STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PALM BEACH COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 04-1911
)
CURTIS SHERROD, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on February 8, 9, and 10, 2005, in West Palm Beach, Florida.
APPEARANCES
For Petitioner: Jean Marie Middleton, Esquire
School Board of Palm Beach County 3318 Forest Hill Boulevard
Suite C-302
West Palm Beach, Florida 33406
For Respondent: Thomas L. Johnson, Esquire
Chamblee, Johnson & Haynes, P.A.
510 Vonderburg Drive Suite 200
Brandon, Florida 33511 STATEMENT OF THE ISSUE
The issue in this case is whether just cause exists for the
suspension and termination of the employment of Respondent,
Curtis Sherrod, for failing to correct teaching deficiencies sufficient to warrant a satisfactory performance evaluation.
PRELIMINARY STATEMENT
By letter dated February 25, 2004, Arthur C. Johnson, Ph.D., Superintendent of Palm Beach County Schools, informed Respondent that he was going to recommend the termination of Respondent's employment with the Petitioner. On or about May 4, 2004, Dr. Johnson filed a Petition for Suspension Without Pay and Dismissal From Employment with Petitioner. Petitioner approved Dr. Johnson's request and, by letter dated May 19, 2004, Respondent requested a formal administrative hearing to contest the factual basis for his suspension and dismissal. The Petition and request for hearing were filed with the Division of Administrative Hearings on June 1, 2004.
The matter was designated DOAH Case No. 04-1911 and was assigned initially to Administrative Law Judge Michael M. Parrish. The case was ultimately assigned to the undersigned to conduct the final hearing.
At the final hearing, Petitioner presented the testimony of Kay Carnes (former Principal of Suncoast Community High School); Christine Hall, Ph.D. (former Assistant Principal at Olympic Heights High School); Francis P. Giblin (former Principal at Olympic Heights High School); Wanda C. Hagan (Area Superintendent); Francisco Rodriguez (Assistant Principal);
Kathleen Orloff (Assistant Principal); Gloria Crutchfield, Ph.D. (former Principal at Roosevelt Middle School); Diane Curcio- Greaves (former Manager of Professional Standards); Carole Shetler (Area Superintendent); Deborah Raing (Office of African and African American Studies); and Respondent. Petitioner offered 64 exhibits for identification as "Petitioner's" Exhibits. All were admitted. Respondent testified on his own behalf and presented the testimony of Marvin Dunn, Ph.D. (accepted as an expert witness). Respondent offered 19 exhibits for identification as "Respondent's" exhibits. All were admitted. Finally, two "Joint Exhibits" were offered and admitted.
By Notice of Filing of Transcript issued April 5, 2005, the parties were informed that the Transcript of the final hearing had been filed on April 4, 2005. The parties, pursuant to agreement, therefore, were informed that they had until
April 25, 2005, to file proposed recommended orders. Two extensions of time, ultimately allowing the parties to file their proposed orders by May 27, 2005, were subsequently granted. On that date, a Friday, Petitioner filed Petitioner's Proposed Recommended Order. Respondent filed Respondent's Proposed Recommended Order on June 1, 2005, the next business day that was not a holiday. Although filed late, it does not appear that the late filing of Respondent's proposed order
prejudiced Petitioner. Accordingly, the post-hearing submittals of the parties have been fully considered.
FINDINGS OF FACT
The Parties.
Petitioner, the Palm Beach County School Board (hereinafter referred to as the "School Board"), is responsible for the operation, control, and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the Palm Beach County School District (hereinafter referred to as the "School District").
Respondent, Curtis Sherrod, at all relevant times, was licensed by the State of Florida to teach Social Studies for grades five through 12.
Mr. Sherrod's certification authorized him to teach political science, economics, psychology, U.S. history, cultures, world geography, and contemporary history.
Mr. Sherrod received a Bachelor of Arts degree, with a major in history and a minor in education, from Winston-Salem State University, formerly known as Winston-Salem State Teacher's College.
At all relevant times, Mr. Sherrod was employed as a classroom teacher by the School Board. He was employed initially by the School Board from 1980 to 1983. He returned to
employment with the School Board in January 1993 and received a Professional Services contract in August 1996.
Mr. Sherrod's Employment at Olympic Heights High School.
Beginning with the 1995-1996 school year, Mr. Sherrod was employed by the School Board at Olympic Heights High School (hereinafter referred to as "Olympic Heights").
Francis P. Giblin served as principal of Olympic Heights during the times relevant to this case.
Until his last evaluation for the 2001-2002 school year, Mr. Sherrod received overall satisfactory performance evaluations. For the 1999-2000, 1996-1997, and the 1995-1996, school years, Mr. Sherrod, while receiving overall satisfactory ratings, had a few "areas of concern" noted. The deficiencies in those noted areas of concern were, until the 2001-2002 school year, corrected by Mr. Sherrod.
During the 2001-2002 school year, Mr. Sherrod taught a world history class. After the school year began, several letters were received by Mr. Giblin from parents expressing concern over the content of the material being taught in
Mr. Sherrod's world history class and documents which Mr. Sherrod had sent home to parents.1
Mr. Giblin requested that Dr. Christine Hall, an assistant principal at Olympic Heights look into the parental
complaints concerning Mr. Sherrod's class. Dr. Hall was responsible for the Social Studies department, of which Mr. Sherrod was a teacher, at Olympic Heights.
Dr. Hall spoke with Mr. Sherrod about the complaints.
Dr. Hall met with Mr. Sherrod on September 4, 2001, and summarized their conversation in a memorandum of the same date. See Petitioner's Exhibit 27. The complaints, however, continued, with some parents requesting a class change for their children. Dr. Hall again discussed the matter with Mr. Sherrod, but the complaints continued.
In approximately October 2001 Dr. Hall began to make informal observations of Mr. Sherrod's class in a further effort to resolve the problem. Toward that end, on October 10, 2001, Mr. Giblin visited Mr. Sherrod's class.2
Dr. Hall also observed a class during which
Mr. Sherrod gave a standardized examination.3 At the conclusion of the test, Dr. Hall collected the "Scantrons" and determined the grade each student should have received. These grades were then compared to the final grades given the students by
Mr. Sherrod. Due to a significant number of discrepancies in the grades given by Mr. Sherrod and the grades which they should have received based upon the Scantrons, Mr. Sherrod was asked to produce the Scantrons for his other classes. Mr. Sherrod was unable to produce the requested Scantrons because he had,
contrary to School Board policy, disposed of them. As a result of his failure to produce the Scantrons Mr. Giblin became even more concerned about Mr. Sherrod's performance and ordered further observations of his classes.4
On November 27, 2001, Dr. Hall informed Mr. Sherrod in writing that she intended to conduct an observation of his class sometime during the "week of December 3-7." Mr. Sherrod wrote back to Dr. Hall and indicated that any day that week was fine, except for December 3 because "I will be collecting homework that day."
Dr. Hall conducted observations on December 3 and 5, 2001. She conducted the observation on December 3rd despite Mr. Sherrod's suggestion because she did not believe it would take the entire class for Mr. Sherrod to collect homework. By memorandum dated December 11, 2001, Dr. Hall provided
Mr. Sherrod with a discussion of her observations and suggested improvement strategies. Dr. Hall found deficiencies in the areas of management of student conduct; presentation of subject matter; human development and learning; learning environment; communication; and planning.5
On December 18, 2001, Mr. Giblin, Dr. Hall,
Mr. Sherrod, Jerilyn McCall, Jeanne Burdsall, and Diane Curcio- Greaves participated in an "investigative meeting" to "discuss concerns regarding failure to perform professional duties,
insubordination and unprofessional behavior." That meeting was summarized in a Meeting Summary provided to Mr. Sherrod. See
Petitioner's Exhibit 32.
On January 7, 2002, Mr. Giblin, Dr. Hall, Mr. Sherrod, Ms. Burdsall, Ms. Curcio-Greaves, Esther Bulger, Margaret Newton, and Debra Raing met "to provide information on benchmarks, curriculum and to insure [sic] students are prepared with information to take the district exam." A Meeting Summary was provided to Mr. Sherrod.
On April 30, 2002, Mr. Giblin again observed
Mr. Sherrod's class. Mr. Giblin's written observations are contained in Petitioner's Exhibit 34. Mr. Giblin found concerns in the areas of presentation of subject matter, communication, and learning environment. A summary of his concerns and recommendations for improvement were provided in writing to
Mr. Sherrod on or about May 15, 2002.6
On May 16, 2002, Mr. Sherrod was given an overall unsatisfactory performance evaluation. Seven areas of concern were noted. Under Section A, Teaching and Learning, the following areas of concern were noted: presentation of subject matter; communication; learning environment; and planning. Under Section B, Professional Responsibilities, the following areas of concern were noted: record keeping; working relationships with coworkers; and policies/procedure/ethics.
Mr. Giblin did not specifically review the grades of students in Mr. Sherrod's classes before giving Mr. Sherrod his final evaluation.
On May 29, 2002, Mr. Sherrod was provided with a School Site Assistance Plan (hereinafter referred to as the "SAP"), "to be initiated August 7, 2002." The SAP was scheduled by agreement to begin at the beginning of the next school year (2002-2003), because the 2001-2002 school year was about to end.
Mr. Sherrod was also provided at the same time that he was given the SAP with "workbooks" by Dr. Hall which she indicated were "to be used for fulfilling your plan's suggested activities."
During the 2001-2002 school year, Mr. Sherrod was adequately advised of his areas of concern and, despite being given sufficient time to do so, failed to remedy them. Olympic Heights administrators complied with all procedural requirements for the issuance of the SAP.
Mr. Sherrod's Employment at Suncoast High School.
Prior to the end of the 2001-2002 school year, as the result of meeting with School District Assistant Superintendents, Mr. Sherrod was transferred from Olympic Heights to Suncoast High School (hereinafter referred to as "Suncoast"), on September 23, 2002.
For the school year 2002-2003, Kay Carnes was the principal of Suncoast. Kathleen Orloff served as an assistant principal.
Upon his transfer to Suncoast, Mr. Sherrod was provided with a two-week orientation period before being assigned teaching responsibilities. Following this orientation period, classes, including some honors classes, were assigned to Mr. Sherrod.
On September 30, 2002, a meeting was conducted "to discuss the status of Curtis Sherrod's Assistance Plan." The meeting was attended by, among others, Ms. Carnes and
Ms. Orloff. While the Conference Notes of the meeting indicate that Ms. Orloff was to "create a school-site assistance plan" the evidence failed to prove that a "new" SAP was developed.7
On October 21, 2002, the SAP developed at Olympic Heights was modified primarily to reflect that the SAP would be administered at Suncoast (hereinafter referred to as the "Suncoast SAP"). The dates of the SAP were modified to reflect that it had been agreed to in October 2002 with the names of relevant individuals modified. Finally, the improvement strategies of videotaping and audio-taping a lesson were eliminated.8
The Suncoast SAP was provided to Mr. Sherrod during a School-Site Assistance Plan Meeting. During the meeting, which
was memorialized in Petitioner's Exhibit 1, additional assistance review days (October 31, November 12, and November 22, 2002) were agreed upon.
The second School-Site Assistance Plan Meeting was held on October 31, 2002.9 Mr. Sherrod was informed that Ms. Orloff would observe his class on November 5, 2002, at
1:00 p.m., and that Ms. Carnes would observe him on November 13, 2002. That meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 38. Ms. Orloff, who was primarily responsible for implementing the Suncoast SAP, had been conducting informal observations of Mr. Sherrod's class before scheduling formal observations.
The next School-Site Assistance Plan Meeting was held on November 12, 2002. The meeting was memorialized.
Mr. Sherrod was informed that planning, presentation of subject matter, communication, learning environment, record keeping, and polices/procedures/ethics were still areas of concern. He was also told that working relations with co-workers was no longer an area of concern.
Ms. Orloff conducted observations of Mr. Sherrod on November 5, 2002, and on November 7, 2002. Her observations were summarized in a memorandum to Mr. Sherrod dated
November 12, 2002. She noted concerns in the areas of presentation of subject matter, communication, planning, and
learning environment. Recommended actions to be taken with regard to each area of concern were also suggested.
Although the Suncoast SAP was only required to last for a minimum of 30 days, the plan was continued until February 2003. School-Site Assistance Plan Meetings were held on November 22, 2002, January 7, 2003, and January 16, 2003. Observations of Mr. Sherrod's classes were also conducted by Ms. Orloff and summaries of her findings were provided to him along with suggestions on how to improve. Observations were conducted on November 19, 2002, January 15, 2003, January 27, 2003, and February 6, 2003.
From the moment the Suncoast SAP was initiated, Suncoast personnel, including Ms. Carnes and Ms. Orloff, evaluated Mr. Sherrod and attempted to assist him to improve in the areas of concern they noted. Mr. Sherrod was allowed to observe other teachers, the chair of his department worked with him on planning, a teacher who also taught American History worked with him, he was allowed to attend workshops, he was provided the assistance of a peer assistance and review, or "PAR," teacher, and he was provided with documentation as to what was expected of teachers at Suncoast. He was also allowed to teach Contemporary History in substitution for American History. The curriculum of the teacher who had previously taught the class was provided to Mr. Sherrod for his use. At no
time did Mr. Sherrod complain to anyone involved in the implementation of the Suncoast SAP that the assistance he was being provided was inadequate or that he desired any additional help. Nor did Mr. Sherrod or his union representative suggest at any time that the procedures required to be followed up to that point were not being adhered to.
While a SAP is required to last 30 days, the Suncoast SAP began October 21, 2002, and did not end until February 6, 2003. During this time, he was observed on six different occasions. Additionally, after beginning to teach at Suncoast, Mr. Sherrod was informally observed until the Suncoast SAP began.
While Mr. Sherrod corrected the concern over his interaction with co-workers which had been noted at Olympic Heights, Ms. Carnes found through her observations that he continued to be deficient in the areas of presentation of subject matter, communication, learning environment, planning, record keeping, and policies/procedures/ethics. Therefore, on February 6, 2003, Ms. Carnes gave Mr. Sherrod an overall unsatisfactory Classroom Teacher Assessment System (CTAS) evaluation noting these areas of concern.
Ms. Carnes informed Arthur C. Johnson, Ph.D., the Superintendent of the School District, of the remaining areas of concern and concluded that "a sufficient number of these
deficiencies still exist to warrant an unsatisfactory evaluation." She requested, therefore, by letter dated February 6, 2003, that Mr. Sherrod be placed on Performance Probation for 90 calendar days (hereinafter referred to as the "90-Day Plan"). Mr. Sherrod was provided with a copy of the letter.
The basis for the unsatisfactory evaluation and the continuing deficiencies in the areas of concern noted are accurately summarized in the various School-Site Plan Meeting Summaries and the memoranda summarizing observations conducted during the 2002-2003 school year. Some of the most significant problems involved Mr. Sherrod's excessive and inappropriate use of R-rated videos, his failure to timely post student grades,10 and his failure to provide instruction in a manner which was consistent with time-lines suggested for teachers to complete instruction on all materials that were supposed to be covered.
By letter dated February 10, 2003, Superintendent Johnson notified Mr. Sherrod in writing that he was being placed on a 90-Day Plan and that it would begin February 20, 2003, and conclude on June 4, 2003. Assistance reviews were scheduled to be held on March 31, May 5, and June 4, 2003, the last day of the 90-Day Plan. Dr. Johnson's letter was provided to
Mr. Sherrod on February 19, 2003, at a School-Site Assistance Plan Meeting.
The first observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of February 24-28, 2003, by Diane Curcio-Greaves, Instructional Specialist, Professional Standards. This observation was made by
Ms. Curcio-Greaves on February 27, 2003.
A summary of the observation was provided by
Ms. Curcio-Greaves to Mr. Sherrod on March 7, 2003. Ms. Curcio- Greaves noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, learning environment, and planning.
The second observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of March 10-14, 2003, by Wanda Hagan, Area 5 Coordinator. This observation was made by Ms. Hagan on March 13, 2003.
A summary of the observation, dated March 25, 2003, was provided by Ms. Hagan to Mr. Sherrod on March 28, 2003. Ms. Hagan noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, planning, policies/procedures/ethics, and record
keeping. She commended him in the area of learning environment.
Mr. Sherrod did not attend, due to illness, the first Assistance Review meeting which had been scheduled as part of his 90-Day Plan for March 31, 2003.
The remaining scheduled observations did not take place either. On April 14, 2003, Mr. Sherrod broke his knee cap. As a consequence, he did not return to Suncoast High for the remainder of the 2002-2003 school year. By memorandum dated April 30, 2003, he informed Ms. Carnes that he would not be returning to Suncoast that school year and requested a transfer to a school closer to his home. Mr. Sherrod, for the first time, also raised a number of concerns he had not previously expressed about his perceived lack of assistance and fair treatment at Suncoast. While the evidence proved that Mr. Sherrod may have had a genuine belief that he was not being provided effective assistance, the evidence failed to support his perception.
Mr. Sherrod's Employment at Roosevelt Middle School.
Mr. Sherrod was reassigned to Roosevelt Middle School (hereinafter referred to as "Roosevelt") effective October 3, 2003, after Marcia Andrews spoke with Gloria Crutchfield, principal of Roosevelt, about the availability of a position for him.11
Mr. Sherrod was assigned to teach 7th grade social studies classes, a couple of which were honors classes.
On November 3, 2003, Ms. Curcio-Greaves, from Professional Standards, reviewed the 90-Day Plan with
Ms. Crutchfield. Ms. Crutchfield did not, however, immediately
institute the Plan. Rather, because Mr. Sherrod had begun teaching in mid-term and was new to Roosevelt, Ms. Crutchfield gave him additional time to become familiar with the new school before reinstating the remainder of the 90-Day Plan.
A District Assistance Plan Meeting, which Mr. Sherrod attended, was held on December 2, 2003, to discuss reinstatement of the 90-Day Plan. It was necessary to revise the Plan to reflect Mr. Sherrod's unavailability to complete the Plan at Suncoast. It was agreed by all in attendance at the meeting, including Mr. Sherrod, that Mr. Sherrod had 44 more days to complete the 90-Day Plan, and that the Plan would be restarted December 3, 2003.
The "evaluation from February 6, 2003, the assistance plan, the original calendar of 90 days, the revised calendar, and the 90-day timeline" were distributed during the December 2, 2003, meeting.
The 90-Day Plan, as revised (hereinafter referred to as the "Revised Plan), provided that the "1st Assistance Review" would be held on December 2 and 5, 2003,12 the "2nd Assistance Review" would be held on January 6, 2004, and the "3rd Assistance Review" and "Final Evaluation Conference" would be held on the 90th day, February 6, 2004.
Having had two formal observations under the 90-Day Plan, additional formal evaluations were scheduled for the week of December 8-12, 2003, and January 12-16, 2004.
The first evaluation under the Revised Plan was conducted on December 12, 2003, by Frank Rodriguez, Assistant Principal, Forest Hill Community High School. His observation notes and suggested strategies were provided to Ms. Crutchfield and Mr. Sherrod by Memorandum dated December 15, 2003.
Mr. Rodriguez noted deficiencies in the areas of presentation of subject matter, classroom management, planning, and assessment. Mr. Sherrod submitted a written rebuttal to Mr. Rodriguez's Memorandum.
The next scheduled formal evaluation was conducted on January 21, 2004, by Dr. Mary Gray. Ms. Gray's written observations were provided to Mr. Sherrod on or about
January 29, 2004. Dr. Gray noted deficiencies in the areas of presentation of subject matter, learning environment, and planning. Mr. Sherrod provided a verbal rebuttal to Dr. Gray.
The "2nd Assistance Review" meeting, which had been scheduled to be held on January 6, 2004, was held on January 29, 2004. The meeting was held late because Mr. Sherrod had been absent between January 6 and 12, 2004 (four school days), due to the passing of his mother. It was not held until January 29th
out of respect for his loss. The meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 56.
During the January 29, 2004, meeting, Ms. Crutchfield suggested to Mr. Sherrod and his representative that he agree to an extension of the Revised Plan to February 10, 2004,13 due to Mr. Sherrod's absence. Mr. Sherrod agreed. The evidence failed to prove whether Ms. Crutchfield had the authority to grant this extension.
The next and final evaluation conference was scheduled for February 10, 2004.
The same day the "2nd Assistance Review" meeting was held, January 29, 2004, Ms. Crutchfield informed Mr. Sherrod verbally and in writing that she would conduct a formal and final evaluation during the week of February 2-6, 2004. This observation had been scheduled originally for the week beginning January 27, 2004, but was moved back due to Mr. Sherrod's absence during January and Ms. Crutchfield's absence. When informed verbally of the observation, Mr. Sherrod indicated that it was likely that he would be going out on leave in the near future and asked if Ms. Crutchfield could specify the exact date of his evaluation. Ms. Crutchfield indicated she could not. Petitioner's Exhibit 56.
By letter dated February 20, 2004, Ms. Curcio-Greaves informed Mr. Sherrod by letter that the final evaluation
conference scheduled for February 10, 2004, was being rescheduled to February 16, 2004.
Although Ms. Crutchfield had indicated that she would wait until February 10, 2004, to complete the Revised Plan,
Mr. Sherrod, as he had advised, left Roosevelt on leave before that date and before Ms. Crutchfield was able to conduct a formal evaluation of him. Based upon her informal evaluations of Mr. Sherrod conducted during the 2003-2004 school year and the formal observations conducted by others during the 90-Day Plan and the Revised Plan, she issued a final evaluation of Mr. Sherrod on February 9, 2004. This reduced the amount of time that Mr. Sherrod had been given to improve his noted deficiencies from approximately 94 days to 93 days: 44 under the 90-Day Plan at Suncoast; 46 under the Revised Plan at Roosevelt; and an additional three days from February 6 to February 9, 2004, at Roosevelt.
Ms. Crutchfield found in her final evaluation of Mr. Sherrod that he still had the following areas of concern: presentation of subject matter; communication; learning environment; planning; record keeping; and policies/procedures/ethics. Four of the areas of concern were in "Teaching and Learning" and two were in "Professional Responsibilities." Three concerns in Teaching and Learning
alone is sufficient for an overall evaluation of unsatisfactory. Mr. Sherrod's overall evaluation was unsatisfactory.
Ms. Crutchfield provided her evaluation of Mr. Sherrod to Dr. Johnson and recommended that his employment be terminated.
By letter dated February 25, 2004, Dr. Johnson informed Mr. Sherrod that he would be recommending to the School Board that Mr. Sherrod's employment be terminated. A copy of Ms. Crutchfield's letter of recommendation and Mr. Sherrod's final evaluation were provided to Mr. Sherrod with Dr. Johnson's letter. Mr. Sherrod was also informed of his right to request an administrative hearing, which he exercised.
Mr. Sherrod's Performance was Unsatisfactory.
Beginning with the 2001-2002 school year and ending with his final evaluation on February 9, 2004, Mr. Sherrod was formally evaluated by nine different School District employees, all of whom were professionally trained to conduct evaluations of teaching personnel on behalf of the School Board. All of those evaluators, while finding Mr. Sherrod deficient in a number of areas, attempted to offer assistance to him which, if followed, could have corrected his deficiencies.
During the three school years for which Mr. Sherrod was found to be deficient, all required assistance was provided to Mr. Sherrod to assist him in correcting his deficiencies.
Indeed, more assistance than was required was provided to Mr. Sherrod.
Mr. Giblin concluded that Mr. Sherrod, for his final evaluation, had evidenced four areas of concern under Teaching and Learning: presentation of subject matter; communication; learning environment; and planning. Except for planning,
Dr. Hall found the same areas of concern. Mr. Giblin also concluded that Mr. Sherrod evidenced the following areas of concern under Professional Responsibilities: record keeping; working relationships with coworkers; and policies/procedures/ethics.
At the conclusion of the SAP, Ms. Carnes concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin: presentation of subject matter; communication; learning environment; and planning. Ms. Orloof had found the
same areas of concern during two prior evaluations. Ms. Carnes also concluded that Mr. Sherrod evidenced two of the same areas of concern under Professional Responsibilities found by
Mr. Giblin: record keeping; and policies/procedures/ethics.
At the conclusion of the 90-Day Plan, Ms. Crutchfield concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin and Ms. Carnes: presentation of subject
matter; communication; learning environment; and planning. Ms. Crutchfield also concluded that Mr. Sherrod had evidenced the same areas of concern under Professional Responsibilities found by Mr. Giblin and Ms. Carnes: record keeping and policies/procedures/ethics.
Ms. Crutchfield, while performing informal evaluations of Mr. Sherrod, did not perform a formal final evaluation of Mr. Sherrod. Instead, she relied heavily upon her informal evaluations and the evaluations of Ms. Curcio-Greaves,
Ms. Hagan, Mr. Rodriguez, and Ms. Gray. Those evaluators, while all finding that presentation of subject matter and planning were areas of concern, were not consistent in their findings concerning the areas of communication and knowledge of subject matter.
Ms. Hagan commended Mr. Sherrod in the area of knowledge of subject matter and Mr. Rodriguez failed to note the area of knowledge of subject matter as an item of concern.
Ms. Gray and Mr. Rodriguez, the last two individuals to formally evaluate Mr. Sherrod before Ms. Crutchfield's evaluation failed to conclude that communication was an area of concern. It is, therefore, found that Ms. Crutchfield's conclusion that
Mr. Sherrod had not corrected his deficiencies with regard to the areas of communication and knowledge of subject matter was arbitrary and not supported by the weight of the evidence.
Despite the foregoing finding, Ms. Crutchfield's overall evaluation that Mr. Sherrod's performance was unsatisfactory was reasonable and supported by the weight of the evidence. Mr. Sherrod continued since the 2001-2002 school year and, more importantly, throughout the 90-Day Plan to evidence concerns in the areas of presentation of subject matter, planning, record keeping and policies/procedures/ethics. Thus, he evidenced two areas of concern in Teaching and Learning and two areas of concern in Professional Responsibilities, which were not corrected during the 90-Day Plan, despite efforts to assist him to improve.
Ms. Crutchfield's final evaluation, with the exceptions noted, accurately reflected Mr. Sherrod's areas of concern and his unsatisfactory performance at the end of the Revised Plan despite the reasonable assistance provided to him. Those areas of concern were consistently found by nine evaluators over three school years and at three different schools. No credible evidence was presented to counter the conclusions reached by the individuals who evaluated Mr. Sherrod or to prove that their conclusions were based upon anything other than their professional judgments concerning Mr. Sherrod's performance.
Failure to Prove Bias on the Part of the School Board.
While at Olympic Heights, Mr. Sherrod wrote to Dr.
Johnson once, the chairman of the School Board twice, and filed a "petition" with the School Board. The subject of the correspondence was Mr. Sherrod's perception of his treatment by officials at Olympic Heights. He believed that he was being harassed and discriminated against.
It has been suggested that Mr. Sherrod's correspondence accurately reflects why his performance was found unsatisfactory at Olympic Heights and evidences a bias toward him on the part of all those who evaluated him. This suggestion is not supported by the evidence.
At best, Mr. Sherrod's correspondence evidences the poor working relationship between Mr. Sherrod and some of his coworkers. This poor working relationship was noted as an area of concern on his final evaluation by Mr. Giblin.
It is not necessary to decide who was the cause of the poor relationship between Mr. Sherrod and others at Olympic Heights. First, the area of concern, to the extent it was
Mr. Sherrod's fault, was corrected by Mr. Sherrod and formed no basis in the ultimate finding that Mr. Sherrod's performance, uncorrected by the 90-Day Plan and the Revised Plan, was unsatisfactory. Additionally, the evidence failed to prove that anything which occurred while Mr. Sherrod was teaching at
Olympic Heights had any influence on the conclusions concerning his performance at the two schools to which he transferred for the two school years after he sent the correspondence to
Dr. Johnson and the School Board. Indeed, the fact that he did not send any further correspondence after the 2001-2002 school year further supports this conclusion.
Dr. Dunn's Conclusions.
Dr. Dunn opined at the final hearing that Mr. Sherrod did not over-infuse African-American history into his course materials. Dr. Dunn's opinions, however, are entitled to little weight.
Most importantly, Dr. Dunn, unlike the nine individuals who evaluated Mr. Sherrod, did not actually observe Mr. Sherrod teaching during the times relevant to this case. In fact, Dr. Dunn has never observed Mr. Sherrod.
Additionally, the content of Mr. Sherrod's classes, while the catalysts of the greater scrutiny afforded
Mr. Sherrod's classes, was not the basis for the conclusion of those who evaluated Mr. Sherrod that his performance was unsatisfactory.
The School District's Appraisal System.
The School District's Instructional Performance Appraisal System was approved the then-Commissioner of Education in 1999.
The Appraisal System has not been further reviewed since 1999.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The Burden and Standard of Proof.
The School Board is seeking the termination of
Mr. Sherrod's employment. The burden of proof is, therefore, on the School Board to prove the allegations contained in its notice to Mr. Sherrod. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern
and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510
So. 2d 292 (Fla. 1987); and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).
Ordinarily, a school board's proof in a case such as this need only meet the preponderance of the evidence standard. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996; Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of
Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); and
§120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon
a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, ").
Where, however, a school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement.
In this case, the relevant collective bargaining agreement does not provide for a more demanding standard of proof. The School Board was, therefore, required to prove its case by the preponderance of the evidence.
The School Board's Authority to Terminate Mr. Sherrod's Employment.
The School Board is authorized to terminate the employment of individuals employed pursuant to a professional services contract only upon a showing of "just cause." See
§1012.33(1)(a). Mr. Sherrod holds a professional services contract.
"Just cause" is defined, in pertinent part, to include: "misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." The School Board in this case has argued that Mr. Sherrod's "incompetency" constitutes just cause to terminate his employment.
The Procedures Which Must be Followed to Find "Incompetency."
Section 1012.34, Florida Statutes, provides certain procedures and criteria which a school board must use before terminating instructional personnel for incompetency.
Generally, Section 1012.34(3), Florida Statutes, requires that all instructional personnel be evaluated at least once a year as follows:
An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. The assessment must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee's performance. Student performance must be measured by state assessments required under
s. 1008.22 and by local assessments for subjects and grade levels not measured by the state assessment program.
The evidence in this matter proved that Mr. Sherrod was assessed at least once a year, consistent with this provision.
Section 1012.34, Florida Statutes, also provides the following procedural safeguards:
All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.
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 district school 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.
The evidence in this matter proved that Mr. Sherrod was provided the foregoing safeguards.
Assessment Criteria.
The criteria for the assessment of instructional personnel is also specified in Section 1012.34, Florida Statutes:
(3) The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate. Pursuant to this section, a school district's performance assessment is not limited to basing unsatisfactory performance of instructional personnel and school administrators upon student performance, but may include other criteria approved to assess instructional personnel and school administrators' performance, or any combination of student performance and other approved criteria. . . .
. . . . The assessment criteria must include, but are not limited to, indicators that relate to the following:
Performance of students.
Ability to maintain appropriate discipline.
Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.
Ability to plan and deliver instruction, including implementation of the rigorous reading requirement pursuant to s. 1003.415, when applicable, and the use of technology in the classroom.
Ability to evaluate instructional needs.
Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement.
Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.
The evidence in this case proved that the School Board adequately considered the foregoing assessment criteria.
Mr. Sherrod's argument that the School Board failed to adequately consider "student performance" is rejected. While it is true that one of the criteria specified for consideration in assessing instructional personnel is student performance, it is only one criterion. More importantly, given the areas of concern upon which it was concluded that Mr. Sherrod had not performed satisfactorily, Mr. Sherrod's emphasis on student performance is misplaced.
Mr. Sherrod was found to have been deficient as to items which are not necessarily impacted by student performance.
Mr. Sherrod's shortcomings as to the areas of record keeping and policies/procedures/ethics did not have any direct influence on the performance of his students. Mr. Sherrod, whether his students excelled or failed, did not keep satisfactory records required by the schools he taught at and he failed to follow approved policies and procedures.
As for planning, again Mr. Sherrod's planning either complied with School District requirements, or it did not, and the performance of his students made little if any difference in this determination. The evidence proved that Mr. Sherrod's lesson plans and his lack of effort to teach his course material in a timely manner were, standing on their own, inadequate. His deficiency in this area was determinable from a review, not of student performance, but his lesson plans (or in some instances, the lack thereof) and the nature of the material he was covering in his class as it related to planning timelines established for a particular class.
As to his presentation of subject matter,
Mr. Sherrod's performance in this area could only be judged upon listening to and observing him teach. Regardless of how his students performed, all nine evaluators concluded, based upon their observations of his presentation of course materials, that his performance was deficient.
Because student performance had so little to do with the conclusion in this case that the School Board has shown "just cause" to terminate Mr. Sherrod's employment, the fact that the School District has not had its Instructional Performance Appraisal System reviewed by the Commissioner of Education since Section 1012.34(3), Florida Statutes, was amended to add an emphasis on student performance in evaluating instructional personnel is of little consequence. The evidence proved that, even if the School District's Instructional Performance Appraisal System had been modified to reflect the changes in the law since 1999, Mr. Sherrod's performance would have been found to be unsatisfactory.
Based upon the foregoing, it is concluded that the School Board adequately considered the criteria for assessment specified in Section 1012.34(3), Florida Statutes. Mr. Sherrod, while arguing that student performance was not considered, failed to offer any convincing evidence to suggest that student performance, if considered to a greater extent, would have had any impact on the conclusions reached by the nine individuals who evaluated him as being deficient in the areas substantiated in this proceeding.
Procedures for an Unsatisfactory Evaluations.
Where an employee is not performing satisfactorily, Section 1012.34, Florida Statutes, requires that the following procedures to be followed:
. . . 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.a. If the employee holds a professional service contract as provided in s. 1012.33, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following 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 who holds a professional service contract 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 who holds a professional service contract 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.
b. 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 district school superintendent. Within 14 days after receiving the evaluator's recommendation, the district school superintendent must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the district school superintendent will recommend that the district school board continue or terminate his or her employment contract. If the employee wishes to contest the district school superintendent's recommendation, the employee must, within 15 days after receipt of the district school superintendent's recommendation, submit a written request for a hearing.
Having been found to have performed unsatisfactorily at the end of the 2001-2002 school year, the School Board placed Mr. Sherrod, after the conclusion of the Suncoast SAP, on the 90-day evaluation program specified above and followed all of the procedures specified.
Mr. Sherrod has argued that his assessment was insufficient for several reasons, none of which are convincing. First, Mr. Sherrod has argued that his evaluation did not last the required 90 days. While Ms. Crutchfield entered her final evaluation one day earlier than she had indicated she would, Mr. Sherrod still received more than the required 90 days. In fact, the evaluation lasted a minimum of 93 days.
Secondly, Mr. Sherrod has argued that the real reason for his unsatisfactory evaluations and the formal observations leading up to those evaluations was bias on the part of the School Board against Mr. Sherrod. The evidence, however, only proved that Mr. Sherrod believed that everyone who attempted to assist him to improve his performance was biased against him. This belief very likely defeated any effort on the part of the School Board to assist him to correct his well-documented deficiencies.
To conclude otherwise would require a finding that the nine individuals who evaluated him at three different schools over three school years were part of a School Board plot to get rid of Mr. Sherrod. The weight of the evidence in this case failed to prove such a plot.
Finally, Mr. Sherrod has argued that the principals that evaluated him, by denying him the right to videotape his observations, "denied the one request by Mr. Sherrod that would have provided the closest form of objective proof as to how he was performing." It is not clear whether Mr. Sherrod is suggesting that, by not accommodating his request to videotape his classes, the School Board failed to follow the procedural requirements of Section 1012.34, Florida Statutes, or constituted evidence of the School Board's bias. Either way, the argument is not convincing.
Nothing in Section 1012.34, Florida Statutes, contemplates or requires that Mr. Sherrod be evaluated in any manner other than that employed by the School Board. Nor would a videotaped record of Mr. Sherrod's performance be consistent with the intent of Section 1012.34, Florida Statutes. The 90- day evaluation period is intended to allow a teacher to receive concentrated assistance from a school district to improve the teacher's performance, not to create a record to be reviewed and argued over by "experts" at a formal administrative hearing.
Nor did the failure of the School Board to accommodate Mr. Sherrod's desire to videotape his classes prove that the School Board was biased. Again, Mr. Sherrod's alleged "plot" theory is not supported by the weight of the evidence in this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered ratifying Mr. Sherrod's suspension and discharging him from further employment in the Palm Beach County Public Schools.
DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida.
S
LARRY J. SARTIN
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 8th day of July, 2005.
ENDNOTES
1/ Whether the content of the letters received from parents was correct need not be addressed. Whether true or not, the content of the letters was sufficient to justify Mr. Giblin's decision to investigate the matter further.
2/ Although this was the first such observation Mr. Giblin had made of Mr. Sherrod's class, it was the first time that
Mr. Giblin had received the number of parental complaints about Mr. Sherrod's class. Mr. Giblin's decision to observe
Mr. Sherrod's class was a reasonable and not one made for any improper motive.
3/ Mr. Sherrod has argued in his Proposed Recommended Order, footnote 13, that Mr. Giblin gave conflicting testimony as to why he had Dr. Hall observe this particular class. That argument is rejected.
4/ Mr. Sherrod has argued that these events involve a "disciplinary" matter as opposed to a "competency" matter and, therefore, are not relevant to this proceeding. While it is
true that these events are not relevant in determining whether Mr. Sherrod evidenced deficiencies in his teaching ability which he was unable to correct, they are relevant as proof that, rather than as contended by Mr. Sherrod, that administrators of Olympic Heights were out to get him, Mr. Giblin had a reasonable basis for conducting the observations of Mr. Sherrod's class which ultimately led to his first unsatisfactory evaluation.
5/ By memorandum dated December 18, 2001, Mr. Sherrod responded to Dr. Hall's December 11, 2001, summary of her observations.
Mr. Sherrod informed Dr. Hall that he believed she had entered his class "with a perceived intention to give me a substandard evaluation . . . ", a fact not proved in this proceeding.
6/ Prior to the April 30, 2002, observation, Mr. Sherrod informed Mr. Gatlin that he intended to videotape the observation. He did not, as suggested in his Proposed Recommended Order, request that future meetings be videoed. See Respondent's Exhibit 17.
7/ See Respondent's Exhibit 1. Mr. Sherrod has suggested in his Proposed Recommended Order that there are "troubling" aspects of the meeting noted in the Conference Notes thereof.
Mr. Sherrod's conclusions about those notes are speculative at best.
8/ Although much was made at hearing by Mr. Sherrod of the elimination of videotaping as an improvement strategy, the evidence failed to prove that videotaping was eliminated for any reason other than concern over student privacy rights. The evidence also failed to prove that Mr. Sherrod could not have made a videotape of just him presenting a lesson without students present which he could have used to improve his performance.
9/ Ms. Sherrod has suggested in his Proposed Recommended Order that he represented that he was "very stressed" during this meeting and should have, therefore, been referred to the Employee Assistance Program. The evidence, however, failed to support this suggestion.
10/ Although Mr. Sherrod suggested that confusion was caused because of differences in the manner grades were recorded at Olympic Heights as compared to Suncoast, his explanation failed to justify his continued difficulty in posting grades consist with Suncoast policies.
11/ Although the evidence concerning the events that took place before Mr. Sherrod was assigned to Roosevelt Middle School were less than clear, any discrepancies in Gloria Crutchfield's testimony are not relevant to the ultimate resolution in this case.
12/ The "1st Assistance Review" was originally scheduled for March 31, 2003, but was not held because Mr. Sherrod was "out sick." The meeting was rescheduled for December 2, 2003, and continued to December 5, 2003, to allow Mr. Sherrod to have counsel attend the meeting with him.
13/ The minutes of the January 29, 2004, meeting, Petitioner's Exhibit 56, erroneously indicate the end of the Revised Plan is being moved to February 10, 2004, from "February 3, 2004." The actual original ending date for the Revised Plan was February 6, 2004.
COPIES FURNISHED:
Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A.
510 Vonderburg Drive, Suite 200 Brandon, Florida 33511
Jean Marie Middleton, Esquire Palm Beach County School Board
3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33416-9239
Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board
3340 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400
Daniel J. Woodring, General Counsel Department of Education
1244 Turlington Building
325 West Gaines Street 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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 09, 2007 | Mandate | |
| Nov. 08, 2006 | Opinion | |
| Jul. 08, 2005 | Recommended Order | Petitioner proved just cause ("incompetency") to terminate Respondent`s employment. |
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PALM BEACH COUNTY SCHOOL BOARD vs THERESA CALLAHAN, 04-001911TTS (2004)
