STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERB A. SANG, SUPERINTENDENT, ) DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1440

)

1. LENWOOD LEE, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a hearing was held before Charles C. Adams, a hearing officer with the Division of Administrative Hearings. This hearing was conducted on August 23 and 24, 1983, in Jacksonville, Florida. The Recommended Order is being entered following the receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on September 27, 1983, and review of the proposed Recommended Orders of the parties, the last of which was received in the offices of the Division of Administrative Hearings on October 14, 1983. The proposals have been considered and to the extent that they are consistent with this Recommended Order they have been utilized. To the extent that the proposals are not consistent with the Recommended Order, they are rejected based upon irrelevancy, immateriality, as being contrary to the facts found, contrary to conclusions of law reached or to the recommended disposition in this action.

   
   

   APPEARANCES

   
   

   For Petitioner: Gary E. Eckstine, Esquire

   Chief Administrative Hearings Section City of Jacksonville

   1300 City Hall

   Jacksonville, Florida 32202

   
   

   For Respondent: David A. Hertz, Esquire

   General Counsel

   Duval Teachers United 1035 La Salle Street

   Jacksonville, Florida 32207 ISSUE

   The issues to be determined here concern the Administrative Complaint brought by the superintendent of the Duval County Public School System against the Respondent seeking to discharge the Respondent from his teaching duties in that system based upon alleged professional incompetency in the school years 1979-80 and 1980-81.

   FINDINGS OF FACT

   
   

   1. An Administrative Complaint was served on the Respondent in April, 1983. Herb A. Sang, Superintendent of Duval County County Schools, was responsible for those charges. In the complaint, it is alleged that Respondent is guilty of professional incompetency in fulfilling his duties as a teacher in the Duval County School System in the years 1979-80 and 1980-81. Respondent is a tenured teacher in the Duval County School System and had held that tenure at all times relevant to this inquiry. Respondent opposed these allegations, leading to the formal Subsection 120.57(1), Florida Statutes hearing.

      
      

   2. Respondent, who has been employed in the school system since 1954, was transferred to Duncan U. Fletcher Senior High School in 1971. Lee remained at Fletcher High through the school year 1979-80. In that year, Lee taught 10th grade English. His performance in the classroom was observed by Dr. Andrew Knight, principal at Fletcher High School, and by other professionals in the school. These observations commenced in September 1979 and continued throughout the school year. By January 30, 1980, Dr. Knight had gained a sufficient impression of the performance of the Respondent to write and inform him of areas of deficiency. A copy of that letter of evaluation may be found as Petitioner's Exhibit No. 7, admitted into evidence. In addition to setting forth deficiencies, the letter suggests techniques that might be employed to correct the deficiencies. Relevant areas of concern involved classroom management, teaching effectiveness and classroom performance. Those observations as set out in the letter of evaluation and critique of the Respondent's performance are an accurate depiction of the performance. All these items set forth relate to teacher competency and this depiction of Respondent, coupled with similar observations which were testified to during the course of the hearing, demonstrate a lack of competency on the part of the Respondent in performing his teaching duties. The deficiencies set forth in the letter of evaluation were explained to the Respondent in person.

      
      

   3. Following the interim evaluation of January, 1980, the annual formal evaluation was made on March 12, 1980. A copy of that evaluation may be found as Petitioner's Exhibit No. 9, admitted into evidence. As depicted in this document, Respondent was still perceived in March, 1980, as giving a poor performance as a teacher. This characterization of his performance, as found in the evaluation of March 12, 1980, is accurate and those observations, together with the observations of his performance as testified to in the hearing, point to the fact that the Respondent continued to be less than competent in his teaching.

      
      

   4. Throughout that school year, classroom management was the most obvious deficiency. In particular, students were sleeping and talking to each other and not paying attention, a problem not satisfactorily addressed by Lee. As a result, the learning experience was diminished. Moreover, this circumstance was made worse by the fact that Lee's perception of how to plan for instruction and his efforts at carrying out these plans were not structured in a fashion to hold the attention of his classes and promote the goals announced in the Duval County School course Curriculum for Tenth Grade Language Arts. See Petitioner's Exhibit No. 33.

      
      

   5. Based upon his unsatisfactory evaluation for the school year 1979-80, and in keeping with the Duval County Teacher Tenure Act, Respondent was transferred to Edward White High School in the school year 1980-81. The principal at that school was John E. Thombleson. Thombleson was aware of the unsatisfactory rating that Lee had received and undertook, during the course of

      Respondent's stay at White High School, to observe and assist Lee in trying to improve Lee's teaching. That improvement was not forthcoming. Lee continued to have problems related to classroom management and teacher effectiveness and he was not responsive to beneficial ideas of improvement offered by Thombleson related to in-service assistance. Ideas for improvement which were posed to the Respondent include those set forth in Petitioner's Exhibit No. 11, admitted into evidence which is a memorandum concerning a conference held with Respondent by Principal Thombleson. Other exhibits admitted pertaining to observations by Thombleson and other administrators at White are found to be accurate depictions of the atmosphere in Lee's classroom related to management and teaching effectiveness. Through October, 1980, visits to Respondent's classes revealed a lack of attention on the part of students, a lack of preparedness by the Respondent, a failure to proceed in a sequence which would be commensurate with the curriculum goals set for the classes, tardiness on the part of the Respondent and students, failure to provide lesson plans to the administration observer, failure to conform to the scheduled lesson plan for the day, and failure to provide continuity between the lesson of the day and the following day's assignment. These were problems that had been observed during Lee's 1979-

      80 year at Fletcher. Consequently, the required interim evaluation of October 30, 1980, was not favorable to Lee. A copy of that formal evaluation may be found as Petitioner's Exhibit No. 18, admitted into evidence and the observations set forth therein are found to be accurate. Lee was also provided with a memorandum on that date, a copy of which is Petitioner's Exhibit No. 19, admitted into evidence. This document suggested ways to improve classroom management, teaching effectiveness and classroom performance. Both the evaluation and memorandum of improvement were discussed with the Respondent and the matters of that conference are set forth in the memorandum of October 30, 1980, a copy of which is found as Petitioner's Exhibit No. 20, admitted into evidence. On November 6, 1980, Respondent's grade book was evaluated and found to be deficient, a finding which is accepted. The grade book was not properly documented, among other shortcomings.

      
      

   6. Respondent, by correspondence of November 18, 1980, a copy of which is admitted as Petitioner's Exhibit No. 24, requested Principal Thombleson to give concrete examples of expectations of the Respondent in fulfilling his teaching responsibilities. This correspondence was replied to by memorandum of December 5, 1980, a copy of which is admitted as Petitioner's Exhibit No. 25, and contains a continuing explanation of ideas of improvement which had been previously suggested by Principal Thombleson. Lee's performance did not improve after this exchange and the final evaluation at White of March 12, 1981, was not positive. A copy of that evaluation may be found as Petitioner's Exhibit No. 27, admitted into evidence and the evaluation's conclusions are accepted. Overall, in the year 1980-81, Respondent did not perform as a competent teacher while at Edward White.

      
      

   7. Respondent did not conclude the teaching year at Edward White in 1980-

1. In the face of an attitude which Thombleson considered to be insubordinate and the Respondent's expressed desire to be transferred, Lee was reassigned to William Raines Senior High School in April, 1981. For the remainder of that academic year he served as a substitute teacher. It was not established in the course of the hearing what quality of performance Lee gave as a substitute teacher when assigned to Raines High School and it is therefore assumed that that performance was satisfactory.

   
   

   1. In the school year 1981-82, Respondent was assigned to Raines High School and acted primarily as a substitute teacher. He remained in the high school for that school year premised upon a settlement negotiation between the

      Respondent and the Duval County School Board pertaining to an Equal Employment Opportunity Commission complaint which he had filed pursuant to Title VII of the Civil Rights Act of 1964. For the school year 1981-82, the Duval County school administration decided that they would not afford a performance evaluation to the Respondent and none was given. There being no evidence to the contrary, it is assumed that Respondent fulfilled his role as substitute teacher adequately.

      
      

   2. In the school year 1982-83, Respondent was reassigned to Raines school and worked primarily in the media center program in a nonteaching capacity. Lee did a limited amount of substitute teaching in that year. Jimmie A. Johnson, Principal of Raines school found his work as a substitute teacher to be acceptable as set forth in the memorandum of March 23, 1983, a copy of which is admitted as Respondent's Exhibit B. No contrary position being offered on the question of the quality of performance in the limited role of substitute teacher during that school year, Respondent is found to have performed the role of substitute teacher in a satisfactory manner.

      
      

   3. Lee's performance as a substitute teacher in the years 1981-82 and 1982-83 while accepted as satisfactory does not overcome the established fact that in the school years 1979-80 and 1980-81, when performing the role of full- time tenured teacher in Duval County, he was not a competent teacher. This performance in the substitute role, while similar, is not sufficiently so to provide a quality of rehabilitation which would set aside the present perception that Respondent is not competent to fulfill the role as full-time classroom teacher in Duval County. This finding is supported by the observations of Dr. Jeffrey Weathers, a professional educator who specializes in teacher evaluations related to their classroom performance as to subject matter and general methodologies. Although some of the tasks which Weathers observed in the Respondent's classroom both at Fletcher and White did not pertain to active instruction, to the extent that other tasks observed called upon Respondent to teach, he was not doing so in an effective manner. As Dr. Weathers described, the vital link between activity and learning could not be found in Lee's classes. Weather's observations, together with those of other professionals at Fletcher and White, coupled with the Respondent's less than cooperative attitude, results in the finding that Respondent has not removed the stigma of his incompetence as a full-time classroom teacher through his teaching in the substitute role at Raines. Finally, while the quality of performance by those students at Fletcher and White who were taught by Lee and participated in the MLST minimum skills tests were similar to students of other teachers in the aggregate, this fact is not enough to set aside the impression of the Respondent's competence. As Dr. Curtis Randolph, who was assistant principal at Fletcher in 1979-80, correctly stated upon reflecting on Respondent's performance, Lee is not competent to teach in Duval County Schools.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

      
      

   5. In the course of the final hearing, the Respondent's motion to dismiss as filed on May 26, 1983, was denied and that ruling continues with the entry of this Recommended Order.

      
      

   6. Petitioner in this action has attempted to discharge Respondent based upon professional incompetency, pursuant to Section 4(e) , Duval County Teacher Tenure Act. Those procedural requirements related to such discharge having been complied with, to include provision of in-service training, and sufficient

evidential showing having been made to demonstrate the Respondent's incompetency as a teacher, discharge is warranted. Failure of the Petitioner to evaluate the Respondent in accordance with Section 231.29(2), Florida Statutes, during the 1981-82 year in which the EEOC settlement was in effect and the Respondent was serving primarily as a substitute is not a bar to the discharge. Likewise, failure to evaluate in 1982-83 when Respondent performed primarily in a nonteaching role shall not set aside determination of discharge. Discharge is warranted even in the face of a successful performance as substitute teacher and media assistant during those latter two school years.

Based upon a full consideration of the facts and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which discharges Respondent as a tenured teacher in Duval County.

DONE and ENTERED this 13th day of December, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1983.

COPIES FURNISHED:

Gary E. Eckstine, Esquire

Chief, Administrative Hearings Section City of Jacksonville

1300 City Hall

Jacksonville, Florida 32202

David A. Hertz, Esquire General Counsel

Duval Teachers United 1035 La Salle Street

Jacksonville, Florida 32207

Herb A. Sang, Superintendent Duval County School Board 1701 Prudential Drive

Jacksonville, Florida 32207

Docket for Case No: 83-001440

Orders for Case No: 83-001440