vs.
Respondent.
) Case No. 05-2332
September 12, 2005, in Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
City Hall, St. James Building
For Respondent: David A. Hertz, Esquire
The issue is whether Petitioner properly determined that Respondent should be discharged from employment as a tenured teacher based on his professional incompetence.
By letter dated April 14, 2005, Petitioner Duval County School Board (Petitioner) advised Respondent Robert Dey (Respondent) that he would be discharged as a teacher effective May 24, 2005. The letter stated that Respondent's termination was based on professional incompetence as set forth in the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941)(as amended) (the Act). On April 25, 2005, Respondent requested an administrative hearing to challenge Petitioner's decision. On June 29, 2005, Petitioner referred the case to the Division of Administrative Hearings.
A Notice of Hearing dated July 18, 2005, scheduled the hearing for September 12, 2005. During the hearing, Petitioner presented the testimony of three witnesses and offered two exhibits, which were accepted as evidence. Respondent did not present any testimony or offer any exhibits. Respondent indicated that he intended to order a copy of the hearing transcript.
On October 7, 2005, Petitioner filed a Proposed Recommended Order. On October 11, 2005, Respondent filed a Proposed Recommended Order. The hearing transcript was not filed until October 14, 2005.
At all times pertinent to this case, Petitioner employed Respondent as a certified tenured teacher. Respondent has 28 years of experience teaching mathematics.
Michael Kemp became principal at Englewood High School (EHS) during the 2002/2003 school year. Respondent was a mathematics teacher at EHS for the 2002/2003 and 2003/2004 school terms.
EHS has approximately 2,050 students. It is unique in that it serves as Petitioner's secondary center for a program known as "English for Speakers of Other Languages (ESOL)." Approximately 80 percent of the students at EHS score below a Level 3 (below standard) on the Florida Comprehensive Assessment Test (FCAT).
In the 2002/2003 school year, EHS implemented a standards-based curriculum for the first time. EHS teachers, including Respondent, received training relative to new student performance standards. The teachers also received training in the use of a new mini-lesson plan format for 90-minute blocks of instruction in content areas.
During the 2002/2003 academic year, Petitioner implemented a new college preparatory mathematics (CPM) curriculum and a new reading strategy for all content areas.
Respondent, along with other EHS teachers, received training in the new math curriculum and reading strategies.
Respondent did not transition well to the new way of teaching. He did not adjust his teaching style to accommodate a "block" schedule, which required 90-minutes of instruction for each class period.
Mr. Kemp evaluated Respondent for the 2002/2003 school year. Mr. Kemp determined that Respondent's ability to plan and deliver instruction, Competency A on the annual evaluation form and the "Classroom Observation Instrument" (COI), was unsatisfactory. However, Mr. Kemp concluded that Respondent's overall performance for the 2002/2003 school year was satisfactory.
For the 2003/2004 school year, EHS initiated a sheltered academic content teaching model. As a result of the new model, many ESOL students exited the core academic program and attended special ESOL classes with designated teachers in academic areas such as language arts, mathematics, and social studies.
For the 2003/2004 school year, Respondent was not a sheltered content teacher. Therefore, Respondent's classes contained some ESOL students but not as great a percentage as in 2002/2003.
A high student-failure rate was common at EHS for the 2003/2004 school year. That year, approximately two-thirds of Respondent's students previously had failed their required math classes and were repeating the courses.
Parental complaints against teachers are normal. The complaints are not always valid. However, when the 2003/2004 school year commenced, Mr. Kemp became concerned about the number of parents who wanted their children removed from Respondent's classes. Some of the parents made the requests as soon as their children were assigned to Respondent's classes. Other parents requested reassignment of their children to other math classes as the year progressed.
On November 7, 2003, a student in one of Respondent's classes became very disruptive. Respondent attempted to get the student to settle down. When his efforts were unsuccessful, Respondent directed a verbal obscenity to the student in front of other students while class was in session. Specifically, Respondent told the student to "get the f--- out" of the classroom.
On November 14, 2003, Mr. Kemp had a conversation with Respondent about his unsatisfactory classroom performance. In a memorandum dated November 17, 2003, Mr. Kemp advised Respondent that a success plan would be developed and a support team identified to assist him.
On December 3, 2003, Mr. Kemp observed Respondent teaching a math class. Mr. Kemp determined that Respondent did not demonstrate satisfactory teaching behaviors.
Regarding Respondent's classroom management,
Mr. Kemp's observations included the following: (a) Respondent did not control the classroom; (b) Students were not on task during the warm-up activity; (c) Students engaged in conversations, which were not related to the task at hand; (d) There were no apparent expectations for classroom behavior; (e) Respondent tolerated disrespectful talk from students; and (f) Respondent did not control classroom dialogue and discussions.
Regarding Respondent's instructional delivery,
Mr. Kemp's observations included, but are not limited to, the following: (a) Respondent did not connect the purpose of the lesson with its content; (b) Respondent lectured from the front of the class and did not vary his instructional delivery; (c) Many students were not on task; (d) Respondent continued the lesson despite statements of frustration and lack of understanding from students; (e) Respondent demonstrated content knowledge and mastery of material, but he did not successfully transfer content to students or communicate with them; (f) The lesson was not motivating; (g) Students were not engaged and ignored the lecture; (h) Except for two students who answered questions, the class was either lost or not engaged; (i) Some
students requested other students to explain or teach them an assigned task; (j) Respondent circulated among the students but he had no organization as to what was being checked; and (k) Respondent was unaware that students were working on other assignments unrelated to the class work.
In a memorandum dated December 4, 2003, Mr. Kemp notified Respondent that a conference had been scheduled for December 10, 2003. The purpose of the meeting was to initiate Respondent's success plan.
On December 8, 2003, Mr. Kemp observed Respondent teach another math class. Mr. Kemp concluded that Respondent did not demonstrate satisfactory teaching behaviors. Mr. Kemp's observations included the following: (a) Respondent needed assistance with appropriate lesson planning for a block schedule; (b) Respondent relied too much on a lecture format with no connection between the content of the lesson and its purpose; (c) Respondent had adequate content knowledge but he was ineffective in transferring that knowledge to the students;
(d) Respondent had difficulty keeping the students engaged and on task; and (e) Respondent had little control over classroom dialogue.
On December 10, 2003, Respondent met with his success team. After the meeting, Respondent was given an opportunity to provide additional strategies and suggestions for improvement to
the success plan. Respondent did not take advantage of this opportunity.
Respondent's 2003/2004 success plan contained specific goals, objectives and tasks in the following areas: (a) Plans and delivers effective instruction; (b) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) Evaluates the instructional needs of students; (d) Communicates with parents; and (e) Promotes student growth and performance.
The success plan identified certain members of the success team to work with Respondent on each area of professional development. The plan provided for weekly meetings with the success team members between January 5, 2004, and March 30, 2004.
The success plan required Respondent to attend professional development cluster meetings for off-site continuing education in the following subject areas: (a) Standards Based Education; (b) Rituals and Routines; and (c) Effective Communication.
The success plan provided opportunity for on-site continuing education and professional development. For example, the plan required Respondent to read and summarize certain professional literature such as the following: (a) Two math chapters in Best Practices; and (b) Modules related discipline
and communication in CHAMPS Foundation. Additionally, Respondent's plan required him to view a video tape related to effective interpersonal communications with students and explain in writing how he planned to implement communication strategies in his classes. Most important, the plan required Respondent to observe his math colleagues twice a month.
The success plan required Respondent to develop weekly lesson plans. These lesson plans had to include mini-lesson plans for each class at least once in each daily lesson. The mini-lesson plans included FCAT warm-ups, opening, practice, and closure.
The success plan required other on-going activities including, but not limited to, the following: (a) Preparing a written script and implementing appropriate questioning strategies using Bloom's Taxonomy; (b) Preparing a written script of appropriate questions for use when monitoring and probing for solutions with cooperative groups; (c) Preparing a written summary on learning modalities; (d) Preparing a written list of strategies to meet all classroom exceptionalities and learning styles; (e) providing students with written individual corrective feedback; (f) Posting dates for remediation, retesting, or revision of work; (g) Establishing and applying published classroom routines; (h) Posting classroom rules; (i) Creating and maintaining an Absentee Assignment Notebook; (j)
Publishing and enforcing a procedure for recording and reporting tardies; (k) Maintaining a notebook of handouts for student access; (l) Publishing and implementing a routine for lesson closure and class dismissal; (m) Maintaining student data records in the "Success by Design" notebook; (n) Communicating with parents about unsatisfactory student performance and course recovery opportunities, using two methods and keeping a log and copies of any written communication; and (o) Creating a daily journal of professional reflections relative to improving student rapport.
The success team members observed Respondent's classes and reviewed his written assignments to determine whether he was meeting the requirements of his success plan. The team members provided Respondent with verbal and written feedback about his progress or lack thereof.
The success team met as a group on February 10, 2004.
On March 10, 2004, Mr. Kemp made a final observation of Respondent's teaching performance. Mr. Kemp concluded that Respondent was attempting to establish a rapport with his students. However, Respondent's performance was inadequate in the following ways: (a) He needed to implement strategies to engage the students; (b) He needed assistance with lesson plans; and (c) He needed additional strategies for classroom management.
Mr. Kemp met with Respondent on March 12, 2004. At the meeting, Mr. Kemp advised Respondent that he had not successfully completed the success plan. The annual evaluation that Mr. Kemp and Respondent signed at the meeting indicates that Respondent's performance was unsatisfactory in the following areas: (a) Competency A--plans and delivers effective instruction; (b) Competency C--Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (c) Competency G--promotes student growth and performance. According to the evaluation, Respondent's overall performance for the 2003/2004 school year was unsatisfactory.
As requested by Respondent, Petitioner assigned Respondent to a teaching position at La Villa School of Arts (La Villa) for the 2004/2005 school term. Connie Skinner was La Villa's principal and Jeffery Hutchman was head of the math department at La Villa.
Mr. Hutchman made several attempts to contact Respondent during the summer before the 2004/2005 school year commenced. Mr. Hutchman intended to invite Respondent to a middle-school mathematics workshop. Respondent never received Mr. Hutchman's messages and therefore did not attend the workshop.
At La Villa, Respondent did not have an assigned classroom. Instead, Respondent was a "traveling" teacher who changed classrooms each period.
On September 3, 2004, Ms. Skinner observed Respondent teach a math class for the first time. Ms. Skinner had some positive and negative comments about her observations. Among other things, Ms. Skinner concluded that Respondent circulated appropriately among the students, quickly stopped disrespect by one student, and had good questions from the class at the end of the lesson. She made the following suggestions: (a) Respondent needed to speed up the mini-lesson; (b) Respondent needed to set a time limit for student work to reduce the number of students who were not engaged or slow to start; and (c) Respondent needed to get students to the board.
EHS sent La Villa a copy of Respondent's 2003/2004 success plan. On September 3, 2004, the success team at La Villa decided to use a modified version of the 2003/2004 success plan until Ms. Skinner and the La Villa success team had an opportunity to observe Respondent and develop a new success plan for the 2004/2005 school year.
On October 11, 2004, Ms. Skinner made an unplanned observation in Respondent's class. The purpose of the visit was not to evaluate Respondent, but to gain additional information for the development of the new success plan. During the visit,
Ms. Skinner noted, among other things, that Respondent's voice registered disgust with students for not using notes.
On October 20, 2004, Ms. Skinner observed Respondent teach a math class, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner noted the following: (a) There was a great deal of confusion in a group assignment; (b) Respondent did not gain student attention at the start of the lesson; and (c) Respondent made statements showing his disdain for students and his lack of class discipline. Ms. Skinner concluded that Respondent's performance was unsatisfactory.
On October 21, 2004, the success team at La Villa presented Respondent with a new success plan. The plan included specific goals and objectives to effect improvement in Respondent's ability to plan and deliver instruction, to demonstrate effective classroom management skills, to show sensitivity to student needs, to demonstrate abilities to evaluate students' instructional needs, to communicate with parents, and to promote student growth and performance.
The 2004/2005 success plan required Respondent to attend training classes in "Connected Math." It also required him to attend workshops in instructional strategies and classroom management as well as other on-site and off-site continuing education programs.
The 2004/2005 success plan specified that success team members would assist Respondent by explaining and demonstrating classroom strategies. Additionally, the success team members were required to observe Respondent in the classroom and provide him with feedback.
Ms. Skinner observed Respondent on November 17, 2004.
Among other comments, Ms. Skinner noted that Respondent's students were either not engaged or asked questions unrelated to the subject of the lesson. Ms. Skinner also concluded as follows: (a) Respondent's lesson did not include a mini lesson;
(b) The content of the students' notebooks were poorly arranged and inconsistent; and (c) The students' homework folders were mostly empty and contained no teacher commentary.
Ms. Skinner observed Respondent on November 24, 2004, using the COI to evaluate Respondent's teaching behaviors.
Ms. Skinner determined that Respondent told the class to "shhhh" over 30 times. For this and other reasons, Ms. Skinner concluded that Respondent had not demonstrated satisfactory performance.
On January 20, 2005, Ms. Skinner used the COI and the Professional Behaviors Instrument (PBI) to evaluate Respondent's classroom performance. These evaluations indicated that Respondent had improved in some areas such as clarity of instruction and interaction with students, resulting in a more
engaged class. However, his overall performance was unsatisfactory.
On March 10, 2005, Ms. Skinner used the COI to evaluate Respondent's teaching behaviors. Ms. Skinner observed the following: (a) Respondent presented material that was hard to read; (b) Respondent handled questions poorly; (c) The pace of the lesson seemed very slow; (d) Respondent failed to praise a student for a correct answer; and (e) Respondent's tone of voice carries disdain for students. Ms. Skinner concluded that Respondent's teaching behaviors were not satisfactory.
On March 11, 2005, Ms. Skinner completed Respondent's annual evaluation. She concluded that his performance was unsatisfactory in the following areas: (a) Competency A, Plans and delivers effective instruction; (b) Competency D, Shows sensitivity to student needs by maintaining a positive school environment; (c) Competency E, Evaluates instructional needs of students; and (d) Promotes student growth and performance. Respondent's overall evaluation indicated that his professional growth was unsatisfactory.
As to Compentency A, persuasive evidence indicates that Respondent's delivery was not clear and explicit. His students did not understand the lesson objectives. His written communications included misspelling and typos.
As to Competency D, the record shows that Respondent failed to provide his students with positive reinforcement. Instead, his tone of voice carried disdain when interacting with his students.
As to Competency E, Respondent had an unusually high failure rate. This shows that Respondent's instruction did not meet the needs of his students.
As to Competency G, Respondent did not provide for individual student needs during his classes.
On March 15, 2005, Ms. Skinner and Respondent discussed his 2004/2005 success plan. Ms. Skinner advised Respondent that he had not successfully completed the plan.
After each observation/evaluation, Ms. Skinner discussed her findings with Respondent. She advised Respondent of strategies for improving his teaching behaviors. While there was some improvement in the middle of the 2004/2005 school term, by the end of the year there was a reversion in Respondent's professional growth. Ms. Skinner stated that "all of the strategies for standards-based education that we had worked on and helped him to understand, we thought went by the wayside."
Regarding Competency A and Competency G, Respondent was unable to improve, despite the assistance of his success teams and the specific in-service training they provided. Respondent's was unable to maintain a satisfactory level of
performance for Competency D and Competency E. He made improvement in only one area, Competency C. Overall, Respondent's professional growth was unsatisfactory for consecutive annual evaluations separated by a year of in-service training to correct his deficiencies.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. See §§ 120.569 and 120.57(1), Fla. Stat.
Petitioner has the burden of proving by clear and convincing evidence that Respondent's employment should be terminated. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The dismissal of Respondent by Petitioner is governed by the Act, which states as follows in pertinent part:
Section 3: (Tenure generally) After the completion of a PROBATIONARY period of employment without discharge . . . teachers
. . . shall continue in the service in which they are so employed without reduction in their compensation, during good behavior and efficient and competent service and shall not be discharged or demoted except one or more of the causes specified in Section 4 of this Act, after notice, hearing and a finding of the existence of one or more of such causes as hereinafter provided for. . .
. .
Section 4: (Causes for demotions or discharge) Causes for the discharge or the demotion of a teacher shall be:
* * *
(e) Professional incompetency as a teacher; provided, however, no teacher shall be discharged or demoted for such cause of professional incompetency unless and until the following requirements have been met, which requirements shall apply only to such cause of professional incompetency to-wit:
That the teacher be given a clear and detailed statement of the specific reasons on which the claim of incompetency is based.
That at least one opportunity to transfer to a new school or location be afforded the affected teacher where the teacher asserts as a defense racial discrimination or prejudice, personality conflicts with superiors; or other subjective considerations directly related to the deficiencies charged.
That prior to the institution of proceedings as hereinafter provided, a period of one year shall elapse during which such teacher shall be afforded the opportunity of specific in-service training to correct the alleged deficiencies and the teacher shall cooperate in undergoing specific in-service training . . . .
In order for Petitioner to invoke the Act in this case, Respondent had to receive a first unsatisfactory evaluation, followed by a second unsatisfactory evaluation. Petitioner has successfully demonstrated that Respondent received an unsatisfactory evaluation for school year 2003/2004, and a second unsatisfactory evaluation for the school year 2004/2005.
Petitioner has also successfully demonstrated that it provided Respondent with specific in-service instruction and assistance in both school years. The in-service training is memorialized in the detailed success plans, which were monitored by success team members, individually and in groups.
The success team members allowed Petitioner to observe them teaching the new standards-based curriculum in 90-minute blocks. The success team members also observed Respondent's teaching methods and provided him with appropriate feedback. For two years, Petitioner's staff provided Respondent with in- service training in the form of tutoring and coaching.
Respondent's success plans included, but were not limited to the following: (a) implementing desired classroom management techniques; (b) creating lesson plans and delivering effective instruction; (c) evaluating instructional needs of students; (d) developing sensitivity to student needs; (e) communicating with parents; and (f) promoting student growth and performance. To assist Respondent in gaining these skills, the success team recommended independent reading and reporting on relevant professional literature. The success team also monitored Respondent's attendance at on-site and off-site continuing education workshops, seminars, and programs.
The evidence clearly and convincingly establishes that Respondent was incompetent and that his teaching skills were
deficient. His teaching performance showed his inability to transition to new teaching methods as required by a new curriculum and a new class schedule. At the end of the 2004/2005 school term, Respondent showed improvement in one teaching competency, Competency C; however, he was not able to consistently demonstrate satisfactory performance in four competency areas, Competencies A, D, E, and G. Respondent's performance has been so deficient as to justify Petitioner's loss of confidence in the Respondent's ability to perform adequately as a teacher.
RECOMMENDED that Petitioner enter a final order, terminating the Respondent's employment as a tenured teacher.
DONE AND ENTERED this 18th day of November, 2005, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 18th of November, 2005.
City Hall, St. James Building
David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard
Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514
Joseph J. Wise, Superintendent Duval County School Board
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.
