STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN L. WINN, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
CYNTHIA A. FOY,
Respondent.
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) Case No. 05-2798PL
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RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings, on November 22 and 23, 2005, in Tampa, Florida.
APPEARANCES
For Petitioner: Ron Weaver, Esquire
Post Office Box 5675 Douglasville, Georgia 30154-0012
For Respondent: Edward Gay, Esquire
1516 East Concord Street Orlando, Florida 32803
STATEMENT OF THE ISSUES
The issues are whether Respondent, Cynthia A. Foy (Respondent), committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(b), (c), (f), and (i), Florida Statutes
(2003),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e) and (5)(d); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
PRELIMINARY STATEMENT
On June 1, 2005, Petitioner, John L. Winn, as Commissioner of Education (Petitioner), issued a seven-count Administrative Complaint against Respondent. Respondent denied the allegations and filed an Election of Rights seeking a formal hearing. This matter was referred to the Division of Administrative Hearings on August 3, 2005. The final hearing was initially set for October 4, 2005. On September 26, 2005, Petitioner filed an Agreed Upon Motion for Continuance, which was granted. The case was then rescheduled for final hearing on November 22 and 23, 2005.
The Administrative Complaint states that the material allegations are as follow:
From 1999 through 2003, Respondent began having frequent absences, which had a negative impact on her students and caused several parents to worry about their children's progress to the point that they requested their children be transferred to other classes.
During this time period [1999 through 2003,] Respondent received several evaluations that indicated she needed to improve in the areas of classroom management, enhancing and maintaining students' self-esteem, using praise appropriately, presenting subject matter effectively, using instructional time
efficiently, observing confidentiality of students, working cooperatively and supportively with school staff, and responding appropriately to constructive criticism.
In 2001, the school administrator and area supervisor provided Respondent an assistance plan to help improve Respondent's effectiveness in the classroom. Respondent refused to modify her classroom management or instructional techniques, despite frequent observational feedback and offers of assistance.
On or about July 24, 2001, Respondent entered the office of M.C., the school principal, and read papers on M.C.'s desk, without permission to do so. On or about September 10, 2001, the school district issued Respondent a letter of caution for this behavior.
During the 2001-2002 school year, Respondent began to keep a journal of comments and conversations of other teachers, and taped team meetings. Such behavior made the other teachers feel uneasy.
On at least three different occasions during the same school year, Respondent became angry and belligerent in front of her students when her area supervisor attempted to observe her classroom.
On or about February 25, 2003, M.C. entered Respondent's room to observe. Respondent approached M.C. and stood extremely close to her, followed her around the room, and whispered threats in her ear. Respondent then grabbed M.C.'s hand and attempted to take M.C.'s radio out of her hand.
Respondent accused M.C. of having a tape recorder and attempting to record Respondent without her permission. Respondent's behavior occurred in the presence of her students. Shortly after the incident, M.C.
placed a substitute in Respondent's class for the remainder of the school year.
On or about March 17, 2003, the school board required Respondent to have a fitness-for- duty evaluation. Respondent had such evaluation on May 1, 2003. The evaluation indicated that Respondent was not currently capable of safely instructing young children or performing Respondent's job duties. The evaluator stated that Respondent's mood "fluctuates frequently and unexpectedly," and that, "The combination of her major depression and pre-existing personality disorder interfere with usual psychological functions, i.e. judgement and problem solving ability, emotional stability, ability to conform to societal standards of behavior, interpersonal skills, integrity, responsibility, problem solving ability, ability to cope with stressful situations, and decision-making in a crisis."
On or about July 30, 2003, Respondent was suspended without pay. On or about
August 4, 2003, the school district informed Respondent it would recommend her dismissal to the school board. On or about
October 23, 2003, Respondent resigned.
Based on the foregoing factual allegations, the Administrative Complaint alleged four statutory violations and three rule violations.
Count One alleges that Respondent violated Subsection 1012.795(1)(b), Florida Statutes, in that she "has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or operate at a private school." Count Two alleges that Respondent violated Subsection 1012.795(1)(c), Florida Statutes, in that she has been guilty of
gross immorality or an act involving moral turpitude. Count Three alleges that Respondent violated Subsection 1012.795(1)(f), Florida Statutes, in that Respondent "has been found guilty of conduct which seriously reduces her effectiveness as an employee of the school board." Count Four states that Respondent is in violation of Subsection 1012.795(1)(i), Florida Statutes, by violating the Principles of Professional Conduct for the Education Profession (Principles of Professional Conduct).
Counts Five, Six, and Seven allege specific violations of the Principles of Professional Conduct. Count Five alleges that Respondent violated Florida Administrative Code Rule
6B-1.006(3)(a), by failing to make "reasonable effort to protect the students from conditions harmful to learning and/or to the students' mental health and/or physical safety." Count Six alleges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(e), by intentionally exposing a student to unnecessary embarrassment or disparagement. Finally, Count Seven alleges that Respondent violated Rule 6B-1.006(5)(d), by engaging in "harassment or discriminatory conduct which unreasonably interfered with an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, or oppressive environment"; and further, by failing to
make "reasonable effort to assure that each individual was protected from such harassment or discrimination."
At hearing, Petitioner presented the testimony of Mary Clark, Jennifer Connolly, Vicki Davis, Jeannean Hopf-Kilpatrick, Daryl Saunders, and Dr. James R. Edgar, M.D., who was accepted as an expert in the area of psychiatry. Petitioner's Exhibits 1 and 2 and 4 through 9 were admitted into evidence.
Respondent testified on her own behalf and presented the testimony of Mary Lynn Pasden, Janet Pastwa, Judith Magedanz, Geraldine Bryant, and Gerald Massenden, Ph.D., who was accepted as an expert in the field of psychology. Respondent's Exhibits
1 through 4 and 6 through 9 were received into evidence.
A two-volume Transcript of the hearing was filed on December 16, 2005. At the conclusion of the final hearing, at the request of the parties, the time for filing proposed recommended orders was set for January 9, 2006. Both Petitioner and Respondent timely filed their Proposed Recommended Orders, which have been considered in preparation of this Recommended
Order.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made:
Respondent, Cynthia Foy, holds Florida Educator's Certificate No. 468641, covering the areas of early childhood education, elementary education, and English to speakers of other languages, which is valid through June 30, 2007.
Respondent had been employed with the Hillsborough County School Board 17 years as of the 2002-2003 school term.
At all times pertinent hereto, Respondent was employed as a first-grade teacher at Colson Elementary School (Colson) in the Hillsborough County School District (School District). Respondent worked as a teacher at Colson for about five years, beginning the 1998-1999 school year.
During her employment in the School District, including her employment at Colson, Respondent never had any disciplinary action taken against her.
From 1986 through 1996, Respondent consistently received satisfactory ratings on her annual teacher evaluations, except for one school year when she had three deaths in her family, including the sudden death of her father and of her
38-year-old brother. Respondent's Absences
Respondent was absent from work 22 days during the 1998-1999 school year, her first year at Colson. Some of the absences were related to Respondent's health issues. However, most of Respondent's absences were related to her mother's
illness. During the 1998-1999 school year, Respondent's mother was confined to a nursing home and had become very ill and frail. Due to her mother's failing health, Respondent wanted to be with her mother, to watch and take care of her. Also, even though Respondent's mother was in a nursing home, Respondent was responsible for taking her mother to her own doctors to make sure she got the proper care.
During the 1999-2000 school year, Respondent was absent from work 13.5 days. Respondent's mother died during that school year. As a result, Respondent missed 13.5 days to deal with matters related to her mother's death.
During the 2000-2001 and 2001-2002 school years, Respondent was absent from school for 19.45 and 16 days, respectively. These absences were because of Respondent's own health issues. During these school years, Respondent was under an extreme amount of stress due to what she perceived to be a hostile work environment at school.
Mary Clark, principal of Colson, was concerned about Respondent's absences and specifically noted this concern on all of Respondent's evaluations, which are at issue in this proceeding. The reasons for Respondent's absences were not disputed, and there is no assertion that the absences were unauthorized. However, Mrs. Clark believed that Respondent's absences resulted in the lack of continuity of instruction and
negatively impacted the learning of students in Respondent's first-grade classes.
Mrs. Clark testified that because of their concern about their children's progress, some parents requested that their children be transferred from Respondent's class to another first-grade class. Records of such requests and actual transfers were not presented at hearing. However, Mrs. Clark recalled that at least one student had been transferred from Respondent's class. Whether the only reason for the transfer was Respondent's absences is unclear.
Notwithstanding Mrs. Clark's concern and belief that Respondent's absences had a negative impact on the students in her class, no basis for this concern was established.
To the contrary, during Respondent's tenure at Colson, her students consistently performed well academically as reflected by their scores on the Stanford Achievement Test, a nationally normed test. At all times relevant to this proceeding, the Stanford Achievement Test was used by the School District to assess first-grade students' achievement in the areas of mathematics and reading. At all times relevant to this proceeding, the test was administered to first-grade students at Colson in March or April of each school year.
In March 2000, there were four first-grade classes at Colson. Of those four classes, Respondent's students made the
highest scores in both the reading section and the math section of the Stanford Achievement Test. The results of the Stanford Achievement Test administered in April 2001, reflect that of the four first-grade classes, the students in Respondent's class made significantly higher scores in both reading and mathematics than the students in the other three first-grade classes. As of April 2002, Colson had six first-grade classes. Of the six first-grade classes, Respondent's class ranked first on the reading section and second on the mathematics section of the Stanford Achievement Test.
Respondent's Annual Performance Evaluations
The School District utilizes the Classroom Certificated Instructional Effectiveness Evaluation Form (Evaluation Form), which has been approved by the Hillsborough County School Board (School Board) as the instrument by which its teachers are evaluated. Typically, tenured teachers with professional service contracts are evaluated annually, but if the tenured teacher is experiencing difficulties in the classroom, the school administrator may evaluate the teacher more than once a year.
At all times relevant to this proceeding, the Evaluation Form consisted of the following categories in which teachers are evaluated: Category I, Planning and Preparation, which includes six subsections or areas; Category II,
Professional Behaviors, which includes 12 areas; Category III, Techniques of Instruction, which includes 15 areas; Category IV, Classroom Management, which includes seven areas; and
Category V, Instructional Effectiveness, which includes one area.
The Evaluation Form requires that the teacher's performance in each area be rated as "satisfactory," "needs improvement," or "unsatisfactory." The highest possible rating is "satisfactory," and the lowest rating is "unsatisfactory." In addition to the areas under the various categories in which teachers are rated, the evaluation requires that the teacher be
given an "overall rating" of "satisfactory" or "unsatisfactory."
As principal of Colson, one of Mrs. Clark's responsibilities was to supervise and evaluate the teachers at the school. Consistent with that responsibility, Mrs. Clark supervised and evaluated Respondent. Mrs. Clark evaluated Respondent once in the 1998-1999, 1999-2000, and 2000-2001 school years, usually in April. During the 2001-2002 school year, Mrs. Clark evaluated Respondent twice, in December 2001 and in March 2002.
Mrs. Clark decided to evaluate Respondent twice in the 2001-2002 school year. Given Respondent's status as a tenured teacher and Mrs. Clark's "concerns over the years with her performance," by evaluating Respondent in the fall, Mrs. Clark
would be able to give Respondent notice of the areas in which she still needed to improve. During the period between the fall evaluation and the spring evaluation, Respondent would have an opportunity to work to improve in those areas.2/
The ratings assigned to Respondent's performance on each of the Evaluation Forms are based on data that is collected by Mrs. Clark through her observations and while "walking into [the] classroom on a regular basis."
The Administrative Complaint alleged that Respondent's evaluations for the 1998-1999 through the 2001-2002 school years indicated that she needed to improve in specified areas under the following categories: Category II, Professional Behavior; Category III, Techniques of Instruction; and Category IV, Classroom Management.3/
Although Respondent worked at Colson during the 2002-2003 School year, there is no evidence that she was evaluated that year as required by law. If an evaluation was completed for that school year, the Administrative Complaint
does not allege that the evaluation indicated any areas in which Respondent needed to improve.
Professional Behavior
The Administrative Complaint alleges that Respondent received several evaluations from 1999 through 2002 that indicated she needed to improve in the following areas under the
Professional Behavior category: 1) observes confidentiality related to students; 2) works cooperatively and supportively with school staff; and 3) responds reasonably to and acting appropriately to constructive criticism.
With regard to the first area of concern, "observes confidentiality related to students," none of Respondent’s evaluations for the relevant time period, 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, indicated that she needed to improve in that area. In fact, contrary to the allegations in the Administrative Complaint, all five of Respondent's evaluations for that time period indicate that her performance in that area was rated as "satisfactory."
The second area under Professional Behaviors in which it is alleged that Respondent's evaluations indicated she needed to improve is "works cooperatively and supportively with school staff." Respondent's evaluations for her first three school years at Colson--1998-1999, 1999-2000 and 2000-2001--reflect that her performance in the area, "works cooperatively with school staff," was "satisfactory." However, after receiving "satisfactory" ratings in this area for three consecutive years, for the first time, Respondent's evaluation for the 2001-2002 school year indicated that Respondent needed to improve in this area.4/
The evaluations gave no reason for the "needs improvement" rating in the area, "works cooperatively with school staff," on Respondent's December 2001 and April 2002 evaluations. Although no specific basis for the rating is given on the evaluation, it is noted that these evaluations coincide with the area supervisor's observations.
The third area under the Professional Behavior category in which it is alleged that Respondent received several evaluations that indicated she needed to improve is the area, "responds reasonably to and acts appropriately upon constructive criticism." Contrary to this allegation, none of Respondent's evaluations indicated that she needed to improve in this area. Rather, Respondent's performance in the area, "responds reasonably to and acts appropriately upon constructive criticism," was rated as "satisfactory" on all five of the evaluations she received during the relevant time period. Techniques of Instruction
The Administrative Complaint alleges that Respondent received several evaluations that indicated she needed to improve in the following areas under the Technique of Instruction category: (1) uses instructional time efficiently;
presents subject matter effectively; and (3) uses praise appropriately.
Respondent's evaluations for the 1998-1999, 2000-2001, and 2001-2002 school years indicated that Respondent needed to improve in the area, "uses instructional time efficiently." As a possible rationale for the rating assigned in the 1998-1999 evaluation, Mrs. Clark wrote on the evaluation, "I am concerned about the slow pace of her lesson as well as the pacing through reading."
The evaluations for the 2000-2001 and the 2001-2002 school years gave no rationale for the "needs improvement" rating in the area, "uses instructional time efficiently." Additionally, there is no indication that Mrs. Clark told Respondent the basis of the rating or offered any recommendations as to how Respondent could improve in this area.
Upon Respondent's receiving the December 2001 and the March 2002 evaluations, she requested, in writing, a detailed written explanation of the basis for each of the "needs improvement" ratings, which included the area, "uses instructional time efficiently." There is no evidence that Mrs. Clark ever provided the requested explanation. Additionally, the evidence does not establish a basis for the "needs improvement" rating in this area.
The next area at issue under the Techniques of Instruction category is, "presents subject matter effectively." Respondent's evaluations for the 1999-2000 and the 2000-2001
school years indicate that Respondent needed to improve in this area. However, neither the evaluation, nor any evidence at the hearing, offered or established a basis for this rating.
On Respondent's evaluations for the 1998-1999 school year, and most recently for the 2001-2002 school year, her performance in the area, "presents subject matter effectively," was rated as "satisfactory." Clearly, the "satisfactory" ratings on the December 2001 and March 2002 evaluations, which were for the 2001-2002 school year, marked an improvement over Respondent's ratings in that category for the immediate prior two school years.
Finally, it is alleged that the third area under the Techniques of Instruction category in which Respondent's evaluations indicated she needed to improve is, "uses praise appropriately." Respondent's evaluation for 1998-1999, her first year at Colson, indicated that she needed to improve in this area. The next three school years, however, Respondent's performance in this area improved to "satisfactory," as reflected by the four evaluations for the 1999-2000, 2000-2001, and 2001-2002 school years.
Classroom Management
Under the category, Classroom Management, it is alleged that Respondent's evaluations indicated that she needed to improve in the area, "enhances and maintains students' self-
esteem." On Respondent's evaluations for the 1998-1999 and the 1999-2000 school years, her first two years at Colson, Respondent's performance in the area, "enhances and maintains students' self-esteem," was rated "satisfactory."
Respondent's evaluation for the 2000-2001 school year indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. It is specifically found that the Administrative Complaint makes no allegations regarding the "unsatisfactory" rating. Accordingly, except for limited purposes, issues related to that rating will not be addressed.
Respondent's performance in the area, "enhancing and maintaining students' self-esteem," improved in the 2001-2002 school year from "unsatisfactory" to "needs improvement," as reflected in both her December 2001 and April 2002 evaluations. Instructional Effectiveness
The Administrative Complaint does not allege that Respondent's evaluations reflect that she needs to improve in the Instructional Effectiveness category. However, in order to present a more complete picture of Respondent's performance, as rated on her evaluations, this category and Respondent's ratings thereunder are considered.
The Instructional Effectiveness category includes only one area, "promotes academic learning which results in improved
student performance."5/ This area is concerned with and assesses whether actual learning is taking place as a result of the teacher's instruction.
39. For the 1998-1999, 1999-2000, 2000-2001, and 2001-2002
school years, Respondent's performance in the area, "promotes academic learning which results in improved student performance," is rated as "satisfactory."
Overall Rating Category
Respondent's "overall rating" in all five of her evaluations for the 1998-1999, 1999-2000, 2000-2001, and 2001- 2002 was "satisfactory." 6/
Transfer of Student to Respondent's Class (January 2001)
In January 2001, a student, F.R., was transferred to Respondent's class from another first grade class because of his behavioral problems. When such a transfer takes place, the teacher to whom the student is being transferred is given prior notice that the student is being assigned to her class. In this instance, that was not done. Respondent was not informed in advance that F.R. was being transferred to her class. On the first day the students returned to school from winter break,
F.R. just "showed up" in Respondent's class. Later, Respondent was told that the child was transferred to her class because he was having peer conflict problems, and, as a result, he was acting out. Respondent was told that the student’s acting out
behavior included such things as spitting on children, stabbing children with forks, knocking things off the children's desks, and having outbursts.
Respondent thought this was a new chance for the child, and she attempted to make the new class assignment work. For example, rather than isolate the child, as his former teacher had recommended, Respondent assigned F.R. to a seat between two very well-behaved little girls, who she knew would never say anything mean to him. Despite Respondent's efforts to work with F.R., he exhibited lashing out and angry behaviors.
Due to F.R.'s exhibiting lashing out behavior, Respondent was concerned for the safety of the other students in the class. In January or early February 2001, Respondent shared her concern with Mrs. Clark and asked that F.R. be removed from her class. Mrs. Clark responded that F.R. was just a little boy and said, "Let's see how he does." No offers for assistance were made, and Respondent felt that her request was simply ignored.
Later, in January or early February 2001, as Respondent's class lined up and walked to the lunchroom, F.R. deliberately "high stepped and slid on the heels" of the child in front of him. When Respondent asked F.R. to stop, he just laughed, looked at Respondent, and repeated the behavior. Respondent told F.R. to stand out on the side of the line and
walk with her. At first he complied, but then he started to get back in the line. Respondent then told F.R., "You're walking with me." After F.R. ignored Respondent, she took his hand so that he could walk with her. F.R. then yanked and pulled Respondent's fingers back, kicked Respondent "really hard" in the upper ankle, and "took off running."
Respondent reported the incident to Mrs. Clark and the vice-principal and completed an incident report, reporting her injury and indicating her belief that F.R.'s behavior described in paragraph 44 constituted an assault/battery. After the incident, Respondent again asked Mrs. Clark to transfer F.R. from her class. Mrs. Clark never responded to Respondent's request. In fact, Mrs. Clark never talked to Respondent about the incident.
Some time after the February 21, 2001, observation discussed below, there was a second incident where F.R. was physically aggressive toward Respondent. F.R. ran out of the lunchroom to return to the classroom to get the check he had forgotten. Concerned about his past behavior of destroying and "messing up" the other children's belongings, Respondent went to get F.R. Before Respondent could get to the classroom, F.R. had gotten the check and was running back to the lunchroom and toward Respondent. Respondent stuck her arm out to stop him and he continued running around her. Once in the lunchroom,
Respondent "pulled" or "grabbed" the check from F.R.'s hand and asked the aides in the lunchroom to call Mrs. Clark. F.R. then seemed to explode, and he began punching Respondent with his fists and biting her. By the time the assistant principal got to the lunchroom, four students had pulled F.R. off Respondent, and Respondent was holding F.R.'s hand. When the vice-principal arrived, she did not discuss the incident with Respondent, but began screaming and told Respondent, "Go, get out of here, leave!"
Following the lunchroom incident, Respondent filed another assault report and, for the third time, asked Mrs. Clark to transfer F.R. from her class. After there was no response to her verbal request, a union representative advised Respondent to make the request in writing. Initially, Mrs. Clark denied the request because it was not on the proper form, but once Respondent made the request on the appropriate form, F.R. was transferred from her class.
Prior to the requests related to F.R., Respondent has never requested that a student be transferred from her class. Observations of Area Supervisor
Ms. Daryl Saunders, an area supervisor for the School District, went to Respondent's classroom on five different occasions between February 21, 2001, and March 21, 2002, twice during the 2000-2001 school year, and three times during the
2001-2002 school year, to conduct observations. On a visit in February 2002, Ms. Saunders did not conduct an observation.
With the exception of the first visit to Respondent's classroom, all of Ms. Saunders' visits were for the purpose of observing Respondent. Of the four times Ms. Saunders went to observe Respondent, she actually conducted observations three times.
First Observation (February 21, 2001)
Ms. Saunders' first visit to Respondent's classroom was on February 21, 2001. At the request of Mrs. Clark,
Ms. Saunders went to Respondent's classroom to observe a student, F.R., who had been displaying inappropriate behavior in class and is described above.7/
During the time Ms. Saunders observed F.R., he did not have any outbursts, engage in any physically aggressive behavior, or display any disruptive or inappropriate behaviors. Ms. Saunders noted that the student delayed starting his assignment and took breaks between work, but did not bother any other student. Based on her observation of F.R. and the manner in which Respondent communicated with him, Ms. Saunders wrote in the summary letter to Mrs. Clark, "I believe F.R. is trying to survive in a room where he feels he is not valued."
While Ms. Saunders was observing F.R., she also observed Respondent teaching and interacting with the students.
Ms. Saunders was particularly concerned with Respondent's frequent verbal reprimands that were audible to the entire class. During the observation, Ms. Saunders also noticed that Respondent seemed to be easily frustrated and that when communicating with students, her voice vacillated between a friendly tone to an aggressive tone.
Ms. Saunders expressed this and other concerns, not relevant to this proceeding, to Mrs. Clark in a letter dated February 22, 2001. According to the letter, a verbal reprimand to a particular student in front of the entire class is "damaging to [a] student's self-esteem." Ms. Saunders further noted that "considering the environment, I was surprised there were no behavioral issues while I was present."
In the February 22, 2001, letter to Mrs. Clark,
Ms. Saunders recommended that "we provide [Respondent] with some assistance so that the classroom environment is more conducive for instruction and learning." As a means of supporting Respondent in this effort, Ms. Saunders recommended that
Mrs. Clark "have [Respondent] take two courses through the staff development office." The two classes that Ms. Saunders recommended were Cooperative Discipline and Effective Teaching Strategies. Finally, Ms. Saunders' letter stated, "the Language Arts Frameworks document should be reviewed with [Respondent]."
There is no indication that Mrs. Clark discussed these recommendations.
Second Observation (May 7, 2001)
At Mrs. Clark's request, Ms. Saunders visited Respondent's classroom on May 7, 2001, to observe Respondent's teaching practices. This was about two weeks after Respondent received her evaluation for the 2000-2001 school year, which had rated her performance as unsatisfactory in the area of "enhancing and maintaining student's self-esteem."
Pursuant to an earlier suggestion by Ms. Saunders, Respondent allowed herself to be videotaped in order that she could better critique her own behavior in the classroom. To implement this recommendation, the school's media specialist was in the classroom to set up the video equipment on the day of Ms. Saunders' observation. Soon after Ms. Saunders arrived, the media specialist asked Respondent if she should put the tape in the video recorder. Respondent answered, "Please, I don't want to be accused of using three minutes of my time up."
Ms. Saunders believed that Respondent's tone of voice was "unprofessional" and that the comment was directed at her.
During the May 7, 2001, observation, a student who was speaking to other students in a group had her back to them. Respondent's voice "became aggravated" as she told the student
to turn around. Respondent placed her hands on the student's shoulders and physically turned her, but did not do so forcibly.
During the May 7, 2001, observation, Ms. Saunders noted improvement in Respondent's communication with her students. In her written summary of the observation dated May 16, 2001, Ms. Saunders wrote:
Based on that first encounter [February 21, 2001], I would say my greatest concern was how you communicated with both students and adults. However, this time your demeanor in front of the children was quite different than when I last observed in your classroom. I believe having the video camera present helped to keep you focused on appropriate communication with the children. I was pleased to hear more of a pleasant tone.
Ms. Saunders' summary also stated that she counted four times when Respondent appeared to become frustrated and her tone of voice changed to a negative one.
Ms. Saunders' summary of the May 7, 2001, observation included the following recommendations:
One way to support and assist you regarding classroom environment, instruction and planning would be to have someone review with you, the six domains from the Florida Performance Measurement System. This information is based on research and would be beneficial to again cover. In addition, I recommend that you attend training provided by the elementary education department specifically in the area of writing. Enrollment can be done
on-line. . . . There are many courses offered this summer. The Language Arts Frameworks document should also be reviewed.
This will provide information about our district's curriculum and the writer's workshop model. Other staff development offerings related to classroom management are offered periodically through the staff development office. I suggest you take one of their courses to assist you with classroom management. You can register on line any time. . . .
In the May 16, 2001, summary, Ms. Saunders notified Respondent that she planned to observe Respondent's classroom again soon. Additionally, Ms. Saunders indicated that she expected to see "appropriate and timely instruction and activities based on student need and planned from grade level expectations."
Third Observation (December 6, 2001)
Ms. Saunders conducted the third observation on December 6, 2001, seven months after the previous observation.
Ms. Saunders summarized her observations in a letter dated December 17, 2001. In the letter, Ms. Saunders advised Respondent, for the first time, that the December 6, 2001, observation was part of a plan to assist Respondent with teaching practices.
On December 6, 2001, Ms. Saunders arrived at Respondent's classroom at 8:30 a.m. and stayed until 9:10 a.m., when the children left the room for an activity.
During the 40-minute observation, Ms. Saunders heard Respondent communicating with students and observed her
conducting a review of telling time. Ms. Saunders was complimentary of Respondent's review of telling time. In the written summary to Respondent, Ms. Saunders wrote:
You try hard to provide ways for students to remember abstract concepts. You use pneumonic devices, short stories, rhymes and other ways to assist with memorization. By calling the numbers bases and relating the time to the name of the base they passed, students more accurately read time when the short hand falls somewhere between two numbers. This seemed quite effective.
Ms. Saunders observed an incident which she perceived to be negative. There was a student who was off task. Respondent directed her attention to the student and asked the student, "Would your mother [or family] be proud of you?"
Ms. Saunders believed that when Respondent made this statement, her voice "sounded with disapproval."
Ms. Saunders suggested that in the situation described in paragraph 66, Respondent should have "encouraged" proper behavior by asking the student a question that would have him participate so that he becomes on task rather than off task.
In another situation, Ms. Saunders observed Respondent interact appropriately and effectively with a student she was reprimanding. In that case, Respondent asked the student, "What time is it?" Before that student could answer, another student shouted out the answer. Recalling Respondent's positive
response in that situation, Ms. Saunders stated the following in the December 17, 2001, summary:
A boy shouted out the answer and you began to reprimand him. You began to speak, stopped yourself, and continued with this carefully crafted sentence. "Tell me the rule about calling out." It was nice to see you stop yourself in mid-stream, rethink a way to correct this misconduct while still preserving the child's dignity.
Based on the December 6, 2001, observation,
Ms. Saunders had two areas of concern, only one of which is relevant in this case. That area relates to Respondent's "appropriate use of instructional time." Ms. Saunders' concern is stated in the summary as follows:
In my opinion, a second area of concern relates to planning and appropriate use of instructional time. I entered your room at 8:30 and the instructional day begins at 8:00 a.m. Instruction in your room did not begin until 8:44 and the fifteen minutes suggested for calendar math was stretched to
21 minutes. I suggest you utilize time more wisely by beginning calendar math immediately after announcements. Then spend the rest of the morning on shared, guided and independent reading when youngsters are fresh and ready to learn. Beginning instruction nearly 45 minutes after the day begins will allow you to cover all the curriculum.
Although the "instructional day," to the extent that term refers to Respondent's teaching a lesson to the class, did not begin at 8:00 a.m., or soon thereafter, there was a reasonable explanation for the delay. First, three students
were assigned to Respondent's class that day because their regular teacher was absent. Prior to beginning instruction, Respondent met with those students, asked them their names, assigned them desks, and explained her classroom management system. Respondent's classroom management system involved giving each student a certain number of clothes pins at the beginning of the day. During the school day, the students could lose and/or earn clothes pins, depending on their conduct. The second reason for the delay in beginning the instructional day was that several students in Respondent's class had been allowed to go to the media center to "Santa's Book Fair." As
Ms. Saunders noted in her written summary, several of Respondent's students did not return to the classroom from the book fair until 8:36 a.m. In light of the foregoing circumstances, it was reasonable that Respondent did not begin the "instructional day" at 8:00 a.m., or immediately after announcements were made.
Admittedly, Ms. Saunders did not know what, if any, instructions or directions Respondent gave to students prior to 8:30 a.m. However, when Ms. Saunders entered Respondent's classroom, the students were actively engaged in various activities. For example, one student was working on math worksheets. Another student was at the computer taking an
Accelerated Reading test. Respondent was working with the student at the computer.
In addition to Ms. Saunders' concern that the instructional day did not begin until 8:44 a.m., she believed that Respondent spent too much time teaching the "calendar math" activity. Respondent began the activity at 8:44 a.m., and completed it at 9:05 a.m. Even though Ms. Saunders complimented Respondent on her presentation of the activity, as discussed in paragraph 65, she criticized Respondent for spending too much time teaching or reviewing the lesson. According to
Ms. Saunders, the "suggested" time for "calendar math" was 15 minutes, but Respondent "stretched" the activity to 21 minutes, which was six minutes longer than the "suggested" time.
Ms. Saunders offered no explanation of why or how Respondent's extending the calendar math activity by six minutes was not an "appropriate use of instructional time."
At 9:10, a.m., five minutes after the calendar math lesson, Respondent's students had to leave the classroom to attend a health presentation. The five minutes between the end of "calendar math" and when the children left the classroom for the health presentation, allowed time for the children to return to their seats and for Respondent to pass out name tags to the students and have them line up before leaving the room.
Ms. Saunders offered no suggestions as to a more appropriate or acceptable way Respondent could or should have used the extra six minutes that Respondent used teaching the calendar math activity.
Ms. Saunders summarized the December 6, 2001, observation and made recommendations in a letter dated December 17, 2001. Based on Ms. Saunders' concerns about Respondent's teaching practices, Ms. Saunders recommended that
Respondent "have someone review with [her] the six domains from the Florida Performance Measurement System." Also, she recommended that Respondent take training provided by the elementary education department and a classroom management course, both of which were offered "periodically" through the staff development office.
Attempted Observation (February 2001)
On an unspecified day in February 2002, Ms. Saunders went to Respondent's classroom to conduct her fourth observation. After Ms. Saunders entered the classroom, Respondent told her that she had no notice of the observation. Ms. Saunders then advised Respondent that Mrs. Clark knew that Ms. Saunders would be observing Respondent's class that day, but that "neither of us [Saunders nor Clark] chose to make you [Respondent] aware of the visitation."
Respondent espoused the view that she should have received notice of the observation. Ms. Saunders disputed Respondent's view that she should have been given notice and indicated that the observation was part of the assistance plan laid out in May 2001. Respondent replied that an assistance plan could only last 90 days and, thus, this observation could not be part of any such plan. Ms. Saunders then asserted that she could do an observation any time as part of her normal duties. Respondent disagreed and requested that Ms. Saunders provide her with a written explanation of the reason why
Ms. Saunders was visiting the class, the instrument she would be using, what she would be observing, and how long she would be staying.
As the verbal interchange proceeded, Ms. Saunders thought that Respondent's voice became more aggressive and that she was also getting upset. Because Respondent's students were in the classroom, Ms. Saunders decided to leave the classroom and return at another time.
Although students were in the classroom during the verbal exchange concerning whether Ms. Saunders' visit was authorized, there is no evidence that the students heard the conversation.
Fourth Observation (March 21, 2002)
On March 21, 2002, Ms. Saunders conducted an observation in Respondent's classroom. Upon Ms. Saunders' entering the room, Respondent advised her that she had no notice that Ms. Saunders was coming to her class. Respondent also told Ms. Saunders that the students were taking a school-wide writing assessment. Ms. Saunders acknowledged that, but still indicated that she would be seated and conduct an observation.
Respondent then approached Ms. Saunders and asked why she was in the class, what instrument she was using, and what she was observing. Ms. Saunders reiterated her prior position that she was there as part of the assistance plan and that she would be taking anecdotal notes. Respondent then asserted her earlier position, that an assistance plan was only for 90 days.
Consistent with Ms. Saunders' previous recommendation that Respondent tape herself in class as a way to critique herself, Respondent told Ms. Saunders and the class that she was turning on the tape recorder.
Ms. Saunders began the observation at or about
8:58 a.m., and ended it at 9:16 a.m. In all, the observation lasted only about 18 minutes. During most of that time, Respondent's students were completing a school-wide writing assessment. As students finished the writing assessment,
Respondent gave them books to read silently, while the other children continued to work on the writing assessment.
Ms. Saunders summarized the March 21, 2002, observation in a letter dated April 18, 2002. Due to the duration of the observation, 18 minutes, and the fact that the students were taking a writing assessment, Ms. Saunders reported only a few specific observations. None of those observations concerned or were related to Respondent's teaching techniques or classroom management.8/
In the April 18, 2002, letter, Ms. Saunders summarized the March 21, 2002, observation and made conclusions. In the letter, Ms. Saunders stated she continued to see the "same behaviors" from Respondent. She further stated,
Each time I visit your classroom I continue to see the same behaviors from you. Though discussion has occurred regarding ineffective practices, visitation were made to a number of other classrooms at Yates Elementary, suggestions regarding inservice courses have been made, yet your practices have not changed. I continue to see an emphasis on students being silent unless called upon. I continue to hear you speak gruffly to students. I continue to see you punish students for very minor infractions like wiggling or whispering. I continue to see you isolate students from the group. I continue to see you go over concepts, like vocabulary orally in order for students to memorize things rotely. I continue to see calendar math exceed the 15 minutes it is intended to occupy of the mathematics instructional time. I continue to see only one student engaged at a time. It was the
intention of the assistance plan to have you reevaluate some of your ineffective practices and work to make some changes. I have yet to witness any of that nor do I think you are even trying to make strides toward improvement.
Despite her recitation of areas in which Respondent still needed to improve, Ms. Saunders offered no recommendations in the April 18, 2002, summary letter to assist Respondent. However, Ms. Saunders stated that she "plan[ned] to make an unannounced observation in [Respondent's] class again soon," but she never did.
The conclusions in Ms. Saunders' April 18, 2002, letter are inconsistent with some of her earlier observations discussed in paragraphs 59, 65, and 68 above. Moreover, there was no connection between the conclusion Ms. Saunders articulated in the summary letter and what she observed on March 21, 2002.
Area Supervisor's Criticism of Respondent's Reprimand Method
Ms. Saunders was critical of the way Respondent reprimanded students. During Ms. Saunders' observations, Respondent sometimes would call the name of the child who was being reprimanded and tell him what he should or should not be doing.
At the hearing, Ms. Saunders testified to maintain order in the classroom, Respondent should have used "public
praise" and "private criticism." Notwithstanding this position, Ms. Saunders admitted that this method or principle is not an established policy and procedure of the School District. While Ms. Saunders testified that the "public praise, private criticism" principle is simply an "educational belief that many people subscribe to," she acknowledged that other models exist.
There was no evidence presented at the hearing that Ms. Saunders ever specifically discussed the "public praise, private criticism" philosophy that she believed Respondent should have used in the classroom.
Observations of the School Principal
Mrs. Clark frequently observed Respondent in the classroom as part of her routine of visiting all the classrooms at Colson. During her observation of Respondent, Mrs. Clark saw and heard Respondent sometimes use a "harsh desist" in reprimanding students. According to Mrs. Clark, the term "harsh desist" means "harshly reprimanding a child to stop doing something." Mrs. Clark described an example of a "harsh desist" by Respondent's saying, "Shhhh" to the class in a loud way, and talking to children in a way that was "derogatory."
Mrs. Clark believed that the children were impacted by the way Respondent spoke to them. She based this belief on the expressions she saw on some of the children's faces. Mrs. Clark
testified, "In some instances, they [the students] would cringe."
Mrs. Clark testified that she talked to Respondent about her "harsh desist," but Respondent did not change this classroom management method. These discussions were not documented, and no reference to this issue was ever noted on Respondent's evaluations.
The record fails to establish when or how often
Mrs. Clark observed Respondent engaging in a "harsh desist," to whom any particular "harsh desist" was directed, and if and how the "harsh desist" affected the student.
Mrs. Clark testified that she observed situations in which she observed Respondent talk to students in a derogatory manner.
In one instance, the student referred to in paragraph
41 above, who had been transferred to Respondent's class because of behavioral problems he was having in another class, left Respondent's classroom without permission and was returned to the room by Mrs. Clark. The student told Mrs. Clark that he had left the room to look for a pencil or scissors. Mrs. Clark asked Respondent if the student could borrow one from another student or if she would give him the tool that he needed. Respondent said she would not give him the particular tool. Respondent continued, "He breaks them all the time. He doesn't
deserve them." Although students were in the classroom when Respondent made the comments, there is no evidence that they heard the comments.
The other incident in which Mrs. Clark described Respondent as using derogatory language when talking to a student involved T.B., a student in her class. On an unspecified date, Respondent was walking down the hallway with her students, taking them to the buses. Respondent was holding
T.B. by his arm, presumably for misbehaving. At the time, Mrs. Clark was in the hallway, but some distance away. When
Respondent saw Mrs. Clark in the hallway, she told T.B., "If you don't behave, you're going to get a referral to that lady over there," pointing to Mrs. Clark.
Mrs. Clark testified that there is nothing wrong with reminding a child that he could have to go the principal's office if he or she misbehaves, "if it [is] handled in the appropriate way." The clear implication was that the manner in which Respondent handled the situation described in paragraph 98 was inappropriate. However, no evidence was presented to establish the appropriate way to remind the student that his behavior needs to improve and that there are consequences for misbehavior.
Recommendations of Mrs. Clark
Respondent's 2000-2001 evaluation indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. To address this rating,
Mrs. Clark issued a letter to Respondent which made two recommendations to assist Respondent in improving in this area. The letter is referred to on the evaluation and was given to Respondent on or about April 24, 2001, the day she received the 2000-2001 evaluation.9/ The first recommendation was that Respondent attend a Cooperative Discipline Workshop that was offered by the School District or "something similar to that that was offered by the district." The other recommendation was that Respondent go and observe behavior management in classrooms at other schools. No specifics were given as to who would schedule the time, place, and number of observations. With regard to the classroom management course, no information was provided as to what, if any, approval would be needed prior to taking the course. In neither instance was a time specified that Respondent would have to complete the observations and/or the classroom management course.
During Respondent's tenure at Colson, the only written recommendations she received from Mrs. Clark were the two made in the letter issued to Respondent. As reflected on the 2000-2001 evaluation, Mrs. Clark issued the letter to
address the "unsatisfactory" rating Respondent received in that evaluation. In such a case, a tenured teacher who receives an "unsatisfactory" rating, a letter and/or form of assistance is required to be provided pursuant to Section 1012.34(3)(d), Florida Statutes.
Respondent's Efforts to Comply With Assistance Plans and/or Recommendations
In an effort to comply with Mrs. Clark's recommendation that she observe other classes, Respondent asked several teachers on her first-grade team, including one who was nationally-certified, if she could observe them. Some of these teachers had been held out by Mrs. Clark as using behavioral models that were ones that Respondent might use in her class. All of the teachers agreed to allow Respondent to observe their classes, but Mrs. Clark denied Respondent's request to observe any of the teachers at Colson.
Eventually, someone, likely Ms. Saunders or
Mrs. Clark, scheduled an observation for Respondent at Yates Elementary School (Yates). On an unknown date between May 7, 2001, and December 6, 2001, Respondent went to Yates to observe several first-grade classes pursuant to Mrs. Clark's April 24, 2001, recommendation. Ms. Saunders accompanied Respondent to the class for the observations. As Respondent and Ms. Saunders went to observe in the various classrooms, it appeared to
Respondent that the teachers in those classrooms had no prior knowledge of the observations.
During the observations at Yates, Ms. Saunders directed Respondent to write down anything positive she saw regarding classroom management, as well as anything she found pedagogically unsound.10/
Ms. Saunders referenced and discussed Respondent's observations at Yates in the summary letter dated December 17, 2001. In that letter, Ms. Saunders recalled the following:
During the visit to Yates, we witnessed some wonderful classroom strategies and we also saw some things that perhaps would not be helpful. I know, based on our conversation, that you saw some things that you might like to try implementing. I hope that you will continue to reflect on that day and try some of the things you think might work well in your room.
Ms. Saunders also noted in the December 17, 2001, letter that at the time of the visit to Yates, she asked Respondent to write a plan that included trying or applying some of the classroom management strategies that they witnessed. Respondent complied with this directive as reflected in
Ms. Saunders' letter in which she stated, "A copy of that plan was to be given to Mrs. Clark[,] and I am aware that you submitted something to her."
As requested by Ms. Saunders, Respondent submitted a classroom management plan to Mrs. Clark based on what she
observed at Yates that she could implement in her classroom. However, there is nothing in the record to indicate whether Respondent's plan was ever reviewed or critiqued by either Mrs. Clark or Ms. Saunders.
After Mrs. Clark recommended that Respondent take a classroom management course, she attempted to do so, but was unsuccessful.
Respondent's initial failure to take the classroom management course after the April 2001 evaluation, was based on a misunderstanding, miscommunication, and/or no communication between Mrs. Clark and Respondent. Later, Respondent's efforts to take a classroom management course were thwarted by
Mrs. Clark.
The misunderstanding, miscommunication, and/or lack of communication between Mrs. Clark and Respondent is evident. Almost eight months after Mrs. Clark initially recommended that Respondent take a classroom management course, she wrote in the "comment section" of Respondent's December 19, 2001, evaluation that she was "not sure" if Respondent had taken the course. In response, Respondent wrote on the same evaluation, "It was my understanding that a workshop would be scheduled for me during the school year." Mrs. Clark testified that Respondent had "repeatedly kept asking" for which workshop Mrs. Clark had signed her up.
Based on the apparent misunderstanding discussed in paragraph 109, Respondent selected at least two different classroom management courses. She then requested Mrs. Clark's consent, because the course required payment of a fee and a substitute teacher for the time Respondent would be attending the course. Both courses were approved by the Hillsborough County School Board.
Although in the 2001-2002 school year, Respondent made several requests to take a management course, Mrs. Clark denied all the requests, indicating that no money was available. In one case, a person from the School District office called Respondent and told her that no money was available for her to attend the courses she had requested. The payment for one of the courses was about $135.00 and required that a substitute teacher be hired to cover Respondent's class on the day of the course.
Having been unsuccessful in obtaining permission or approval to attend two School Board-approved courses, on September 20, 2002, Respondent wrote an e-mail letter to
Mrs. Clark regarding Respondent's efforts to take a classroom/behavior management course. In the e-mail, Respondent indicated that she had looked to take the recommended course on a professional study day (when students are not present), but had not found any such course being offered. In light of
Mrs. Clark's and/or the School District's failure to approve a course for Respondent to take, Respondent requested that
Mrs. Clark provide Respondent with the name of the classroom/behavior management course that Mrs. Clark wanted her to take and the date and time of such course.
There is no evidence that Mrs. Clark ever responded to Respondent's September 20, 2002, e-mail or ever provided Respondent with the name of a classroom management course to attend. Moreover, no evidence was presented that the School District actually offered the recommended classroom management course during the relevant time period.
Despite the recommendation that Respondent take the classroom/behavior management course, she was not provided with the assistance and in-service opportunity to help correct or improve the noted performance deficiency. Nonetheless, through her own effort, she increased her performance area, "enhances and maintains students' self-esteem," from "unsatisfactory" in the 2000-2001 school year to "needs improvement."
Incidents Involving Respondent and School Principal and Staff First Incident (January/February 2001)
In January or February 2001, during the lunch break, Vicki Davis, one of the other first-grade teachers, was sitting near Respondent and noticed that Respondent was writing in a notebook. Ms. Davis then asked Respondent, "What are you doing?
Writing about kids or something?" Respondent did not elaborate, but told Ms. Davis that it was a behavior book. Ms. Davis was concerned because she saw her name in the book, but beyond that, she could not say what was in the book.
Exactly what Respondent was writing in the "behavior book," is unknown, but this incident occurred soon after the student referred to in paragraph 41 was transferred from
Ms. Davis' class to Respondent's class. Respondent implied that she was writing down observations about the child.
Even though the precise contents of the "behavior book" were not clearly visible, Ms. Davis felt uncomfortable when she saw what she believed to be her name in the "behavior book."
Second Incident (July 2001)
In July 2001, when school was not in session, Respondent telephoned the school and asked Mrs. Clark to provide her with a report that Ms. Saunders had prepared. Before leaving the school, Mrs. Clark advised Jennifer Connolly, her secretary, that Respondent was coming to get the report and told Ms. Connolly to put the report in Respondent's mailbox.
When Respondent arrived at Colson, she checked her mailbox, but did not see the report that she had come to retrieve. At the time, no one was in the front office area so
Respondent went into Mrs. Clark's office and looked on her desk for the document.
While Respondent was in Mrs. Clark's office looking through papers in an effort to locate Ms. Saunders' report,
Ms. Connolly saw Respondent and asked why she was in the office. After Respondent explained that she was looking for
Mrs. Saunders' report, Ms. Connolly told Respondent the report was in Respondent's mailbox and to leave Mrs. Clark's office. Ms. Connolly left the office and walked down the hall. After Ms. Connolly left Mrs. Clark's office, Respondent turned out the light in Mrs. Clark's office and closed the door to the office as she exited. By the time Respondent got to her mailbox,
Mrs. Saunders' report was on top of the stack of mail in Respondent's mailbox.
After being informed about Respondent's going into her office, Mrs. Clark contacted the School District's Professional Standards Office. An investigation was conducted and based on the findings, a letter was issued to Respondent. It is unknown if the letter was a warning, reprimand, or other type of communication since the letter was not offered as evidence at this proceeding.
There is no indication that Respondent was doing anything in Mrs. Clark's office other than looking for the report that she came to the school to retrieve; the report that
Mrs. Clark had expected her to pick up. Nonetheless, Respondent's decision to go into the principal's office, without permission, reflected poor judgment on her part. This, however, was an isolated incident and is not indicative of Respondent's usual judgment.
Except for this incident, Respondent's record indicates that she usually exercised good judgment as shown by her evaluations for the relevant time period. For example, for the three school terms immediately prior to the July 2001 incident, Respondent's performance in the area related to a teacher's judgment under the Professional Behavior category, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory."11/ The only evaluation that indicated Respondent "needed to improve" in that area was the December 2001 evaluation, the first evaluation she received after the July 2001 office incident. However, in Respondent's very next evaluation dated April 24, 2002, her performance in the area, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory."
Third Incident (2001-2002 School Term)
In or about the 2001-2002 school year, Respondent brought a tape recorder to a team meeting. When Ms. Davis, one of the team members, saw the tape recorder, she felt
uncomfortable and told Respondent to turn off the tape recorder.12/
Ms. Davis knew that "something was going on between [Respondent] and Mrs. Clark" and seemed to suspect that Respondent's bringing the tape recorder into the meeting was somehow related to that. However, Ms. Davis did not want to be a part of that and told Respondent, "This [meeting] is not about anything. We're working together as a team."
Respondent immediately complied with Ms. Davis' request and turned off the tape recorder. After that one incident, Respondent never again brought a tape recorder to a team meeting.
Fourth Incident (February 25, 2003)
On or about February 25, 2003, as part of her usual routine of visiting classrooms, Mrs. Clark went to Respondent's classroom, entering from the back door. At the time, Respondent was sitting with two students, working with them. When Respondent saw Mrs. Clark, she got up from her seat and walked over to where Mrs. Clark was standing. Respondent then asked Mrs. Clark, "Did you leave right after us?" Mrs. Clark correctly understood, and Respondent confirmed that the question referred to Respondent's grievance hearing that was held the previous day and attended by Respondent and her attorney, as well as Mrs. Clark and the area supervisor.
Respondent apparently thought Mrs. Clark indicated that she had left immediately after the grievance hearing. Respondent challenged Mrs. Clark and indicated that Respondent and her attorney had waited outside for Mrs. Clark for 15 minutes.
Respondent then moved closer to Mrs. Clark and whispered in her ear. Mrs. Clark understood Respondent to say, "You're a liar. You're devious. There is a God. I'm not through with you yet." Respondent denied that she made these statements.
Given the conflicting testimony of Mrs. Clark and Respondent, both of whom appeared to be credible witnesses, there is no clear and convincing evidence that Respondent made the statements. Nonetheless, it is found that Mrs. Clark understood and believed that the statements in paragraph 130 were the ones Respondent whispered to her.
Mrs. Clark responded to Respondent's statements in a voice that was not a whisper by asking, "You're not through with me yet?" According to Mrs. Clark, during this incident, she repeatedly kept turning to Respondent and kept telling her, "If you have something to say to me, we can meet in my office."
There were children in Respondent's classroom during the incident described in paragraph 130, but Mrs. Clark's
credible testimony was that the children could not hear Respondent's comments.
Mrs. Clark described the comments Respondent whispered in her ear as "quite upsetting." While Mrs. Clark might have been upset, her conduct clearly indicated that she did not feel threatened by Respondent's comments. After the exchange between Respondent described in paragraphs 130 and 131, Mrs. Clark stayed in Respondent's classroom to continue her visit and look at the children's work. In fact, Mrs. Clark took time to talk to a student in the class who she believed was not working. Later, she asked the children about a large crayon that was on the floor.
At some point during the visit, Respondent noticed that Mrs. Clark was holding something in one of her hands, both of which were behind her back. Believing that the object in Mrs. Clark's hand was a tape recorder, Respondent grabbed
Mrs. Clark's hand and splayed it open in an attempt to completely display the object. As Respondent grabbed Mrs. Clark's hand, she asked Mrs. Clark if she had a tape recorder and if she were recording Respondent.
Mrs. Clark stated that the object she was holding was a two-way radio. Even though the object Mrs. Clark was holding was a two-way radio, Respondent did not believe Mrs. Clark's explanation.
After or as Respondent grabbed Mrs. Clark's hand, Mrs. Clark told Respondent, "Get your hands off me! Get away from me!" Respondent believed Mrs. Clark was going to strike her so she moved back, away from Mrs. Clark.
Undoubtedly, Respondent's conduct, described in paragraph 134, grabbing her supervisor's hand, was inappropriate, unprofessional, and disrespectful. However, based on the record, this was clearly an isolated incident. Moreover, this conduct does not constitute any of the statutory or rule violations alleged in the Administrative Complaint.
Mrs. Clark then left Respondent's classroom and continued visiting other classrooms. After completing her routine classroom visits, Mrs. Clark called the School District office to report the February 25, 2002, incident in Respondent's classroom. Respondent also called the School District office to report the incident.
In addition to calling the School District Office, Respondent called a friend who was a retired teacher and reported that she believed Mrs. Clark had tried to record her and asked for advice on what she should do if Mrs. Clark returned to her room.
The following day, an investigator with the School District went to the school to investigate the matter.
School District Request for Fitness for Duty Evaluation
By letter dated April 30, 2003, the School District referred Respondent to Dr. James Edgar, M.D., a psychiatrist, for an evaluation.
In the referral letter, Linda Kipley, the general manager of the School District's Professional Standards Office, stated that the referral was due to the School District's "concerns for a pattern of personal and professional behavior which has negatively impacted her capability and competence to perform the duties and responsibilities of teaching."
Ms. Kipley's letter went on to say, "After reviewing our most recent investigative report, there is a question if she is fit for her teaching responsibilities and to teach minor children." Also, Ms. Kipley requested that Dr. Edgar provide a written report of his assessment of Respondent's "capability to make sound professional judgments and her capability to safely instruct children."
Opinion of James Edgar, M.D.
Dr. James Edgar, who was qualified as an expert in the field of psychiatry, conducted an independent medical (psychiatric) evaluation of Respondent. Based on information provided to Dr. Edgar by School District staff, there were questions raised about Respondent's ability to safely instruct minor children and about her general mental health status.
Along with the request for the evaluation, the School District provided Dr. Edgar with copies of all of Respondent's evaluations since she was employed by the School District and the February 22, May 16, and December 17, 2001, letters/reports from Ms. Saunders. For some reason, Ms. Saunders' last report dated April 18, 2002, and discussed in paragraphs 85 and 86, was not provided to Dr. Edgar.
Dr. Edgar found that Respondent had normal motor activity and normal facial expressions; that she was polite and her appearance was neat; and that she was calm although anxious (which Dr. Edgar indicated was a natural reaction under the circumstances of an evaluation being ordered by her employer). He also found that Respondent's intelligence was normal, her memory was intact, her senses were good, her affect was appropriate, and there was no evidence of hallucinations.
Notwithstanding the foregoing conclusions, in the "summary and recommendation" section of his report, Dr. Edgar opined,
I do not feel [Respondent] is currently capable of safely instructing young children." As the basis for this conclusion, Dr. Edgar stated that when Respondent is stressed by routine events, such as constructive criticism, her ability to keep things orderly and controlled is impaired and she becomes anxious and depressed. He further stated that the combination of Respondent's "major depression and pre-existing personality
disorder interfere with the usual psychological functions (i.e. judgment and problem solving ability, emotional stability, ability to conform to societal standards of behavior, interpersonal skills, integrity, responsibility, ability to cope with stressful situations, and decision making in a crisis).
In the "summary and recommendation" section of
Dr. Edgar's written report, he prefaces the above-quoted opinion by stating, "This summary is provisional because I have not had an opportunity to review medical records or mental health records." At the end of the report, Dr. Edgar states that "I may amend my report after reviewing the previously mentioned records."
As of the date of this proceeding, Dr. Edgar had not yet reviewed any of Respondent's medical records and mental health records, although Respondent advised him that she was being treated for depression by a psychiatrist and was in counseling with a licensed mental health professional.
Contrary to the School District's concern for Respondent's "competence to perform the duties and responsibilities of teaching," Dr. Edgar testified that his report made no finding that Respondent was incompetent to teach. Opinion of Gerald Mussenden, Ph.D.
Dr. Gerald Mussenden was qualified as an expert in the area of psychology. On September 5 and 12, 2003,
Dr. Mussenden conducted a comprehensive evaluation of Respondent to determine her overall mental functioning (i.e., whether she was mentally stable, well adjusted, and/or if she is a threat to herself or others).
As part of the evaluation, Dr. Mussenden administered, among other instruments, the Child Abuse Potential Inventory, which has been developed and standardized since 1982. The Child Abuse Potential Inventory is valid in terms of content validity, construct validity, and predictive validity and is a tool used by psychologists who do testing specializing in abuse propensities.
Based on the results of the Child Abuse Potential Inventory, Dr. Mussenden concluded that Respondent had no child abuse potential characteristics and was not a danger to children. Moreover, Dr. Mussenden opined that Respondent was emotionally stable, had good skills by which to relate and interact with others, and had no problems or difficulties that would endanger others around her.
Dr. Mussenden's evaluation report accurately notes that at the time of the evaluation, Respondent was under the treatment of a psychiatrist and in counseling with a licensed mental health counselor. Dr. Mussenden's opinion is that this course of treatment contributed to Respondent's mental health status at the time of the evaluation. In his report,
Dr. Mussenden states, "Due to their success [the psychiatrist and mental health counselor], [Respondent] is relatively well adjusted and without signs of mental difficulties."
Dr. Mussenden's credible testimony was that a person can suffer from depression and still be competent to handle one's duties as a teacher. When Respondent was evaluated by Dr. Mussenden, she was taking medication for depression. The purpose of such medication is to help people suffering from depression become well-adjusted. The fact that there was no evidence that Respondent was suffering from depression during the September 2003 evaluation indicates that the medication she was taking was effective in that it masked any depression that may have been present.
Dr. Mussenden saw Respondent within 60 days of the hearing and based on that visit, he did not change his opinion that Respondent posed no risk of harm to children.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).
Subsection 1012.796(6), Florida Statutes, authorizes the Commissioner of Education to file a formal complaint and
prosecute the complaint against a teacher's certificate pursuant to the provisions of Chapter 120, Florida Statutes.
License revocation and discipline proceedings are penal in nature. In the Administrative Complaint, Petitioner has sought, among other penalties, the revocation or suspension of Respondent's teaching certificate. Therefore, Petitioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence has been defined as evidence which:
[R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Any ground proven in support of Petitioner's assertion that Respondent's teaching certificate should be revoked or suspended must be specifically alleged in the Administrative Complaint.13/ See, e.g., Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.
Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).
Subsection 1012.795(1), Florida Statutes, gives the Educational Practices Commission the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute.
The Administrative Complaint alleges that Respondent violated Subsection 1012.795(1)(b), (c), (f), and (i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a) and (e) and (5)(d).
Section 1012.795, Florida Statutes, provides in pertinent part:
Education Practices Commission; authority to discipline.--
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person; may
suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:
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Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.
Has been guilty of gross immorality or an act involving moral turpitude.
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(f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.
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(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Florida Administrative Code Rule 6B-1.006 contains the Principles of Professional Conduct and provides, in pertinent part, the following:
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful
to learning and/or to the student’s mental and/or physical health and/or safety.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
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(5) Obligation to the profession of education requires that the individual:
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(d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.
The terms "incompetent," "gross immorality," and "moral turpitude," are not defined in any statute or rule applicable to the Educational Practices Commission in license disciplinary cases. However, the definitions in Florida Administrative Code Rule 6B-4.009, which relate to the suspension and dismissal of teachers by school districts, are instructive in defining terms as used by the Educational Practices Commission in revocation actions.
Florida Administrative Code Rule 6B-4.009 provides the following definitions that are pertinent to this proceeding:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
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(6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Petitioner failed to establish by any sufficient evidence the following factual allegations in the Administrative Complaint: (1) Respondent's frequent absences had a negative impact on her students; (2) Respondent received any evaluations that indicated she needed to improve in the areas, "observes confidentiality related to students" and "responds reasonably to and acts appropriately to criticism"; and (3) Respondent "read" papers that were on the principal's desk.
Petitioner established that Respondent grabbed Mrs. Clark's hand in an attempt to determine what was in her hand, but did not establish that Respondent attempted to take the radio from Mrs. Clark's hand. While this conduct was clearly inappropriate, it does not constitute any of the statutory or rule violations alleged in the Administrative Complaint.
Except as noted in paragraph 169, Petitioner has failed to prove by clear and convincing evidence the factual allegations upon which the Administrative Complaint is based.
Therefore, Petitioner has failed to establish that Respondent violated Subsection 1012.795(1)(b), (c), (f), and (i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e) and (5)(d).
Assuming arguendo that Petitioner proved the factual allegations in the Administrative Complaint by clear and convincing evidence, Petitioner still did not meet its burden of proof. Here, even if the factual allegations were proven by the required standard, Petitioner failed to prove by clear and convincing evidence that the alleged acts committed by Respondent constituted the statutory and rule violations as set forth below:
Petitioner failed to prove by clear and convincing evidence that Respondent was, or is, incompetent to teach or to perform duties as an employee of the public school system or to teach in or operate a private school. See § 1012.795(1)(b), Fla. Stat.
Petitioner failed to prove by clear and convincing evidence that Respondent was guilty of gross immorality or an act involving moral turpitude. See § 1012.795(1)(c), Fla. Stat.
Petitioner has failed to prove by clear and convincing evidence that Respondent was guilty of personal conduct which seriously reduced her
effectiveness as an employee of the Hillsborough County School Board. See § 1012.795(1)(f), Fla. Stat.
Petitioner failed to prove by clear and convincing evidence that Respondent failed to make reasonable effort to protect any student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. See Fla. Admin. Code R. 6B-1.006(3)(a).
Petitioner failed to prove by clear and convincing evidence that Respondent intentionally exposed any student to unnecessary embarrassment or disparagement. See Fla. Admin. Code R.
6B-1.006(3)(e).
Petitioner failed to prove by clear and convincing evidence that Respondent engaged in harassment or discriminatory conduct, which unreasonably interfered with any individual's performance, professional, or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. See Fla. Admin. Code R. 6B-1.006(5)(d).
Based on the conclusions that Petitioner failed to prove by clear and convincing evidence that
Respondent violated Rule 6B-1.006(3)(a) and (e), and (5)(d), Petitioner has failed to prove by clear and convincing evidence that Respondent violated the Principles of Professional Conduct. See
§ 1012.795(1)(i), Fla. Stat.
Petitioner failed to meet its burden of proof in this case in that it did not prove by clear and convincing evidence the allegations in the Administrative Complaint.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint.
DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida.
S
CAROLYN S. HOLIFIELD
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 12th day of April, 2006.
ENDNOTES
1/ Unless otherwise indicated, all citations are to Florida Statutes (2003).
2/ In the fall evaluation (December 2001), Mrs. Clark indicated that Respondent needed to improve in four areas under the Professional Behavior category--adheres to state, district and school policies and procedures; is punctual in reporting to school and in carrying out school assignments; works cooperatively and supportively with school staff; and demonstrates logical thinking and makes practical decisions.
With regard to the category, Techniques of Instruction,
Mrs. Clark noted on the December 2001 evaluation that Respondent needed to improve in two areas--uses instructional time efficiently, and circulates and assists students.
The spring evaluation (April 2002) indicated that Respondent needed to improve in two of the four areas under the Professional Behavior category--adhering to state, district and school policies and demonstrating logical thinking and making practical decisions. In the other two areas, working cooperatively with staff and being punctual in reporting to school and carrying out assignments, Respondent's evaluation, again, indicated that she "needs improvement." The April 2002 evaluation indicated that no improvement had been made in the two areas under the Instructional Techniques category.
3/ The Administrative Complaint does not allege that Respondent "actually" needed to improve in these areas, but rather alleges only that she "received" several evaluations that "indicated she needed to improve."
4/ This rating may be related to the incident that occurred in the summer of 2001 (Respondent's going into Mrs. Clark's office without permission), particularly since Respondent recalled that Mrs. Clark discussed the incident during the December 2001 evaluation conference.
5/ The significance of a satisfactory rating in the Instructional Effectiveness category is evident from the weighted scale utilized in determining a teacher's overall
rating on the Evaluation Form. Under the prescribed scale, a "satisfactory" rating in the one area under Instructional Effectiveness results in an award of six points, which is two or three times the number of points awarded for a "satisfactory" rating in areas under other categories.
6/ The rating assigned in the "Overall Rating" Effectiveness category is based on the sum of the points assigned for each area.
7/ The student had been transferred to Respondent's class in January 2001 because of behavior problems he was having in the class to which he was originally assigned.
8/ The observations were as follows: A child raised her hand for several minutes and Respondent never assisted the child; Respondent's name was called over the intercom and she indicated the class was doing the writing assessment; as students completed the assessment, Respondent gave each one a book; and Respondent whispered to a boy with the hiccups, whose desk was isolated from all others, and when Respondent walked away, the boy said, "I'm not faking." Also, Ms. Saunders noted that, consistent with her earlier suggestion, Respondent had children's work posted on the bulletin board. Another observation noted in the summary letter stated, "I noticed your work wall and calendar math area had a sign that said spring, although spring would not begin until the following day." In fact, the first day of spring was March 20.
9/ See paragraph 35 of Findings of Fact.
10/ Respondent did not comply with this latter directive because she thought it was inappropriate for her to write negative things about other teachers when she was in the classroom to observe, and the teachers did not know she was doing that.
11/ Respondent's evaluations for 1998-1999, 1999-2000, and 2000- 2001 rated her performance in this area as "satisfactory." This area is under Category II, Professional Behaviors.
12/ Mrs. Clark testified that several teachers told her that they were uncomfortable about Respondent having a tape recorder in the meeting, but except for Ms. Davis, no teachers testified that they were either aware of the tape recorder incident or bothered by it.
13/ Several allegations made at hearing were not included in the Administrative Complaint (i.e., Respondent calling in for substitute late, arriving to school late, not following policy related to moving furniture in school, and tape recording meetings with the principal). Because these assertions were not alleged in the Administrative Complaint, even if proven, and they were not, they can not be a basis for disciplinary action in this case.
COPIES FURNISHED:
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400
Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education
325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Ron Weaver, Esquire Post Office Box 5675
Douglasville, Georgia 30154-0012
Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803
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 |
|---|---|---|
| Aug. 04, 2006 | Agency Final Order | |
| Apr. 12, 2006 | Recommended Order | Petitioner failed to prove Respondent was guilty of gross immorality or act involving moral turpitude, incompetence, personal conduct which seriously reduced her effectiveness as a teacher, or of violating the Principles of Professional Conduct. |
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