arts instructional block that would be conducted the following week. Respondent worked with Rapp to interpret current Florida Assessments for Instruction in Reading ("FAIR") testing data and use the data to effectively plan for differentiated instruction. Also during the first week, Respondent observed reading/language arts instruction in a peer's classroom and participated in a debriefing session with Rapp and Carrier after the peer teaching observation.
The following week, Respondent participated in an activity cycle during which she collaboratively planned with reading coaches Rapp and Carrier; observed peers teaching reading/language arts; observed Rapp modeling effective
reading/language arts teaching strategies and techniques; co- taught reading/language arts with Rapp to practice these strategies and techniques; and taught the reading/language arts block while being observed by Rapp and Carrier.
This same activity cycle, consisting of collaborative planning,2/ reading coach and peer modeling and observation, co- teaching, and teaching by Respondent, was repeated in the final week of the IP implementation period.
Collectively, these activities were designed to assist Respondent in planning for the use of content and instructional techniques and strategies appropriate for her students. They also demonstrated to Respondent how to identify and implement effective instructional techniques and strategies, provided assistance as she learned to implement these techniques and strategies, and afforded the opportunity for Respondent to benefit from constructive feedback regarding her efforts to utilize these techniques and strategies.
On May 16 and May 24, 2012, Rapp and Carrier observed Respondent as she taught a reading/arts lesson. In the lesson, she was to employ the instructional techniques and strategies that had been provided and presented to her by the reading coaches, peer professionals, and reference resources during the implementation of her IP.
According to Carrier, Respondent did not adhere to the prepared lesson plan and did not incorporate the techniques and strategies that had been provided to her by the reading coaches and peer teachers through her IP.3/
Shortly after Respondent completed the activities set forth in the IP, the 2011-2012 school year ended.
Condition of Respondent's Classroom in 2011-2012
At the beginning of the 2011-2012 school year, Respondent had been assigned to a free-standing portable classroom not located in the main building at Gulfstream.
In late September or early October 2011, Respondent complained to Santana about the air quality in her classroom—— specifically, that there was musty smell that made it difficult for her to breathe and aggravated her allergies.
Santana contacted Mr. Cruz-Munoz of the Miami-Dade Public Schools asbestos management division to inspect Respondent's classroom. Within a couple of days, Cruz-Munoz conducted the inspection and found no visible mold or mildew. He noted that the musty smell was typical of portables, like Respondent's classroom, that were older and had wood paneling.
He noted that although the room generally was clean, it contained many boxes and a large amount of clutter, both of which may attract dust. He recommended that the boxes and clutter be kept to a minimum to prevent dust collection.
Within a week, Respondent's classroom was thoroughly cleaned by a maintenance crew.
After the classroom was cleaned, Respondent complained to Santana that she noticed a cleaner smell. Santana contacted Cruz-Munoz, who assured her that the cleaners were water-based and did not contain allergens. Santana informed Respondent of this and suggested that the cleaner smell would dissipate over time.
In January 2012, Respondent again complained to Santana about the smell of the classroom and that it was aggravating her allergies.
Santana again contacted Cruz-Munoz, who arranged another inspection of the classroom. The inspector again reported that the classroom generally was clean and free of visible mold and mildew but contained many boxes; again, the importance of minimizing the number of boxes and clutter so as to avoid collecting dust was stressed.
At that point, Santana referred Respondent to workers' compensation so that she could obtain medical attention to address her health issues.
At some point in January 2012, Respondent contacted Robert Kalinsky, a regional director with the Miami-Dade Public School system, regarding the air quality and odors in her
classroom. Kalinsky was one of Santana's supervisors at the time.
Kalinsky notified Santana that Respondent had contacted him and that he also had received a call about about the condition of the classroom from a member of the Miami-Dade County School Board. As a result, Kalinsky paid a visit to Gulfstream.
On February 7, 2012, Santana met with Respondent and an assistant principal regarding a number of issues, including the condition of Respondent's classroom. At that meeting, Santana noted that during the recent visit by Kalinsky and personnel who inspected the classroom, the room was observed cluttered with piles of paper on the desk and many other areas, and that there numerous boxes.
At the meeting, Santana reminded Respondent regarding many other issues, including those related to classroom and school library procedures and instructional delivery.
Effective February 7, 2012, Santana reassigned Respondent to a different classroom that was located in the main building at Gulfstream.
Thereafter, Respondent did not have any complaints about the air quality or odors in the classroom to which she had been assigned. She did continue to complain about the odor of air fresheners and scented candles used throughout the school.
Santana noted that she regularly dealt with issues similar to those raised by Respondent because she received frequent complaints from teachers regarding the air quality, mold, and odors at Gulfstream due to the school building's advanced age. Santana credibly testified that she never, at any point, became angry with Respondent regarding her concerns about the air quality and odor in the portable classroom, or any actions Respondent that had taken to address those concerns.
2012-2013 School Year
Pursuant to section 1012.34(4)(b)1., school vacation periods are not counted as part of the 90-day performance probation period. Accordingly, Respondent's probation period carried over from the end of the 2011-2012 school year to the 2012-2013 school year. When the 2012-2013 school year commenced, her 90-day probation period continued.
September 12, 2012 Evaluation
On September 12, 2012, Santana formally observed Respondent's classroom teaching for the third time. She observed Respondent for the full duration of the reading/language arts block, approximately two hours.
Respondent again failed to meet PS 2. Her instruction did not incorporate techniques and strategies to address the various learning styles and levels of the students in her class. As a result, many students were bored; one student was observed
with his head on his desk. Other students attempted, unsuccessfully, to get Respondent's attention to answer questions they had. Respondent was unsuccessful in explaining the small group activities so that several students were off- task. By the time Respondent redirected the off-task students, little time was left for them to engage in the planned activities. Santana observed no improvement in Respondent's performance on this standard when compared to the two previous observations.
Likewise, Respondent failed to meet PS 3. She did not develop or present a lesson that addressed logical, sequential goals and objectives and she did not cover the material identified in the lesson plan. Once again, she failed to use differentiated instructional techniques and strategies to address the students' individual learning styles. The lesson was directed only at one skill level and one learning style. Worksheet activities were completed by the entire class, with some students calling out the answers while the others copied those answers on the worksheet. The partner reading portion of the exercise was disorganized and the students were not given adequate direction, so that many students did not understand how the activity was to be conducted. Santana did not observe any improvement in Respondent's performance on this standard.
Respondent also failed to meet PS 4. Her teaching did not include activities directed at eliciting higher order thinking, so did not engage all of the students. Several students were overheard saying they were bored, had already read the material, or already knew the concepts being presented. Other students were off-task, reading stories that had not been assigned. When students were assigned to small groups, insufficient direction was given so that many students did not understand what they were to be doing. In particular, the lack of organization with respect to the computer-based portion of the lesson resulted in students wasting a substantial amount of time before being re-directed to the assigned task. Santana did not observe any improvement in Respondent's performance on this standard.
Respondent again failed to meet PS 8. Santana noted that the learning environment and activities were not academically challenging and did not engage all of the students. Students were not given adequate instruction on the activities in which they were to be participating. In particular, the partner reading portion of the exercise was disorganized and many students did not understand how the activity was to be conducted. Santana did not observe any improvement in Respondent's performance on this standard.
Following the September 12 evaluation, Santana completed the IPEGS Form, conducted another performance review with Respondent, and issued another IP for her on September 18, 2012.
Once again, the reading coaches and peer professionals were made available to assist Respondent in implementing the IP. The Common Core Standards, reading/language arts pacing guides, and reading/language arts planners also were resources to which Respondent was referred.
The activities in which Respondent was directed to engage to correct her performance deficiencies for PS 2 and PS 3 were very similar to those identified her May 7, 2012 IP. With the new school year, Respondent had a new class of students, and Santana emphasized the importance of Respondent being able to assess those students' learning styles and levels and to plan how she would assign them to instructional groups. Respondent was directed to prepare and submit to the assistant principal weekly lesson plans containing goals, objectives, activities, and strategies to provide instruction aimed at the her students' diverse learning styles and levels.
To help Respondent correct her PS 4 deficiencies, the IP emphasized that Respondent was to observe the reading coach (Carrier) and her peers as they modeled effective instructional
techniques and activities designed to reach diverse student learning styles and levels.
To correct her PS 8 performance deficiencies, Respondent was directed to work with the reading coach and peers to establish a plan for effective classroom procedures, to prepare a written summary of the plan, and to provide the summary to the assistant principal. Additionally, Respondent was directed to observe peer professionals as they taught; to prepare and provide to the assistant principal a list of the effective teaching techniques she observed; and to incorporate three of those techniques into her classroom teaching. She also was directed to maintain a log of teaching techniques she used in her class, with discussion of which techniques were effective or ineffective and why. The log was to be provided to and discussed with Carrier, so that Carrier could assist Respondent in developing and implementing successful classroom techniques and procedures.
Again to ensure that everyone involved in implementing Respondent's IP understood their roles and responsibilities, Santana established another 21-day support calendar detailing the specific activities to be conducted on specific days. The activities entailed collaborative planning with Respondent, Carrier, and grade level peers; Respondent working with Carrier and peers to develop small group and differentiated
instructional teaching techniques; Respondent's observation of grade level peer teaching and post-observation debriefing regarding instructional best practices; and Respondent's implementation of those best practices in her teaching, to be observed by Carrier, with feedback provided.
Respondent engaged in all scheduled activities and timely completed the September 18, 2013, IP.
October 11, 2012 Evaluation
On October 11, 2012, a fourth formal classroom observation of Respondent was conducted, this time by assistant principal Marybel Baldessari. Baldessari observed Respondent teaching reading/language arts for an hour and a half. Once again Respondent failed to meet PS 2, 3, 4, and 8.
With respect to PS 2, Respondent again failed to present differentiated instruction that targeted individual student learning styles and levels; as before, her instruction was aimed only at one learning style and level.
With respect to PS 3, Respondent did not ensure that materials were properly organized to accommodate assistance by an interventionist who was working with her that day. As a result, the lesson was disorganized and the lesson was not presented in a logical, sequential manner.
With respect to PS 4, again Respondent's instruction was not tailored to meet the students' individual learning
styles and levels. Respondent did not appropriately pace the lesson and did not employ teaching techniques, such as appropriate questioning, to encourage students' critical thinking.
Respondent again failed to meet PS 8. Students were off-task; in particular, one was off-task for the entire observation period without ever being redirected to the assigned activity. Respondent also had implemented a behavior plan in the classroom involving colored cards, so that when a student was disciplined, he or she was sent to a "behavior wall" to turn over a card on the behavior chart. On this day, a student who was sent to the behavior chart found his card already turned over from the previous day. This evidenced Respondent's lack of attention to detail in maintaining a classroom environment conducive to appropriate student behavior.
Baldessari documented Respondent's deficiencies from the October 11, 2012, observation on the IPEGS Form.
Santana scheduled a meeting with Respondent on October 17, 2012, to discuss Baldessari's observations. At the meeting, Respondent was given yet another IP.
With respect to remedying Respondent's PS 2 performance deficiencies, Respondent was given the same support resources. Respondent was again directed to meet with Carrier and grade level peer professionals to develop differentiated
instructional activities and techniques, to incorporate those activities and techniques into lesson plans, and to provide those lesson plans to Baldessari. Respondent also was directed to meet with Carrier and peers to analyze test and observational data, and to use the information gleaned from that data to plan for differentiated instruction based on individual student learning styles and levels.
To remedy her PS 3 deficiencies, Respondent was again referred to Carrier and peer professionals, the Common Core Standards, reading/language arts pacing guides, and reading/language arts reading planners. She was again directed to work with Carrier to develop appropriate lesson plans incorporating appropriate instructional strategies. These plans were to identify appropriate goals, objectives, activities, and instructional strategies and were to be provided to Baldessari. Respondent was assigned to read the book, "Understanding Common Core Standards," and to discuss those standards with Carrier and provide a written summary to Baldessari.
With respect to PS 4, Respondent was referred to the same remedial resources as for PS 3. Respondent was directed to work with Carrier and selected peer professionals, who would assist her with planning and developing instructional techniques and strategies to appropriately pace lessons and engage all students.
With respect to PS 8, Respondent was directed to work with a special education program ("SPED") specialist to develop effective classroom management procedures. She was assigned to prepare and submit a written summary of these procedures to Baldessari. She also was directed to observe peers, identify effective teaching techniques they used to maintain an academically stimulating and challenging environment, submit a list of those techniques to Baldessari, and incorporate three of those techniques into her teaching. Once again, she was directed to maintain a log listing instructional techniques she used, with discussion of which were effective or ineffective and why. The log was to be provided to and discussed with the Carrier so that she could assist Respondent in developing successful classroom techniques and procedures. Those techniques were to be implemented in Respondent's classroom teaching.
Santana developed another support calendar to implement Respondent's latest IP. The support calendar identified activities in which Respondent was to engage with Carrier and the SPED specialist; scheduled time for Respondent to observe and discuss peer teaching techniques; and scheduled collaborative planning sessions in which Respondent, Carrier, and grade level peers were to address the development of differentiated instructional strategies.
Carrier worked closely with Respondent to implement the October 17, 2012, IP. In doing so, Carrier demonstrated to Respondent how to incorporate certain instructional techniques into her teaching to better engage the students and enhance their learning experience.4/ Carrier stressed the importance of organization and preparation before the lesson in order for the instructional techniques to be effective. Carrier and Respondent also practiced the use of the instructional techniques.
However, when it was time for Respondent to teach the lesson, she was disorganized and unprepared, resulting in a substantial amount of time being wasted on logistical matters, such as having essential materials on hand and ready for use, that should have been addressed before the lesson commenced.5/
Carrier also discussed with Respondent the importance of moving around the classroom to keep students focused and on- task. Nonetheless, Carrier observed that Respondent spent most of her time sitting in a chair in front of the classroom. The chair did have wheels, so occasionally Respondent would roll down the center isle of the classroom.6/
During her time in working with Respondent, Carrier observed that Respondent's classroom was messy and disorganized. Books and clutter were all over the place, so that it was
difficult to locate resources that were needed to conduct the lessons.
Carrier also observed that there were many pieces of information written on the board in an unstructured, disorganized manner, including information from lessons days ago and random vocabulary words, so that it was very difficult to decipher the information Respondent was attempting to convey in using the board. Carrier further noted that words frequently were misspelled and that there were grammatical errors in the information Respondent wrote on the board.
Respondent timely completed the activities set forth in the October 17, 2012, IP.
November 19, 2012 Evaluation
On November 19, 2012, Santana conducted a fifth formal observation of Respondent's classroom teaching. She observed Respondent teaching reading/language arts for an hour and five minutes.
Respondent again failed to meet PS 2. Once again, Respondent's instruction provided only one level of complexity and did not cater to the students' different learning styles and levels. The students were reading a story, and instead of incorporating instructional strategies aimed at meeting all students' learning abilities——such as instructing the high level students to write a paragraph, the grade level students to write
a sentence, and the lower level students to draw a picture, about the story——she merely had all of them fill in the same workbook page. Respondent did not exhibit any improvement with respect to meeting PS 2.
Respondent also failed to meet PS 3. Her lesson plans were not aligned to the instructional pacing guide and did not incorporate strategies to address the students' diverse learning styles and levels. Respondent did not exhibit any improvement with respect to PS 3.
Respondent again failed to meet PS 4. Her instructional delivery did not actively engage the students and did not address their individual learning styles and needs. Because her instruction addressed only one level of complexity, she lost the high functioning and low functioning students. As a result, there were frequent interruptions that interfered with the pace of the instruction and caused students to engage in
off-task behavior. Respondent did not exhibit any improvement with respect to PS 4.
Respondent also failed to meet PS 8. The learning environment was neither challenging nor stimulating. Although the students were working in small groups presumably established according to learning style and level, they nonetheless were reading the same story and answering the same questions. That, and Respondent's continued failure to establish clear classroom
procedures and expectations, resulted in frequent interruptions and distractions. Respondent did not exhibit any improvement with respect to PS 8.
Recommendation to Terminate Respondent's Employment
A post-observation meeting was held on November 29, 2012, and Respondent was properly notified of this meeting. At the meeting, Santana informed Respondent that she had failed to remediate her classroom performance deficiencies within the 90- day probation period, so that she (Santana) was recommending that Respondent's employment contract be terminated.
Santana prepared a memorandum to the Miami-Dade Public Schools South Regional Director dated November 29, 2012, detailing Respondent's repeated failure to meet PS 2, PS 3,
PS 4, and PS 8. The memorandum also stated: "Data indicate that this employee has not demonstrated corrective action." The memorandum recommended termination of Respondent's employment contract.
Petitioner presented evidence, consisting of a summary exhibit and testimony from Gisela Field, the administrative director of the Office of Assessment, Research, and Data Analysis for Miami-Dade Public Schools, that Respondent's students' median percentile scores on the 2012 Stanford Achievement Test ("SAT")7/ for Grade 1 for both language arts and mathematics were below those for first grade students
at Gulfstream as a whole, and for first grade students in the Miami-Dade County Public School District.8/
Santana did not testify that Respondent's students' SAT median percentile scores were considered in her evaluation of Respondent, or that they constituted a basis for her decision to recommend that Respondent be terminated.
Petitioner asserts that the "data" to which Santana's November 29, 2012, memorandum refers are Respondent's students' SAT median percentile scores, evidencing that Santana did consider these scores in evaluating Respondent, and that they were one of the bases for her recommendation that Respondent be terminated.9/
Petitioner did not present any evidence regarding the relative weight given to Respondent's students' scores in conducting her performance evaluation.
Respondent's Defenses
Respondent began teaching in the Miami-Dade County Public School system in 1989. Thereafter, she took some time off to have children. As previously noted, she resumed fulltime teaching in the 2004-2005 school year.
For the period commencing with the 2004-2005 school year, through the 2010-2011 school year, Respondent always received satisfactory classroom performance evaluations.10/
At the final hearing in this proceeding, Respondent testified that she was knowledgeable in preparing lesson plans; adhered to Miami-Dade County Public School District instructional pacing guidelines; engaged in collaborative planning with her colleagues and exchanged ideas regarding making the lessons exciting, fun, and interesting; used objectives, visual aids, posters, computers, books, and hands-on materials to engage students; and employed instructional techniques to address students' diverse learning styles and levels. She further testified that she closely observed her students and obtained feedback from them throughout the instructional day.
Respondent also testified that she engaged her students in activities designed to get to know them, that she was sensitive to her students' experiences, that she attempted to make them feel comfortable and safe and to provide a warm and loving environment, and that she knew how to communicate with them and manage their classroom behavior.
With respect to specific performance deficiencies identified over the course of the classroom observations conducted by Santana and Baldessari, Respondent asserted that some of the issues with instruction using computers stemmed from technical issues with the computers. In those instances, Respondent would have the students engage in reading activities
using books until it was time for them to rotate to another learning center.
Respondent believes she was a better teacher in 2011 than she was in 2004 when she re-entered the teaching field fulltime. In her view, this is due to her having participated in personal development workshops, receiving one-on-one instruction, and adapting her teaching style to new curriculum and materials.
Respondent asserts that she did not teach any differently in the 2011-2012 and 2012-2013 school years than she had in the 2004-2005 school year or any other school year. Respondent contended that she is, and always has been, a very competent teacher, and that the negative performance evaluations she received during the 2011-2012 and 2012-2013 school years were unfair and illegitimate.
Regarding the condition of the portable classroom to which she was assigned in the 2011-2012 school year, Respondent began to complain to Santana about the room's odor shortly after the beginning of the school year. In January 2012, she did contact Santana's supervisor Robert Kalinsky to express her concerns. Ultimately, she filed a worker's compensation claim. Once she moved to a different classroom in February 2012, she no longer experienced problems with odors in her classroom. She
did continue to have problems with the use of air fresheners and scented candles in other parts of the school building.
Respondent noted that only after she complained about the odor and air quality in the portable classroom did she begin receiving negative classroom performance evaluations. She contends that she received negative evaluations for having complained——particularly to Kalinsky and the School Board member——about the condition of the portable.
Toward the end of the 2011-2012 school year, Respondent applied for a transfer from her instructional position at Gulfstream to another instructional position at another school in the Miami-Dade County Public School District. Both Santana and the Executive Director approved the transfer.
Respondent found an instructional position in another school in the Miami-Dade County Public School District, but did not follow through with the transfer. The school was farther from her home than was Gulfstream, so teaching there would entail longer driving time and would add wear and tear to her older vehicle.11/
Findings of Ultimate Fact
In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate her employment for failure to correct performance deficiencies pursuant to section 1012.34, and for "just cause"——specifically, for incompetency due to
inefficiency, pursuant to section 1012.33 and rule 6A-5.056.
As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.34 and 1012.33 and rule 6A-5.056 alleged in the Notice of Specific Charges.
Failure to Correct Performance Deficiencies
With respect to the charge that Respondent failed to correct performance deficiencies under section 1012.34, the evidence establishes that Respondent consistently engaged in poor and ineffective classroom instructional practices and that she repeatedly failed to correct these instructional practice deficiencies, notwithstanding the very substantial effort that Santana, reading coaches Rapp and Carrier, and Respondent's peers devoted to assisting her in improving her teaching performance.
Specifically, the evidence showed that Respondent was consistently ineffective at addressing the individual learning needs, styles, and levels of her students; that she failed to employ appropriate instructional strategies and resources to develop lesson plans that include goals, objectives, and activities to address her students' diverse needs; that she did not address her students' academic needs through a variety of
appropriate instructional strategies and techniques that engage them in the learning process; and that she was ineffective in creating and maintaining a classroom environment conducive to learning.
The credible evidence does not show that Respondent received negative instructional practice evaluations in retaliation for having complained about the condition of her classroom in the 2011-2012 school year. Rather, the persuasive evidence——which includes corroborative testimony and an IPEGS observation by Baldessari and testimony by Carrier——shows that Respondent received negative performance evaluations because she failed to meet the IPEGS performance standards.
However, the evidence failed to adequately address the student performance component of Respondent's performance evaluation pursuant to section 1012.34(3)(a)1.a.
As discussed in greater detail below, section 1012.34(3)(a) places great emphasis on student performance on student learning growth assessments——specifically, the FCAT or school district assessments——in evaluating the performance of instructional personnel. Indeed, the statute mandates that at least 50 percent of a performance evaluation be based on data and indicators of student of student learning growth as assessed annually by the FCAT or by school district assessments. Only where (as here) less than three years of data for student
learning growth assessments (i.e., FCAT or school district test scores) are available can the percentage of the teacher's performance evaluation based on student learning growth be reduced to less than 50 percent——and even then, it cannot be reduced to less than 40 percent.
Here, Petitioner did not present any evidence regarding the relative weight that Santana assigned to Respondent's students' 2012 SAT median percentile scores for language arts and mathematics in evaluating Respondent under section 1012.34. Accordingly, it cannot be determined whether the required relative weight of at least 40 percent was given to the scores in evaluating Respondent, and, ultimately, in recommending that she be terminated.
For this reason, Petitioner did not prove that Respondent failed to correct performance deficiencies pursuant to section 1012.34 such that her employment should be terminated.
Incompetency Due to Inefficiency
As previously noted above, the evidence showed that Respondent consistently and repeatedly was ineffective at addressing the individual learning needs, styles, and levels of her students.12/
She repeatedly failed to employ appropriate instructional strategies and resources to develop lesson plans
that include goals, objectives, and activities to address her students' diverse needs.
She failed to address her students' academic needs through employing a variety of appropriate instructional strategies and techniques to engage them in the learning process. She consistently used the same instructional materials and techniques to teach students of varying learning styles and levels and did not adequately pace the lessons.
She also failed, on a consistent basis, to create and maintain a classroom environment conducive to learning. Her room was disorganized and cluttered, with misspelled words and grammatical errors written on the blackboard. She often was unprepared, so did not efficiently conduct the lessons. She did not establish consistent classroom procedures to address student behavioral issues and keep students on task.
As such, Respondent consistently and repeatedly failed to effectively communicate with and relate to the students in her classroom to such an extent that the students were deprived of minimum educational experience. Due to her inefficiency, she was neither able nor fit to discharge her required duties as a teacher.13/
Moreover, the evidence establishes that Respondent failed to perform duties prescribed by law.14/ Section 1012.53(1) provides in pertinent part that the primary duty of
instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals and to meet state and local achievement requirements. The evidence establishes that due to Respondent's serious, repeated performance deficiencies previously described herein, she did not work diligently and faithfully to, and did not succeed in, helping her students meet or exceed the annual learning goals they were supposed to meet as prescribed by curriculum and lesson plans. Nor did she work diligently and faithfully to help them meet state and local achievement requirements. In fact, Respondent's students' 2012 SAT median percentile scores—— particularly for mathematics, which shows their achievement as much as 34.5 percentile points lower than all first graders in the Miami-Dade County Public School District——stand as strong evidence to this point.15/
The evidence also established that Respondent's teaching practices and classroom were so disorganized that the welfare of her students was diminished.16/ Her lack of organization in teaching caused confusion on the part of her students and instructional time often was wasted. Further, the disorganization and clutter in her classroom made it difficult to locate resources for the lessons.
It was apparent at the final hearing that Respondent cares about her students and believes that she is a good
teacher. However, Respondent's personal feelings and beliefs do not overcome the strong evidence presented in this case showing that she is not a competent teacher.
Petitioner proved that, for the reasons set forth herein, Respondent is incompetent due to inefficiency, pursuant to rule 6A-5.056.17/
Accordingly, Petitioner proved that just cause exists under section 1012.33 to terminate Respondent's professional
services contract.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to, and subject matter of, this proceeding pursuant to sections 120.569 and 120.57(1).
In this proceeding, Petitioner seeks to terminate Respondent's employment for failure to correct performance deficiencies pursuant to section 1012.34, and for just cause pursuant to section 1012.33 and rule 6A-5.056.18/
Respondent is an instructional employee, as that term is defined in section 1012.01(2). Petitioner has the authority to suspend and terminate instructional employees pursuant to sections 1012.22(1)(f), 1012.33(1)(a) and (6)(a), and 1012.34.
To do so, Petitioner must prove, by a preponderance of the evidence, that Respondent committed the alleged violations, and that such violations constitute a basis for
suspension and termination. McNeil v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCQA 1990).
Whether Respondent committed the charged violations is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
Failure to Correct Performance Deficiencies under Section 1012.34
Section 1012.34 provides in pertinent part:
EVALUATION PROCEDURES AND CRITERIA.— Instructional personnel and school administrator performance evaluations must be based upon the performance of students assigned to their classrooms or schools, as provided in this section. Pursuant to this section, a school district's performance evaluation is not limited to basing unsatisfactory performance of instructional personnel and school administrators solely upon student performance, but may include other criteria approved to evaluate instructional personnel and school administrators' performance, or any combination of student performance and other approved criteria. Evaluation procedures and criteria must comply with, but are not limited to, the following:
A performance evaluation must be conducted for each employee at least once a year, except that a classroom teacher, as defined in s. 1012.01(2)(a), excluding substitute teachers, who is newly hired by
the district school board must be observed and evaluated at least twice in the first year of teaching in the school district. The performance evaluation must be based upon sound educational principles and contemporary research in effective educational practices. The evaluation criteria must include:
Performance of students.——At least 50 percent of a performance evaluation must be based upon data and indicators of student learning growth assessed annually by statewide assessments or, for subjects and grade levels not measured by statewide assessments, by school district assessments as provided in s. 1008.22(8). Each school district must use the formula adopted pursuant to paragraph (7)(a) for measuring student learning growth in all courses associated with statewide assessments and must select an equally appropriate formula for measuring student learning growth for all other grades and subjects, except as otherwise provided in subsection (7).
For classroom teachers, as defined in s. 1012.01(2)(a), excluding substitute teachers, the student learning growth portion of the evaluation must include growth data for students assigned to the teacher over the course of at least 3 years. If less than 3 years of data are available, the years for which data are available must be used and the percentage of the evaluation based upon student learning growth may be reduced to not less than 40 percent.
* * *
Instructional practice.——Evaluation criteria used when annually observing classroom teachers, as defined in s. 1012.01(2)(a), excluding substitute teachers, must include indicators based upon each of the Florida Educator Accomplished Practices adopted by the State Board of
Education. For instructional personnel who are not classroom teachers, evaluation criteria must be based upon indicators of the Florida Educator Accomplished Practices and may include specific job expectations related to student support.
* * *
All personnel must be fully informed of the criteria and procedures associated with the evaluation process before the evaluation takes place.
The individual responsible for supervising the employee must evaluate the employee's performance. The evaluation system may provide for the evaluator to consider input from other personnel trained under paragraph (2)(f). The evaluator must submit a written report of the evaluation to the district school superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than
10 days after the evaluation takes place. The evaluator must discuss the written evaluation report with the employee. The employee shall have the right to initiate a written response to the evaluation, and the response shall become a permanent attachment to his or her personnel file.
The evaluator may amend an evaluation based upon assessment data from the current school year if the data becomes available within 90 days after the close of the school year. The evaluator must then comply with the procedures set forth in paragraph (c).
NOTIFICATION OF UNSATISFACTORY PERFORMANCE.——If an employee who holds a professional service contract as provided in
s. 1012.33 is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice
must describe such unsatisfactory performance and include notice of the following procedural requirements:
Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee who holds a professional service contract, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time.
1. The employee who holds a professional service contract shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following the receipt of the notice of unsatisfactory performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period.
During the 90 calendar days, the employee who holds a professional service contract must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee who holds a professional service contract may request a transfer to another appropriate position with a different supervising administrator; however, if a transfer is granted pursuant to ss.
1012.27(1) and 1012.28(6), it does not extend the period for correcting performance deficiencies.
2. Within 14 days after the close of the 90 calendar days, the evaluator must evaluate whether the performance deficiencies have been corrected and forward a recommendation to the district school superintendent. Within 14 days after receiving the evaluator's recommendation, the district
school superintendent must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the district school superintendent will recommend that the district school board continue or terminate his or her employment contract.
§ 1012.34, Fla. Stat. (emphasis added).
As previously discussed, Petitioner presented a strong case that Respondent did not correct observed instructional practices performance deficiencies under section 1012.34(3)(a)2.
However, section 1012.34 also contains a student performance component that is required to be considered, as specified in 1012.34(3)(a)1., in conducting performance evaluations of instructional personnel. Under section 1012.34(3)(a)1.a., at least 40 percent19/ of Respondent's evaluation must be based on data and indicators of student learning growth annual assessments——here, the 2012 Stanford Achievement Test Assessment for Grade 1. As previously discussed, Petitioner did not present evidence regarding the relative weight assigned to Respondent's students' test scores in evaluating her performance.20/
Based on the findings of fact, Petitioner did not prove, by a preponderance of the evidence, that Respondent failed to correct performance deficiencies such that her employment should be terminated pursuant to section 1012.34.
Just Cause under Section 1012.33
Section 1012.33 provides in pertinent part:
(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause.
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, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under
s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
§1012.33(1)(a), Fla. Stat. (emphasis added).
Section 1012.53, titled "Duties of Instructional Personnel," provides in pertinent part:
(1) 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.
Respondent's conduct alleged to constitute incompetency due to inefficiency took place during a period spanning from May 2012 until November 2012. During that period (on July 8, 2012), Florida Administrative Code Rule 6A-5.056,21/ titled "Criteria for Suspension and Dismissal," was amended to, among other things, revise the definitions of "incompetency" and "inefficiency."
Respondent's conduct alleged to constitute incompetency due to inefficiency that took place from March 27, 2012, up to and including July 7, 2012, is governed by the version of rule 6A-5.056 in effect at that time.22/ That rule provides in pertinent part:
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, F.S.); (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.
Respondent's conduct alleged to constitute incompetency due to inefficiency that took place after period July 8, 2012, is governed by the recently amended version of the rule, which was in effect during that period.23/ That rule provides in pertinent part:
"Incompetency" means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.
"Inefficiency" means one or more of the following:
Failure to perform duties prescribed by law;
Failure to communicate appropriately with and relate to students;
* * *
4. Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished[.]
For the reasons set forth in the findings of fact, Petitioner proved, by a preponderance of the evidence, that Respondent was incompetent due to inefficiency under both versions of rule 6A-5.056 because she repeatedly failed to perform duties prescribed by law; repeatedly failed to communicate with and relate to her students to such an extent that they were deprived of minimum educational experience; and
was so disorganized in her classroom and in her teaching practices that the welfare of her students was diminished.
Accordingly, Petitioner proved, by a preponderance of the evidence, that just cause exists to terminate Respondent's employment pursuant to section 1012.33, Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order terminating Respondent's professional services employment contract on the basis of just cause under section 1012.33, Florida Statutes.
DONE AND ENTERED this 7th day of January, 2014, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
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 7th day of January, 2014.
ENDNOTES
1/ Examples of non-observable performance standards include assessment of student performance by testing, data analysis, communication with parents, and behavior consistent with legal and ethical standards.
2/ Respondent did not participate in all of the collaborative planning sessions that week. On the days she did not attend, the reading coaches prepared the lessons plans for her.
3/ Carrier was not trained to conduct evaluations as required by section 1012.34(2)(f), so she was not competent to testify about whether Respondent met the IPEGS performance standards, and her testimony was not relevant to that issue. However, Carrier's testimony is relevant to counter Respondent's own testimony that she did, and does in fact, employ certain instructional techniques and strategies in her teaching, and is relevant as to whether Respondent is incompetent due to inefficiency under section 1012.33 and rule 6A-5.056.
4/ An instructional technique to which Carrier introduced Respondent was the use of "graphic organizers," which are hands- on items that students use during the lesson to help them visualize what they are learning.
5/ See supra note 3.
6/ Id.
7/ As one of its local assessments administered pursuant to section 1008.22(8), the Miami-Dade County Public School District administers the Stanford Achievement Test to all students in kindergarten and in first, second, and third grades.
8/ Respondent's students' median percentile score for language arts was two percentile points lower than the median percentile score for Gulfstream first graders as a whole, and ten percentile points lower than the median score for all first graders in the Miami-Dade County School District. Respondent's students' median percentile score for mathematics was 14.5 points lower than the median percentile score for Gulfstream first graders as a whole, and 34.5 points lower than the median percentile score for all first graders in the Miami-Dade School District.
9/ Whether the term "data" as used in the memorandum refers to student performance data——i.e., test scores——is unclear. The context in which the term is used seems to indicate otherwise. Specifically, the sentence in which the term is used is part of a paragraph addressing the instructional practice observations of Respondent. In that sentence, the term appears to refer to Respondent's failure to take corrective action regarding her instructional practices performance deficiencies. The subsequent sentence emphasizes the specific areas in which Respondent failed to correct instructional practices performance deficiencies. Further, no specific information regarding Respondent's students' test scores was referenced or contained in the memorandum. In any event, this issue is immaterial because, as more fully discussed herein, Petitioner did not present evidence regarding the relative weight assigned to the test scores in evaluating Respondent——a fatal flaw to the charge under section 1012.34.
10/ Santana noted that in the 2010-2011 school year, Respondent had substantially different responsibilities than she did in the 2011-2012 and 2012-2013 school years. In the 2010-2011 school year, she was a co-teacher who did not have her own class or classroom and who assisted other teachers in presenting their lessons and controlling their classes, requiring markedly different instructional skills than were required to perform her teaching assignment in the 2011-2012 and 2012-2013 school years.
11/ Given that Respondent had the opportunity to transfer to another school but chose not to——even though it would entail a longer drive and more wear and tear on her car——the undersigned is skeptical that at that time, Respondent believed Santana's negative evaluations were retaliatory.
12 See Lake Cnty Sch. Bd. v. Harkleroad, DOAH Case No. 11- 0238(Fla. DOAH June 24, 2011); Lake Cnty. Sch. Bd. Aug. 8, 2011)("assessment criteria under section 1012.34 enumerate important skills to a teacher to possess" and proof of deficiency in those skills over time constitutes just cause for termination under section 1012.33). See also Pinellas Cnty. Sch. Bd. v. Ferrier, DOAH Case No. 10-1152 (Fla. DOAH July 29, 2010; Pinellas Cnty. Sch. Bd. Sept. 28, 2010).
13/ The version of rule 6A-5.056 that was in effect during the 2011-2012 school year was adopted and became effective on
April 5, 1983. Under this version of the rule, incompetency due to inefficiency includes repeated failure on the part of the teacher to communicate with and relate to children in the classroom to such as extent that they are deprived of minimum educational experience.
14/ The version of rule 6A-5.056 in effect during the 2012-2013 school year was adopted and became effective on July 8, 2012.
Both this version and the previous version of the rule provide that failure to perform duties prescribed by law constitutes incompetency by inefficiency.
15/ Respondent argues that there is no statutory or code provision linking section 1012.53 to the "duties prescribed by law" provision in rule 6A-5.056. This argument is not well- taken. The version of rule 6A-5.056 in effect in the 2011-2012 school year specifically references section 231.09, Florida Statutes, which was titled "Duties of Instructional Personnel." In 2002, this statutory section was repealed and the same language re-enacted in newly created section 1012.53, Florida Statutes, also titled "Duties of Instructional Personnel." Ch. 2002-387, Laws of Fla. This statute prescribes the most basic, fundamental duties of instructional personnel in the teaching profession.
16/ In the version of the rule 6A-5.056 adopted on July 8, 2012, incompetency due to inefficiency is defined to include disorganization of the teacher's classroom to the extent that the health, safety, or welfare of the students is diminished.
17/ The evidence established that Respondent was incompetent under both versions of rule 6A-5.056 applicable to this proceeding.
18/ Respondent's conduct alleged to violate sections 1012.33 and 1012.34 took place between March 27, 2012, during the 2011-2012 school year, and November 19, 2012, during the 2012-2013 school year. The 2011 version of Florida Statutes was in effect during the 2012-2012 school year, and the 2012 version of Florida Statutes became effective in the months between the end of the 2011-2012 school year in May 2012, and the beginning of the
2012-2013 school year in August 2012. Neither section 1012.33 nor 1012.34 was amended in the 2012 Legislative Session; accordingly the 2011 and 2012 versions of both statutes are the same.
19/ As previously noted, Petitioner relied on only one year of student learning growth assessment data, the 2012 Stanford Achievement Test for First Grade.
20/ See Sherrod v. Palm Beach Cnty. Sch. Bd., 963 So. 2d 251 (Fla. 4th DCA 2006)(decision to terminate teacher could not be sustained where school district failed to provide evidence regarding weight given to student performance assessments in evaluating teacher); see also Young v. Palm Beach Cnty. Sch.
Bd., 968 So. 2d 38 (Fla. 4th DCA 2006).
21/ Rule 6A-5.056 originally was adopted as rule 6B-4.09, and was transferred to rule 6B-4.009 on April 5, 1983. Also on that date, the rule was transferred to rule 6A-5.056, which is the current and correct citation for this rule. See rule 6A-5.056, rulemaking authority (referring to the rule as "formerly" 6B- 4.009).
22/ The version of rule 6A-5.056 in effect during this period was adopted and became effective on April 5, 1983.
23/ The version of rule 6A-5.056 in effect during this period was adopted and became effective on July 8, 2012.
COPIES FURNISHED:
Mark Herdman, Esquire
Herdman and Sakellarides, P.A. Suite 110
29605 U.S. Highway 19, North
Clearwater, Florida 33761
Heather L. Ward, Esquire
Miami-Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
Pam Stewart, Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Alberto M. Carvalho, Superintendent Miami-Dade County School Board
1450 Northeast Second Avenue Miami, Florida 33132-1308
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 24, 2014 | Agency Final Order | |
| Jan. 07, 2014 | Recommended Order | Petitioner proved that Respondent's employment should be terminated for just cause due to incompetency by inefficiency under section 1012.33, but did not prove that Respondent failed to correct performance deficiencies under section 1012.34. |
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