STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH )

COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 99-2735

)

THERESA CALLAHAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 3, 4, and 5, 1999, at West Palm Beach, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas E. Elfers, Esquire

School Board of Palm Beach County 3318 Forest Hill Boulevard

West Palm Beach, Florida 33406

Glen J. Torcivia, Esquire

1800 Australian Avenue South, Suite 205 West Palm Beach, Florida 33490 1/

For Respondent: Anthony D. Demma, Esquire

Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Petitioner has cause to terminate Respondent's continuing contract as a classroom teacher.

PRELIMINARY STATEMENT

On June 10, 1999, Petitioner voted to terminate Respondent's continuing contract of employment. 2/ Respondent timely challenged that action, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. At the times pertinent to this proceeding, Respondent was an ESOL (English for Speakers of Other Languages) at Pine Grove Elementary School (Pine Grove), one of the public schools in Palm Beach County, Florida.

At the formal hearing, Petitioner presented the testimony of Barbara Jeanne Burdsall (Manager of Office of Professional Standards); Patricia Asuncion (former principal of Pine Grove); Dean C. Stecker (ESOL program planner); Tcherina Duncombe (specialist in professional standards); Althea Henderson (former principal of Pine Grove); Barbara Scott (interim teacher of Pine Grove); Hui Fang Huang "Angie" Su (instructional specialist for school improvement); Carmen Morales-Jones (ESOL professor at Florida Atlantic University); Penny Harris Owens (teacher at Pine Grove); Ann Galetta (ESOL coordinator); and Faith Ann Rudick (assistant principal at Pine Grove). Each of these witnesses was a full-time employee of Petitioner with the

exception of Dr. Morales-Jones. Petitioner presented 117 exhibits, each of which was admitted into evidence. Official recognition was taken of all relevant statutes and rules.

Respondent testified on her own behalf and presented

2 exhibits, both of which were accepted into evidence.

A Transcript of the proceedings was filed January 7, 2000.

Petitioner and Respondent filed proposed recommended orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent has been an employee of the Petitioner since 1967 and has held a continuing contract of employment with Petitioner since 1971. Respondent holds a Bachelor of Arts degree in Education and a Master's degree in the Humanities. In addition, she has earned most of the credits required for a Ph.D. in Administration and Education. Respondent holds a Florida Teaching Certificate which certifies her in the areas of Spanish, ESOL, Bilingual Education, and Administration/Supervision.

2. Over the past twenty years, Respondent has served as an ESOL teacher at various high schools, middle schools, and elementary schools. At the times pertinent to this proceeding, Respondent was assigned to Pine Grove. 3/ The ESOL classes at Pine Grove for which Respondent had responsibility at the times

   pertinent to this proceeding consisted mainly of students of Haitian descent whose native language was Creole. These students had little or no proficiency in the English language.

3. Petitioner uses the same evaluation procedure for employees holding continuing contracts and those holding professional services contracts.

4. At the beginning of every school year, teachers receive a Teacher Evaluation Handbook (Handbook) that describes the evaluation form, criteria, and rating scale that Petitioner uses to evaluate the job performance of employees with continuing contracts or professional services contracts. The evaluation form lists a total of 16 skill areas under the following headings: "Instructional Process," "Professional Proficiencies," and "Professional Responsibilities" as follows:

   1. INSTRUCTIONAL PROCESS

      1. Management of Student Conduct

      2. Instructional Organization and Development

      3. Presentation of Subject Matter

      4. Communication: Verbal and Nonverbal

         
         

   2. PROFESSIONAL PROFICIENCIES

5. Establishes an Appropriate Classroom Climate

6. Demonstrates Knowledge of Subject Matter

7. Demonstrates Ability to Plan Effectively

8. Demonstrates Ability to Evaluate Instructional Needs

9. Demonstrates Effective Written Communication Skills

10. Develops and Maintains an Accurate Record Keeping System

    
    

    C. PROFESSIONAL RESPONSIBILITIES

11. Demonstrates a Commitment to Growth

12. Demonstrates Self Control

13. Demonstrates Effective Working Relationship with Coworkers

14. Demonstrates Effective Working Relationship with Parents

15. Adheres to and Enforces School Policies

16. Performs Duties as Assigned by the School Administration

1. The handbook provides criteria that explain each one of these categories on the evaluation form.

2. The evaluation process used by Petitioner is referred to as the Classroom Teacher Assessment System (CTAS). This system contemplates that a trained administrator will observe the teacher while the teacher is teaching in the classroom. Following the observation, the administrator completes the evaluation form, which requires that the teacher be rated in the above-listed sixteen skill areas. The rating for each skill area is a score of 2 for an acceptable area or a 1 for an area of concern (an area of deficiency). An evaluation is satisfactory if the aggregate score is 28 or higher out of the possible 32 points. An evaluation is unsatisfactory if the aggregate score is 27 or less (which requires at least five areas being rated as a concern).

3. When Respondent was first assigned to Pine Grove during the 1995-96 school year, she worked with the school media center and with the ESOL program. For the 1997-98 and 1998-99 school years, Pine Grove used an ESOL curriculum for reading referred to by the acronym CARE (Computer Assisted Reading in English), a curriculum for writing referred to as EXTRA CARE (this was not a computer-assisted program), and a curriculum for math and science referred to by the acronym AIMS (Activities In Math and Science). Respondent's assignments did not involve significant use or training in the CARE or EXTRA CARE curricula until the 1998-99 school year.

4. On October 29, 1997, Pat Asuncion, principal of Pine Grove during the 1997/98 school year, observed Respondent in her classroom and thereafter evaluated her performance.

   Ms. Asuncion rated two areas as being of concern: "instructional organization and development" and "effective working relationships with parents." 4/

   This evaluation was performed pursuant to and consistent with Petitioner's evaluation procedures. There was a proper factual basis for Ms. Asuncion to rate Respondent's performance in these two areas as being of concern. In the "instructional organization and development" area, Respondent was observed to have failed to use effective questioning techniques, unnecessarily delayed starting activities, and caused students

   to wait for instruction and assistance. Respondent's well- documented difficulty in working with parents justified the rating of concern in the "effective working relationships with parents" area.

5. Following her evaluation by Ms. Asuncion, Respondent was provided a school site assistance plan that was appropriately designed to help Respondent correct her identified deficiencies.

6. Ms. Asuncion observed Respondent in her classroom on December 19, 1997, and found all of the children in Respondent's class were off-task. Respondent appeared to lack awareness as to what was happening around her in her classroom. Respondent and Ms. Asuncion met regarding the December 19, 1997, observation, but Respondent refused to sign the conference notes.

7. Ms. Asuncion observed Respondent in her classroom on January 14, 1998, and found that Respondent delayed class for ten minutes during a 28-minute observation.

8. Dean C. Stecker, Petitioner's ESOL program evaluator, observed Respondent in her classroom on February 10, 1998.

   Mr. Stecker observed that the ESOL curriculum was not being implemented by Respondent, that Respondent delayed starting the lesson, and that Respondent failed to maintain discipline in the classroom.

   
   

   
   

9. Barbara Scott, an instructional support specialist who briefly served as interim principal of Pine Grove at the beginning of the 1998-99 school year, observed Respondent in her classroom on February 12, 1998. Ms. Scott observed that Respondent appeared to be unaware of her surroundings. One child was standing up and cheating, other children appeared to be confused and off-task. Some were talking with their backs turned to Respondent. Very few of the children were paying attention to the classroom assignment. Ms. Scott discussed with the Respondent the concerns she had as a result of her observation.

10. Ms. Asuncion observed Respondent in her classroom on March 9, 1998, and noted the following concerns: Respondent shuffled through papers for 25 minutes, the children were off- task, and numerous children were misbehaving without Respondent looking up or intervening.

11. Ms. Asuncion met with Respondent on March 12, 1998, to discuss her concerns and an assistance plan that would help Respondent improve in the identified areas of concern.

12. Ms. Asuncion completed Respondent's evaluation for the 1997-98 school year on March 12, 1998. The evaluation was unsatisfactory with the following areas rated as being of concern: "management of student conduct," "instructional

    organization and development," "presentation of subject matter," "establishes an appropriate classroom climate," and "demonstrates an ability to plan effectively." This evaluation was performed pursuant to and consistent with Petitioner's evaluation procedures. Ms. Asuncion had a sufficient factual basis to rate Respondent's performance as deficient in each of these areas.

13. On March 12, 1998, Ms. Asuncion submitted a letter to Joan P. Kowal, Petitioner's Superintendent of Schools, listing Respondent's identified deficiencies and requesting that a district assistance plan be developed for Respondent.

14. On April 1, 1998, Superintendent Kowal notified Respondent by letter that she would be given the time designated by Section 231.36, Florida Statutes, to correct the deficiencies identified by Ms. Asuncion.

15. On March 25, 1998, Respondent was provided a District Level I Professional Development Plan that was to be followed until June 1998. Respondent's CTAS evaluation form identified the same five areas of concern, namely: "management of student conduct," "instructional organization and development," "presentation of subject matter," "establishes an appropriate classroom climate," and "demonstrates ability to plan effectively." The District Level I Professional Development Plan was appropriately designed to provide Respondent with

    strategies and assistance that would enable her to improve in

    
    

    the identified areas of concern.

    
    

16. On May 27, 1998, Respondent was provided with a District Level II Summer Remediation Plan for the period of July 1998 through August 1998. The same five areas of concern identified by the District Level I plan were identified by this District Level II plan. This plan was appropriately designed to provide Respondent with strategies and assistance during the summer that would enable her to improve in the identified areas of concern. Respondent refused to sign this plan.

17. On May 27, 1998, Respondent also received a District Level II Professional Development Plan for the period September 1998 until the end of the first semester. This plan provided the names of the following individuals who would be observing Respondent in her classroom: Dr. Jeanne Burdsall, Tcherina Duncombe, Arleatha Henderson, Dr. Carmen Morales-Jones, Dr. Hui Fang Huang "Angie" Su, and Barbara Scott.

18. Ms. Henderson, the principal of Pine Grove for the 1998-99 school year, observed Respondent several times during the first semester of the 1998-99 school year. Ms. Henderson testified that Respondent's lesson plans were incomplete and inadequate. Ms. Henderson offered Respondent assistance to help her complete and improve her lesson plans.

    
    

    
    

19. Dr. Su, an Instructional Specialist for School Improvement, observed Respondent in her classroom three times during the first semester of the 1998-99 school year. Dr. Su observed that Respondent either did not have a lesson plan or failed to implement a lesson plan because of a lack of discipline and organization in the classroom.

20. Ms. Scott observed Respondent in her classroom in October 1998. Ms. Scott observed that there was no lesson being taught and there was misbehavior, which Respondent failed to correct. Ms. Scott testified that she would not have had a clue as to what to do if she had been a student in Respondent's class.

21. On November 10, 1998, Ms. Duncombe, a Specialist in Professional Standards, observed Respondent in her classroom. Ms. Duncombe testified that Respondent did not correct students who were misbehaving in the classroom, that the subject matter was a vague, scrambled discourse, and that the presentation of the lesson was broken and disjointed.

22. Consistent with the established evaluation procedures, district assistance meetings are held three times during the first semester before the mid-year evaluation takes place. If there are still five or more areas of deficiencies after the

    mid-year evaluation, two additional district assistance meetings

    are held before the final evaluation. These meetings review the progress of the assistance plan and discuss observations. These meetings also give teachers an opportunity to discuss the appropriateness of the assistance plan. Myra Arroyo, a co- teacher selected by Respondent, accompanied Respondent to the district assistance meetings to advise and assist Respondent.

23. After the District II Level Plan to mid-year has been completed, the principal evaluates the teacher. If the evaluation has one to four five areas of concern, the teacher will go back on a school site assistance plan. If the evaluation has five or more areas of concern, the teacher is given a District Level Two Professional Development Plan for the second semester.

24. On December 10, 1998, Ms. Henderson conducted the mid- year evaluation of Respondent. Based on the numerous observations that had been made of Respondent, Ms. Henderson appropriately found that Respondent continued to be deficient in the five previously identified areas of concern.

25. Respondent was provided a District Level Two Professional Development Plan for the second semester up to March 1999, when her final evaluation was scheduled. Petitioner continued to provide Respondent with an opportunity to correct her deficiencies and continued to provide her assistance and remediation strategies.

    
    

    
    

26. Dr. Su observed Respondent in her classroom in January 1999 and found Respondent's performance was worse than when she observed during the first semester of the 1998-99 school year.

27. On January 28, 1999, a District Assistance Plan Meeting was held. The five previously identified areas were still areas of concern.

28. The ESOL program was reorganized in an effort to improve the program. As a result of those changes, Respondent became responsible for her own set of students. Previously, different sets of students rotated through Respondent's ESOL class. This program change had no discernable bearing on Respondent's job performance.

29. On February 18, 1999, another District Assistance Plan Meeting was held. At this meeting, the evaluators determined that Respondent had made no progress.

30. Ms. Duncombe observed Respondent in her classroom on March 3, 1999. Ms. Duncombe found the children to be out of control. The children did not know what they were supposed to be doing.

31. Dr. Morales-Jones observed Respondent in her classroom on March 4, 1999. Dr. Morales-Jones observed that Respondent had difficulty establishing or maintaining order. Respondent was disorganized and her attempt to teach was ineffective.

    
    

    
    

    Dr. Morales-Jones described Respondent's classroom as being a total disaster.

32. By letter dated March 9, 1999, Superintendent Kowal advised Respondent that she had failed to correct deficiencies during the 1998-99 school year and that, consequently, she would not be re-appointed for the 1999-2000 school year. This letter also advised Respondent as to her rights under Section 231.36, Florida Statutes.

33. Ms. Henderson's final evaluation of Respondent was dated March 11, 1999. The following were still found to be areas of concern: "management of student conduct," "instructional organization and development," "presentation of subject matter," "establishes an appropriate classroom climate," and "demonstrates ability to plan effectively." This evaluation found Respondent's performance to be unsatisfactory and recommended that she not be re-appointed for the school year 1999-2000.

34. On May 13, 1999, Superintendent Kowal recommended to the School Board that Respondent's continuing contract not be renewed and that her employment be terminated. This recommendation appeared on the School Board agenda for the May 19, 1999, meeting as consent agenda item number 15E.

35. On May 19, 1999, the School Board unanimously approved

    consent agenda item number 15E.

    
    

36. All observations of the Respondent and all plans of assistance developed for her were appropriate and consistent with Petitioner's established evaluation procedures.

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

38. Section 231.36(3)(f), Florida Statutes, provides, in pertinent part, as follows:

    (f) The superintendent shall notify an employee who holds a professional service contract on July 1, 1997, in writing, no later than 6 weeks prior to the end of the postschool conference period, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment (which shall be granted for an additional year in accordance with the provisions in subsection (1)). Except as otherwise hereinafter provided, this action shall not be subject to the provisions of chapter 120, but the following procedures shall apply:

    1. On receiving notice of unsatisfactory performance, the employee, on request, shall be accorded an opportunity to meet with the superintendent or the superintendent's designee for an informal review of the determination of unsatisfactory performance.

    2. An employee notified of unsatisfactory performance may request an opportunity to be considered for a transfer to another appropriate position, with a different supervising administrator, for the subsequent year of employment.

    3. During the subsequent year, the

       employee shall be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. The employee shall also be evaluated periodically so that he or she will be kept apprised of progress achieved.

    4. Not later than 6 weeks prior to the close of the postschool conference period of the subsequent year, the superintendent, after receiving and reviewing the recommendation required by s. 231.29, shall notify the employee, in writing, whether the performance deficiencies have been corrected. If so, a new professional service contract shall be issued to the employee. If the performance deficiencies have not been corrected, the superintendent may notify the school board and the employee, in writing, that the employee shall not be issued a new professional service contract; however, if the recommendation of the superintendent is not to issue a new professional service contract, and if the employee wishes to contest such recommendation, the employee will have 15 days from receipt of the superintendent's recommendation to demand, in writing, a hearing. In such hearing, the employee may raise as an issue, among other things, the sufficiency of the superintendent's charges of unsatisfactory performance. Such hearing shall be conducted at the school board's election in accordance with one of the following procedures:

       1. A direct hearing conducted by the school board within 60 days of receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. A majority vote of the membership of the school board shall be required to sustain the superintendent's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or

       2. 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 of 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.

    
    

39. Petitioner has the burden to establish by a preponderance of the evidence that it has grounds to terminate Respondent's employment pursuant to the provisions of Section 231.36(3)(f), Florida Statutes. See Dileo v. School Board of

    Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

40. Petitioner established that it closely adhered to the requirements set forth in Section 231.36(3)(f), Florida Statutes, and in Petitioner's Handbook in observing Respondent and in developing plans of assistance. Petitioner established that Respondent failed to remediate the five identified areas of concern despite appropriate offers of assistance. The repeated observations of deficient performance, together with the lack of any meaningful progress towards correcting the identified deficiencies despite appropriate offers of assistance compel the conclusion that Respondent's employment should be terminated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order terminating Respondent's employment.

DONE AND ENTERED this 31st day of March, 2000, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2000.

ENDNOTES

1/ Mr. Elfers represented Petitioner at the formal hearing. Mr. Torcivia filed Petitioner's post-hearing submittals.

2/ The School Board did not vote to suspend Respondent's employment without pay pending this proceeding at its June 19, 1999. Because of that failure, Respondent asserts that she is entitled to back pay until the School Board enters a final order terminating her employment. That contractual dispute should be resolved by a court of competent jurisdiction.

3/ Respondent has worked at different schools in different capacities during her employment with Petitioner. In the early 1990s, Petitioner attempted to terminate Respondent's employment. Following a formal proceeding before the Division

of Administrative Hearings, Petitioner accepted the recommendation that Respondent's employment be reinstated. Respondent has argued in this proceeding that Petitioner's employees were biased because of that earlier proceeding. That contention is rejected. Although Respondent's length of service has been considered by the undersigned, the focus of this proceeding is on Respondent's job performance at Pine Grove during the 1997-98 and 1998-99 school years.

4/ Respondent disputed the appropriateness of these ratings. The argument that Ms. Asuncion lacked the experience to properly evaluate Respondent is rejected. Although Ms. Asuncion had little experience as a principal, she had adequate education, training, and experience to evaluate Respondent and the other teachers at Pine Grove. The argument that Ms. Asuncion had insufficient factual justification to rate these two areas as deficient is likewise rejected. Petitioner clearly established that these two areas were appropriately evaluated as being deficient.

COPIES FURNISHED:

Anthony D. Demma, Esquire Meyer & Brooks, P.A.

2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

Thomas E. Elfers, Esquire

School Board of Palm Beach County

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813

Glen J. Torcivia, Esquire

1800 Australian Avenue South, Suite 205 West Palm Beach, Florida 33490

Dr. Joan P. Kowal, Superintendent School Board of Palm Beach County 3318 Forest Hill Boulevard

West Palm Beach, Florida 33406-5813

Honorable Tom Gallagher Commissioner of Education Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Michel H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

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: 99-002735

Orders for Case No: 99-002735