STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DUVAL COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3563

)

JEWEL JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before the undersigned Hearing Officer in Jacksonville, Florida, on September 24 and 25, 1987.

APPEARANCES

For Petitioner: Gary E. Eckstine, Esquire

Assistant Counsel City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202

For Respondent: Charles F. Henley, Jr., Esquire

111 Riverside Avenue Suite 330 Jacksonville, Florida 32204

ISSUE

The issue for determination in this case is whether Respondent should be discharged from her employment as a teacher in the Duval County Public School System for professional incompetency pursuant to Section 4(e) of the Duval County Teacher Tenure Act (Chapter 21197, Laws of Florida, as amended)

STATEMENT OF THE CASE

By certified letter dated May 16, 1986, Herb A. Sang, Superintendent of Duval County Public Schools, indicated the intention of the Duval County School Board to discharge Respondent for professional incompetency. Respondent requested a formal hearing on her discharge by Duval County School Board. The matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes.

The hearing was scheduled for November 18, 1986, in Jacksonville, Florida. At the hearing, Respondent appeared accompanied by her then attorney, Al Millar, Esquire. Following some preliminary discussions and after consulting with her attorney, Respondent announced that she was resigning from her position effective February 16, 1987. Petitioner's attorney of record accepted that resignation on behalf of the Duval County School Board.

Thereafter, Respondent petitioned the Duval County School Board for permission to withdraw her resignation and the Board granted her its permission to withdraw her resignation. Subsequently, the Duval County School Board requested that another hearing be set. After several continuances requested by one or both of the parties, the present hearing was held.

Petitioner's allegations of incompetence are based in part on unsatisfactory evaluations which Respondent received for the 1984-85 and the 1985-86 school years. At the hearing, Petitioner introduced the aforesaid evaluations and presented the testimony of numerous witnesses concerning Respondent's performance as a classroom teacher. Respondent presented the testimony of Dr. John Robert Stamm, and testified in her own behalf. Her defense was that she suffered a severe depressive episode due to personal problems and the evaluation system was unfair.

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondent, Jewel Jones, was a tenured public school teacher licensed by the State of Florida in elementary education and exceptional education, and is currently a certified teacher in the fields of elementary and exceptional education. She has been employed by the Duval County School Board for 28 years (T 467- 468).

   
   

2. For seven years, she taught educable mentally retarded students and for eighteen years taught elementary education (T 468-469). Prior to the 1984-85 school year, Ms. Jones taught elementary education at Beauclerc Elementary School for twelve years (T 469). Until the 1984-85 school year she had received satisfactory performance evaluations for each of her years of employment (T 470, Res. Ex. 3). Respondent received unsatisfactory evaluations from two different principals at two different schools for the 1984-85 and 1985-86 school years.

   
   

3. At the end of the 1983-84 school year, Ms. Jones transferred to a school closer to where her mother lived because her mother, who was an alcoholic, had health problems (T 146,472). Ms. Jones requested and ultimately received a transfer to the Hyde Park Elementary School where she was employed for the 1984-85 school year (T 475).

   
   

4. During the summer of 1984, Ms. Jones experienced a number of personal family problems. On July 25, 1984, her son was arrested and charged with sexual battery. This same son had been previously charged and convicted of the same offense and had served over six years in prison. The son was tried in December 1984 and acquitted of the charge, but returned to jail for violation of his parole (T 476-478). In addition, Ms. Jones' daughter had dropped out of college and started writing a series of bad checks. Ms. Jones was concerned about the welfare of her family (T 479, 145-146).

   
   

5. In January 1985 Ms. Jones sought the aid of a board certified psychiatrist and neurologist, Dr. John Stamm (T 144), who treated Respondent between January 23, 1985 and July 15, 1985 (T 144-149), while Respondent was at Timucuan Elementary School. Ms. Jones reported to Dr. Stamm that she had been depressed for about six months prior to seeing him and that she was having crying spells and difficulty sleeping (T 146).

   
   

6. Dr. Stamm's diagnosis was that Respondent had suffered "a major depressive episode," which he treated with medication and psychotherapy, and which he felt was situationally related to the problems Respondent's mother, daughter, and son were having (T 149,150). As part of his treatment, Dr. Stamm

   prescribed "a significant amount of antidepressant medication" for Respondent (T 157). Dr. Stamm testified that Respondent's significant depression would have had an adverse impact on her work performance (T 160, 163) and could have been detected by some of the students in her class leading to a sense of unease or concern on their part (T 161). Dr. Stamm stated that most frequently depressive episodes are time limited, but that he was unable to determine whether the Respondent's condition was time limited or permanent (T 150).

   
   

7. The principal at Hyde Park Elementary School during the 1984-85 school year was Virginia K. Greene. Greene observed the Respondent's work during the 1984-85 school year. Respondent was unable to maintain discipline, keep the children on task, and present her lessons in an organized fashion. Respondent jumped from one subject to another, losing the interest and the attention of the students in the process (T 82-83). Respondent's relationship and rapport with parents of the children in her class was poor. Respondent was absent from school on a total of 31 occasions during the 1984-85 school year, was tardy on numerous other occasions, and on various occasions failed to notify the school so that proper substitute teachers could be arranged (T 71-73).

   
   

8. Ms. Greene attempted to secure assistance for Respondent from the School Board's teaching cadre. The teaching cadre assists teachers in their techniques. Respondent refused this assistance. Respondent never explained her family problems to Greene, nor gave Greene any reason why a teacher with her background was having problems.

   
   

9. In accordance with the collective bargaining agreement and the documentation requirements of the School Board, Ms. Jones received an official notice of deficiencies (Pet. Ex. 4, Res. Ex. 1, Para. A-5) and had a conference with Greene regarding the notice. Although Jones' performance had improved, it was not enough to justify a satisfactory performance evaluation (T 504-508).

   
   

10. On March 15, 1985, Ms. Greene gave Ms. Jones an unsatisfactory rating on her annual evaluation form. Ms. Jones received a total of nine reduction points on her evaluation form (Pet. Ex. 7, Res. Ex. 1, Para. A-1), one more than the maximum of eight which is considered unsatisfactory. Ms. Jones received eight of the nine reduction points in four areas under classroom management.

    
    

11. Ms. Greene was an experienced teacher and principal and qualified to assess the Respondent's work. In Ms. Greene's opinion, the Respondent was not a competent teacher during the year based upon Greene's observations and those of the teaching cadre reporting to Greene. Greene's evaluation reflected her assessment of the Respondent's performance. In Greene's opinion, the students in Respondent's class did not have a successful year during the 1984-85 school year.

    
    

12. The teacher evaluation form provides 36 factors or areas of teacher competency which are to be evaluated. No guidelines are provided to the evaluators on performance indicators to be used to evaluate each area of competency (T 140). Ms. Greene had a set of predetermined indicators based upon her experience that she used to evaluate all teachers. Some of the indicators Greene used to determine competency in classroom management were common to more than one of the six areas assessed under management. Structured observation forms are provided for the evaluation of beginning teachers. The forms for beginning teachers are more objective than the ones used for tenured teachers (T 399-400).

13. Ms. Greene testified that in the 1984-85 school year, she used the same evaluation system for all the teachers whom she rated (T 186). Of the 28 teachers evaluated by Ms. Greene, only Ms. Jones received a less than satisfactory or a "needs improvement" rating in any of the 36 rated factors (T 180-185).

    
    

14. Following the conclusion of the 1984-85 school year, Respondent was given the opportunity to transfer to a new school as required by Section 4(e)(2) of the Tenure Act. Respondent availed herself of that opportunity and transferred to Timucuan Elementary School, where she was employed during the 1985-86 school year.

    
    

15. Jane Sharpe Condon was the principal at Timucuan Elementary School at the beginning of the 1985-86 school year. Ms. Condon reviewed Ms. Jones' personnel file and was aware that Ms. Jones was classified as a less than satisfactory (LTS) teacher. Ms. Condon counseled with Respondent, concentrating on the areas of indicated weakness (T 243, 244, 288). In addition, Condon counseled Respondent about avoiding derogatory remarks about students and the school, and the importance of maintaining professional relationships with parents and with school staff (T 244-248). Condon prepared a plan for Respondent to improve her classroom management.

    
    

16. Ms. Condon followed the Board's instruction of documenting and establishing a record of Ms. Jones' performance, compiling a large number of documents regarding Ms. Jones' performance (T 275-276; Res. Ex. 1, 1a-4, b-2, b- 3, b-5; Pet. Ex. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24). During the 1985-86 school year, Ms. Condon evaluated Ms. Jones two times as required, once in October 1985 and again in March 1986, and rated Ms. Jones unsatisfactory (Res. Ex. 23, 24).

    
    

17. Ms. Condon arranged for Betty John Miller, the school's reading resource teacher, and Marilyn Russell, a member of the Duval County School Board teaching cadre, to provide assistance for Respondent during the 1985-86 school year (T 248-249).

    
    

18. Ms. Condon observed Respondent's classes. Respondent's class completely ignored Respondent's instructions. Respondent failed to maintain the students' attention. The Respondent "overdwelled" in her lesson presentation. The Respondent interrupted her teaching on numerous occasions to threaten disciplinary action against unruly students, but she failed to follow through when students continued their disruptive behavior (T 257-258).

    
    

19. Betty John Miller, the reading resource teacher at Timucuan Elementary School during the 1985-86 school year, worked with the Respondent and observed her class in order to assist Respondent in improving her teaching technique. Respondent was unable to conduct a reading group with part of her class and keep the remainder of the class on task with their given assignments. Although Respondent listened to Miller's suggestions, she did not follow through in implementing them (T 306-307).

    
    

20. Marilyn Diane Russell, a member of the Duval County School Board teaching cadre, observed the Respondent's teaching during the 1985-86 school year. Respondent had difficulty in communicating orally with her students and too frequently repeated instructions to the children (T 341). Respondent was unable to organize a lesson with a review, introduction and development of new material, practice activities, follow-up and another review (T 347). Respondent made excessive use of questions which require the simple recitation of facts.

21. In the latter part of January or the early part of February, 1986, Russell was transferred to another position and ceased working with Respondent. Another member of the teaching cadre, Barbara Vandervort, began working with Respondent (T 357). Ms. Vandervort consulted with Ms. Russell, reviewed Respondent's file, and consulted with Ms. Condon to assure that there would be no break in the efforts to assist Respondent. (T 407-412).

    
    

22. Ms. Vandervort worked with Respondent on numerous occasions in an effort to improve Respondent's behavior management and to eliminate her use of repeated reprimands in an attempt to keep order in the classroom (T 413-414). The deficiencies identified by Ms. Condon were still present during the latter part of the 1985-86 school year (T 417-418) when Vandervort observed Respondent's work. Ms. Vandervort saw student throw rubber bands at Respondent, who told the student to take a seat in the back of the room. When the student failed to do so, Respondent took no further disciplinary action (T 416). Ms. Vandervort observed that Respondent was unable to put all of the elements of a proper lesson development together at one time or to teach a complete lesson (T 416-417).

    
    

23. Ms. Vandervort, Ms. Russell, and Ms. Miller reported their observations to Ms. Condon. Based upon these reports and her own observations, Ms. Condon evaluated Respondent's performance as below standard for the 1985-86 school year although there was some slight improvement noted from time to time (T 270-271). Condon did not consider Respondent competent as a teacher during the 1985-86 school year (T 271-272).

    
    

24. The general memorandum on Evaluation of Instruction Personnel (Res. Ex. 1) was the only written instruction Ms. Condon received to assist her in compiling teacher evaluations (T 276-277).

    
    

25. Respondent stated that her personal and psychiatric problems interfered with her performance during the 1984-85 school year and that she did not have a good year (T 539 & 540). Respondent admitted that it would have been better to have taken leave in order to work out her personal problems rather than continue to teach (T 541). Respondent admitted that she "probably did have problems" at the beginning of the 1985-86 school year, but that she felt she improved enough during the course of the year to be rated as satisfactory (T 547).

    
    

26. Donna Darby, Respondent's principal at Beauclerc Elementary School during the 1983-84 school year, testified that Respondent's performance declined markedly during the latter part of 1983-84. Ms. Darby also testified that she discussed this problem with Respondent and indicated to Respondent that if her performance did not improve during the 1984-85 school year, Ms. Darby would request "additional support help" for Respondent (T 458-459).

    
    

27. Respondent testified that she did not remember any conversations with Ms. Darby concerning her performance during the latter part of the 1983-84 school year (T 471-472).

    
    

28. Numerous letters or memoranda were written to Respondent by various persons in an effort to point out her deficiencies and to offer suggestions for improvement. Her principals provided Respondent with clear and detailed statements of Respondent's deficiencies throughout 1984-85 and 1985-86.

29. The School Board provided Respondent with limited in-service training during the 1985-86 school year in addition to the assistance of the teaching cadre.

    
    

30. Respondent was afforded a public hearing, was informed of the nature and cause of the accusations, has confronted the accusing witnesses, was allowed to subpoena witnesses and papers, and secured the assistance of counsel.

    
    

31. Neither the Duval County Teacher Tenure Act nor Duval County School Board has formally defined the term "professional incompetency;" however, the term is not specialized and is capable of general proof.

    
    

32. At the start of the 1984-85 school year, the Respondent had a number of children with disciplinary problems (T 485); however, the children with disciplinary problems were evenly distributed among the four other third grade classes, as were the better students (T 70). During the first few months of 1984-85, Ms. Greene transferred four students from Ms. Jones' class (Pet. Ex. 3). The transfers were made primarily because of parent complaints to her (T 63-64) about Ms. Jones'. Ms. Greene did not have a cipal/teacher/parent conference with Ms. Jones to discuss the problems (T 493-495).

    
    

33. During the entire school year, neither Ms. Russell nor Ms. Vandervort gave a demonstration class for Ms. Jones (T 524). The only help given by Ms. Russell and Ms. Vandervort other than critiques after their observations was a handwriting kit and two booklets (T 528-529, Res. Ex. 4, 5). The procedures utilized by the School Board are designed to document its decision to discharge a teacher as much as the procedures are intended to assist the teacher to improve his or her performance.

    
    

34. No competent evidence was presented that the evaluation procedure used by the Duval County School Board is invalid. All of the Respondent's principals were teachers of significant experience, as well as having been principals for a number of years, and were qualified to evaluate the Respondent's performance.

    
    

35. The acute depression from which Respondent suffered during the 1984-85 school year degraded her performance of her duties; however, her uncontroverted testimony was that she could now perform her duties.

    
    

36. The data on class performance by students in Respondent's classes based on Jt. Exh. A, B, C & D reveals the following:

    
    

    1. At Hyde Park Elementary School, the grades of Respondent's class on the Standford Achievement Test were:

       
       

       Class		Reading	Math
       Rm. 13		53.88	55.64
       Rm. 15	(Jones)	55.52	49.74
       Rm. 16		60.23	50.42
       Rm. 18		54.04	52.04

       
       

    2. At Timucuan Elementary School the grades of the Respondent's class on the Standford Achievement Test were:

       
       

       Class	Reading	Math
       Rm. 18 1/	62.00	54.52

       Rm.	19	(Jones)	44.55	49.41
       Rm.	20		43.52	47.19
       Rm.	22		43.62	46.73
       Rm.	24	2/	72.23	81.73

       
       

    3. At Hyde Park Elementary School the scores on the Essential Skills Test reflected Respondent's class had the next to the highest math performance and the lowest scores in reading, the opposite of the

       indications of the Standford Achievement Test.

       
       

    4. At Timucuan Elementary School the scores on the Essential Skills Test reflected the

       reading scores of the Respondent's students rose 6/10's, and her class was next to the worst class (Rm. 20) whose score fell from

       80 to 74.6. The math scores of her class were the lowest. Again, these results are contrary to the Standford Achievement Test.

       
       

37. The data above is counter to the opinion of the principals at both schools that Respondent's students suffered significantly in their learning.

    The Respondent's classes were average on the Standford Achievement Test which is indicative of a successful year.

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has juris- diction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

39. Section 4(e) of the Duval County Teacher Tenure Act (Chapter 21197, Laws of Florida, as amended) provides that causes for the discharge or the demotion of a tenured teacher shall include, "(e) Professional incompetency as a teacher..."

    
    

40. Petitioner has complied with all of the procedural prerequisites set forth in Sections 4(e)(1) through 4(e)(5) of the Duval County Teacher Tenure Act (Chapter 21197, Laws of Florida, as amended) and with Chapter 120, Florida Statutes.

    
    

41. The Respondent's performance was satisfactory until 1984-85. The evaluations conducted by two principals based upon their own observations and the observation reports of others reflect that during the 1984-85 and 1985-86 school years the Respondent did not perform her duties in a satisfactory manner. The evaluation system is valid; however, the evidence reflects that after the 1984-85 year the primary thrust was to document the case against Respondent. Respondent received minimal assistance during 1985-86, yet she showed some improvement during the course of the 1985-86 school year as reflected in the observations of her principal and student test scores. Her performance was rated unsatisfactory even though the objective test scores of her students reflect that their performance was average and often better than other classes of the same grade.

    
    

42. Respondent was placed on notice early in 1984 that her performance was unsatisfactory. The Respondent's teaching performance had begun to decline late

    in the 1983-84 school year and was rated satisfactory in the 1984-85 and 1985-86 school years. The facts reveal that this change in Respondent's performance coincided with the significant personal problems with which she had to deal and which resulted in a severe depressive episode which required psychiatric treatment. Her personal problems, her depression, and the medication taken to alleviate them contributed directly to the Respondent's substandard attendance and performance. The Respondent appeared to respond to treatment, according to the physician, and ceased meeting with him. The Respondent's treating physician did not have an opinion whether the Respondent's condition was permanent because he had never evaluated that aspect of her condition; however, the Respondent performed teaching and non-teaching duties and did not see her physician for treatment until the onset of these proceedings which brought on another period of anxiety. Respondent stated that she can currently perform her duties. The evidence reflects that for 25 years the Respondent performed her duties in a competent manner. In 1984-85 and 1985-86, the Respondent was rated unsatisfactory. In 1984-85 the Respondent was being medically treated for severe depression. In 1985-86, the Petitioner's thrust was elimination of Respondent who it felt had been identified as an incompetent teacher. In fact, Petitioner was a teacher with significant medical problems with which she could not cope without professional help. Observation reports reflect that Respondent did not correct student misbehavior and was apparently undisturbed by student misconduct. It is hardly surprising she was not disturbed by children throwing rubber bands in class while taking the antidepressants and tranquilizers prescribed by her doctor in order to cope with her son going to jail, her daughter writing bad checks, and her mother suffering from alcoholism.

    
    

43. Her students performed generally in the middle of their grade's range. The subjective opinion of her principals that the children did not have successful years is contrary to the objective evidence of the scores of Respondent's classes on the Standford Achievement Tests and Essential Skills Tests. In summary, the Respondent was a teacher whose performance was degraded for two years while she was suffering from significant health problems; however, the performance of her classes was average and was equal to or better than other classes in the same school even at the height of Respondent's problems.

    
    

44. The burden rests upon Petitioner to prove that the Respondent is incompetent to perform her professional duties. The standard of proof required to demonstrate a teacher with 25 successful years teaching is incompetent and to take away the teacher's tenure and potentially impair the teacher's retirement is high. Intervening conditions or circumstances must be fully weighed. While evidence was presented that Respondent's performance had deteriorated to some degree, it was not proven that she deprived the children of educational opportunity or that she was incapable of currently meeting performance standards. Petitioner has failed to meet its burden.

RECOMMENDATION

In the absence of the degree of proof required and mindful that the Respondent has been employed as a school teacher in Florida for over 25 years and that no action should be taken by the School Board which would have a chilling effect upon employees seeking professional help with mental and emotional problems, it is

RECOMMENDED that:

The complaint against Respondent be dismissed.

DONE and ORDERED this 26th day of February, 1988, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1988.

ENDNOTES

1/ This score appears to reflect either significant achievement by the students or advanced classes.

2/ Ibid.

COPIES FURNISHED:

Gary E. Eckstine, Esquire Assistant Counsel

City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202

Charles F. Henley, Jr., Esquire

111 Riverside Avenue, Suite 330 Jacksonville, Florida 32204

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Herb Sang, Superintendent Duval County School System 1701 Prudential Drive

Jacksonville, Florida 32207

Docket for Case No: 86-003563

Orders for Case No: 86-003563