STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF MIAMI-DADE )

COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 99-4562

)

REINA N. OBREGON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on February 28 and 29, 2000, in Miami, Florida.

APPEARANCES

For Petitioner: Ana I. Segura, Esquire

School Board of Miami-Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Lisa N. Pearson, Esquire

United Teachers of Dade 2929 Southwest Third Street Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue presented is whether Respondent's employment by the School Board of Miami-Dade County, Florida, should be terminated.

PRELIMINARY STATEMENT

By correspondence dated October 21, 1999, Petitioner School Board of Miami-Dade County, Florida, advised Respondent Reina N. Obregon that her employment contract was terminated, and Respondent timely requested an evidentiary hearing regarding that determination. On October 29, 1999, this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding. The School Board's Notice of Specific Charges of Unsatisfactory Performance was filed on November 18, 1999.

The School Board presented the testimony of Thomasina O'Donnell, Edith Hall, Christina Miracle, Barbara Falcon, Ivette Padron-Rojas, and Kim Coleman. Respondent Reina N. Obregon testified on her own behalf and presented the testimony of Sharon Roper, Reneir Martin, Emma Pardo, Mohamed Naseer, Dorothea Pratt, Barbara Nickerson, and Brenda L. Cox.

Additionally, the School Board's Exhibits numbered 7-27 and Respondent's Exhibits numbered 1, 2, 5-7, 10, 12, 16, 20, 22,

1. , 32, 34, and 35 were admitted in evidence.

   
   

   At the commencement of the final hearing, the School Board's Motion in Limine to Exclude Irrelevant, Immaterial Evidence, and Improper Opinion Testimony and to Strike Witnesses from Respondent's Witness List was denied.

   No transcript was filed. However, both parties submitted

   proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent was employed as a teacher at Van E. Blanton Elementary School, pursuant to a professional service contract.

   2. Van E. Blanton is a typical elementary school within the Miami-Dade County school system, except that it is classified as a "D" school. As in any school, some students engage in disruptive behavior.

   3. Respondent holds a Bachelor of Science degree from Florida International University and is certified to teach English as a second language. Pursuant to her certification, she is eligible to teach elementary school students in grades one through six. She has taught for seventeen years.

   4. During the 1998-1999 school year Respondent taught third grade. During the 1999-2000 school year she was assigned to teach first grade.

   5. Teachers employed by the Miami-Dade County School Board are evaluated pursuant to the Teacher Assessment and Development System (hereinafter "TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and the United Teachers of

      Dade (hereinafter "UTD"). The same TADS documents are used for all grade levels, subject areas, and teachers, whether new or veteran. TADS objectively measures 67 minimal behaviors necessary for teaching. At all times material hereto, TADS was used to evaluate Respondent's performance.

   6. TADS includes in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. All teachers are informed of the criteria and procedures. All new teachers receive a copy of "Mini-TADS," a reduced photocopy of the publication entitled "Teacher Assessment and Development System." At the beginning of each school year, school principals are required to review the assessment criteria at faculty meetings.

   7. TADS observations and ratings are performed by school principals and assistant principals. TADS observers are trained and certified. The TADS training takes four days and includes the following components: strategies for pre-observation, classroom observation, decision-making with the Classroom Assessment Instrument, post-observation interview, prescription/probation of professionals, recommendations for improvement (prescriptive activities), assisting teachers in the design of instruction and improvement activities, practical

      activities such as video assessment, and actual classroom teacher assessment under the supervision of a trainer.

   8. The observer records deficiencies observed during the observation period and provides a prescription (a plan) for performance improvement. A post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response, either in the space provided in column 3 of the "Prescription for Performance Improvement" or by separate document that becomes part of the teacher's file. The teacher is required to comply with the activities provided in the prescription plan, which are usually obtained from the "Prescription Manual," and to meet the deadlines set forth in the column designated "Timeline" in the prescription performance improvement plan.

   9. As a result of the statutory amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedure to comply with the new statutory requirements. Under the amended procedures, a conference for the record initiates a 90 calendar-day performance probation period. Each observation stands on its own, and there must be periodic observations during the performance probation period in which the employee is apprised of his or her progress and is provided assistance through prescription plans. After the

      performance probation period is concluded, there is a confirmatory observation without a prescription plan.

   10. On March 30, 1999, Respondent was formally observed by Principal Edith Hall during math class. She was rated unsatisfactory in Category III, Classroom Management, and Category IV, Techniques of Instruction.

   11. Respondent was rated unsatisfactory in classroom management because she did not effectively use verbal or non- verbal techniques to redirect off-task learners. Several students misbehaved and violated classroom rules continuously. Respondent did not use techniques effectively to maintain the attention of off-task learners. Clear expectations of student behavior and a systematic approach to proper classroom discipline were not evident. Classroom rules were not referred to, and students who were disruptive were not dealt with quickly and appropriately.

   12. Respondent was rated unsatisfactory in techniques of instruction because Respondent did not provide background information and information as to why the topic of surveys was being taught. Respondent started with the wrong textbook and abruptly changed books without explanation and without setting the stage for the lesson. Lesson components were not appropriately sequenced. Activities were not in her lesson plans. Respondent and her students read material together, and

       students were told to copy a chart. There was no closure to assist the students in understanding the concept of surveys. Little or no instruction or learning took place.

   13. During the post-observation conference for the record held April 14, 1999, Respondent was advised that her performance was unacceptable, that starting on that date she was placed on a

       90 calendar-day performance probation period, and that at the end of her probation period she had to demonstrate that she had corrected the identified deficiencies. This conference took place within 10 calendar days excluding spring recess, which started April 2 and ended April 9, 1999.

   14. Principal Hall made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. Respondent provided her written responses in column 3 of the prescription plan, basically explaining her unsuccessful efforts to control students' disruptive behavior.

   15. The assistance provided included observing a lesson taught by a fellow teacher and submitting a summary of the verbal and non-verbal discipline techniques used by that teacher to redirect off-task learners. Respondent was also directed to read specific pages from the TADS Prescription Manual, to complete certain activities in that Manual, to develop instructions for proper student behavior, and to submit those

       activities to the assistant principal for review. Recommended resources, such as administrators and fellow teachers, were also made available to Respondent.

   16. Respondent had until May 14, 1999, to complete the prescription activities listed in the April 14 prescription plan. She submitted her completed activities in a timely manner.

   17. On May 20, 1999, Respondent was formally observed in her science class by Assistant Principal Christina Miracle as a periodic evaluation to apprise Respondent of her progress. Respondent was found unsatisfactory in Category I, Preparation and Planning, Category III, Classroom Management, and Category IV, Techniques of Instruction.

   18. Respondent was rated unsatisfactory in preparation and planning because her lesson plans failed to state the objectives, activities, homework, or method of monitoring student progress and because she did not fill the allocated time with instruction. Twenty minutes were wasted waiting for a video that was never shown, which video was not reflected in Respondent's lesson plans for that day.

   19. Respondent was rated unsatisfactory in classroom management because there was too much time when there was no instruction taking place. Instructional activities did not begin promptly and did not continue until the end of the

       allocated time period. Approximately half of the students were not engaged in learning activities. Respondent did not effectively use verbal and non-verbal techniques to redirect the off-task behavior.

   20. Respondent was rated unsatisfactory in techniques of instruction because she did not follow a sequence of instruction and did not refer to any previous information that students should possess to facilitate learning the lesson. In addition, the lesson components were not appropriately sequenced. First, Respondent stated that they would be learning about animals but when the video was not shown, she proceeded to discuss natural resources. No explanation or connection was made between the two topics. Respondent made no provision for lesson closure. The students told Respondent it was time to go home and started leaving the classroom.

   21. During the post-observation conference on May 27, 1999, Miracle made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The assistance included preparing detailed lesson plans identifying objectives, activities, assessment and homework, submitting her lesson plans to the assistant principal on a weekly basis, and observing a fellow teacher to note verbal and non-verbal techniques. The prescription also required

       Respondent to submit to the assistant principal a classroom management plan to implement in Respondent's classroom.

       Respondent was also directed to complete several specific activities from the TADS Prescription Manual and to discuss them with the assistant principal. Recommended resources from the administration and the TADS Prescription Manual were also made available to Respondent.

   22. Respondent's prescription plan activities were due on September 10, 1999, but she did not submit them. Respondent was given until September 27 to complete those activities, but she again failed to complete them.

   23. On September 15, 1999, Respondent was formally observed in her language arts class by Principal Hall. Respondent was rated unsatisfactory in the categories of Preparation and Planning, Knowledge of Subject Matter, Classroom Management, Techniques of Instruction, and Assessment Techniques.

   24. Respondent's performance was unsatisfactory in the area of preparation and planning because the content of the lesson and the activities were not related to the objective listed in the lesson plan. Respondent did not follow the lesson plan as written.

   25. Respondent was rated unsatisfactory in knowledge of subject matter because she did not present information in a

       sequentially-logical manner. The information presented was disjointed and in an illogical sequence. Respondent failed to present information at more than one cognitive level. The students were asked to trace and color without any probing or higher-level questioning.

   26. Respondent was rated unsatisfactory in classroom management because there were no clear expectations for behavior. Students ignored the classroom rules, and Respondent did not refer to those rules when students misbehaved. She did not deal appropriately with off-task students. Many students talked out of turn, got out of their seats without permission, and talked with classmates during instruction. Respondent failed to engage those students in learning.

   27. Respondent was rated unsatisfactory in her techniques of instruction because the lesson components were inappropriately sequenced. Respondent began with color words, then discussed time, and then gave directions for heading the paper. She interrupted students by constantly referring to the time remaining to complete the assignment. She did not provide for lesson closure and did not recap any of the activities of the day.

   28. Respondent was rated unsatisfactory in assessment techniques because there was only one grade in her grade book and no evidence of more than one kind of assessment. There was

       no evidence of a variety of test formats. There were no samples of student work on file.

   29. During the post-observation conference on September 21, Principal Hall made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the Prescription Plan for Respondent to correct her deficiencies. The assistance included preparation of detailed lesson plans, with objectives, activities, and student assessment, to be submitted to the assistant principal for review on a weekly basis. Respondent was told to follow her lesson plans for each subject each day, to prepare her classroom activities prior to teaching the lesson, and to review those activities with the assistant principal. Arrangements were made for Respondent to observe fellow teachers. Respondent was to prepare a summary of her observations as to how other teachers encouraged their students to improve their behavior and the strategies those teachers used for verbal interaction. Respondent was to include in that summary the manner in which she could incorporate her observations into her own lessons and discuss her summary with the assistant principal. Respondent was told to use the standard teacher grade book to record student attendance and student assessment and to submit her grade book to the assistant principal on a weekly basis.

   30. Respondent refused to sign the Prescription Plan and did not submit any written response. The activities required by the Prescription Plan were due September 24, 1999, but Respondent failed to submit them. She was given until September

       27 to do so, but again failed to submit them to the assistant principal as directed by the Prescription Plan.

   31. On September 29, 1999, Respondent was formally observed in her math class by Principal Hall and was rated unsatisfactory in Classroom Management and Techniques of Instruction. This observation was made within 14 days of the close of Respondent's probationary period and was made for the sole purpose of determining if Respondent's deficiencies had been corrected. This confirmatory observation does not require a prescription plan.

   32. On September 30 Respondent was notified that she had failed to submit her prescriptive activities, had failed to meet the Prescription Plan requirements, and had failed to correct her performance deficiencies. On that date Principal Hall forwarded to the Superintendent of Schools her recommendation that Respondent's employment be terminated. On October 5 the Superintendent notified Respondent that he was recommending to the School Board that her employment contract be terminated because she had failed to correct her performance deficiencies during her 90 calendar-day performance probationary period.

   33. The School Board's contract with UTD provides for a joint labor/management committee commonly known as the TADS monitoring committee. That committee serves as a forum to resolve complaints regarding observation and evaluation issues. Respondent did not register any complaint with the TADS monitoring committee and did not file any grievance under the UTD contract as a result of any dispute or objection concerning the TADS criteria or procedures or her assessments under TADS.

   34. On September 28, 1999, Respondent did file a grievance with UTD claiming harassment by Principal Hall. That grievance did not articulate any dispute with the TADS criteria or procedures used to evaluate Respondent. Respondent's complaint of harassment was based solely on frequent classroom visits by her principal. At a meeting held on October 8, 1999, Principal Hall explained that it was her duty to make classroom visits because Van E. Blanton was rated as a "D" school and that she regularly visited every classroom. Respondent's grievance was filed only after the close of her performance probationary period, and the meeting occurred after the Superintendent had recommended to the School Board that Respondent's employment be terminated.

   35. The assistance provided to Respondent through her prescriptions was appropriate to remedy her cited deficiencies. Respondent was also provided assistance in the form of

       workshops, monthly grade-level teacher meetings, in-service workshops and classroom demonstrations. Respondent was observed in two of the workshops eating potato chips and not taking any notes. Despite the assistance given to Respondent, she did not improve sufficiently at any time subsequent to April 14, 1999, to obtain a satisfactory rating under TADS.

   36. Respondent could have taken the Summer 1999 In-service Program for elementary teachers, or the Dimensions of Learning Program, or the Substitute Teacher Training: Classroom Management and Effective Teaching Techniques, or any of the workshops offered by the Teacher Education Center but did not do so. Under the UTD contract, teachers cannot be required to attend in-service programs held during the summer recess. Participation by teachers in those programs is voluntary. For whatever reasons, Respondent chose not to participate in order to correct her deficiencies during her performance probationary period.

   37. Respondent claims that Principal Hall inappropriately performed one of her observations when testing was scheduled. The alleged testing was a diagnostic survey that is done on an individual basis. Teachers are still required to provide learning activities for the other students while such testing is being performed. Further, Respondent failed to perform that

       required testing, and other teachers had to test Respondent's students.

   38. Respondent also claims that the September 29, 1999, observation was performed during a time when she was not scheduled to teach. However, Respondent's class schedule belies that claim.

   39. All TADS requirements were completed, and all TADS procedures were properly executed regarding the formal observations of Respondent and the evaluations of her teaching performance. Further, Respondent was not harassed by Principal Hall regarding the formal observations of Respondent pursuant to TADS requirements.

       CONCLUSIONS OF LAW

       
       

   40. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.569, 120.57(1), and 231.29(3)(d)3.b, Florida Statutes.

   41. Section 231.29, Florida Statutes, establishes a process for the evaluation of instructional personnel and requires that an employee who is performing unsatisfactorily be placed on a 90-day probation. Subsection (3)(d)2. If the employee fails to correct deficiencies within that probationary period, termination of employment is appropriate. Subsection (3)(d)3.

   42. The School Board has met its burden of proving by a preponderance of the evidence that Respondent failed to perform in a satisfactory manner and failed to correct her deficiencies by the close of her 90-day performance probationary period.

RECOMMENDATION

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

RECOMMENDED that a final order be entered terminating Respondent's employment and denying Respondent's claim for back pay.

DONE AND ENTERED this 5th day of May, 2000, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 5th day of May, 2000.

COPIES FURNISHED:

Dr. Roger Cuevas, Superintendent School Board of Miami-Dade County

1450 Northeast Second Avenue, Suite 403

Miami, Florida 33132-1308

Tom Gallagher, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Lisa N. Pearson, Esquire United Teachers of Dade 2929 Southwest Third Street Miami, Florida 33129

Ana I. Segura, Esquire

School Board of Miami-Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

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: 99-004562

Orders for Case No: 99-004562