STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PINELLAS COUNTY SCHOOL BOARD,
vs.
Petitioner,
Case No. 16-2913TTS
CYNTHIA M. SNOW,
Respondent.
/
RECOMMENDED ORDER
A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings (“DOAH”), on October 26 and 27, 2016, in Largo, Florida.
APPEARANCES
For Petitioner: Laurie A. Dart, Esquire
Office of General Counsel Pinellas County School Board
301 4th Street Southwest Largo, Florida 33770
For Respondent: Branden M. Vicari, Esquire
Herdman & Sakellarides, P.A. Suite 110
29605 U.S. Highway 19 North
Clearwater, Florida 33761 STATEMENT OF THE ISSUE
The issue to be determined is whether Respondent violated School Board Policies, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
At its regular meeting held on May 17, 2016, the School Board of Pinellas County Florida (“Petitioner” or “School Board”), acting upon the Administrative Complaint submitted by the superintendent in the form of an agenda item pursuant to School Board Policy 0133, voted to approve the superintendent’s recommendation that Respondent, Cynthia Snow (“Respondent”) or “Snow”), be suspended without pay pending termination of her employment as a teacher. The reasons for the superintendent’s recommendation were outlined in the superintendent’s Administrative Complaint sent to Respondent by letter dated April 26, 2016.
Respondent requested a hearing pursuant to section 120.57(1), Florida Statutes, to challenge the termination of her employment. The matter was referred to DOAH for the assignment of an administrative law judge, and the case was assigned to the undersigned. The hearing was originally scheduled to be heard on August 30 and 31, 2016, but was continued by Order dated
August 16, 2016, granting Respondent’s unopposed motion to continue. Prior to the hearing, Petitioner requested authority to submit the deposition testimony of two students and their parents in lieu of live testimony. Having found that good cause existed to have the students’ testimony taken by deposition to avoid the loss of instructional time, the motion was granted as
to the students, but was denied as to their parents. Petitioner also filed a Motion to Take Official Recognition/Judicial Notice of Florida Department of Education’s (“FLDOE”) approval of the School Board’s instructional evaluation system for each of the preceding three years (2013-2014, 2014-2015, and 2015-2016), as well as decisional law from Hillsborough County. The motion was unopposed and granted by Order dated October 24, 2016. The final hearing was held on October 26 and 27, 2016, in Largo, Florida.
At the final hearing, the School Board presented the testimony of
14 witnesses: Jonathan Marina, assistant principal, Largo High School; Thomas Doughty, 6-8 grade science specialist;
Michele Stewart, instructional staff development; Elizabeth Chiles, assistant principal, John Hopkins Middle School; Jason Helbling, assistant principal, Bay Point Middle School; Jason Shedrick, principal, Bay Point Middle School; Valencia Walker, assistant director, professional development; Lou Cerreta, director, professional development; Lara McElveen,
teacher/mentor; Ashley Adams, parent; Michael Thomas Sr., parent; Students M.T. and T.J.; and John Frank, administrator, Office of Professional Standards (“OPS”).
Petitioner’s Exhibits 1 through 82, 84 through 91, 93 through 102, and 106 through 141 were admitted into evidence as were student notebooks attached to the deposition transcripts of the students entered as Exhibits 139 and 140.
Respondent testified on her own behalf and offered the testimony of a parent, Pamela Newsome. Respondent’s Exhibits 1 through 17 were admitted into evidence. A four-volume Transcript of the final hearing was filed on November 23, 2016. The parties agreed that proposed recommended orders would be filed on or before January 17, 2017, and each party timely filed its Proposed Recommended Order.
References to statutes are to Florida Statutes (2016),
unless otherwise noted.
FINDINGS OF FACT
At all relevant times to this matter, Respondent was employed as a science teacher in the Pinellas County School District and currently holds a professional service contract. She was hired as a teacher in September 1995, and worked at
Lakewood High School for one school year. During the bulk of her career with the school district--August 1996 through
December 2012--she worked at Largo Middle School teaching science. At the semester break, she was transferred to Countryside High School to finish out the 2012-2013 school year. She was assigned to teach anatomy and biology at Largo High School for the 2013-2014 school year and then transferred to Bay Point Middle School beginning with the 2014-2015 school year until she was placed on paid administrative leave on April 25, 2016.
From at least 2011 forward, administrators, parents, and colleagues at three different schools, voiced repeated concerns regarding Respondent’s effectiveness as a teacher, including her failure to appropriately plan and deliver instruction; the lack of rigorous academic assignments; poorly organized lessons; failure to align learning targets and goals with activities and tasks; failure to differentiate instruction; failure to explain content; and failure to engage students.
Complaints persisted regarding her failure or refusal to regularly grade student work and enter the grades into the student information system known as FOCUS; administer assessments; and otherwise properly manage the students in her classroom. Specific examples of her performance deficiencies, as well as repeated efforts to remediate her deficiencies through mentoring opportunities and professional development, were described in great detail at the two-day hearing and are summarized herein.
Performance Issues While Teaching at Largo Middle School
During the latter part of her time at Largo Middle School, administrators met with Snow to address performance concerns that existed regarding her instructional delivery, grading policies, and classroom management. Specifically, she met with administrators on October 25 and 31, 2011, to revise a “success plan,” and to discuss concerns from parents that grades
were not being entered in a timely manner, mid-term progress reports not being sent home, failure to allow make-up assignments, and the issue of not enough grades being entered each marking period. They discussed developing a positive relationship with students and discontinuing the use of sarcasm during class, use of the Gradual Release Model for instructional delivery, the development of rubrics for grading student projects, and developing clear criteria for how grades would be earned. These concerns and expectations were memorialized in a disciplinary memorandum dated November 7, 2011, known as a “conference summary.”
Another meeting was scheduled at Largo Middle School on April 6, 2012, to discuss “on-going issues that occurred last year and continue to occur in the 2011-2012 school year.” This meeting resulted in a letter of reprimand dated April 10, 2012, for insubordination because Respondent ignored directives to send home progress reports for students with a D or F grade; to enter student grades bi-weekly; and to allow students to make up assignments. The letter stated, in part:
[D]ue to your act of insubordination in disregarding an administrative directive you are receiving this letter of reprimand.
Also, by this letter of reprimand I am directing you to enter grades into the computer weekly or bi-weekly, send out progress reports at least three weeks before the end of a six week grading period and make every reasonable effort to support all
students to achieve educational success. Failure to follow this directive will result in further disciplinary action.
The Same Performance Standards Continue at Largo High School
Following the disciplinary conferences noted above, Respondent spent a few more months at Largo Middle School, then served one semester at Countryside High School with no noted issues. Some of the same issues that plagued her at Largo Middle School, however, continued at her new school--Largo High School. For example, just four weeks into the 2013-2014 school year, Respondent was told by her supervising assistant principal, John Marina, that he was “getting feedback from parents that they don’t know what’s going on in [her] class.” He explained that parents need to see the grades so they can appropriately address their children at home. Another assistant principle notified her by e-mail that her seventh-period class had no grades entered, and two of her other classes only had two grades entered. The assistant principle reminded her of the expectation “that grades are posted weekly in FOCUS to assist students with tracking their progress, as well as parents being able to track what their students are doing.”
A few days later, a parent’s complaint to the principal came to Marina’s attention. The parent advocated for her daughter’s “rights to be educated by a teacher that knows how to TEACH. . . . She is a junior, and the last two years are the
most important. She deserves no less than a teacher that can provide her with the knowledge she seeks.” At the hearing, Marina recalled the meeting between the parent and Respondent. He testified that the student aspired to attend medical school and was frustrated that there was no rigor in Respondent’s anatomy class. He described the relationship between the student and Snow as “contentious” after the student said, “Hey, when are you going to teach, Mrs. Snow.” Ultimately, the parent obtained a doctor’s note authorizing the student to be removed from Respondent’s class.
Even her colleagues complained to administrators. One teacher stated that Respondent “is either a really good actress, or she is inept completely.” The teacher described Respondent struggling to attach a copy of an exam to an e-mail so the teacher could print it for Snow. She said that Respondent had originally planned to have the anatomy students simply answer questions at the back of the book, but was urged by her colleague to create an exam. This caused Respondent to skip her assigned cafeteria duties to perform the task. Her colleague complained to the school administrators, stating, “I have observed that she has extremely poor planning and forethought and I believe she exists on campus for the purpose of seeking out possible excuses for her inability to perform her job duties. The more I interact with her, the more appalled that I am.”
Marina developed a detailed success plan and both he and the principal met with Respondent to discuss their expectations regarding improved classroom management, use of formative assessments to differentiate instruction for students at various levels, use of standards-based benchmarks to drive instruction and measure student understanding of the curriculum, and entering grades into FOCUS. Basically, the success plan addressed the same deficiencies that were identified at Largo Middle School.
Snow was offered support from experienced educators and took advantage of coaching provided by an instructional staff developer to help her with classroom management processes. According to Marina, Snow never accepted that her performance required improvement. Rather, “there was always an excuse,” and she routinely maintained that she was “an exceptional science teacher.”
On April 30, 2014, Marina completed an annual appraisal of Respondent’s performance. The appraisal instrument for the 2013-2014 school year was described by Louis Cerreta (“Cerreta”), the district’s Director of Professional Development, as a “hybrid model,” because it consisted of behavior indicators from the Charlotte Danielson evaluation system and the Dr. Robert Marzano evaluation system, as well as a few indicators recommended by an appraisal advisory committee consisting of principals, assistant principals, union representatives, district administrators, and
classroom teachers. The appraisal system was approved by the Pinellas County School Board, submitted to and approved by FLDOE for use as the instructional appraisal instrument, and Marina was appropriately trained to conduct the appraisal.
The evaluation instrument consists of three components: the administrative review or “instructional practice” component; the deliberate practice, also called the “professional development” piece; and the student achievement component.
Marina completed the Summative Evaluation (consisting of the first two components, but excluding student achievement data) on April 30, 2014, which resulted in a scaled score of 1 out of 4 available points on the administrative review and zero points for professional development. The student achievement score was based on the scores of students taking the biology EOC (student achievement) and resulted in Respondent receiving a score of 3 on a 4-point scale. Snow’s final evaluation resulted in a score of 1.685 or “needs improvement” under the statutory rating system.
The administrative review incorporated and summarized observations made by Marina during visits to Snow’s classroom from January through April 2014. During these visits, Marina completed a “science implementation rubric” for each of the seven observations. He explained that each of the indicators on the rubric correlated to an indicator on the evaluation instrument, and he would either mark the indicator as “evident” or “not
evident” depending on what he observed in the classroom. The Administrative Review reflected many of the same concerns addressed in Respondent’s success plans at Largo High School, as well as from her former school, Largo Middle School. For example, she received “unsatisfactory” ratings on each of the five indicators under “ability to assess instructional needs.” Marina commented: “This has been an ongoing issue this entire year. I mediated several parent meetings over the concern of accurate and up to date grades.” Under the section entitled “Plans and Delivers Instruction,” she received less than effective ratings on seven of the nine indicators. Here, Marina commented that her “lesson plans are more of a to-do list,” and while she had opportunities to “go into higher order thinking and increase the rigor of her classes,” she failed to do so. He also noted that she failed to abide by the directive to send tests and quizzes to the administration for review.
Under the category entitled “Maintains a Student Centered Learning Environment,” Respondent scored less than effective on ten of the 11 indicators. Marina noted: “rules and procedures tend to fall into chaos on a daily basis, as administrators are frequently called to your room. Many times it is loud and there is a back and forth between teacher and student(s).”
Marina testified that he gave Respondent a zero on the professional development section of the evaluation because she submitted the same form that she had submitted when she worked at Largo Middle School indicating that she taught comprehensive science to seventh graders when in fact her professional development goals should have accurately reflected the courses she taught at Largo High School. Marina stated: “not only was it the wrong [professional development form], but it was [delivered] in March” when they are due at the beginning of the school year.
Professional Performance Deficiencies Continue at Bay Point Middle School
Respondent was involuntarily transferred out of Largo High School at the conclusion of the 2013-2014 school year and resumed teaching middle school for the start of the 2014-2015 school year. The principal at Bay Point Middle School (“Bay Point”), Dr. Jason Shedrick (“Shedrick”), learned during the summer of 2014 that Respondent would be his new sixth-grade science teacher. He immediately reached out several times on the telephone to introduce himself. She proved to be unreceptive to his overtures and combative at every turn.
When she did not return his calls, he contacted her former school, Largo High School, to gain some insights into her background and discovered she was on a success plan. He sent
Respondent an e-mail to schedule a formal meeting to discuss his expectations, as well as the climate at Bay Point so that she could become successful at her new school. At an impromptu meeting, she told him she was not happy with her schedule because she only wanted to teach biology and advanced classes. He reminded her that middle schools do not have biology classes.
She insisted she was a high school teacher and that any further meetings would have to include her union representative.
They met again on August 15, 2014, and developed a sixteen-paragraph detailed success plan that addressed classroom management, instructional planning and delivery, grading and tracking student progress, notification to parents through contact logs and progress reports, and attendance and professional development. Shedrick testified that there was no ambiguity as to what he expected from Respondent. He said they spent three full hours working on the success plan because they hammered out each and every issue:
We went through every single item on this plan. Ms. Snow went through every item on this plan. Her Union representative went through every item on this plan. We changed it several times to accommodate Ms. Snow for Professional Development, her doctors’ appointments before school, after school, whatever it entailed. Everything was laid out so there would be no misunderstanding about the plan.
For the next two years, until she was placed on paid administrative leave on April 25, 2016, Respondent proved to be both unwilling and incapable of following directions and performing the most basic duties of a classroom teacher and fulfilling the expectations of her success plan.
2014-2015 Bay Point Lesson Plans
Appropriately completing lesson plans and submitting them timely was a recurring problem for Respondent at Bay Point as it had been for her while assigned to previous schools. She had been provided the Bay Point template for lesson plans in her “first day packet” and the expectation for their submission had been reviewed as part of their marathon meeting on August 15, 2014, in connection with the success plan. Nevertheless, Respondent returned her first submission on handwritten notebook paper claiming that she was unable to save an attachment on her computer.
Shortly thereafter, Respondent met with Dr. Elizabeth Tisdale (now “Chiles”), the sixth-grade assistant principal responsible for supervising Snow during the 2014-2015 school year. Chiles scheduled the meeting to review school-wide rules and processes with Respondent because she had missed a couple of days during pre-school when administrators typically review these expectations. Her lesson plans were late, so Chiles specifically reviewed this expectation again. Respondent’s excuse for not
submitting them varied but included: no internet at home, computer malfunction, wrong lesson plan template, and an uncertainty as to required content.
Throughout Respondent’s two-year tenure at Bay Point, Shedrick had to regularly remind her to correct her lesson plans and to submit them timely.
Parent Contact and Progress Reports
Respondent was expected to contact parents anytime a student was in jeopardy of receiving a grade less than a C. This was another expectation in her success plan, as was the expectation that parents receive a progress report in such cases. She fell short on this expectation and, in fact, expressed early on that she had no intention of calling parents, as required. Specifically, Chiles met with her on September 2, 2014, to discuss, among other matters, a parent’s concern that her straight-A student was receiving an F in Snow’s class. Chiles reminded Respondent that parents need to be contacted if their child has an F. Respondent outright refused, stating that “she would not call every parent.”
On September 15, 2014, Shedrick asked Respondent to produce the progress reports that she had sent home for students receiving a D or F in her class. In response, Snow sent him copies of the computer gradebook that she had sent home to parents requesting that they sign and return. Shedrick was
incensed that she had no concept of confidentiality and would send each parent a printout describing the grades of every other student in the class. Moreover, the gradebook printouts were not the progress reports he had requested. He explained:
I didn’t receive the progress reports the way that I wanted. . . . I want to know what students were doing, what the assignment was, what the point value was, when it was due, when it was turned in. I wanted to see it before it went home because, then again, I have to answer to these parents at this time why was there not enough grades in the computer, why did my kid have an F, why did my kid have a D. So what I received from Ms. Snow wasn’t what I asked for.
Several months later on February 12, 2015, Shedrick notified Respondent by e-mail that he wanted to see the progress reports for all students with a D or F in her class by
February 18, 2015. On that date, Chiles spoke with Snow and followed up with a an e-mail requesting that she submit the progress reports no later than 4:00 p.m., that afternoon. At 4:19 p.m., Snow sent Shedrick an e-mail telling him that the progress reports would not be completed by 4:00 p.m. The excuses given included her usual claim that there was a computer problem, this time the internet was slow, but also that students were absent and, therefore, were still taking the test.
Failure to Provide Weekly Academic Assessments and Assignments
Respondent was expected to grade at least two academic- based assignments each week and record the grades in FOCUS so
parents and students could monitor their progress. She blatantly refused to do so and claimed that she was not contractually required. According to Snow, she was only required to record one grade weekly. During a conversation in early September, Chiles reiterated that the expectation was two graded assignments, not one, but even if only one assignment were required, Snow missed the mark because it was the third week of school and she only had two grades recorded.
By September 15, 2014, several weeks into the first grading period, Snow had recorded only four grades and one was for a review of the student code of conduct, not an academic- based grade. The walk-through feedback forms completed by Chiles noted this deficiency. On January 13, 2015, Chiles noted “currently zero (0) grades posted-starting new quarter (should have at least 2-4)”; on January 20, 2015, she noted again that zero grades had been posted and on February 23, 2015, she noted that four grades were posted and there should have been 18. Shedrick testified that it was “unacceptable” that by March 23, 2015, eight weeks into a nine-week grading period, after which students were supposed to receive their report cards, Snow had posted only four grades.
Respondent also was expected, and repeatedly directed, to give the students a test which would enable her to measure the students’ progress and tailor her instruction accordingly. She
gave her first and only test in February 2015, and that was only after several people in administration coaxed, prodded, and essentially wrote the assessment for her.
Lack of Classroom Structure, Organization, and Management
Several people noted that Respondent’s students were not engaged during class and that she needed help with classroom management. For example, during walk-throughs on September 8 and 15, 2014, Chiles told her she needed more engaging lessons and to circulate the classroom rather than sitting at her desk. Again, on January 13, 2015, Chiles noted lack of engagement, students not paying attention, “no flow of the lesson-transition nonexistent, unorganized structure,” and students not understanding the lesson. On January 20, 2015, Chiles and Michele Stewart (“Stewart”), an instructional staff developer, observed her classroom together and again noted lack of engagement, rigor, and understanding by the students. Chiles had a meeting with Snow on January 21, 2015, to review these issues. Snow did not respond to her suggestions for improvement, except to say that her planning period should not be interrupted and that the students do not understand the class “because of their levels.”
Excessive referrals, sending students out of class into the hallway without assistance, and not addressing student needs were regular issues for Snow. In one instance, she assigned a
student to the back of the room in a time-out chair and did not excuse him to use the restroom. The student wet himself causing him to be embarrassed and ridiculed by his peers. Snow told Chiles that she saw the boy’s hand slightly raised, but thought he was playing with the blinds. Shedrick testified that the boy’s parent called and came to the school to take the student home and that he “had to explain [to the parent] why the student sat in the back of the classroom and the teacher would not let him go to the bathroom.”
Another time, Respondent left campus in the middle of the day without telling anyone. Her class of 22 students was left alone, unsupervised. Shedrick said he arrived in her room, and she was not there. Another teacher had to cover her class. He said he called her on the phone and was informed that she was sick or had a doctor’s appointment. As a result of this incident, coupled with the other recurring performance deficiencies, the superintendent suspended Snow for three days. Support, Training, and Professional Development at Bay Point
Snow had multiple opportunities to correct her performance and improve her deficiencies through a variety of training opportunities and support provided to her. On most occasions, she refused to attend or otherwise participate. Many examples were given by the witnesses testifying on behalf of the school district.
At the very beginning of the 2014-2015 school year, Respondent was expected to attend District Wide Training (“DWT”) for middle school science teachers. The DWT is the “big kick- off” for the upcoming school year, and the sessions consist of practices and initiatives that the science department expects to be implemented in the schools. Despite being specifically told that she needed to attend the middle school sessions to learn about revisions to the middle school curriculum, she instead chose to attend the high school science sessions. When asked why she did not attend these (which would have been relevant to her assignment as a middle school teacher), she told the principal that in her mind she was a high school science teacher.
As is the case with all teachers new to the school, Respondent had a mentor assigned. Lara McElveen (“McElveen”) was the lead mentor at Bay Point and testified that she was a resource and was always available to help teachers navigate issues ranging from curriculum questions to technology. She held regular monthly meetings to discuss what was working for the teachers and what was not. While most teachers came to her when they needed help with the type of problems Snow experienced (lesson planning, progress reports, assignments, test preparation, FOCUS, etc.), Snow only sought her help occasionally and only for minor issues such as printing or copying assignments. McElveen testified that she tried to set up
meetings to help with more substantive matters, but Snow complained that she had “too many meetings and that it was outside her contractual hours.”
Four specific trainings were identified in the Success Plan negotiated between the principal, Respondent, and her union representative during their three-hour meeting on August 15, 2014. Specifically, she agreed to attend the following training sessions: Just in Time Unpacking & 5E Collaborative Planning on September 2, 2014; Content Enhancement Part 1 Unit Organizer on September 23, 2014; Data Driven Instruction & Analysis Gap
Check In in January 2015; and Just in Time Boot Camp on February 3, 2015.
Shedrick went out of his way to remove any barrier to her attendance. He made sure she was paid to attend the trainings by giving her a “TDE” (Temporary Duty Elsewhere). He personally coordinated the timing of the trainings with other appointments on her calendar, including her doctor’s appointments, and also sought out convenient locations for the different trainings so that she did not have to travel far. He set the first training scheduled for September 2, 2014, at a school located only five minutes away. She did not attend this training. Given the efforts that he went through to personally set up the trainings and personally reach out to the people conducting them, Shedrick testified that he was beyond
disappointed and annoyed that she did not bother to attend. As a result, he wrote her a reprimand dated September 5, 2014, and directed her to follow the expectations in the success plan-- including attendance at the other trainings--in order to avoid future discipline. Despite her agreement as part of the success plan and the directive in the reprimand, she did not attend any of the four trainings. She never offered the principal an explanation for not attending, but simply told him that she did not attend.
In early October 2014, administrators visiting Respondent’s classroom noted that she was two-to-three weeks behind in the pacing calendar establishing the dates by which certain subjects should be covered in her classroom. Shedrick worked with the middle school science specialist, Tom Doughty, to provide Snow assistance and get her back on pace. They assigned Stewart the task of working with Respondent. Stewart observed her class on October 8, 2014; met with her briefly to discuss a remediation plan; and scheduled another meeting the following week to follow through. At the scheduled meeting, Stewart brought the additional materials Snow had requested, but was unable to work personally with her because there was a collaborative planning session scheduled with all teachers. Stewart attended this training with Respondent. Afterward, she asked Snow to meet with her individually as planned, but Snow
told her no, she was not contractually required to meet. Over the next couple of weeks, Stewart was at the school for five more days conducting trainings and available to assist the science teachers. Respondent appeared for one group-training on November 12, 2014, but no more. On one of the days (October 20, 2014), all of the science teachers came to meet with Stewart, except Snow. On another day (November 20, 2014), administrators asked Snow to meet with Stewart, but she never showed up and on the other two days, she called in sick.
In addition to Snow falling behind in pacing, Doughty and others observed during classroom visits that Snow had “instructional pedagogy issues.” Shedrick again asked Doughty and his team to come in and provide direct support to Snow. Doughty observed her classroom on four occasions between January 13 and January 16, 2015, to see “what instructional strategies were used or lack thereof, what could have been used
and were not employed or were not employed correctly.” The plan was to work in tandem with Stewart to provide professional development geared toward the specific areas where Snow struggled. Following the observations, he met with Snow, Shedrick, and Chiles to “debrief,” but Snow was openly resistant to his observations and suggestions. He said he tried to point out areas where her classroom management and practices needed to be refined, but she “cut me off at various points to argue with
my observations.” For example, he suggested that a classic and fun activity for kids to learn the concept of balanced and unbalanced forces was a simple game of tug-of-war where they can experience what happens with forces on either side of a rope.
Snow’s method for teaching this concept was to refer the kids to a picture of a satellite in their textbooks. Doughty told her that pointing the kids to a picture in a textbook “is not helping a student put an abstract concept to a concrete example.” In response, Snow “defensively interrupted [him] saying that she would never do that with her students and would stick with the picture of a satellite in a book.” He concluded that overall “Snow was very defensive and seemed not willing to accept feedback in order to improve her practice.”
Snow was told repeatedly that assessments are necessary to measure a student’s understanding of the content taught. Also, Shedrick wanted to see any test she planned to give the kids. Despite these directives, Snow had not tested her students nor had she tried to create a test. Finally, on January 20,
2015, Snow sent Shedrick two documents for his approval which she presumably believed to be appropriate for testing her students.
Noting that they appeared to be three-year-old worksheets, Shedrick forwarded the proposed assessments to Doughty for his review. Doughty first questioned why Snow would be testing certain subjects in late January--homeostasis and cells--when the
pacing calendar called for the topic to be covered in the first week of October. He also noted that the sheet was straight out of the textbook. He observed that the second document was apparently pulled by Snow from a bank of questions designed several years earlier and was not appropriate to be given as a test to students. He also reminded Shedrick that Snow would benefit from attending a session at an upcoming DWT focused on proper classroom assessment design. As already noted, she did not attend the trainings which could have helped her do her job and, in particular, a training specifically designed to help her create a test.
Next, Shedrick notified Snow that she was not to give the test she had proposed. In desperation, he asked Doughty and his science team to again work with Snow on creating a test. He testified that he had to ask for their help because Snow had not tested her students all year:
I had to because we’re in December, January and the students haven’t been assessed. So how do you know what deficiencies they have? How do you know what standards to remediate? How do you know what they’re lacking? How do you know where to fill in the gaps? How do you know what to do as a teacher if you haven’t given a five-question quiz? How do you know what to do?
When Shedrick informed Snow that the county science department would be setting up individualized training at Bay Point because she missed the professional development planned for
all teachers (a DWT), she responded that “she did not have time for training because [she] was so busy.” He asked if it would be possible to set them up in the morning before school, during her planning period or after school, and she repeated that she was too busy and would never attend a training during her planning period. Finally, Snow agreed to attend a side-by•side training with Stewart so that Stewart could teach Snow, a veteran teacher with upwards of 23 years’ experience, how to write a test.
Stewart and the district’s test bank did the bulk of the work, and eventually a test was created. Snow’s students were administered their first and only test on February 10, 2015.
2014-2015 Annual Evaluation at Bay Point
On April 17, 2015, Chiles completed an annual appraisal of Snow’s performance. The appraisal instrument for this year was the “hybrid model” incorporating indicators from the Charlotte Danielson evaluation system and the Dr. Robert Marzano evaluation. Chiles completed a two-day training on the evaluation system. She passed a test on its use prior to evaluating teachers. The instructional practice portion of the evaluation, completed by Chiles, comprised 40 percent of the total score. Snow scored 1.364 points achieving an “unsatisfactory” rating. Snow did not score “effective” on any of the indicators. Chiles noted in the formal observation that:
Ms. Snow demonstrates deficiencies in the area of delivery of instruction . . . she also struggles with time management in delivering instruction which causes students to be unclear on instruction and assignments. Many students are unable to articulate the learning goal or relate the learning goal to the lesson. Furthermore, many parts of the Gradual Release Model are not applied or observed.
With regard to the assessment of instructional needs, Chiles noted that “little progress has been made.” “Tracking and monitoring data has not been exhibited, as well as using multiple assessments to assess the instructional needs of all students.”
The student achievement portion of the evaluation counted for 50 percent of the overall score. Snow achieved 3.0 points for this portion. The remaining ten percent was based on professional development and Snow was given three out of ten available points. Respondent received only three points because she submitted a plan that did not match her duties. Again, she submitted an old form from the previous year when she worked at a high school. The form stated she was a biology teacher at Largo High School rather than a sixth-grade science teacher at Bay Point. Three points on a ten-point score was converted to a 1.2 on a four-point scale. Overall, Snow’s evaluation reflected a “needs improvement” rating with a final score of 2.166.
2015-2016 School Year at Bay Point
Despite Snow’s poor performance, lack of cooperation and outright defiance the preceding year, Shedrick was optimistic that the 2015-2016 school year would be different. He testified that he was excited that Snow may have “turned a corner.” He testified that he was hopeful because over the summer Snow had shown some initiative and “went to a training without me asking her to.” Moreover, she actually approached him and shared the information, which was rare. He then scheduled a meeting with Snow to scale down her success plan and work on what was necessary to make her a successful science teacher.
Shedrick’s optimism was misplaced and quickly faded.
Snow was contentious and not receptive to the scaled-down success plan which contained many of the same expectations as the earlier one, i.e., two grades per week in FOCUS; at least one approved assessment each grading period; follow pacing guides; provide progress reports to students with D’s and F’s; contact parents; submit lesson plans; and attend classroom management training.
She immediately objected to the expectation that she attend classroom management training stating that she already went to a training in July: “I’ve already been to that training and I am not going to any more training.” He tried to explain to her that the trainings are not all the same at which point it occurred to him that the only reason she attended training in the summer was
probably to get a “trade day,” which amounted to a paid day off during the school year. He said, “I hope she didn’t go to that training just for the trade day. I hope she went to that training for students. Conclusion, trade day, because she would not go anymore [to additional trainings].”
Not only did her performance and attitude fail to improve, it went downhill quickly from that point forward. Throughout the first semester of 2015, Shedrick and other administrators conducted numerous visits to Snow’s classroom and repeatedly notified her that she was behind the curriculum; her instruction was very low-level textbook work; she had not given the students a single assessment or even a quiz; she was not entering academic grades into FOCUS; she was not engaging the students or managing her classroom; and she had no plan to remediate the students who were falling behind.
Shedrick testified that by December 2015, he was “at wits end.” He tried to schedule a conference with her prior to her formal observation but she would not meet with him. He tried repeatedly to re-schedule a meeting. Snow responded with a variety of excuses and objections and once marched into his office at the scheduled time simply stating, “I’m not meeting for your pre-conference,” and walked out. She did not complete the required pre•observation form, so Shedrick asked someone from the professional development department to go into the iObservation
database and prepare the form for her. She never completed the form and never appeared for a pre-conference before the formal evaluation.
Shedrick experienced the same difficulty with Snow in scheduling a formal observation. She objected that he did not give her enough notice; she did not have enough time; she had to test ESE and ESOL students; and other teachers do not have a formal observation mid-year. At one point he went to her classroom to discuss the observation (because she did not respond to his e-mails) and discovered that the kids were working on crossword puzzles. He said that if she was going to ignore his e-mails, “at least let me walk into [her] class and see [her] students highly engaged in some specification [sic] of some
science labs, some dissection, and some hands-on lab learning for science. Imagine my dismay to walk in and see students working on crossword puzzles.”
He conducted the formal observation on December 16, 2015, and for 55 minutes of the class period, the students worked on defining terms. He said this was typical of Snow’s lessons. “Bell work was defining terms. Classwork was defining
terms . . . students would sit there and actually copy word for word verbatim or she would have them in the science consumer workbooks underline or she would regurgitate to them as to what to write next to whatever they underlined right next to it.”
On the formal observation, Shedrick notes under “Establishing Classroom Routines”:
[A]s I walked into the classroom you were moving around students from seat to seat and one student asked what are we doing and you replied “just wait.” You instructed the class to sharpen their pencil one by one and seven students ran to the pencil sharpener. Now students are sitting and waiting for you to begin the lesson. Two students are passing out books. Four minutes are gone and students are still waiting. Two students in the front row are passing out sheets of paper, now you have several students up doing various things at this time. Female students in the back are talking about the movies from the weekend. Ten minutes has gone before you address the class. You are trying to inform students of the Scale you created.
Under the category entitled “Identifying Critical Content,” he
wrote:
Teacher reading terms that she asked students to define (define three terms) and students ask you to repeat and what page? No collaboration for this assignment . . . students are just defining terms out of the book and writing on paper . . . .
At the beginning of the second semester, Shedrick’s frustration with Snow was palpable. He requested help from OPS, as well as the area superintendent, Robert Path, asking:
How much longer must we continue with Snow? Anytime I request a meeting, she does not respond and doesn’t attend. This is defiant and disrespectful to start. How will I continue to run my campus as teachers hear she doesn’t attend my requested meetings, why should they. All this with no action which allows her to continue her behavior.
On January 15, 2016, Shedrick sent Snow a letter telling her that she was on very thin ice but he was going to try once again to remediate her numerous deficiencies. After summarizing all of his efforts to meet with her to conduct a formal observation, as well as her responses, he stated:
I have grave concerns over whether the very marginal instructional improvement that you made last year is sustained. You have never assessed your students so I have no information on that score, refused to show me the work that your students are performing so I do not have that information to review, refused to meet with me to finish a formal observation and have called in sick for several days avoiding this discussion.
For that reason, I asked Mr. Doughty, the Middle School Science Specialist to observe your classroom, on Thursday, January 14th and this morning. I am very concerned about numerous things including the lack of science instruction taking place in your classroom, your classroom management and your conduct and attitude every time that I try to discuss these issues with you. Your continued refusal to do what I ask has seriously impeded the education of our students and they deserve better. I remain willing to work with you and sincerely hope that you choose to work with me toward preparing our students to meet the goals set for 6th grade science. I plan to meet with you to discuss all of these issues.
Doughty again observed Snow’s class on January 14
and 15, 2016, and used his observations as a basis to develop yet another remediation plan. He observed that the activities were “low rigor-no connection made to learning target”; the pace of
the lesson was not appropriate; there was “minimal student engagement” with students “off task” and “compliant” [sic, the context supports “non-compliant”]; and classroom management and discipline was not evident.
Doughty helped design yet another remediation plan that was presented to Snow on January 20, 2016. He said:
[W]e wanted to provide as much support and help to try to help her be the best teacher we could make her to be. So one of the things I suggested to Dr. Shedrick was, for example, Letter G [of the remediation plan] was stop using movies as a time filler, having appropriate topics and rigorous assignments that tied to it.
Aware that much of what he had observed in the past was “textbook, textbook, textbook, writing in the textbook and . . . not a lot of hands-on engaging things,” he suggested Letter H of the plan, “performing labs that tied into the unit to bring on hands-on activities to give students ownership into their learning.”
Doughty and Stewart spent several sessions with Snow during January and February 2016. On February 19, 2016, following an observation of her class, Doughty wrote to Snow commenting that the students were generally confused because the learning goal or the content she intended to teach, did not align to the task:
The strategies used weren’t implemented correctly and did not achieve the desired
effect. . . . Through my last two visits I have not seen effective implementation of the professional development Michele has provided on an individual basis. It is apparent we will need to revisit the topics from the previous 2 PO [personal observation] sessions. . . .
At this point, Doughty felt his team’s efforts could be better utilized elsewhere, rather than continuing to work with Snow who was not cooperating. He contacted a number of people to tell them that “we’re not getting anywhere.” In an e-mail dated February 23, 2016, Doughty noted that “overall it is not going well” and “Michelle is very frustrated that her efforts are not yielding any results.”
Insubordination, Incompetence, Performance Deficiencies, Willful Neglect of Duty
Respondent is either incapable of performing the duties of a classroom teacher or simply unwilling to do so. Based upon the record, it is both. At times it seems that she is not willing to try because she does not have the skills necessary to perform her duties and, at other times, she is outright defiant claiming that she is not required to do what is asked of her.
For two years at Bay Point, she has been directed to enter at least two academic standards-based grades per week in FOCUS and administer an assessment to the students. The assignments that she gave to students in no way could be construed as academic- based. The workbooks produced at hearing from students T.J. and
M.T. contain pages with a few definitions, questions and answers copied out of the textbook, and “reflections” consisting of one to two sentences of what the student learned. One assignment is a “foldable” that the student cut out and pasted in the book, with definitions of cell parts written under the flap. In another assignment, the student cut out pictures of body parts and pasted them in the book partially labelling them. With all of the emphasis placed by the educators and administrators on STEM (science, technology, engineering, and math) and rigorous science instruction, Shedrick was appalled that Snow was teaching and assigning her students what he described as “baby work.”
From the record and Snow’s testimony, there is little explanation as to when or how she graded these assignments. The students testified that they did not know the purpose of the assignments or how they were graded. Their parents did not know how she arrived at the grades and, when asked, she was not able to explain the grades to them.
In addition to the low-level nature of the assignments in FOCUS, Shedrick objected to Snow giving a grade for a parent’s signature, bell work, notebook checks, reflections, and review of the code of student conduct. These were not academic grades, in his opinion. Parents also complained that they never knew where their child stood in the class because of the irregularity of Snow’s grading. Shedrick testified that parent complaints came
in “fast and furious” because of Snow’s habit of “dumping” grades at the end of the marking period. John Frank (“Frank”), the OPS administrator, conducted an audit trail in FOCUS which enabled him to determine the dates that grades were entered and found that grades due earlier in the grading period were added a day or two before the end of the marking period, often drastically affecting a student’s grade with no warning or opportunity for the student to improve. For example, on March 14, 2016, FOCUS indicated Snow had entered six grades. Three days later she had entered four more grades for assignments that should have been added weeks prior.
It is nearly inconceivable that entering two grades weekly could have been so difficult, especially for an experienced science teacher. For Snow, however, it was a constant uphill climb. When she met with Shedrick and, at times, with Valencia Walker, and later Frank, each told her “just put in two grades a week.” She said she did not have to. At the hearing, she claimed that she was “confused” when she was told the school district wanted two grades. She “preferred” to enter only one grade and reasoned that her assignments were so “intense” that one grade for her was really the equivalent of two grades for another teacher. Her lessons and assignments could in no way be deemed “intense.” At one point, she said she tried to put in two grades, but did not have time. Later, she said “my
goal was to put in two grades a week. The reason why I wasn’t able to put in two grades a week at the end was because of the testing schedule and the pacing guide.” This explanation is almost nonsensical.
As evident from her belief that her assignments were “intense,” Snow appears to have no insight into the lack of academic rigor in her classroom. At the hearing, she tried to explain the complexity involved for students to answer two questions in their textbooks on cells. She defended her extensive use of the textbook and instructional strategy of having the students read aloud from it on the basis that she had a lot of “special learners” who needed to learn to read. The record does not support her contention that her students needed “special” treatment due to learning disabilities or other special needs.
Snow blames many of her deficiencies on the students’ misbehavior in her class. Testimony confirms that at times the class was loud and the students sometimes disrespectful. This is not uncommon when teaching middle school students. A parent called by Snow to testify characterized her observation as a class “out of control.” Snow, however, fails to recognize that her inability to deliver meaningful instruction caused, or at least substantially contributed to, the student behavioral issues. If the students were more engaged and assigned to more
meaningful tasks, classroom decorum would have improved. Doughty summarized the correlation well when he testified, “The more low- rigor, the more textbook work . . . the more misbehavior I see happening. The more I see classrooms that engage students in fun, interactive . . . cool science, engaging science, the less misbehavior I see.”
Snow attributes the misbehavior to the students, not her teaching methods or poor classroom management skills. She claimed that she was assigned “more than three fourths of the 6th grade SE/ESOL and 504 population . . . in addition, I have the majority of the lower level 6th graders.” Shedrick and the
sixth-grade assistant principle, Jason Helbling, testified that the population of students in Snow’s class was no different than any other sixth-grade class. In fact, Helbling pulled the grades of the students Snow complained were nonperforming and found they received A’s, B’s, and C’s in their other classes. Snow’s testimony on this point is not credited.
Helbling testified that he was called to Snow’s room much more frequently than any other teacher’s classroom in the school; in his words, as much as ten times more frequently. She had no interventions set up to redirect the students, but would instead call administrators to have those misbehaving or rowdy removed from class. She complained to Helbling that the students were terrible and not teachable. He counseled her to call home
to the parent and “try to do other things than throw the student out of class and having them miss content.” Snow claimed she contacted parents but when Helbling called them himself, he learned that there had been no follow-up by Snow in the form of telephone calls.
Helbling found that the students characterized by Snow as “rough,” “terrible,” and “not teachable” did not have the same problems in other teachers’ classes. He visited other classrooms to observe these students’ interaction with the teachers. The difference was that the other teachers had classroom management strategies and reached out to the students. Inexplicably, Snow did not even know the names of her students, something Helbling found inexcusable after several months of school. He testified, “If [by end of January] we don’t even know the names of our students, we have a problem, and a lot of that is linked to classroom management. How can you manage a classroom if you don’t know who your students are?”
During a classroom visit on January 29, 2016, Helbling walked into a classroom in disarray. A chair was sitting on top of a desk; most of the students were talking; bell work took
21 minutes with no student actually working on bell work (“bell work” are brief assignments given at the start of class to warm up the students, settle them down, and prepare them for the day’s substantive lessons); five kids were lined up at the pencil
sharpener; and Snow “sat at her desk the entire time that the observation took place.”
Annual Evaluation at Bay Point for 2015-2016 School Year
When the time came for the annual evaluation for the 2015-2016 school year, the district had fully integrated the Marzano appraisal system for use in all schools, which as noted above, is designed to grow a teacher’s practice. The comprehensive instrument is comprised of three components: the instructional practice, the deliberate practice, and the student growth score. The Instructional Practice portion counts for
56.67 percent of the evaluation and consists of four domains.
Domain 1 is “Classroom Strategies and Behaviors” consisting of
41 instructional categories that happen in the classroom.
Administrators conducted seven informal and two formal observations (mid-point and final) for completion of Domain 1. Domain 2 is “Planning and Preparing.” Domain 3 is “Reflecting on Teaching” and Domain 4 is “Collegiality and Professionalism.” Administrators also conducted nine walk-throughs which contributed to Domains 2-4. In each of the four domains, a teacher is rated based on a scale with the lowest being “not using” and the highest being “innovating.” The scores are tallied in the iObservation database. Snow received a score of 1 which is an “unsatisfactory” rating for the instructional practice portion. Her weaknesses in classroom management,
instructional delivery and planning, and failure to cooperate were noted in many instances by her evaluator.
The Deliberate Practice portion of the instrument counts for ten percent of the overall score. The rubric dictates that a teacher may receive a score of 1, 3, or 10. Teachers receive points, either 1, 3, or 10, depending on whether they submitted a professional development plan and then whether they implemented it. Snow received three out of ten points because she submitted a deliberate practice plan, but did not attend the required professional development. On a four-point scale, this translated into a score of 1.2. The Student Growth score is worth 33.3 percent of the overall score. Snow received a score of 3.0 on this section resulting in a final score on her evaluation of 1.69 or “needs improvement.” Cerreta testified that Snow is the only teacher in the district, out of more than seven thousand teachers, ever to have received three consecutive ratings of “needs improvement.”
Cerreta confirmed that each of the evaluators for the 2013-2014 through 2015-2016 school years received training and were certified by the district to conduct an evaluation using the respective evaluation instruments. The administrators properly administered each of the evaluation instruments and Snow never challenged, through a grievance, the process followed by the administrators in conducting the evaluation.
Cerreta’s office is responsible for submitting the appraisal systems to FLDOE for approval each year and confirmed that each of the respective systems described for the three-year period were submitted and approved by FLDOE.
It bears noting and a brief discussion as to the integrity and character of Principal Shedrick and the other administrators who patiently worked with Respondent throughout her tenure with the Pinellas County School District and, especially, at Bay Point. It is rare to see a principal and district administrators who not only give a teacher the benefit of the doubt when it comes to her shortcomings, but go well above the call of duty to counsel; offer guidance at many levels; and utilize so many already overworked district personnel in an attempt to make one teacher not only a better educator, but successful in every way relating to her classroom and her students. Shedrick, his fellow administrators, and other teachers at Bay Point spent an inordinate amount of time working with one teacher, Snow, who not only rebuffed their efforts to make her successful, but seemed to resent their attempts to make her a more effective teacher. Only after constant failures by Snow in the classroom, and her apparent inability or lack of desire to improve or learn from all the advice and instruction given, did Shedrick reach his breaking point and move forward with the steps leading to Snow’s proposed termination. Less
dedicated individuals would have pulled the plug far sooner, and Shedrick, along with all the administrators involved, should be commended for their patience and desire to make an experienced science teacher, a valuable commodity in the district, successful to the point where she could better further her students’ education in such a vital academic subject in today’s world.
Based upon the extensive evidence and testimony, all these efforts were unappreciated and, ultimately, made in vain.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569, 120.57 and 1012.33(6)(a), Florida Statutes.
In accordance with the provisions of section 4(b) of article IX of the Florida Constitution, district school boards have the authority to operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law. A school board’s authority extends to personnel matters and includes the power to suspend and dismiss employees.
§§ 1001.32(2), 1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla.
Stat.
In Florida, the district superintendent has the authority to make recommendations for dismissal of school board
employees, and the school board has the authority to suspend without pay school board instructional staff with professional service contracts for “just cause.” §§ 1001.42(5), 1012.22(1)(f), and 1012.33(6)(a), Fla. Stat.
Petitioner bears the burden to prove the charges against Respondent by a preponderance of the evidence. Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990),
(citing Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d
DCA 1990)); McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1976); § 120.57(1)(j), Fla. Stat.
The preponderance of the evidence standard requires proof by “the greater weight of the evidence” or evidence that “more likely than not” tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000); see also
Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 446 (6th Cir. 2005) (holding trial court properly defined the preponderance of the evidence standard as “such evidence as, when considered and compared with that opposed to it, has more convincing force and produces . . . [a] belief that what is sought to be proved is more likely true than not true”).
“Just cause” is defined to include misconduct in office. See § 1012.33(1)(a), Fla. Stat.
The School Board’s authority to terminate a teacher requires “just cause” as defined under section 1012.33, which provides, in relevant 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).
Because section 1012.33 is not an all-inclusive list, school boards have the discretion to determine what actions constitute just cause for suspension or dismissal. Carl B. Dietz v. Lee Cnty. Sch. Bd., 647 So. 2d 217 (Fla. 2d DCA 1994).
Pinellas County Schools has defined, by School Board Policy 3140,
those offenses which constitute “just cause” for discipline and the range of penalties that may be imposed for committing each offense.
Here, the superintendent charged Respondent with several statutory violations highlighted above, and defined by the Florida Administrative Code, as well as several violations of Pinellas County School Board policies. Proof of any one of these violations constitutes just cause and provides an independent basis for termination of Snow’s employment. As described in the pre-hearing stipulation, the teacher’s termination is predicated on the following charges:
Violation of Pinellas County School Board Policy 3140 A (9), “Incompetence as evidenced by inability or lack of fitness to discharge the required duty”;
Violation of Pinellas County School Board Policy 3140 A (9a), “Failure to perform the duties of the position”;
Violation of Pinellas County School Board Policy 3140 A (19), “Failure to correct performance deficiencies”;
Violation of Pinellas County School Board Policy 3140 A (20), “Insubordination, which is defined as a continuing or intentional failure to obey a direct order, reasonable in nature, and given by and with proper authority”;
Violation of Pinellas County School Board Policy 3140 A (22) “Misconduct or misconduct in office”;
Violation of Pinellas County School Board Policy 3140 A (24), “Failure to comply with board policy, State law, or appropriate contractual agreement”;
Violation of 6A-5.056 (2) F.A.C. Misconduct in Office”;
Violation of 6A-5.056 (3) F.A.C. “Incompetency”;
Violation of 6A-5.056 (4) F.A.C. “Gross insubordination”;
Violation of 6A-5.056 (5) F.A.C. “Willful neglect of duty”; and
Receipt of three consecutive ratings of “Needs Improvement” on her annual performance evaluation.
Receipt of Three Consecutive “Needs Improvement” Evaluations
In order for students to achieve in a public school system, it is mandatory that teachers effectively perform the duties of their position in accordance with the generally accepted standards of the profession. In 2011, the Florida Legislature amended section 1012.34 to more closely align the performance expectations of a teacher to the ratings in a teacher’s annual performance evaluation. Additionally, section 1012.33 was amended to specifically incorporate the ratings on a teacher’s annual performance evaluation into the criteria for continued employment with a school board. The
offense of three consecutive ratings of “needs improvement” was added to the list of offenses constituting “just cause” for
termination during the term of a contract. Also, the statute prohibits renewal of a professional service contract where a teacher has received consecutive negative ratings. As described above, Snow received an unprecedented (in the Pinellas school district) final rating of “needs improvement” for each of the three years preceding the superintendent’s recommendation to terminate her employment (2013-2014, 2014-2015, and 2015-2016).
Section 1012.34 prescribes the requirements for a district’s evaluation system and provides that:
The department must approve each school district’s instructional personnel and school administrator evaluation systems. The department shall monitor each district’s implementation of its instructional personnel and school administrator evaluation systems for compliance with the requirements of this section.
§ 1012.34(1)(b), Fla. Stat.
Based on Petitioner’s unrebutted evidence, the district’s instructional evaluation systems for each of the three years at issue complied with the requirements of section 1012.34 and were approved by FLDOE, as well as the School Board. Moreover, the unrebutted testimony established that each of the administrators having evaluation responsibilities was appropriately trained with respect to the proper use of the evaluation criteria and procedures. Finally, while Snow may disagree with the final rating of “needs improvement” each year,
she did not file a grievance appropriately to challenge the procedures followed by the administrators in implementing the evaluation systems and arriving at the ratings.
Under section 1012.34(3)(c), it is the “individual responsible for supervising the employee [who] must evaluate the employee’s performance.” Having established as a matter of law that the evaluation systems were approved by the FLDOE as being in compliance with the statutory requirements, and that the administrators were trained and properly implemented the procedural aspects of the instructional evaluation systems, the ratings arrived at by the evaluator are final. There is no authority for the school board or administrative law judge to invalidate or otherwise substitute a different rating for the three “needs improvement” ratings given by the evaluators who observed Snow’s performance.
Petitioner has established by a preponderance of the evidence that Respondent has received three consecutive ratings of “needs improvement” on her evaluation systems which constitutes “just cause” for termination pursuant to section 1012.33.
Incompetence/Failure to Perform the Duties of the Position
The testimony and other evidence submitted by Petitioner clearly establish what the evaluation outcomes confirm: Snow is not an effective teacher and is not competent
to perform the duties prescribed by law and School Board Policy. School Board Policy 3140 A (9) defines “Incompetence” as the “inability or lack of fitness to discharge the required duty.” Similarly, Florida Administrative Code Rule 6A-5.056(3) defines “incompetency” to mean “the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.” Under the rule:
“Inefficiency” means one or more of the following:
Failure to perform duties prescribed by law;
Failure to communicate appropriately with and relate to students;
Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents;
Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or
Excessive absences or tardiness.
Fla. Admin. Code R. 6A-5.056(3)(a).
Under section 1012.53, the duties prescribed by law
include:
The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school
board. The rules shall include, but are not limited to, rules relating to a teacher’s duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board.
The evidence establishes that due to Respondent’s serious, repeated performance deficiencies, she did not work diligently and faithfully to help her students meet or exceed the annual learning goals they were supposed to meet as prescribed by the curriculum and lesson plans. Specifically, Respondent continually failed to appropriately plan and deliver the curriculum; her instructional strategies were almost completely reliant on academic assignments out of the textbook with no ability or desire to engage students in the learning process or to differentiate instruction by addressing the individual learning needs, styles, and levels of her students. She failed to align learning targets and goals with activities and tasks; failed to assess and monitor student understanding of the lesson; and, in every other sense, failed to maintain a classroom environment conducive to learning.
Respondent did not effectively communicate or relate to the students in her classroom. This, coupled with her failure to engage the students by delivering appropriate academic
instruction and the lack of consistent classroom procedures, resulted in a disorganized and disruptive classroom that deprived her students of a science education.
Petitioner has established by a preponderance of the evidence that Respondent is incompetent under Pinellas County School Board Policy 3140 A (9) and rule 6A-5.056(3), and proven that she violated School Board Policy 3140 A (9a) in that she has failed to perform the duties of a classroom teacher, each of which constitute “just cause” under section 1012.33.
Insubordination, Willful Neglect of Duty, Failure to Correct Performance Deficiencies, Misconduct, and Failure to Comply with Board Policy, State Law, or Appropriate Contractual Agreement
The remainder of the charges against Respondent consists of her continued refusal or inability to do what was asked of her. “Gross insubordination” under rule 6A-5.056(4) is the “intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties.” “Insubordination” under Pinellas County School Board Policy 3140 A (20), is defined similarly, but in addition to, the conduct being “intentional,” includes conduct which is “continuing.” “Willful neglect of duty” is a separate basis for discipline under the rule but encompasses much of the same conduct and means the “intentional or reckless failure to carry out required duties.” Fla. Admin. Code R. 6A-5.056(5).
Petitioner has proven by a preponderance of the evidence that Snow intentionally and continually failed to follow the reasonable directives given to her by her supervisors. For years, she was directed to grade student work and record the grades in FOCUS. At Bay Point, she was required and asked to do so twice a week, but inexplicably, could not or, more likely, would not comply. She likewise would not test the students as directed, attend the training she was directed and expected to attend or even meet with the principal when directed. Respondent’s constant and continued refusal to comply with the directives is insubordination. Rutan v. Pasco Cnty. Sch. Bd.,
435 So. 2d 399 (Fla. 2d DCA 1983) (insubordination exists if refusal to comply with directives is constant and continuous).
Hearing testimony concerning Respondent’s repeated and continued deficiencies extending from Largo Middle School to Largo High School and then to Bay Point established a pattern so similar that it was clear this was a teacher who refused to follow the clear directives and requirements related to her chosen profession. She was provided every opportunity and the support necessary to improve her skills, but both failed and refused to do so in violation of Pinellas County School Board Policy 3140 A (19), “Failure to Correct Performance Deficiencies.” Petitioner has met its burden in proving this charge.
The additional charges of “misconduct in office” under School Board Policy 3140 A (22) and rule 6A-5.056(2), and violation of School Board Policy 3140 A (24), “[f]ailure to comply with board policy, State law, or appropriate contractual agreement,” overlap considerably with the charges described above and also have been proven by a preponderance of the evidence. Rule 6A-5.056(2) states, in relevant part:
“Misconduct in Office” means one or more of the following:
* * *
A violation of the adopted school board rules;
Behavior that disrupts the student’s learning environment; or
Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.
School board rules and state law require that a teacher embrace the accomplished practices defined as the core standards for effective educators under rule 6A-5.065. Petitioner proved that Respondent repeatedly failed to do so.
The penalties for the offenses charged range from a conference summary to dismissal. School Board Policy 3140 follows a system of progressive discipline intended to notify an employee of deficiencies and give the employee an opportunity to improve. The progression may include, but is not limited to, verbal or written counseling or caution, written reprimand,
suspension without pay and dismissal. The severity of the problem determines whether all steps will be followed or whether a recommendation will be made for dismissal. Here, prior to the recommendation of dismissal, Respondent already had received a conference summary, three reprimands and a three-day suspension without pay since 2011 for almost identical deficiencies.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher.
DONE AND ENTERED this 24th day of February, 2017, in Tallahassee, Leon County, Florida.
S
ROBERT S. COHEN
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 24th day of February, 2017.
COPIES FURNISHED:
Laurie A. Dart, Esquire Office of General Counsel Pinellas County School Board
301 4th Street Southwest Largo, Florida 33770 (eServed)
Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110
29605 U.S. Highway 19 North
Clearwater, Florida 33761 (eServed)
Dr. Michael A. Grego, Superintendent Pinellas County School Board
301 4th Street Southwest Largo, Florida 33770-2942
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Pam Stewart, Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 26, 2017 | Agency Final Order | |
| Feb. 24, 2017 | Recommended Order | Petitioner proved by a preponderance of the evidence that Respondent's employment should be terminated for receiving three consecutive "needs improvement" evaluations, incompetence, failure to perform duties, insubordination, and willful neglect of duty. |
PINELLAS COUNTY SCHOOL BOARD vs KAY KENNEDY, 16-002913TTS (2016)
ANN E. MACPHERSON vs. MONROE COUNTY SCHOOL BOARD, 16-002913TTS (2016)
DADE COUNTY SCHOOL BOARD vs. FRANCISCO GUTIERREZ, 16-002913TTS (2016)
PINELLAS COUNTY SCHOOL BOARD vs. JOHN H. HOPKINS, JR., 16-002913TTS (2016)
DADE COUNTY SCHOOL BOARD vs. MARCOS D. GONZALEZ, 16-002913TTS (2016)
