STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
) SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-4857
)
PATSY G. MOORE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 28, 1990, in Miami, Florida.
APPEARANCES
For Petitioner: Madelyn P. Schere, Esquire
Patricia Bass, Esquire School Board of Dade County
Board Administration Building Suite 301
1450 Northeast Second Avenue Miami, Florida 33132
For Respondent: Lorraine C. Hoffman, Esquire
DuFresne and Bradley
2929 Southwest Third Avenue Suite One
Miami, Florida 33129 STATEMENT OF THE ISSUES
Whether Respondent's employment with Petitioner should be terminated for incompetency and gross insubordination?
PRELIMINARY STATEMENT
On August 23, 1989, Petitioner suspended Respondent from her employment and initiated dismissal proceedings. Respondent timely requested a formal hearing regarding Petitioner's allegations, and this cause was transferred to the Division of Administrative Hearings on September 5, 1989, for the conduct of a formal proceeding. Petitioner's Specific Notice of Charges was filed on September 29, 1989, and was amended pursuant to an Order entered January 8, 1990, granting leave to amend.
Petitioner presented the testimony of Patricia Grimsley, Gail Senita, Cecelia Dunn, Orlando Milligan, Nelson Diaz, Joyce Annunziata, and Desmond Patrick Gray, Jr Additionally, Petitioner's Exhibits numbered 1-25 were admitted in evidence.
The Respondent testified in her own behalf and presented the testimony of Evelyn Sargent, Ophelia Williams, David Templeton Church, Luis F. Mazar, Richard
Reece, Artie Sinkfield, and Ray M. Thompson. Additionally, Respondent's Exhibits numbered 1-3 were admitted in evidence.
Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times relevant hereto, Respondent has been employed by Petitioner as a classroom teacher serving pursuant to a continuing contract. At the time of the final hearing in this cause, she was 49 years old and had worked continuously as a teacher for the School Board of Dade County, Florida, from 1962 until her suspension on August 23, 1989, except for five maternity leaves.
Respondent attended college in Greenville, North Carolina, on a "State Department" scholarship between 1958 and 1962. In 1962, she received a B.A. degree in French and English and passed the National Teachers' Examination.
In 1962, she accepted a teaching position with the Dade County Public Schools, teaching a two-course basic education program in her earliest years. Thereafter and until the 1986-87 school year, she taught English.
During the 1962-63 academic year Respondent experienced many changes in her life: she began her first teaching job, she married, and she experienced her first pregnancy. These events, taken as a whole, made the 1962-63 academic year an extremely difficult one for the Respondent.
Respondent's teaching performance was evaluated during the 1962-63 academic year using the Petitioners evaluation instrument then in use. Under that evaluation instrument, the teacher's performance was evaluated and assigned an averaged score. An averaged rating of 3.5 indicated satisfactory performance. During that academic year, Respondent's annual evaluation averaged score was 3.3.
For every year thereafter continuing through the 1985-86 academic year Respondent's annual evaluation rated her performance as a classroom teacher as being acceptable. Throughout that time, Petitioner used three different evaluation systems for rating classroom teachers, including the TADS evaluation system currently in effect.
In 1984, the School Board encouraged its teachers to become computer literate. Because Respondent needed additional coursework to renew her State teaching certificate, she enrolled in a computer class and then in a word processing class. She was "intrigued" by computers. She continued taking computer courses at Barry University, eventually entering the master's program at Barry University, majoring in computer education. By June of 1988 she had completed 39 credits with an overall grade point average of 3.846.
In 1986, Respondent decided to look for a position teaching computer classes. She learned of a vacancy for a computer teacher at Brownsville Middle School, a Chapter I school in Dade County. She sought a transfer from her then current school where she taught English to Brownsville. She was interviewed by both the outgoing principal and the incoming principal Patricia Grimsley. Grimsley hired her to teach computer courses and to develop and equip the computer lab. Grimsley admitted that the computer lab had "deficiencies" which she expected Respondent to overcome. Respondent began teaching computer courses at Brownsville Middle School during the 1986-87 school year.
During the three academic years Respondent taught at Brownsville Middle School, her general ability to perform her duties was seriously impaired by the "deficiencies" in the computer lab and the lack of assistance from her supervisors regarding her problems with adapting the administration of computer classes to traditional requirements.
When she began teaching at Brownsville during the 1986-87 school year the computer lab itself was not ready to be occupied. Instead, Respondent was required to use a converted teachers' work room as a classroom. This room contained an inner office which was used by the school security personnel. The passage through her classroom of school security personnel and other law enforcement officers frequently accompanied by disruptive students caused a serious and continuing class distraction.
The computers installed at the school were Tandy machines, Style TRS 80, Model 3, commonly known to people who were computer literate as "trash 80 machines." These computers had a non-functioning network which prohibited saving in or retrieving data from the computer memory. Accordingly, a student working on a project would begin each day's class by programming into the computer everything that student had already programmed into the computer on the previous day before the student could move forward. There was not a functioning printer in the classroom so that no hard copies off anything could be printed. The few textbooks available were textbooks commonly used in college, not in a Chapter I junior high school. These were the conditions under which Respondent taught during the 1986-87 school year.
By the 1987-88 school year Respondent and her students had moved into the new computer lab. State-of-the-art computers had arrived for use in the computer lab, but there was still no software or books.
During the summer of 1988, the software-and books arrived. Respondent had requested permission to be able to use the software to teach it to herself during the summer when She was only teaching half days, but the administrative personnel stored the software instead.
During the 1988-89 school year, Respondent and her students began learning the software and the books together.
In the interim period, before all of the materials and equipment necessary to daily teaching were supplied, Respondent borrowed software from her friends, and began creating daily projects, lessons, and activity sheets to keep her students busy and learning. These efforts to generate daily classroom activity created a "lot of work" for this teacher. She did not have a bank of lessons and activities from which to draw as would any experienced teacher or even a beginning teacher teaching in an area where others had lessons and activities previously given to draw upon. She was also considered a "vital resource" at Brownsville during those three years, assisting other teachers and
other school employees in setting up their computers and learning the programs they needed to use. She even set up the computer in Principal Grimsley's office and assisted Grimsley in learning the program.
School year 1986-87, Respondent's first year as a computer teacher and first year at Brownsville, was also Principal Grimsley's first year as a principal and first year at Brownsville. It was also Assistant Principal Senita's first year as an assistant principal.
During each of Respondent's three years at Brownsville, she experienced difficulty with Principal Grimsley whom she found to be "unreceptive" and "unsupportive." Grimsley's "mind would wander" during Respondent's discussions with her of the problems that Respondent was having.
On October 10, 1986, near the beginning of Respondent's first year at Brownsville, she was formally observed in the classroom by Principal Grimsley and was rated acceptable in all categories.
On November 26, 1986, Grimsley held a conference- for-the-record with Respondent. A conference-for-the-record is a formal meeting with the employee to put the employee on notice of problems. The subject matter of this
conference-for-the-record was Respondent's failure to continuously submit lesson plans on a weekly basis as required by Grimsley's administrative directives.
Respondent had been submitting her lesson plans on some occasions but not on a weekly basis. She was directed to submit her lesson plans on a weekly basis and was put on notice that if she did not do so, further disciplinary action would occur.
Respondent wished to discuss at the conference-for- the-record the lack of materials and equipment for the computer lab and the unusual demands on her time occasioned by those deficiencies. However, Respondent had been given prior notice of the purpose of the conference, and the labor contract between the United Teachers of Dade and the School Board does not permit the person holding the conference to go outside the stated subject matter of the notice. Grimsley did not initiate any subsequent discussions with Respondent regarding Respondent's problems during the three years that Respondent taught at Brownsville.
On March 9, 1987, Grimsley held another conference for-the-record with Respondent to discuss Respondent's failure to submit weekly lesson plans each week and the fact that Respondent had not called the school until 8:55 a.m. to say she would be late when she was due to begin work at 8:45 a.m. Respondent was again directed to submit her lesson plans every week, and was directed to call the school in a more timely manner to indicate her tardiness or absences. Grimsley further explained that if the problems were not remediated, Respondent would be rated unsatisfactory in Category VII, Professional Responsibilities, and would be put on prescription.
A prescription is a formal plan given to the teacher to address deficiencies in the teacher's performance. It is a plan formulated to assist a teacher for whom a deficiency has been documented. However, once a prescription is established, it is obligatory upon the teacher to fulfill it.
At the March 9 conference-for-the-record, Respondent explained to Grimsley that she could not keep up with all the demands on her time and requested a transfer to a different teaching assignment. Grimsley explained that she had no other computer teachers at Brownsville and no current vacancy in a different teaching area. Therefore, Respondent could not be transferred to a different teaching assignment.
On April 22, 1987, Grimsley held another conference- for-the-record with Respondent to discuss Respondent's unsatisfactory performance in Category VII, Professional Responsibilities. Respondent had been absent on the day that grades were required to be turned in and for several days before that. She had made no provision for bringing her grades to school to turn them in on the days that she was out sick. Respondent was placed on prescription. She was directed to submit her grades within the school's guidelines, and Grimsley had her write a report on proper grading procedures. Respondent completed the prescription and indicated that she understood the directives as to submitting grade sheets.
Respondent remediated her deficiencies and received an acceptable yearly evaluation for the 1986-87 school year in all categories.
The 1987-88 school year commenced with the Respondent and her students located in the new computer lab using the new state-of-the-art computers and printers. Respondent, however, still did not have software and books for her students to use.
On February 8, 1988, Grimsley held a conference-for- the-record with Respondent. The issues discussed were Respondent's leaving work early and not signing out, not completing grade sheets, and not submitting grade sheets by the end of the teacher workday on January 29, 1988. A teacher workday is a professional day when there are no students in school and the teachers generally complete grade sheets for the end of the grading period Respondent had been given the teachers' workday agenda prior to the workday, outlining the schedule of deadlines and the meetings that Grimsley had also scheduled for teachers to attend that day. In fact, Respondent had not left work early that day but had been late returning from lunch because she and other teachers from Brownsville had gone during the lunch period to another school to attend a celebration at that school. Further, teachers are not required to sign out for lunch on a teacher workday. Nevertheless, Respondent had failed to submit her grades at the end of that teacher workday. Under the procedures established in that school, Respondent's failure to submit her grades by the end of the day delayed the report cards for the entire school.
Respondent was again placed on prescription for Category VII, Professional Responsibilities. She was directed to submit her grade sheets on time for the next two grading periods. She was also docked a half-day's pay for returning from lunch late on January 29., She was told that if her grades were turned in on time and completed, the prescription would be satisfied
On March 7, 1988, Respondent was formally observed in the classroom by Assistant Principal Gail Senita. Respondent was rated unacceptable in preparation and planning and in assessment techniques.
She was rated unsatisfactory in preparation and planning because she had no lesson plans. For her prescription, she was directed to develop weekly lesson plans and to include in them objectives, activities, a method of evaluation, add a provision for homework, as required by the labor contract.
She was rated unsatisfactory in assessment techniques because there were no graded papers in student folders, and there were no grades in Respondent's gradebook. As a prescription, she was directed to maintain student folders with examples of graded student papers. School Board policy requires teachers to keep folders with samples of student works
Respondent explained to Senita that she kept an electronic gradebook on the computer. However, she did not show that electronic gradebook to Senita.
Respondent was next formally observed in the classroom by Senita on June 1, 1988. She was rated in assessment techniques because there were still no student folders with graded work and no gradebook with student grades. While Respondent did have computer spreadsheets with students' names, they contained no grades for the students. As a prescription, Respondent was directed to prepare folders for the students and to file samples of the students' classwork, quizzes, homework, and tests in those folders. She was directed that the folders should contain at least one paper per week and should show a progression of difficulty.
Respondent explained to Senita that the students' work was on computer disks. Senita suggested that Respondent print out hard copies of the students' work to file in the students' folders
On June 14, 1988, Grimsley gave Respondent her 1987- 88 annual evaluation. That evaluation rated Respondent as acceptable in all categories, meaning that Respondent had remediated all deficiencies during that school year. Respondent signed that annual evaluation as having been received by her on June 14, 1988. Three days later, Grimsley came to Respondent's classroom and told her to sign another annual evaluation form. Respondent did so. That second annual evaluation form indicated that Respondent was acceptable in all categories except for Category VI, Assessment Techniques. Respondent was rated unacceptable in that category and was given an overall rating of unacceptable. However, she was recommended for employment That second evaluation contained an end-of-the-year prescription directing Respondent to record at least one formal grade for each student in the gradebook each week, and, if she used a grade sheet, to show a hard copy to the assistant principal on a weekly basis, and to place graded samples of student work, including homework and tests, in the student folders.
Grimsley did not tell anyone that she had determined that Respondent had remediated her deficiencies and achieved an acceptable 1987-88 annual evaluation in all categories. Rather, she turned in the second evaluation form to be made part of Respondent's personnel file. At hearing, Grimsley verified that the signature on the evaluation finding Respondent acceptable in all categories was her signature, but failed to tell the truth about the incident, saying only "that's strange."
The second evaluation form cannot be declared to be the "official" evaluation form. Grimsley did not offer any explanation for why, or if, she had changed her mind. It, therefore, cannot be found that Respondent received an unacceptable evaluation for the 1987-88 school year.
Respondent taught during the summer of 1988, keeping a computerized rollbook which she turned in to the administrators. No criticisms were given to her of her computerized gradebook. During that summer, the software and books for the students arrived although Respondent did not have access to them until the beginning of the 1988-89 school year. That school year began, and
Respondent was next formally observed in the classroom by Senita on September 22, 1988. She was rated unacceptable in preparation and planning and in assessment techniques.
She was rated unsatisfactory in preparation and planning because she had no lesson plan. Without a lesson plan, an administrator cannot monitor compliance with the School Board's curriculum. As a prescription, she was directed to prepare lesson plans and submit them weekly to the department chairperson. She was directed that these plans were to include objectives, activities, a way of monitoring pupil progress, and an indication of homework. She was further directed to review the school Board's curriculum for computer education and to indicate in her plans which standards and skills were being taught.
She was rated unsatisfactory in assessment techniques because she did not have student folders with student work. There was no evidence of quizzes, classwork, homework, or a variety of test formats. As a prescription, she: was directed to develop a folder for each student and to file at least one graded paper per week in the files. The files were to include samples of homework, classwork, and tests. She was directed to submit her gradebook for review every Friday.
Respondent was next formally observed in the classroom by Grimsley on November 16, 1988. She was rated unsatisfactory in assessment techniques because there was no evidence in her gradebook or in the student folders that she was administering tests or quizzes. As a prescription, she was directed to construct a sample test and to show it to the principal for discussion. She was directed to administer tests biweekly and to submit copies to the principal prior to administering them. She was directed to construct tests which reflected a variety of test formats and to read certain pages in the TADS Prescription Manual which deals with the construction of tests. She was directed to place grades in a traditional gradebook. Respondent began keeping two sets of gradebooks -- one computerized set which she used, and a traditional rollbook to satisfy Grimsley.
A conference-for-the-record was held with Respondent on December 12, 1988. The purpose of the conference was to put Respondent on notice that if her deficiencies were not corrected, there was a possibility that she would be recommended for separation from the school system. Some lesson plans had been submitted by Respondent, but not every week as prescribed, and a traditional gradebook had not been submitted to the administrators. During the conference, Respondent asked permission again to use electronic spreadsheets rather than the standard gradebook, but Respondent was directed to keep a standard gradebook with attendance and grades. Grimsley did indicate that she would determine if an electronic spreadsheet was an substitute.
Test formatting and homework were also discussed. Grimsley explained that the School Board requires teachers to give homework that relates to classroom activities and to note same in the gradebook. There was no indication that Respondent was giving homework.
Respondent was put on notice that she needed three consecutive acceptable classroom observations in order to be continued in her employment. She was further advised that an external review would take place. An external review is an observation done by a non-school site administrator and a school site administrator simultaneously. Each one prepares an observation report, and these are combined by mathematical formula.
Respondent was next formally observed in the classroom on February 2, 1989, by Assistant Principal Orlando Milligan and was rated unacceptable in assessment techniques. Although the School Board requires that students' work be retained throughout the school year and the school year was more than half over, Respondent still failed to maintain student folders with student work. There was no evidence of assessments such as quizzes, classwork, and homework so that administrators could assess whether pupil progress reflected the objectives in the curriculum. As a prescription, Milligan directed Respondent to maintain samples of student work in student folders and to maintain a decipherable traditional gradebook. She was given until March 3, 1989, to complete this prescription.
A conference-for-the-record was held with Respondent on April 24, 1989, for not having complied with her prescriptive directives or showing the administration a computerized gradebook or a traditional gradebook. She was advised that an external review was scheduled for April 27, 1989, to be conducted by Milligan and Dr. Mildred Berry, a non-school site science supervisor. Respondent was also told that the external review would occur during her second period class. She was told that even if the first external review were satisfactory, another would be required in order to meet the requirement for two successful summatives. A summative is a combination of two observations. Therefore, it takes at least three acceptable observations to result in two acceptable summatives.
Respondent was also advised that her future employment with the school system was in jeopardy At the conference, Respondent was still discussing a computerized method of keeping grades and attendance. She was again directed to maintain a standard gradebook and to keep sampled of students' work.
The first external review took place as scheduled on April 27, 1989, by Milligan and Berry. Milligan looked at the folders for the class he was observing and found samples of student work in the folders. He did have difficulty correlating the work in the folders with the gradebook and found the gradebook difficult to understand. He was about to rate Respondent unsatisfactory in assessment techniques but Berry explained to him that the keeping of student folders does not relate to assessment techniques Because of her insistence, the two of them reviewed the TADS Manual and Milligan found that Berry was correct. The concerns that he saw did not come under Category VI, Assessment Techniques, but rather came under Category VII, Professional Responsibilities. Category VII is not reflected on the classroom observation reports and is not part, therefore, of the formal classroom observation Milligan and Berry individually each rated Respondent acceptable in all categories. Berry's observation report contained the remark that "all students were actively involved in class activities."
In spite of finding out that he had misunderstood the TADS evaluation system, Milligan did not go back and correct his February 2, 1989, observation report on Respondent where he had erroneously marked Respondent unacceptable in the area of assessment techniques based upon her failure to have student folders. If Milligan had gone back and corrected his February 2, 1989, observation of Respondent once he correctly understood the TADS evaluation system, then Milligan's formal observation of Respondent on February 2, 1989, would have resulted in her being marked acceptable in all categories.
A second external review was conducted by Grimsley and Nelson Diaz, Area Director, on May 24, 1989. Respondent was rated unsatisfactory in all categories except teacher-student relationships. She was rated unsatisfactory in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Grimsley and Diaz observed students walk into the classroom, walk over to their computers, load their computers, and begin working on their projects. Respondent sent a few of the students to the library to do some research and spent the remainder of the class period walking around the room stopping to talk individually and work individually with each student. At times, some of the students were observed making comments to each other or writing notes, getting out of their seats, or laughing. Neither Grimsley nor Diaz attempted to ascertain if the comments or notes were related to students working with each other on their programs or if the students left their seats simply to go to the printer to retrieve a hard copy of their work. They did observe Respondent work individually with each student throughout the class period. Diaz became confused. The TADS observation form requires that certain teaching behaviors be observed during the lesson in order that the form can be completed. Because of the type of class conducted by Respondent, the observers could not observe the required teaching behaviors in order to complete their forms. Since Diaz believes that teachers usually try to do their very best when they know there will be a outside observer, he became concerned that perhaps Respondent was ill.
Diaz requested that a post observation conference be held immediately so that he could determine whether there were extenuating circumstances for what he had observed. Respondent was requested to bring her gradebook to the conference because Diaz was not able to correlate the grades in the gradebook with the work in the folders. When the gradebook was discussed at the conference, Respondent told Diaz that she kept a traditional gradebook to satisfy Grimsley. When asked why she did not give the students tests, Respondent told him that her students could not read. Respondent had previously determined that when she gave students tests, the grades they received from the written materials did not reflect their understanding or progress as was observed by her when they did their actual "hands-on" computer programming and activities. Diaz noted that the students were reading their computer screens and were reading a sheet that they were following. He did not, however, note whether the computer screens; and the sheets the students were following contained words or pictures.
Although Respondent had a lesson plan for that day, Diaz and Grimsley determined that she did not follow the plan. They concluded that she gave no instruction to her class on that day. They further concluded that the lesson plan used by Respondent, although a form lesson plan picked up by teachers in curriculum offices at schools, did not comply with the labor contract provisions in that it did not list homework. Further, an administrator could not look at the lesson plan and know what the teacher would be doing in the classroom because the lesson plan contained a listing of potential activities but did not note which specific ones would occur.
At the conference with Diaz and Grimsley, the suggestion was made to Respondent, for the first time in the three years that she had been teaching at Brownsville, that she consult with a computer teacher at another school in order to ascertain how other computer teachers had made provision for tests, homework, student folders, and gradebooks.
Eights days later, on June 1, 1989, Grimsley finalized Respondent's annual evaluation for the 1988-89 school year by rating Respondent as acceptable in the areas of teacher- student relationships and professional responsibility. She rated Respondent as unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. The overall summary ratings of acceptable and unacceptable were left blank; however, she checked the box marked "not recommended for employment."
A conference-for-the-record was held by Grimsley on June 5, 1989, to discuss Respondent's performance to date, her unacceptable annual evaluations, and her future employment status with the Dade County Public Schools. Grimsley noted that at that time Respondent had still not remediated her deficiencies and was still on prescription.
Prior to Respondent's suspension from her employment in August, 1989, there was no state teacher certification in computer education. There were also no other computer teachers at Brownsville to assist Respondent in the problems she was having. Although it was clear to Grimsley for three years that Respondent was having difficulties in conforming her computer class with a traditional academic class, Grimsley never suggested to Respondent that Respondent obtain assistance from other computer teachers to see how they had overcome such difficulties. That suggestion, withheld for three years, came during the conference among Grimsley, Diaz, and Respondent, just eight days before Grimsley recommended that Respondent's employment be terminated.
Respondent maintained student grades and attendance on computerized spreadsheets. Further, Respondent maintained samples of student work on their computer disks. On at least one occasion Respondent showed copies of her grading and attendance spreadsheets to Grimsley, but Grimsley rudely brushed her hand across them and stated that she could not read them. Thereafter, Respondent did not show them to Grimsley. Cecelia Dunn, who served as Respondent's department head, saw Respondent's student records consisting of a file box with students' names, grades and attendance marked on cards and also Respondent's computer printouts with grades and attendance on them. She found Respondent'S records to be acceptable and thorough but suggested to Respondent that she also transfer this information to a traditional gradebook.
There is no question that Respondent kept students' grades and attendance records; she did not keep them in a traditional gradebook. It is also clear that Respondent kept samples of students' work on computer disks. However, she did not consistently reproduce a hard copy of that work to maintain in the students' folders.
Respondent does not know how to adapt the record keeping that is used in a traditional academic class to a computer class. In a traditional class all students work on the same assignments on the same day. In a computer class, students work on projects at their own speed over extended periods of time.
She does not know how to give daily grades to a student working on a project over an extended period.
Respondent does not know how to give homework in a computer class to students who do not have computers at home. Although Senita once suggested to her that she require her students to read newspaper articles about computers, Respondent's students do not receive newspapers at home and therefore cannot comply with such a requirement.
Respondent agrees that Grimsley gave her a number of suggestions on a number of occasions as to how she could correct her deficiencies. However, the suggestions given by Grimsley, a former English teacher herself, would work in an English class but would not work in a computer class. No suggestion given by Grimsley during the three years that Respondent taught at Brownsville was tailored to a computer class. No suggestion was made during the first year as to how Respondent could comply with traditional requirements in a classroom with non-functioning equipment and textbooks written for college students.
Similarly, Grimsley's conclusion on her last formal evaluation of Respondent that Respondent did not teach fails to take into consideration the fact that Grimsley observed Respondent giving individual instruction, the kind of instruction which is appropriate for a computer class. Grimsley never suggested to Respondent how Respondent could give lectures during her classes.
The only computer teacher to testify in this proceeding also keeps his records of students grades by using electronic spreadsheets. However, he prints out those spreadsheets and places the sheets inside a traditional gradebook and prints out hard copies of the students' work for folders simply because his class does not always meet in the computer room but must meet on frequent occasions in a regular classroom. That teacher is a teacher on special assignment who runs the MAGNET program wherein students use computers for everything. He testified that it takes a lot more time to teach computers than other courses
Respondent's colleagues hold her in high esteem as a very knowledgeable, excellent teacher. Her students always appear to be actively involved in their classroom work. They are always "on task."
With their adherence to the formal evaluation instrument and traditional classroom techniques, Grimsley and Senita were not able to determine whether Respondent was following the School Board's computer curriculum or whether Respondent was providing her students with the minimal educational experience required by State Board rule. They admitted at final hearing that they could not say that she was not following the curriculum or that she was not providing her students with the minimum educational experience.
There is no allegation that Respondent did not in fact assess her students or grade them appropriately although Respondent did not always keep records of those assessments in a traditional format. Similarly, it cannot be said that Respondent failed to prepare, keep, and submit all records and reports required by School Board rules. It can be said that she did not prepare, keep, and submit all records and reports required by administrative directives issued by Grimsley to her. On the other hand, it cannot be said that she knew how to do what Grlmsley instructed her to do, and it is clear that Grimsley referred her to no resources in the computer education field to assist her in learning how to do what Grimsley wanted her to do. It can only be said that Grimsley repeated the same prescriptions; it cannot be said that those things were helpful to Respondent in remediating her deficiencies.
It is not suggested that Grimsley, Senita, or Dunn refused to assist Respondent in overcoming her record keeping deficiencies or in solving her problems with giving quizzes and homework assignments. There is no evidence that any of those persons knew how to assist Respondent in adapting a "hands-on" computer course to the standard record keeping requirements or all of the traditional assessment techniques.
Respondent neither intentionally nor willfully disobeyed instructions given to her by her administrators. She was, however, unable to consistently comply with their directives due to the demands of day-to-day teaching, in a technical non- traditional subject area, without adequate resources and materials.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
The Specific Notice of Charges filed in this cause alleges that Respondent is guilty of incompetency and gross insubordination within the meaning of Section 231.36(i)(c), Florida Statutes. Those terms are defined by Rule 6B-4.009 Florida Administrative Code, which reads, in pertinent part, as follows:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, 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;
(4) Gross insubordination . . . is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority
As referenced in Rules 6B-4.009(1)(a), Section 231.09, Florida Statutes, provides that:
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.
Petitioner has adopted School Board Rule 6Gx13-4A-1.21 which tracks the language of Section 231.09 and provides, in pertinent part, as follows:
II. Records and Reports
All personnel 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, shall teach efficiently and faithfully, 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.
The collective bargaining agreement between the United Teachers of Dade and the School Board provides at Article X, in pertinent 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.
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 Development System (TADS) 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). It is agreed that the manner in which these components are to be reflected in a lesson plan shall be left to the discretion of the individual teacher except as noted above.
* * *
Teachers are required to develop weekly plans but not yearly or nine-week plans except on a voluntary basis. It is agreed that lesson plans are for the use of the teacher and any procedure for assessing lesson plans shall be consistent with agreed-upon observation/evaluation procedures and shall not require the teacher to spend time making an extra copy(ies) of a lesson plan.
Petitioner alleges that Respondent has violated Rule 6B- 4.009(1)(a), Florida Administrative Code, due to her repeated failure to teach according to the curriculum prescribed by Petitioner and her repeated failure to maintain and submit student folders, a gradebook, and lesson plans, as required by School Board Rule 6Gx13-4A-1.21, administrative directives, Article 10 of the Labor Contract, and Section 231.09, Florida Statutes. Petitioner's proof falls short
of its allegations. No evidence was offered that Respondent in fact failed to teach according to the curriculum prescribed by Petitioner. Grimsley and Senita testified that they did not know if Petitioner was following the curriculum, and no affirmative evidence was presented that Petitioner was not.
Section 231.09 simply requires teachers to perform duties prescribed by rules of the school board which would include rules related to prescribed methods and record keeping. The provision in Section 231.09 requiring teachers to fulfill the terms of a contract clearly refers to a contract between a teacher and the School Board. Petitioner has neither alleged nor argued that Respondent breached her contract with Petitioner. Therefore, an examination of the rules of the School Board relating to prescribed materials and record keeping must be made. Petitioner relies only on its Rule 6Gx13-4A-1.21 which, in essence, reiterates the language of Section 231.09 by simply requiring that teachers follow the rules of the School Board and the State Board but adds that teachers must also keep records and prepare and submit reports required by administrative directives. Neither Section 231.09 nor School Board Rule 6Gx13- 4A-1.21 require any specific records to be kept, prepared, or submitted.
Similarly, the labor contract relied upon by petitioner although requiring that lesson planning be done leaves the format of lesson plans to the discretion of the individual teacher and provides that a teacher may be required to use a set format only when documented deficiencies through classroom observation have been established. Although the labor contract specifies the contents in general terms of a lesson plan, it does not require, as Petitioner suggests, that every teacher in every class give homework assignments. Rather the labor contract states that homework assignments given be reflected in the lesson plans.
Lastly, the labor contract requires teachers to develop weekly lesson plans, but it does not require teachers to turn them in or submit them to anyone.
Accordingly, Petitioner has failed to prove that Respondent has repeatedly failed to perform duties prescribed by law. Petitioner did, however, prove that Respondent failed to submit student folders, a gradebook, and lesson plans to her supervisors as required by her principal's administrative directives. Sometimes Respondent had student work samples in student folders, and sometimes she submitted her lesson plans. Sometimes she did not. Respondent did always maintain a gradebook although she maintained one electronically and not the traditional gradebook that her principal insisted upon. In that her principal had the authority to insist upon a traditional gradebook in spite of Respondent's professional opinion that a traditional gradebook did not fit the needs of a "hands-on" computer education course, then Respondent did fail to follow all administrative directives. Similarly, although lesson plans are not required to be submitted to the principal, once the principal ordered Respondent to do so then Respondent failed to consistently follow administrative directives.
There is no evidence to support Petitioner's argument that Respondent repeatedly failed to assess the growth and advancement of her students, thereby failing to communicate with her students in a meaningful manner, resulting in the deprivation of a minimum educational experience for her students. There was no evidence offered that Respondent failed to keep records of her assessments in the specific way that her principal wanted her to keep them. Respondent did, however, attempt to comply with her principal's directives by maintaining two sets of records, one for Respondent to work with and one to show to Principal
Grimsley. Likewise, Petitioner's allegation that Respondent failed to maintain student work in folders as directed by Principal Grimsley was proven even though the evidence is uncontroverted that Respondent kept samples of her students' work on computer disks.
Regarding the labor contract provision that the format of lesson plans may be required upon documented deficiencies through classroom observation, Petitioner's proof again falls short of its allegations. The testimony in this cause clearly reflects confusion on the part of the evaluators using the TADS observation form, and it is clear that all of the TADS evaluation rules have not been followed by those evaluating Respondent during her three years at Brownsville. For example, Respondent was found unacceptable in the area of assessment techniques based upon her failure to consistently maintain students' work in students' folders. Yet, the testimony is clear that that deficiency does not fall in that category. Assistant Principal Milligan testified that he and supervisor Berry specifically checked the TADS manual regarding that question and found that such a deficiency is not properly reflected on a TADS classroom observation form. It is simply not one of those things graded during a formal classroom observation. Yet, the observations made pursuant to the TADS format during Respondent's three years at Brownsville regularly marked her unacceptable in the area of assessment techniques for that failure. Obviously, those evaluations are wrongs Even though Assistant Principal Milligan found out that he had erroneously marked Respondent unacceptable on his February 2, 1988, observation of her for that deficiency, he failed to correct the observation form thereby giving Respondent a knowingly erroneous evaluation. His is one of the evaluations that Petitioner relies upon to show Respondent' s incompetency.
Similarly, it cannot be found that Respondent received an unacceptable evaluation for the 1987-88 school year when Principal Grimsley did two evaluations, one finding Respondent acceptable in every area, thereby having remediated any deficiencies, and the other one finding her unacceptable. No explanation was offered by Grimsley as to why she evaluated the Respondent on two separate forms in such a contrary manner. Accordingly, it cannot be found and is not factually true that Respondent received an unacceptable annual evaluation for that school year. If Petitioner wishes to pick one of those evaluations to rely upon, it is as reasonable to select the evaluation finding her acceptable as it is to choose the other one.
Respondent's third and final annual evaluation is not logical. It appears based heavily on the second external review which was conducted by Grimsley and Diaz. One month earlier she was found acceptable in every area, yet on the third annual review she was found acceptable in no area except teacher/student relationships. Grimsley and Diaz were both apparently upset that Respondent did not lecture her students on that day. Yet there is no logical basis for saying that she did not teach. Rather, what they observed -- students entering the classroom, going to their seats, loading their computers, and commencing work, should have indicated to them that Respondent's students were learning.
In essence, during the three years that Respondent taught computer courses at Brownsville, she experienced deficiencies in the area of record keeping which she remediated again and again. However, it is clear that Respondent did not remediate her failure to give homework assignments as directed by Principal Grimsley. Further, no one ever assisted Respondent in determining how a homework assignment could be given to a class such as see was teaching. Common sense suggests that homework assignments can be easily given in traditional academic courses where the students are working on the same
material at the same time. However, in non- traditional academic courses, such as "hands-on" courses and activity courses such as chorus, band, dance, auto mechanics, shop, and drama, homework assignments would probably be difficult to give.
To constitute gross insubordination, a teacher's conduct must be more than an isolated incident of refusing to comply with an order. Petitioner agrees that such conduct must be on a constant or continuing basis. While Respondent did not always comply with the direct orders she was given to turn in lesson plans, to maintain student folders, and to maintain and submit her gradebook for administrative inspection, Petitioner has not proven that all of those orders were reasonable in nature, and Respondent has presented mitigating circumstances sufficient to explain her conduct. Respondent did not act willfully and with the intention of disobeying the instructions given her. She was unable to do so for a number of reasons, some of which were attributable to Petitioner's own conduct.
It is clear that Respondent labored under very poor teaching conditions during her tenure at Brownsville. During the first year her classroom constituted the ingress and egress path to the security personnel office with all of the disruptions occasioned by that. She had no bank of lesson plans or student activities or tests. She was teaching the class for the first time. During that first year she was teaching with computers and printers that were non-functioning, no software, and with books in a Chapter I school which were used normally on a college level. She spent all of her time on individualized instruction and typing and composing activity sheets to keep her students busy and learning in the classroom. No evidence was offered as to any complaints from students, parents, teachers, or administrators that her students were not in fact learning or being graded properly. Respondent was in fact rated as acceptable on her annual evaluation for that year despite the extraordinary demands on her time to create a computer lab and computer courses with no appropriate materials and equipment provided to her by Petitioner. During her second year, Respondent had state-of-the-art computers but no software or books. She continued spending all of her time preparing student activity sheets and maintaining two sets of records. Her actual annual evaluation for that year is unknown since Grimsley wrote two contrary evaluations for her. During her third year Respondent finally had all of the materials and equipment she needed since the software and books had arrived. In spite of her request that she be given the software and books over the summer so she could start learning them, they were withheld from her so that she received them at the beginning of the third school year and began to teach them to herself along with teaching them to her students. During this time, she was also busy teaching the other teachers, employees, and administrators how to use the computers that they had received. While some apparently view Respondent's conduct in terms of gross insubordination, others would view it in terms of heroic effort.
Whether Grimsley's directives to Respondent were reasonable is questionable. It is clear that she consistently gave the same orders. It is not clear that the orders were appropriate. Likewise, Grimsley's responsibility to assist Respondent in fulfilling the orders given to her and her responsibility in giving Respondent meaningful prescriptions do not appear to have been met. For three years Grimsley repeated the same orders, and Respondent experienced repeated difficulties in complying. Eight days before she recommended Respondent for dismissal, for the first time it was suggested that Respondent visit the classroom of another computer teacher at another school to find out how other computer teachers were dealing with the problems of homework assignments, student work in folders, electronic versus traditional gradebooks
and attendance records, and how other teachers might be dealing with the problems of giving quizzes, exams, and unit tests in computer courses. That prescription was a meaningful one, but it is doubtful that Respondent could have fulfilled it during the last eight days of the school year. Petitioner has not proven by a preponderance of the evidence that Respondent is guilty of gross insubordination as defined in Rule 6B-4.009(4).
Although Petitioner has proven that Respondent did not consistently comply with all of Grimsley's administrative directives, thereby violating Rule 6B-4.009(1)(a)(1), termination of employment for this teacher of 27 years with annual evaluations of acceptable performance in all but her first and her last year is not appropriate. In Respondent's proposed recommended order she recommends that an appropriate penalty for her is to reinstate her to a teaching position in English education or computer education on a one-year probationary contract basis with no back pay for the period of her suspension. That recommendation is reasonable and appropriate and is hereby adopted.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating the Respondent Patsy
Moore to a teaching position in English education or computer education on a one-year probationary contract basis and providing that Respondent shall receive no back pay for the period of her suspension.
DONE and ENTERED this 10th day of May, 1990, at Tallahassee, Florida.
LINDA M. RIGOT
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 May, 1990.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4857
Petitioner's proposed findings of fact numbered 1-6, 8-15, 17-25, 27-40, 42- 46, 48, 51, 53, and 55 have been adopted either verbatim or in substance in this Recommended Order.
Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues involved in this proceeding.
Petitioner's ,proposed findings of fact numbered 16, 26, 47, 49, 50, 52, 56, and 57 have been rejected as not being supported by the weight of the credible evidence in this cause.
Petitioner's proposed finding of fact numbered 41 has been rejected as being unnecessary for the determination of the issues involved in this proceeding.
Petitioner's proposed finding of fact numbered 54 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel.
Respondent's proposed findings of fact numbered 1-18 and 20-22 have been adopted either verbatim or in substance in this Recommended Order.
Respondent's proposed finding of fact numbered 19 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel.
COPIES FURNISHED:
Madelyn P. Schere, Esquire Patricia Bass, Esquire School Board of Dade County
Board Administration Building Suite 301
1450 Northeast Second Avenue Miami, Florida 33132
Lorraine C. Hoffman, Esquire DuFresne and Bradley
2929 Southwest Third Avenue Suite One
Miami, Florida 33129
Dr. Paul W. Bell, Superintendent Dade County Public Schools
Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Honorable Betty Castor Commissioner of Education Department of Education The Capitol
Tallahassee, Florida 32399-0400
Sydney H. McKenzie, General Counsel Department of Education
The Capitol, PL-08
Tallahassee, Florida 32399-0400
| Issue Date | Proceedings |
|---|---|
| May 10, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 27, 1990 | Agency Final Order | |
| May 10, 1990 | Recommended Order | Failure of proof that teacher guilty of gross insubordination where directives given were unreasonable as were classroom conditions |
