STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4576

)

SHELIA S. SHELLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 30 and December 1, 1988 in Miami, Florida.

APPEARANCES

Petitioner: Madelyn P. Schere, Esquire

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

Respondent: H. T. Smith, Esquire

1017 Northwest Ninth Court Miami, Florida 33136

BACKGROUND

By action taken at a meeting on August 24, 1988, petitioner, School Board of Dade County, suspended respondent, Shelia S. Shelley, from her job as a continuing contract teacher effective the same date for incompetency.

Thereafter, by letter dated August 30, 1988, respondent timely requested a hearing to contest the action. The matter was referred to the Division of Administrative Hearings by petitioner on September 15, 1988, with a request that a Hearing Officer be assigned to conduct a hearing. On September 28, 1988, a Specific Notice of Charges was issued by the Board. The Notice sets out in detail the basis for the Board's action and contains factual allegations concerning Shelley from school year 1980-81 through school year 1987-88. On October 21, 1988, an Amended Specific Notice of Charges was issued adding the charges of gross insubordination and willful neglect of duties. Leave to amend the notice was formally authorized by the undersigned by order dated November 2, 1988.

By notice of hearing dated October 12, 1988, a final hearing was scheduled on October 25, 1988, in Miami, Florida. At petitioner's request, the matter was rescheduled to November 30 and December 1, 1988, at the same location. At final hearing, petitioner presented the testimony of Dr. D. Patrick Gray, Merry Schrage, Harold M. Jones, Sr., Nelson E. Diaz, Phyllis A. Whitmire, Marguerite

1. Radencich and Euphrates Abbitt. It also offered petitioner's exhibits 1-75. All exhibits were received into evidence except exhibits 4, 15-28, 40, 47B and

   47C. Respondent testified on her own behalf and presented the testimony of Johnnie R. McMillian, Mary E. Richards, Carolyn Adeoye Bennett, Gladys M. Young- Smith and Marlene Brownlee. She also offered respondent's exhibits 1-5 and 9.

   All exhibits were received into evidence.

   
   

   The transcript of final hearing (two volumes) was filed on January 3, 1989.

   Proposed findings of fact and conclusions of law were due by January 18, 1989. They were filed by petitioner on January 17, 1989. None were filed by respondent. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.

   
   

   At issue is whether respondent should be dismissed from her job as proposed in the Amended Specific Notice of Charges issued on October 21, 1988.

   
   

   Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

   1. Introduction

      
      

      1. At all times relevant hereto, respondent, Shelia S. Shelley, was a classroom teacher at Allapattah Elementary School (AES) in Miami, Florida. She was under a continuing contract as a teacher for petitioner, School Board of Dade County (Board). Respondent graduated from Florida A&M University in August 1974 and has been continuously employed by the Board as a classroom teacher in Dade County since school year 1974-75. She is certified in elementary education and early childhood education.

         
         

      2. After Shelley received unacceptable annual evaluations for two consecutive years in 1986-87 and 1987-88, the principal of AES, Harold M. Jones (Jones), referred Shelley's case to the Board's office of professional standards (OPS), which has the responsibility of investigating matters that may culminate in disciplinary proceedings against employees. After reviewing Shelley's file, OPS, and then the Board superintendent, recommended that Shelley be dismissed on the ground she was incompetent. This was consistent with Board policy that such a charge be initiated after an employee receives unacceptable evaluations for two consecutive years. This recommendation was accepted by the Board at its meeting on August 24, 1988 and Shelley was suspended without pay effective that date. She has remained in that status pending the outcome of this proceeding. A more detailed basis for the dismissal is contained in the Board's Specific Notice of Charges issued on September 28, 1988 as amended on October 21, 1988. According to the amended notice, the charges stem from Shelley's conduct as a classroom teacher beginning in school year 1980-81 and continuing through school year 1987-88. The Board's action prompted Shelley to request a hearing.

         
         

   2. Year's Prior to School Year 1986-87.

      
      

      1. While teaching at AES during school years 1981-82 through 1984-85, respondent was formally observed on several occasions by her principal and various assistant principals. Although several deficiencies were noted, respondent was given an overall acceptable evaluation for each year and was recommended for re-employment.

         
         

      2. During school year 1985-86, respondent was given an overall acceptable evaluation. Although Jones desired to give Shelley an unacceptable rating, he did not comply with all procedural requirements for evaluating Shelley and was, therefore, required to give her an acceptable rating.

   3. School Year 1986-87.

      
      

      1. During school year 1986-87, Shelley was assigned to teach a "Chapter I" class, which is a federally funded program for inner city students who require additional remedial help. These classes generally average between fourteen and sixteen students as compared to the normal class size of thirty-two students.

         By having smaller classes, a teacher is able to give more individualized instruction to the students. Shelley was given a Chapter I class with the expectation that, with fewer students, she might improve her classroom performance.

         
         

      2. On September 8, 1986, Shelley and Jones attended a conference-for-the- record. At that conference, Shelley was given a written reprimand for failing to follow reporting procedures for student attendance and lunch cards. More specifically, Shelley failed to timely submit attendance cards to the school's computer center and to personally oversee the use of lunch cards given to her students. This was contrary to school procedures as set forth in a memorandum previously given to Shelley.

         
         

      3. On September 26, 1986, Shelley received a written "official warning" from Jones for extending her lunch hour three minutes past the end of the lunch schedule. According to Jones, her students were unsupervised during that three minute period.

         
         

      4. On October 14, 1986, Shelley was officially observed in her mathematics classroom by Jones and was found to be deficient in the areas of preparation and planning, knowledge of subject matter and techniques of instruction. More specifically, Shelley's lesson plans indicated objectives and activities that were not challenging to the students. In addition, respondent made mathematical computational errors in front of the children. Finally, her techniques of instruction were neither motivating nor geared to the children's individual needs as required by the Board's diagnostic-prescriptive approach to the mathematics curriculum.

         
         

      5. To assist Shelley in improving her performance, Jones recommended that she have a two-week session on curriculum planning with her grade level chairperson in order to prepare a more challenging format for the children. Also, Jones recommended that Shelley work with another teacher for the purpose of improving her diagnostic-prescriptive mode.

         
         

      6. On November 25, 1986, respondent was officially observed in the classroom by Merry Schrage, then an assistant principal at AES, and was found to be minimally acceptable. However, Schrage noted that more progress on the part of Shelley was needed.

         
         

      7. On December 3, 1986, Jones issued a written memorandum to Shelley concerning her pupil attendance records. The memorandum was prepared after Shelley had marked one student absent when, in fact, the student was present, and had marked another student present who did not actually report to school until noon.

         
         

      8. Respondent was required to attend a conference-for- the-record on December 9, 1986 for an undisclosed purpose. When Shelley did not appear at the scheduled 3:05 p.m. starting time, Jones eventually located her in her classroom at 3:30 p.m. Shelley advised Jones she did not appear because the union steward was absent from school that day. However, Shelley should have appeared at the

         designated time with the official alternative union representative or appeared by herself and requested that the conference be rescheduled. By failing to appear, Shelley violated an administrative directive, and she received an official reprimand for her actions.

         
         

      9. The conference-for-the-record was rescheduled to December 12, 1986. At the conference, respondent's performance and prescriptive mode were discussed. A summary of the conference is found in petitioner's exhibit 35. Shelley was told that, because she did not have consecutive acceptable observations, she must strive to improve her performance in order to secure her job status.

         
         

      10. On January 9, 1987, respondent was again officially observed by Jones in her mathematics classroom and was found to be deficient in the areas of preparation and planning, knowledge of subject matter and assessment techniques. Also, Jones noted that respondent's grade book was not physically present in the classroom and her student work folders did not have an accumulation of the minimal amount of work required by the school. The work folders are important as an aid in explaining a student's grade to parents who make an inquiry about their children's performance. In addition, respondent's lesson plans did not reflect the skill levels of the mathematics groups, the name of the textbook that was being utilized, and evidence that the school's homework policy was being followed. Finally, Jones observed that while demonstrating division problems on the blackboard, Shelley incorrectly placed the quotient numerals thereby confusing her students.

          
          

      11. As a result of the observation, Jones gave respondent a prescription for performance improvement that included a requirement that Shelley seek help from two teachers. One, Annie Farrell, was especially good in pupil file- keeping while the other, Willard Hart, had a strong curriculum background. Also, Jones required that respondent turn in a written daily lesson plan to the assistant principal denoting both the sequence and the names of the texts being used. She was further instructed to read the teacher's guide concerning homework and to keep her grade book up to date.

          
          

      12. Because of the deficiencies noted above, a conference-for-the-record was held by Jones and Shelley on January 22, 1987. Shelley was warned that if remediation was not demonstrated, she might be recommended for a non-tenured contractual status.

          
          

      13. In a second memorandum issued on January 22, 1987, Jones advised Shelley that she had failed to follow Chapter I guidelines for completing and handing in her articulation forms. These forms are used to develop educational plans for the students and must be forwarded to the Chapter I teacher's aide who teaches a companion computer course in the computer laboratory. In this case, Shelley had not submitted these forms to the teacher's aide on a timely basis. She was told to do so in the future.

          
          

      14. When Jones learned that the articulation forms had not been turned in as of January 28, 1987, he scheduled a conference-for-the-record with Shelley. The two discussed the matter, and he directed Shelley to submit the articulation forms to the Chapter I facilitator. Whether Shelley submitted such forms to the facilitator is not of record.

          
          

      15. A teacher's meeting was held on February 11, 1987 for all fourth and fifth grade teachers, including Shelley. Although Jones did not attend the meeting, he nonetheless prepared a memorandum the same date concerning Shelley's

          "unusual behavior" during the meeting. The memorandum was based on matters reported to Jones by Merry Schrage, an assistant principal. According to Schrage, Shelley was "basically disruptive", had "glassy eyes", "big broad smiles", was "very loud and pushy", and carried a roll of toilet paper in her pocketbook.

          
          

      16. A conference-for-the-record was held on February 17, 1987. The meeting was attended by respondent and various AES administrators, including Schrage. Among other things, the attendees discussed respondent's classroom performance, her absence from the December 12, 1986 conference-for-the-record, other absences and tardiness occurring on undisclosed dates, and her so-called "unusual behavior" at the teachers' meeting on February 11, 1987. Respondent was directed to be medically evaluated by a physician of her choice to determine her fitness to perform her assigned duties and responsibilities as a classroom teacher. This was in accordance with both her continuing contract and the labor contract between the Board and the teachers' union. Shelley selected Dr. Jules Trop from an approved list of physicians. Finally, she was advised that her future employment status would be determined based upon the facts presented at that conference.

          
          

      17. At the February 17 conference-for-the-record, respondent was directed by the north central area director to submit lesson plans and grade book (with the first semester grades) to Jones no later that February 20 and submit emergency lesson plans to the assistant principal by February 19. When these deadlines were not met, Jones again directed respondent to comply with the directives. During this same time period, Shelley was temporarily reassigned to the area office pending the completion of the investigation.

          
          

      18. When Shelley went to Dr. Trop for her scheduled appointment on March 2, 1987, she learned that Dr. Trop was a physician with the Mount Sinai Medical Center Addiction Treatment Program. Upon advice of her union, she declined to take any blood and urine tests. Blood and urine tests are routinely given as part of the Board mandated medical evaluations. Because of Shelley's refusal to give samples, no medical evaluation was performed.

          
          

      19. On March 27, 1987, Jones authored two memoranda to Shelley. The first memorandum required Shelley to submit lesson plans on a date certain and prescribed the manner in which they were to be prepared. This was necessary since Shelley's lesson plans continued to be in non-compliance with school requirements. The first memorandum also directed Shelley to prepare her grade book in a proper manner by posting two grades per subject per week for each student. The second memorandum contained specific instructions on how to correct this continuing grade book deficiency.

          
          

      20. On April 2, 1987, Shelley was informally observed by Schrage while teaching her fourth grade mathematics class. Schrage suggested that Shelley use a different multiplication/division matrix and even made a new chart for her.

          
          

      21. Under the March 27 memorandum prepared by Jones, Shelley was required to submit her lesson plans and grade book to Schrage by April 2. On that date, Shelley requested and received an extension until the morning of April 3. When Schrage asked Shelley on April 3 for her grade book, Shelley responded she did not have it, and it was not completed. Schrage accordingly prepared a memorandum the same date strongly urging Shelley to comply with all future timelines.

      22. Respondent was officially observed by Schrage on April 6, 1987. Shelley was found to be deficient in the areas of preparation and planning and assessment techniques. Schrage observed that respondent spent one hour and fifteen minutes on one page of a math assignment. This was an excessive amount of time to spend on one activity with Chapter I students who need the stimulation of a variety of activities. In addition, respondent had not used the teacher manual in preparing for the lesson. She had no grades posted for reading, writing, spelling. or English. There was one class set of mathematics grades, and only four individual students had a reading grade on a particular date. Finally, the student work folders had no evidence of work since March 25, 1987.

          
          

      23. Based upon the above observation, respondent was given a prescription for performance improvement. Respondent was required to read the teacher's manual and prepare each lesson in a manner consistent with the manual. Further, she was required to reflect the time periods for each activity in each lesson for the remainder of the school year. Schrage assisted her in developing such a format. Also, respondent was directed to monitor and assess student work on a daily basis and to keep her grade book updated with sections for the different subject areas. Finally, Shelley was told to maintain evidence of current graded work in the student folders. Another teacher was provided to help respondent record her grades.

          
          

      24. On May 5, 1987, respondent was officially observed in her classroom by Jones and was found to be deficient in the areas of knowledge of subject matter, techniques of instruction and assessment techniques. Jones observed Shelley making major errors in delivering the subject matter to the students. For example, she called a "synonym" an "antonym", mispronounced words and used verbs in the wrong tense. Also, she repeatedly made errors on the chalkboard and was corrected by the students several times. The lesson lacked sequence, was confusing to the students and did not have an ending or a summation. In addition, Jones found that Shelley was still not documenting two grades per week per subject for each student. Finally, there was misgraded student work in the folders.

          
          

      25. After making the above observation, Jones gave Shelley a prescription for performance. He suggested that she seek help from Schrage, who was strong in curriculum, and recommended Shelley consult with another teacher to assist her in sequencing lessons and delivering the subject matter. Also, he recommended that Shelley teach from simple to complex and that she use charts, activities and media to reinforce the lessons. Finally, she was told to seek help from Schrage in properly maintaining her grade book.

          
          

      26. On May 28, 1987, Jones observed Shelley's class leaving the physical education grounds unescorted and in a disruptive manner. Shelley was not present but was later observed walking down a hallway. According to school policy, it was Shelley's responsibility to escort and supervise her class. Jones issued a written directive the same day advising Shelley she must adhere to school policy in the future.

          
          

      27. On May 29, 1987, Shelley was officially observed in her reading classroom by Jones and Nelson E. Diaz, an area director. The two performed what is known as an external observation which involves an observation by two administrators, one from the school site and one from outside the school. An external observation is conducted after a teacher has been found to be unacceptable on a previous observation and is on prescription. Each administrator independently completes an observation form, but the two may

          consult to prepare the prescription. Shelley was found to be deficient in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction and assessment techniques. More specifically, she was not following a sequence in her instruction nor encouraging student participation. Her directions were not clear and she had not planned her class instruction. Also, the two administrators noted that Shelley "stumbled" through the lesson and there were many delays. Often, the students had to remind Shelley what they were supposed to be doing, and she did not appear to have a grasp of what was going on in the classroom. Finally, they noted that Shelley was still not using her grade book and student folders in a proper manner. A detailed summary of the deficiencies is contained in petitioner's exhibit 50D.

          
          

      28. Respondent was given a prescription for performance improvement which included a requirement that she seek assistance from Schrage on lesson sequencing and lesson plans. Also, she was to be given assistance by the grade level chairperson and a co-teacher concerning her knowledge of subject matter. In addition, she was asked to review all lessons prior to teaching them and was again instructed to follow a sequence from easy to difficult when teaching. Finally, she was told to encourage student participation and to review the teacher handbook on grading.

          
          

      29. Because Shelley ended the school year in a prescriptive mode, a conference-for-the-record was held on June 8, 1987. At that conference, which was attended by Shelley, Jones, Schrage and a union steward, respondent's overall classroom performance was discussed. Other areas of concern included an attendance problem, a failure to follow state, county and Board policies, a failure to use proper instructional procedures, a failure to adequately manage her classroom and a lack of classroom supervision. Respondent was advised that if she did not show improvement in these areas by the next school year, she was subject to "possible" dismissal.

          
          

      30. In Respondent's overall annual evaluation for the 1986-87 school year, she was found to be deficient in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, assessment techniques and professional responsibility. Because of this, she ended the year in a prescriptive mode and her salary level was frozen until improvement was shown. The evaluation form advised respondent to "focus on meeting the prescriptive time lines."

          
          

      31. Another conference-for-the-record was held on June 19, 1987, for the purpose of discussing respondent's prescriptive status and certain category VII violations incurred during the school year. The latter item concerned Shelley's failure to adhere to various Board rules and policies.

          
          

   4. School Year 1987-88.

      
      

      1. On September 29, 1987, respondent's classroom performance was officially observed by Jones. He acknowledged that Shelley showed some improvement, "was trying to show vigor," and "did not have as many negative categories." However, Jones observed that Shelley was still deficient in the areas of preparation and planning and assessment techniques. She still failed to include homework assignments in her lesson plans, and there was no documentation of homework in her grade book. The student work folders did not show two graded papers per week per subject, for each student, and the work in the folders did not support the recorded entries in the grade book.

      2. Respondent was given a prescription for performance improvement and a timeline of October 21, 1987. She was told to work with an assistant principal, Phyllis Whitmire, on lesson planning, homework and maintaining two grades per subject per week for each student.

         
         

      3. On November 23, 1987, respondent's handwriting class was officially observed by Whitmire, and she found to be deficient in the areas of knowledge of subject matter, techniques of instruction and assessment techniques. Whitmire observed that children were simply copying from the blackboard which contained cursive and manuscript letters. However, Shelley did not identify the differences between the two. There was no explanation of problem areas, and no thinking on the part of the children was required. Respondent did not use more than one technique of instruction to address various learning styles, and the observer noted that some of the students were using improper posture for writing and were not properly holding their pencils. The observation occurred during the third week of the grading period and respondent still had no grades in her grade book. Finally, there were no samples of handwriting in the student's folders.

         
         

      4. Whitmire prepared a prescription for performance improvement for Shelley. The prescription focused on the above noted deficiencies and is set forth in petitioner's exhibit 55. Respondent acknowledged receiving a copy of the prescription on December 2, 1987. It contained a timeline of December 14, 1987.

         
         

      5. Jones scheduled a conference-for-the-record on November 30, 1987 to discuss Shelley's "future employment with Dade County School System, TADS Summative and Work Performance." At the meeting, Shelley was put on notice that if her negative prescriptive mode persisted, she could be dismissed or reduced from continuing contract status to annual contract status.

         
         

      6. On February 1, 1988, respondent was again officially observed by Jones while teaching her language arts classroom. Jones found Shelley to be deficient in the areas of planning, knowledge of subject matter, classroom management, techniques of instruction and assessment techniques. More specifically, he observed that Shelley was neither prepared nor organized to teach the lesson and did not follow her lesson plans. Although the lesson plan indicated the subject was mathematics, Shelley taught language arts that period. Jones noted that Shelley's lesson plans were non-sequential and that Shelley used the first nineteen minutes of class time walking around looking for items in the cabinets and performing other non-instructional duties. He found her "PREP" profiles had not been updated, and the grade book was again not present in the classroom. Although respondent was teaching a handwriting lesson, she did not use appropriate writing on the chalkboard. Also, some children were still using incorrect writing posture and holding their pencils incorrectly. Finally, the student work folders had only two papers in them, an insufficient amount for that time of year, and no formal tests were in the student folders.

         
         

      7. Respondent was given a prescription for performance improvement which is described in petitioner's exhibit 57. Generally, it required Shelley to meet with Whitmire, the third grade chairperson and two other teachers for instructions and assistance in resolving her deficiencies. A timeline of February 18, 1988 was established.

         
         

      8. On May 4, 1988, respondent's third grade reading classroom was officially observed by Whitmire. Shelley was found to be deficient in the area of techniques of instruction. While Whitmire found Shelley had planned "many

         good activities" for the students, she noted that the instruction was uncoordinated and lacked continuity and had so sequencing or follow-through. Also, Whitmire observed that Shelley was not teaching developmental reading even though this was a Chapter I class.

         
         

      9. Respondent was given a prescription for performance improvement which included a requirement that she observe a number of other teachers while they were teaching their classes. These observations were to be completed by May 26, 1988.

         
         

      10. Because of Shelley's classroom performance, an external observation was conducted on May 27, 1988. The observation was performed by Euphrates Abbitt, temporary Principal at AES, and Marguerite Radencich, a reading supervisor. The two found Shelley to be deficient in the areas of preparation and planning, knowledge of subject matter, techniques of instruction and assessment techniques. The following deficiencies were noted: respondent's plans did not reflect homework four times a week, she failed to follow her lesson plan for the majority of the period, and her lesson was not well organized or sequenced. Also, she made numerous errors in the subject matter and gave confusing definitions and examples. Further, the observers noted that although respondent was teaching generalization, she had not pretested the students to see if they knew how to generalize. Finally, there was insufficient testing in the student's folders to conform to the diagnostic-prescriptive approach.

          
          

      11. Based on the above observation, respondent was given a prescription for performance improvement with a timeline of June 16, 1988. The prescription is set forth in petitioner's exhibit 61E.

          
          

      12. On June 10, 1988, a conference-for-the-record was held for the purpose of discussing the external observation, the prescription deadline and a recommendation by Jones that Shelley be dismissed. The meeting lasted only fifteen minutes, and Shelley was advised that a recommendation was being made that she be dismissed as a teacher.

          
          

      13. Shelley's 1987-88 annual evaluation was prepared by Jones on June 10, 1988. It contained an overall evaluation of unacceptable and found Shelley to be deficient in the areas of preparation and planning, knowledge of subject matter, techniques of instruction and assessment techniques. As a consequence, Jones recommended that Shelley be dismissed.

          
          

      14. On August 22, 1988, a conference-for-the-record was held to address respondent's performance assessments, medical status and fitness to return to work. The end result was a recommendation by the superintendent to the Board that Shelley be dismissed. This recommendation was approved at a Board meeting on August 24, 1988.

          
          

   5. Respondent's Case.

      
      

      1. After graduating from college in August 1974, respondent began teaching the following month in the fifth grade at AES. Some three years later, she earned continuing contract status as a teacher. For the five school years 1974-75 through 1978-79, Shelley received annual evaluations of ``above average.'' Indeed, for those five years, she received ratings of 4.0, 4.4, 4.1,

         4.2 and 4.3, respectively, out of a maximum possible rating of 5.0. Altogether, Shelley received acceptable evaluations for twelve consecutive years prior to the onset of her problems in school year 1986-87.

      2. Shelley blames her misfortunes upon principal Jones, who came to AES in school year 1980-81. When Jones became principal, Shelley had been married for only four months or so. However, the school computer still carried her maiden name, Shelia Spicer. Even so, Jones knew Shelley was a married woman but, according to Shelley, Jones continued to call her "Miss Spicer." In addition, Jones often made to her what she considered to be "unprofessional" comments such as how good she smelled and how well she looked. Shelley felt "really bad" about these comments but said nothing because she did not want to jeopardize her position.

         
         

      3. While on prescription in school year 1984-85, Shelley was called to Jones' office one day and, while the two were alone, was asked if she would like to go fishing. On other occasions, Shelley says Jones asked her "on dinner dates." At that point, Shelley began "avoiding" Jones, and after that things got "worse" and he began treating her "unfairly."

         
         

      4. To corroborate her claim of sexual harassment, respondent offered the testimony of two other female employees at AES who gave similar accounts of Jones' exploits. Carolyn Adeoye Bennett, a teacher at AES in school year 1982- 83, contended she, too, was the victim of a sexual advance by Jones. According to Bennett, while in her classroom one day, Jones asked her to go fishing and made comments to the effect that she had a "nice body" and "he would like to go to bed with (her).". After rejecting Jones' offer, Bennett sought advice from a teacher-friend, Gladys Young-Smith, who acknowledged that Bennett had complained of Jones' overtures. Based on the friend's advice, Bennett did not file a complaint against Jones. After Bennett rejected Jones' offer, she says Jones was "very demeaning" to her and "found fault" in everything she did. He also declined to recommend her for a continuing contract. However, Bennett transferred to another school and eventually received a continuing contract. Finally, Bennett, who was married at the time, but dating another AES employee, suspects Jones told her husband about the other man in her life. This was because Jones mentioned to her that he was aware of her boyfriend, and a short time later, her husband appeared at the school looking for her and the boyfriend. After transferring to a different school in 1983-84, Bennett acknowledged she filed a sexual harassment complaint against that school's principal after he asked her to go out for drinks.

         
         

      5. Marlene Brownlee was a computer clerk at AES in school year 1987-88. According to Brownlee, Jones regularly made "unprofessional" comments to her such as "you looking good" and "hey, baby." She found these remarks to be "offensive" and considered them to be sexual advances. After Brownlee was unresponsive to these advances, she claims Jones began finding "fault with (her) work" and to treat her "unfairly." Brownlee acknowledged that she was disciplined on several occasions for inefficiency at both AES and her new school and has been referred to the employee assistance program.

         
         

      6. Mary Richard, a fifth grade teacher at AES, gave assistance to Shelley during one of her prescriptive modes. She found Shelley to have a "very positive attitude" and willing to work. Also, she shared a classroom with Shelley in school year 1983-84 and was of the opinion that Shelley, while teaching, delivered the Board curriculum on the subject. After Shelley's second external observation in 1988, Shelley came to Richard and sought assistance before her third observation. The two worked together until 8:30 one evening in an effort to prepare for her class. Despite this assistance, Shelley was still rated deficient by her two observers, Abbitt and Radencich.

      7. Shelley contends that, after Jones started harassing her, she tried to transfer from AES to another school each year but was unsuccessful. As to the use of the wrong multiplication/division matrix on April 2, 1987, she says she merely used one prepared by Hart, another teacher. She justified being in the cafeteria for three minutes past the lunch hour because of long lines that day which delayed her departure. She conceded she was tardy in handing in her attendance and lunch cards in September 1986, but only by a few hours. As to the incorrect attendance records prepared on December 3, 1986, Shelley says she knew one student would be a "little late" but not absent and she explained this to Jones. On the day of the conference-for-the-record held at 3:05 p.m., Shelley did not want to attend without a union steward and asked that the matter be rescheduled. However, she did not do this until Jones located her around 3:30 p.m. Finally, she did not teach mathematics on February 3, 1988 while being observed by Jones, as reflected in her lesson plans, because she had already taught that subject earlier in the day.

         
         

   6. Miscellaneous

1. The Board and teachers' union have entered into a collective bargaining agreement which provides various requirements for teacher personnel. One such requirement relating to lesson plans provides in part as follows:

   
   

   Lesson planning is an essential part of the teaching process and a proper subject for evaluation. The principal or supervising administrator has the authority to determine whether or not instructional objectives and related content are consistent with Board educational policy decisions and established instructional guidelines.

   The format or organization of lesson plans is best determined by the individual teacher. Principals or supervising administrators may suggest, but not require, a particular format or organization. Only where a principal has documented deficiencies through classroom observation using the Teacher Assessment and Developmental System may a teacher be required to use a set form in preparation of lesson plans.

   
   

   Lesson plans shall reflect objective(s), activity(ies), a way of monitoring student progress, and homework assignment(s). . . . . .

   
   

   Teachers are required to develop weekly plans . . . .

   
   

2. On the occasions when respondent was observed in her classroom and was found to be deficient, her students did not receive the minimal educational experience to which they were entitled.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties thereto pursuant to subsection 120.57(1), Florida Statutes (1987).

   
   

4. Since the Board seeks only to dismiss respondent as an employee, but not to revoke her teaching certificate, it need only prove the allegations in the amended specific notice of charges by the preponderance of evidence. Ferris

   v. Turlington, 510 So2d 292 (Fla. 1987).

   
   

5. The amended specific notice of charges alleges that Shelley is guilty of incompetency, gross insubordination and/or willful neglect of duties within the meaning of Subsection 231.36(4), Florida Statutes (1987). Those terms are defined by Rule 6B-4.009, Florida Administrative Code (1987) as follows:

   
   

   1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such Judgment shall be based on a preponderance of evidence showing existence of one (1) or more of the following: (a) Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida statutes);

   2. repeated failure on the part of a teacher to communicate with and relate to children in the classroom to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

      * * *

      1. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

         * * *

         
         

         Also, the Board relies upon Section 231.09, Florida Statutes (1987), which, when repeatedly violated, constitutes inefficiency within the meaning of the law.

         That statute reads as follows:

         Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

         
         

         Finally, local Board rule 6Gx13-4A-1.21 provides in pertinent part as follows:

         
         

         1. Employee Conduct

            All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system.

            Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited.

            
            

         2. Records and Reports

      All persons shall keep all records and shall prepare and submit promptly all reports that may be required by State Law, State Department of Education Rules, School Board Rules, and administrative directives.

      * * * *

      
      

      v. Instructional Personnel

      Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by the rules of the State Department of Education.

      
      

6. Since respondent received acceptable evaluations for each school year until school year 1986-87, and because the Board's policy is to seek dismissal of a teacher only after the teacher receives two consecutive unacceptable evaluations, the undersigned will not consider the isolated deficiencies occurring prior to school year 1986-87.

   
   

7. It is first alleged that respondent is guilty of incompetency because she repeatedly failed to perform duties prescribed by local Board rules to fulfill the terms of her continuing contract and the collective bargaining agreement. Also, the Board posits that Shelley repeatedly failed to communicate

   with and relate to students in her classroom to such an extent that those pupils were deprived of a minimum educational experience.

   
   

8. The more credible evidence reflects that Shelley's classroom performance in school years 1986-87 and 1987-88, as gauged in classroom observations, was deficient to such a degree that her pupils were deprived of a minimum education experience. This constitutes "inefficiency" within the meaning of the rule which, in turn, equates to incompetency under the statute. In addition, respondent repeatedly failed to maintain proper lesson plans, grade book and student work folders as required by local rule, the collective bargaining agreement and school policy. Therefore, the first charge has been sustained.

   
   

9. It is next alleged that Shelley, by virtue of her conduct, was guilty of "gross insubordination and/or willful neglect of duties as set forth in section 6B-4.009(4), F.A.C. by reason of (her) continuing intentional refusal to obey direct orders reasonable in nature, and given by and with proper authority." (Amended Specific Notice of Charges, par. 63.)

   
   

10. To constitute gross insubordination, a teacher's conduct must be more than an isolated incident of refusing to comply with orders. Indeed, such conduct must be on a constant or continuing basis. Smith v. School Board of Leon County, 405 So2d 183, 185 (Fla. 1st DCA 1981). The term "willful neglect of duties" is not defined, but the use of the word "willful" implies that the teacher must intentionally fail to comply with a reasonable and lawful order.

    
    

11. The evidence reflects that respondent failed to comply with various direct orders on a number of occasions as to preparation of lesson plans, the maintenance of grade books and materials required for student folders. Since this comports with the judicial test that such conduct be constant or continuing, and impliedly constitutes an intentional failure on her part to comply with a reasonable, lawful order, the charge that Shelley was guilty of gross insubordination has been sustained.

    
    

12. Respondent's principal defense is that Jones sexually harassed her and other school employees and she should not be held accountable for her conduct. While such conduct on the part of Jones, if true, should not be condoned, this does not excuse Shelley from teaching in an efficient manner or from obeying reasonable, lawful orders. Further, many of her evaluations were conducted by other AES administrators or outside administrators who had no preconceived ideas concerning her capabilities. Thus, even if Jones was determined to get rid of Shelley, her classroom shortcomings were documented by other persons who had no similar bias. Moreover, the administrative directives and orders to keep accurate and current lesson plans, grade books and the like were legitimate and reasonable orders for any teacher and should have been complied with irrespective of any problem with the principal.

    
    

13. Given the nature of the charges, dismissal is appropriate.

    
    

14. Petitioner's motion to strike the documents filed by respondent after the record was closed is GRANTED.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that respondent be found guilty of incompetency and gross insubordination within the meaning of Subsection 231.36(4), Florida Statutes (1987) and that she be dismissed as an employee of the Board.

DONE and RECOMMENDED this 10th day of February, 1989, at Tallahassee, Florida.

D0NALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4576

Petitioner:

1. Covered in numerous findings of fact.

2. Covered in finding of fact 5.

3. Covered in numerous findings of fact.

4. Covered in finding of fact 58. 74.-76. Rejected as being unnecessary.

1. Partially covered in finding of fact 53. The remainder has been rejected as being argument or irrelevant.

2. Rejected as being argument of counsel.

COPIES FURNISHED:

Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Suite 301

Miami, Florida 33132

H. T. Smith, Esquire

1017 Northwest Ninth Court Miami, Florida 33136

Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132

Karen B. Wilde, Executive Director Education Practices Commission Room 125, Knott Building Tallahassee, Florida 32399

Docket for Case No: 88-004576

Orders for Case No: 88-004576