STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF MIAMI-DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 98-1766

)

GINETTE BA-CURRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 16-17, 1998, at Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Miami-Dade County, Florida School Board Administration Building

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade Law Department

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUE

Whether Respondent should be terminated from her employment with the Miami-Dade County School District.

PRELIMINARY STATEMENT

On April 9, 1998, the Petitioner, Miami-Dade County School

Board (Board), notified the Respondent, Ginette R. Ba-Curry, that it intended to terminate her employment with the school district. The proposed decision was timely contested by the Respondent, who requested an administrative hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on April 14, 1998. Thereafter the Board filed a Specific Notice of Charges of Unsatisfactory Performance which outlined the alleged performance deficiencies supporting the proposed termination of employment.

Although the hearing was initially scheduled for June 1-2, 1998, the parties agreed to waive the sixty-day hearing requirement set forth in Section 231.29, Florida Statutes.

Consequently, the matter was rescheduled for June 16-17, 1998.

At the hearing, Petitioner presented testimony from the following witnesses: Dr. Gail Senita, principal at Miami Springs Middle School (Miami Springs); Mark Scriven, an assistant principal at Miami Springs; Barbara Bell, an assistant principal at Miami Springs; Caridad Hidalgo, a teacher; Ethel Dickens, a reading specialist; Dr. Joyce Annunziata, Senior Executive Director of the School Board's Office of Professional Standards; Caridad Montano, a former assistant principal at Miami Springs; and Dr. Ronald Hunter, a former assistant principal at Miami Springs. Petitioner's Exhibits numbered 1 through 16 were admitted into evidence.

Respondent testified in her own behalf and offered the

following witnesses: Dorothy Mazine, a teacher at Miami Springs; Herbert Hughes, a counselor at Miami Springs; Judith Franklin, a teacher; Don Bennett, a teacher; Sandra Witt, a teacher; Annette Roces, a teacher; Mary Mitchell, a teacher; and Demetra Leakes, a student at Miami Lakes. Respondent's Exhibits numbered 1-5, 9, 10, 12-20, 23, and 29 have also been received in evidence.

The transcript of the proceeding was filed on July 27, 1998.

Thereafter, the Respondent filed a Motion for an Enlargement of Time to File its Proposed Recommended Order and an amended motion of the same nature. As the requests were unopposed, the parties were afforded additional time to file their proposed orders which have been considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is responsible for the operation and control of all public schools within the Miami-Dade County School District. As such, it is authorized to employ the personnel necessary to instruct the school district's students.

2. At all times material to this case, Respondent was employed by Petitioner as an annual contract teacher at Miami Springs Middle School.

3. Respondent was born in Africa and received college degrees from the Sorbonne University in Paris, France.

4. Respondent holds a bachelor's degree in American Literature and Civilization, a master of arts degree in English Literature, a master of arts in International Relations, and a

   doctorate in American Civilization and Third World Literature.

   
   

5. Prior to emigrating to the United States in 1989, Respondent had approximately three years of teaching experience. She taught secondary students for one year in England and France,

   and for an unknown time in the English Department at Cheikh Anta Diop University in West Africa.

6. After coming to the United States, Respondent taught at Michigan State University for one semester, then at Vassar for one year, at Miami-Dade Community College during a two-year span, at Nova University for one semester, at Jones College in 1994, and at the Florida International University in 1995. In these instances, Respondent's teaching experience was limited to college-age students. Additionally, the number of terms or courses taught in the various settings is unknown.

7. Respondent is certified by the Florida Department of Education in language arts. Pursuant to this certification she may teach middle school students.

8. Respondent began her career with Petitioner as a substitute teacher.

9. Respondent was hired for a full-time teaching position at Miami Springs Middle School for the 1996/97 school year.

10. The transition from college-age students to middle school students proved difficult for Respondent. The students' lack of respect, discipline, and interest in education were new to Respondent.

11. During her first year at Miami Springs, Respondent was assigned a "peer teacher." This individual, Caridad Hildago, was to assist Respondent to overcome beginning teacher problems. In this regard, over the course of the year Ms. Hildago gave

    Respondent numerous suggestions to help her keep students on

    task, to maintain control, and to promote interaction between teacher and students in the class.

12. Although she received an acceptable evaluation for this first year at Miami Springs, Respondent exhibited problems with student management. Security monitors were sent to Respondent's classroom on more than one occasion.

13. Nevertheless, because she made progress in the first year, Respondent was expected to become an adequate teacher and was retained for the 1997/98 school year.

14. During Respondent's second year at Miami Springs, the 1997/1998 school year, Dr. Senita became the principal. In October 1997, Dr. Senita informally met with Respondent and told her that students had complained that Respondent had pushed them or handled them roughly. Dr. Senita reminded Respondent that such behavior was not appropriate and that she should keep her hands off the students.

15. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate Respondent's performance.

    The same TADS documents are used for all grade levels, subject areas, and all teachers. TADS objectively measures 68 minimal behaviors necessary for teaching. TADS' observers are trained

    and certified. The observer records deficiencies which are observed during the observation period and provides a prescription (a plan) for performance improvement when needed.

16. During the 1997 legislative session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers

    who are observed to have unsatisfactory performance. Because the statutory amendment impacted how TADS would be used in the future, Petitioner and the union began collective bargaining to revise performance review procedures.

17. In the midst of these negotiations, on October 1, 1997, Respondent was formally observed in her 4th period creative writing class by Mr. Scriven, assistant principal. She was rated unsatisfactory in classroom management and techniques of instruction. Respondent was unsatisfactory in classroom management because the students were off task throughout the lesson and Respondent did nothing to redirect them. Two students had their heads down and/or slept during the class. By

    Mr. Scriven's count, ten students never participated.

    
    

18. Additionally, Respondent was rated unsatisfactory in techniques of instruction because during sustained silent reading, Respondent continually interrupted the students. Respondent also failed to give instructions prior to beginning the lesson. Respondent did not make adjustments when the

    students' performance warranted it. When students did not understand the assignment, Respondent did not clarify areas of confusion by giving examples or re-explaining.

19. During the post observation conference with Respondent on October 6, 1997, Mr. Scriven made recommendations to correct the areas of unsatisfactory performance, and provided assistance to help Respondent understand the deficiencies. Suggestions included observing a lesson taught by a fellow teacher and listing the non-verbal techniques used by that teacher to redirect off task learners. Mr. Scriven also directed Respondent to read specific pages from the TADS prescription manual and to complete the activities. Respondent was directed to list areas where she would expect student confusion and to discuss strategies with another teacher to address that confusion.

20. On November 25, 1997, Respondent was formally observed in her 5th period creative writing class by Dr. Senita. Respondent had no lesson plan and her performance was marginal. Normally, the absence of a lesson plan would automatically render the observation unsatisfactory. The union asked Dr. Senita to work with Respondent while the Respondent attempted a transfer. To accommodate this request, Respondent was rated satisfactory.

21. On December 5, 1997, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unsatisfactory in knowledge of subject matter and classroom management. Respondent was rated unsatisfactory in knowledge of

    subject matter because the sequence of information she presented was illogical and she failed to include important dimensions in her instruction.

22. Respondent was rated unsatisfactory in classroom management because there was too much wasted time with no instruction. Additionally, off-task students were not redirected. One student colored with markers for twenty-five minutes and then began bouncing a ball. Some students participated in a conversation about a sports figure and others talked about a girl's boyfriend. Many students chewed gum. Respondent failed to redirect any of these students.

23. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included observing a lesson taught by a fellow teacher and noting the strategies that teacher used to deal with students who were interacting inappropriately. Respondent was also directed to list three topics and to outline their components to ensure that the sequence would be logical. She was to list the important dimensions of each and state how they would be incorporated into the lesson. She was to estimate the amount of time each activity would take. She was to review her lesson plan with the principal.

24. On December 10, 1997, Dr. Senita held a conference for the record with Respondent to address her unsatisfactory

    performance, to provide recommendations to improve the specific areas of her unsatisfactory performance, and to discuss her future employment status with the school district. Respondent was placed on a Performance Probation in accordance with Section 231.29(3)(d), Florida Statutes, and was provided assistance to help her correct her deficiencies within the prescribed time frame.

25. Meanwhile, bargaining on the changes to TADS between the School Board and the Union culminated in a Memorandum of Understanding which was executed by the parties on December 9, 1997.

26. On January 20, 1998, Respondent was formally observed in her 5th period creative writing class by Ms. Bell, assistant principal, and was rated unsatisfactory in classroom management and techniques of instruction. Respondent was rated unsatisfactory in classroom management because her instructional activities did not fill the allotted time. Again, there was wasted time. There were instances of prolonged off-task behavior which Respondent did not address. Respondent was unable to keep students quiet.

27. Ms. Bell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance to help Respondent correct her deficiencies. These included having Respondent observe a demonstration lesson in the same class. Ms. Bell also prescribed activities from the TADS

    prescription manual.

    
    

28. On January 28, 1998, pursuant to Respondent's prescription, Ethel Dickens, a reading specialist with Petitioner's language arts department, presented a demonstration lesson utilizing the reciprocal teaching method to teach The Red Badge of Courage in Respondent's class. Respondent was already familiar with the technique of reciprocal teaching because she had learned it in a workshop during the summer of 1997.

29. Prior to the start of the class, Ms. Dickens attempted to meet with Dr. Senita and Respondent. Because Respondent would not meet with Dr. Senita, Ms. Dickens met with Respondent in the teacher's lounge.

30. At the start of the class, Ms. Dickens observed Respondent handling her class for about 15 minutes. The students did not appear to have a routine. Lack of routine constitutes poor classroom management. In contrast, Ms. Dickens began her instruction with class rules.

31. Ms. Dickens introduced the students to unfamiliar vocabulary prior to reading the book. The lesson was very productive. Ms. Dickens had no discipline problems while she taught the class.

32. On March 2, 1998, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unacceptable in preparation and planning and classroom management. Respondent was rated unsatisfactory in preparation

    and planning because she had no lesson plan. Respondent's class was in the library and Respondent requested that the principal not observe her in the library. Dr. Senita requested Respondent's lesson plan but Respondent refused to give one to her.

33. The lesson plan is a contractual requirement. It guides what goes on in the class for the day. Respondent was required to allow Dr. Senita to review the lesson plan. An administrator has the right to observe any class at any time.

34. Respondent was rated unacceptable in classroom management because she did not start her lesson for twenty-five minutes while she was on the telephone attempting to call different people to have the principal not observe her. Students reported late to class. Some students chewed gum. One student yelled an obscenity and another barked like a dog. Respondent did not correct the misbehavior.

35. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included completing activities from the TADS prescription manual and reading portions of a book entitled Learning to Teach. Respondent was also required to submit her lesson plans on the Friday prior to the week she would teach from them.

36. On March 25, 1998, Dr. Senita formally observed Respondent in her 2nd period creative writing class and rated her

    unsatisfactory in preparation and planning, classroom management, and techniques of instruction. As this was the confirmatory observation, a prescription was not issued. The lesson was disjointed and did not extend for the allotted time. The students were again off task.

37. As a result of the observation on March 25, 1998,

    
    

    Dr. Senita notified the Superintendent of Schools that Respondent had not satisfactorily corrected her performance deficiencies during the Performance Probation and recommended that Respondent's employment be terminated.

38. The assistance provided to Respondent through her prescriptions was appropriate to remedy her deficiencies. Respondent completed all of her prescriptions. Nevertheless, Respondent continued to fail to plan for and manage her students. Respondent failed to improve her performance such that the students' instructional needs were not met.

39. On April 2, 1998, the Superintendent of Schools timely notified Respondent that he was going to recommend that the School Board terminate her employment contract because she had failed to satisfactorily correct her performance deficiencies during her Performance Probation.

40. On April 15, 1998, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract.

    CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

42. Section 231.29, Florida Statutes, provides, in pertinent part:

    1. For the purpose of improving the quality of instructional, administrative, and supervisory services in the public schools of the state, the superintendent shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative, and supervisory personnel employed by the school district. The Department of Education must approve each district's instructional personnel assessment system.

       * * *

       1. The assessment procedure for instructional personnel shall comply with, but shall not be limited to, the following requirements:

          1. An assessment shall be conducted for each employee at least once a year. The assessment shall be based upon sound educational principles and contemporary research in effective educational practices. The assessment must use data and indicators of improvement in student performance and may consider results of peer reviews in evaluating the employee's performance. The assessment criteria must include, but are not limited to, indicators that relate to the following:

             1. Ability to maintain appropriate discipline.

             2. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.

             3. Ability to plan and deliver instruction.

             4. Ability to evaluate instructional needs.

             5. Ability to communicate with parents.

             6. Other professional competencies, responsibilities, and requirements as

             established by rules of the State Board of Education and policies of the district school board.

          2. All personnel shall be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.

          3. The individual responsible for supervising the employee must assess the employee's performance. The evaluator must submit a written report of the assessment to the superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than 10 days after the assessment takes place. The evaluator must discuss the written report of assessment with the employee. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file.

          4. If an employee is not performing his or

       her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements:

       1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct

          deficiencies within a prescribed period of time.

       2. The employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days from the receipt of the notice of unsatisfactory performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period. During the 90 calendar days, the employee must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies.

       3. Within 14 days after the close of the 90

       calendar days, the evaluator must assess whether the performance deficiencies have been corrected and forward a recommendation to the superintendent. Within 14 days after receiving the evaluator's recommendation, the superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the superintendent will recommend that the school board continue or terminate his or her employment contract. If the employee wishes to contest the superintendent's recommendation, the employee must, within 15 days after receipt of the superintendent's recommendation, submit a written request for a hearing. Such hearing shall be conducted at the school board's election in accordance with one of the following procedures:

       * * *

       
       

       b. A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days after receipt of the

       written appeal in accordance with chapter

       120. The recommendation of the administrative law judge shall be made to the school board. A majority vote of the membership of the school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.

43. The Petitioner bears the burden of proof in this case to establish that the Respondent failed to correct unsatisfactory performance as contemplated by the statutory assessment guidelines. It has met that burden. In this case, the Respondent failed to correct the deficiencies in performance which were clearly outlined to her. Moreover, despite efforts to remedy the deficiencies, Respondent failed to achieve sufficient improvement.

44. Respondent's claims that her failures in the classroom stemmed from a lack of support by the administration in connection with disciplinary disputes are rejected. Miami Springs is a typical Miami-Dade County middle school with all of the student issues inherent in the public school setting. Respondent's inexperience in coping with this student population, her inability to achieve control in the classroom setting, and her indifference to change resulted in the uncorrected deficiencies.

45. The Petitioner has established that it complied with the statutory criteria found in Section 231.29, Florida Statutes,

and that the provisions of the performance probation were uncorrected. Accordingly, the School Board was authorized to terminate Respondent's annual contract employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the action to terminate Respondent's annual contract.

DONE AND ENTERED this 6th day of October, 1998, in Tallahassee, Leon County, Florida.

J. D. Parrish Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1998.

COPIES FURNISHED:

Roger C. Cuevas, Superintendent

School Board of Miami-Dade County, Florida School Board Administration Building

1450 Northeast Second Avenue, Suite 403

Miami, Florida 33132

Frank T. Brogan, Commissioner of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Madelyn P. Schere, Esquire

School Board of Miami-Dade County, Florida School Board Administration Building

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Leslie A. Meek, Esquire United Teachers of Dade

Legal Department

2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 98-001766

Orders for Case No: 98-001766