vs. ) CASE NO. 96-1981
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, William F. Quattlebaum, held a formal hearing in the above-styled case on October 29-30, 1996, in Largo, Florida.
For Petitioner: Keith B. Martin, Esquire
34650 U. S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
This issue in this case is whether just cause exists for the proposed disciplinary action against the Respondent.
Philip Chase is employed as a physical education teacher by the Pinellas County School Board. By letter dated April 1, 1996,
Mr. Chase was notified that the Superintendent would recommend to the School Board his dismissal from employment for certain classroom activities. The letter notified Mr. Chase of his right to a hearing. He requested a formal hearing. The matter was referred to the Division of Administrative Hearings for further proceedings.
12 witnesses and had exhibits numbered 1-10 admitted into evidence. The Respondent presented the testimony of 4 witnesses, testified on his own behalf, and had exhibits numbered 1-5 admitted into evidence. A prehearing stipulation filed by the parties was also admitted into evidence.
A transcript of the hearing was filed. Both parties filed proposed recommended orders.
Since 1976, and at all times material to this case, Philip Chase (Respondent) was employed by the Pinellas County School Board (Petitioner) under a continuing contract pursuant to Section 231.36(4)(a), Florida Statutes.
The Respondent has a Masters Degree in Education.
In 1988, the Respondent was a teacher and wrestling coach at Dunedin High School. On February 8, 1988, the Respondent received a letter of reprimand for addressing three students as "street niggers."
In 1991, while still teaching at Dunedin High, the Respondent received a three day suspension for kicking a student.
Due to budgetary constraints in the 1992-1993 school year, some Pinellas County high school teachers were reassigned to other schools. The Respondent was transferred to Cypress Woods Elementary School as a Physical Education (P. E.) teacher.
The Respondent received an evaluation while at Cypress Woods Elementary by the school principal. Although the evaluation is generally positive, the principal noted that the Respondent should avoid raising his voice in the classroom and suggested should refrain from singling out a student (apparently for misbehaving) in the presence of other students.
In the 1994-1995 school year, the Respondent taught P. E. at the Sandy Lane Elementary School. The transfer to Sandy Lane was voluntary.
Each Sandy Lane P. E. class is divided into four sections. Each section is taught by one of two P. E. teachers or one of two teacher assistants for up to four weeks, at which time each section rotates to another adult instructor.
The P. E. teachers are responsible for development of lesson plans. The teacher must explain the lesson plan to the assistant. When an assistant is responsible for a section of students, the assistant instructs according to the lesson plan developed by the teacher. The teacher is responsible for grading the students.
During the 1994-95 school year, the Respondent was verbally abusive towards students.
On September 12, 1994, early in the school year, the Respondent received a letter of warning from the assistant principal of Sandy Lane Elementary for making inappropriate comments to children.
Students were called derogatory names by the Respondent, including the use of "four-eyes" in reference to a child wearing classes. The Respondent referred to some students as "wimps" or "sissies."
The Respondent made other inappropriate remarks to children, including telling students that if he were their father, he would administer corporal punishment.
During another class, a child running laps paused momentarily, and was berated as "lazy" by the Respondent.
On a few occasions the Respondent reacted in an inappropriate physical manner with students. In one case, he intervened in a fight between two students and pushed one child to the ground. In another case, the Respondent grabbed a child who was refusing to remain in line and pushed the child into the line.
On February 20, 1995, the Respondent received a memo from the principal of Sandy Lane in which he was directed to alter his behavior with students including inappropriate raising of his voice and physical interaction.
According to the testimony of witnesses observing his
teaching method, students were unhappy at the prospect of rotating into his section and would make up excuses to avoid his class.
Other P. E. Teachers or assistants in the vicinity of the Respondent's class had to address his behavior with their students. At times he raised his voice loud enough to draw the attention of their students and disrupt their classes.
On several occasions, in addition to the letter and memo regarding the school's concerns, the Sandy Lane Principal met with the Respondent to address the issues related to his classroom behavior.
During the 1994-95 school year, the Respondent's preparation of lesson plans was inadequate. Elementary school P.
E. lessons should focus initially on basic motor skills and progress to more concise hand-eye skill development. He did not establish appropriate skill levels for the students. The Respondent frequently instructed all children to play games without regard to skill level. He failed to provide proper instruction to the teacher assistants.
The Respondent sometimes spoke about colleagues in an inappropriate manner. During the 1994-95 school year, on two occasions, the Respondent complained to one teacher about another, calling the disfavored teacher a "bitch."
During the 1995-96 school year, a new P. E. teacher joined the Respondent on the staff of Sandy Lane. The evidence
establishes that the Respondent's behavior continued to be unacceptable.
During the 1995-96 school year, the Respondent continued to address students inappropriately, using such terms as "bonehead" or "meathead." Again he was overhead stating that
were he the student's father, he'd administer corporal punishment.
During the 1995-96 school year, the Respondent continued to yell at children in order to maintain control of his students. He continued to disrupt nearby classes with the volume and tone of his voice. Other P. E. teachers or assistants in the vicinity of the Respondent's class had to address his behavior with their students.
During the 1995-96 school year, he continued to touch students inappropriately. He grabbed children by the arms to maintain control of the class. He pushed a recalcitrant student to the ground when the student hesitated to sit down.
At one point during a P. E. class, the Respondent sent one child to "time-out" and called attention to the child's misbehavior by having the other students applaud the child for "earning" a time-out. The students applauded the child as he walked to the time-out area.
During the 1995-96 school year, the Respondent's preparation of lesson plans remained inadequate. He did not establish appropriate skill levels for the students. "Lessons"
were basically games with little regard to skill development of the students.
His instruction to teaching assistants remained inadequate. Little if any written lesson instruction was provided. One assistant testified that when she requested additional clarification, the Respondent offered no guidance. When she voiced her concerns to the school principal, the Respondent confronted her in front of students and told her she was to do whatever he told her to do.
On December 7, 1995, James Barker, the Petitioner's Administrator for the Office of Professional Standards, met with the Respondent to discuss the matters addressed herein. At that time, the Respondent received a latter of reprimand related to aggressive physical interaction with students and embarrassing a student (during the time-out incident.) The letter states that such acts constitute misconduct in office and insubordination. The letter advises that such behavior cease and that continued incidents will result in further disciplinary action including suspension or dismissal.
During the spring of 1996, the other Sandy Lane P. E. teacher went on maternity leave. During the tenure of the substitute teacher, the Respondent continued to have inadequate (if any) lesson plans. He often met with the substitute at the beginning of the day and the two would discuss what to do immediately prior to each day's classes.
The Sandy Lane principal continued to be concerned about the Respondent's lack of adequate lesson plan preparation. In March 1996, he requested that the Petitioner's Supervisor for Physical Education meet with the Respondent and the principal to review the existing plans.
During the meeting, the supervisor determined that the lesson content was minimal, lacked any sequence of skill development, and had little regard for the grades and skill levels of students.
The supervisor discussed his concerns with the Respondent. He reviewed an elementary textbook with the Respondent, and used a sample lesson planning book to demonstrate the kind of information which would be included in an acceptable lesson plan.
The Respondent argued with the supervisor and was resistant to his suggestions.
The supervisor followed up the meeting with the Respondent by providing copies of curriculum materials to the Respondent.
Despite the guidance from the supervisor, the Respondent's lesson planning continued to be inadequate.
The Respondent continued to speak about colleagues in an inappropriate manner. During the 1995-96 school year, in discussing a female teacher with another male teacher, the Respondent used the word "tits" in describing her appearance.
During the 1995-96 school year, responsibility for an aggressive emotionally handicapped child was assigned to the Respondent because the pregnant female P. E. teacher was concerned about her safety. The assignment was made by the school principal at a meeting with the teachers and the child's parent. The Respondent agreed to the assignment.
The Respondent failed to monitor the child. On both the first and second days of the assignment, the Respondent inquired of the pregnant teacher about the child's behavior so that he could complete the evaluation sheet.
On the second day of the assignment, the child got involved in a fight, left his P. E. class and returned to another classroom. The Respondent was unaware of the incident until he inquired of the pregnant teacher as to the child's behavior. Afterwards, the Respondent complained to another teacher about the pregnant teacher, calling her a "bitch."
The Respondent was responsible for grading other emotionally handicapped children in his classes. On one occasion during the 1995-96 school year, the Respondent turned his grades over to an "EH" assistant, commenting that he had forgotten to write them down during the classes, and that if she disagreed with them, she could change them. She reviewed the grades and determined that they did not reflect the actual conduct of the EH students, so she changed them.
At one point during the 1995-96 school year, the
Respondent, speaking in the vicinity of kindergarten children, commented to another teacher that "[t]hey're on my ass again," apparently in reference to the continuing issues related to his teaching.
During the 1995-96 school year, students continued to express their displeasure to other teachers at being rotated into the Respondent's P. E. section.
During his term of employment at Sandy Lane Elementary, the Respondent's behavior provided ineffective guidance to students. At times, after standing in front of a misbehaving student and yelling at the child, he'd "high-five" or verbally praise the child. According to witnesses for the Petitioner, such signals are confusing and fail to provide clear direction to the child as to what types of behavior are acceptable.
The Respondent also used exercise as a form of punishment for misbehavior. There is evidence that using exercise as punishment is counterproductive to teaching children about the
benefits of exercise and encouraging students to exercise as a from of recreation.
The evidence establishes that the Respondent is verbally and physically inappropriate with elementary school students and that he fails to perform proper instructional planning. Generally, when the Respondent's various inappropriate behaviors were called to attention, he would minimally attempt to improve the situation, but the improvements were marginal and of brief duration.
On April 1, 1997, the Respondent was notified by certified letter that the Superintendent of Pinellas County Schools would recommend termination of the Respondent's employment. The letter states that the termination is for incompetency, misconduct in office, and gross insubordination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
In order to prevail, the Petitioner must establish by a preponderance of the evidence that the Respondent's behavior constitutes incompetency, misconduct in office or gross insubordination sufficient to warrant the Respondent's termination. Allen v. Dade County School Board, 571 So.2d 568 (Fla. 3rd DCA 1990). In this case, the burden has been met.
Section 231.36(1)(a), Florida Statutes, provides that a
member of an instructional staff employed under a professional services contract may be dismissed during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
In this case, the range of appropriate penalties for the Respondent's conduct ranges from caution to dismissal.
Rule 6B-4.009(1), Florida Administrative Code defines incompetency as an inability of lack of fitness to discharge the required duty as a result of inefficiency or incapacity. A judgment of incompetency shall be based on a preponderance of evidence showing the existence of one or more of the following:
Inefficiency:
repeated failure to perform duties prescribed by Section 231.09, Florida Statutes,; or
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,;
Incapacity:
lack of emotional stability;
lack of adequate physical ability;
lack of general educational background; or
lack of adequate command of his or her area of specialization.
The evidence establishes that the Respondent's behavior meets the definition of incompetency by inefficiency through his repeated failure to communicate with and relate to the children in his classroom, to such an extent that pupils are deprived of
minimum educational experience. The Respondent's inability to control the class without inappropriate verbalization and physical contact with students, and his inability to formulate adequate
lesson plans deprived the children in his P. E. section of a minimum educational experience.
The evidence establishes that the Respondent's behavior meets the definition of incompetency by incapacity through the apparent lack of adequate command of his or her area of specialization, in this case, elementary school physical education.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system. Rule 6B-4.009(3), Florida Administrative Code.
The greater weight of the evidence fails to establish that the Respondent's behavior has impaired his effectiveness in the school system.
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. Rule 6B- 4.009(4), Florida Administrative Code.
The evidence establishes that the Respondent's behavior constitutes gross insubordination through his continuing intentional refusal to refrain from inappropriate verbal and physical interaction with students.
The Respondent suggests that an alleged lack of training of former high school teachers who were transferred during budgetary difficulties in the 1992 school year is the cause of the difficulties encountered after the transfer.
The evidence fails to establish that the alleged lack of training has caused the problems encountered by the Respondent since the transfer. In the area of lesson planning, the Respondent received personal training from the Supervisor of Physical Education for the Pinellas County School System, yet lesson planning remained inadequate. The failure to comply with specific assignments, including the monitoring of an aggressive emotionally handicapped child and grading responsibilities for other students, requires no training. Compliance with directives to refrain from inappropriate verbal and physical contact with elementary school children requires no special training.
It is possible, as alleged by the Respondent, that certain teachers at Sandy Lane Elementary School did not like him and focused their attention on him. Numerous complaints regarding the Respondent were voiced to the Sandy Lane principal by certain teachers at the school. The principal repeatedly advised the Respondent of the complaints. Nonetheless, despite the knowledge that certain teachers were monitoring his behavior, the Respondent made little effort to alter his conduct. The greater weight of credible and persuasive evidence establishes that the
inappropriate conduct occurred and continued to occur even after he was warned about the behavior.
The Respondent asserts that because he experienced minimal problems during his lengthy employment with the Pinellas County School System prior to his transfer to Sandy Lane Elementary School, it is appropriate to consider the prospects for successful employment at another unit of the Pinellas County School System. It should be noted that prior to the transfer to Sandy Lane Elementary, the Respondent's record of service, though not unblemished, was clearly acceptable.
The Respondent's request for transfer relies on the assumption that his termination is solely related to the alleged impaired effectiveness. In this case, the Respondent's refusal to comply with the directives of persons in a supervisory capacity constitutes gross insubordination and is sufficient to warrant termination.
Based on the foregoing, it is hereby RECOMMENDED that the School Board of Pinellas County enter a Final Order terminating the employment of Philip Chase.
DONE and ENTERED this 7th day of February, 1997 in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1997.
Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County
Frank T. Brogan Commissioner of Education The Capitol
Michael H. Olenick General Counsel
Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942
34650 U. S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
