STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEON COUNTY SCHOOL BOARD,
Petitioner,
vs.
FORREST A. WATERS,
Respondent.
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) Case No. 06-3116
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RECOMMENDED ORDER
This cause came on for formal proceeding and hearing before
Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted over five days in February and March, 2007, in Tallahassee, Florida, and concluding on March 9, 2007. The appearances were as follows:
APPEARANCES
For Petitioner: Carolyn D. Cummings, Esquire
Barbara Hobbs, Esquire
462 West Brevard Street Tallahassee, Florida 32301
For Respondent: Anthony D. Demma, Esquire
Meyer and Brooks, P.A. Post Office Box 1547
Tallahassee, Florida 32302
STATEMENT OF THE ISSUE
The issue to be resolved in this proceeding concerns whether the Leon County School District has just cause, as defined in Section 1012.34(3)(d), Florida Statutes (2006), to end the Respondent's tenured employment as a teacher, due to allegedly deficient performance.
PRELIMINARY STATEMENT
This cause arose when Oakridge Elementary School Principal Hodgetta Huckaby, recommended to Superintendent William Montford of the Leon County School District that the employment of the Respondent, Forrest A. Waters, should be terminated for failing to improve in various areas of alleged deficient performance.
The recommendation was made by the principal's letter to the superintendent of December 16, 2005. The superintendent accepted that recommendation and recommended the Respondent's termination from a tenured employment contract to the Leon County School Board (Board). On August 8, 2006, the recommendation of the superintendent was accepted by the Board, suspending the Respondent without pay, subject to his exercise of his right to a formal proceeding and hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).
He requested that he be afforded such a formal proceeding and hearing to contest his termination. The matter was referred to the Division of Administrative Hearings and a formal proceeding ensued before the undersigned Administrative Law Judge.
The cause came on for hearing as noticed. The Petitioner presented 10 witnesses in total. Two of them testified only in rebuttal testimony and two of them testified in both the case-in- chief and on rebuttal. The Petitioner had 45 exhibits admitted into evidence. The Petitioner's proposed Exhibits 19 and 28 were not admitted, and Exhibit 45 by the Petitioner was withdrawn at
the conclusion of its rebuttal case. Exhibit 46 by the Petitioner was not admitted, but was proffered. The proffer was accomplished through allowing proffered testimony on direct and cross examination, clearly identified in the Transcript as proffered. The reasons that Exhibit 46 (concerning FCAT scores), was not admitted are referenced and discussed infra.
The Respondent presented the testimony of five witnesses and also two witnesses in a brief surrebuttal. The Respondent had 19 exhibits admitted into evidence, one of which is a video tape recorded on November 8, 2005, depicting the Respondent teaching in his classroom. The parties also had admitted four joint exhibits. Upon concluding the proceeding the parties ordered a transcript thereof and requested an extended briefing schedule for submission of Proposed Recommended Orders, which were timely submitted 30 days after the filing of the nine-volume Transcript. Those Proposed Recommended Orders have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The Respondent, Mr. Waters, has worked as a Special Education Teacher in Leon County for approximately 13 years. He most recently has worked in the field of Special Education at Oakridge Elementary School (Oakridge), starting in the school year 2001-2002 and ending in December 2005. Mr. Waters is married and has two children by a former wife, with whom he shares custody of his children. He has volunteered for 18 years as a Troop Leader for a troop of disabled Boy Scouts in Tallahassee. He has been recognized for those efforts by being
the recipient of the Tallahassee Memorial Hospital Foundation's "everyday hero" award. He has also been a finalist for the Tallahassee area "volunteer of the year award" in 2005.
When Mr. Waters was hired at Oakridge Elementary School he was interviewed by the head ESE teacher or "team leader", Donna George. He was chosen for the available position from three or four final applicants, based upon her favorable view of the qualities he could bring to the position, which she still believes to be the case.
During the 2001-2002 school year the principal at Oakridge was Michelle Crosby. Ms. Hodgetta Huckaby was the Assistant Principal. Sometime during that school year Mr. Waters encountered a problem involving two of his students being engaged in an after school fight. He apparently referred the students for discipline to the Assistant Principal, Ms. Huckaby, and she sent the students back to his class. He disagreed with this disciplinary decision and appealed the matter to the principal, Ms. Crosby. Ms. Crosby resolved the disciplinary matter in favor of Mr. Waters' position. Ms. Huckaby thereupon called Mr. Waters to her office to upbraid him and express her anger at his having "gone over her head." After a heated exchange between the two she told the Respondent to "never come back into my office for any reason." Thereafter, for the remainder of his tenure at Oakridge their relationship was very strained, especially during the time Ms. Huckaby was Principal, which began at the beginning of the following year, the 2002-2003 school year, after
Ms. Crosby left Oakridge and was replaced by Ms. Huckaby.
In order to replace Ms. Huckaby's vacant former position as assistant principal, the District assigned Kim McFarland as the new assistant principal in the fall of 2002. Prior coming to the assistant principalship at Oakridge, Ms. McFarland had served as a fifth grade regular classroom teacher for 10 years in the District. She had no prior administrative experience and had no experience in Exceptional Student Education. Her degree field is in the area of elementary education. After the events at issue in this case, Ms. McFarland left Oakridge, on July 1, 2006, to become the assistant principal at Swiftcreek Middle School.
Ms. Huckaby and Ms. McFarland jointly performed the annual evaluation of the Respondent for the 2002-2003 school year. They used the "Accomplished Teacher Performance Feed Back Summary Form." Mr. Waters's overall rating for that year was "at expectancy level." Ms. McFarland wrote several positive comments concerning his performance on that document, but he also received ratings of "below expectancy" in two areas, teacher performance improvement and professional development. Also, in the Spring of 2003, Ms. McFarland observed his class on or about April 23, 2003. She was positive about that evaluation and wrote Mr. Waters a note wherein she indicated that he had "presented a great lesson" and that his students were engaged and on task.
She praised him for monitoring student behavior using a behavior management point system and found his room "exciting" because he displayed a great deal of students work on the walls.
In the 2003-2004 school year, specifically in November 2003, Ms. McFarland informed Mr. Waters that his lesson plans
were not adequate because he was failing to incorporate a new component which required that notations of student remedial reading levels be made, represented by "lower case" roman numerals. She required him to submit his lesson plans to be reviewed each Monday while he was seeking to improve his lesson plans. Thereafter, on April 26, 2004, Ms. McFarland notified the Respondent that he had satisfactorily complied with lesson plan requirements and no longer needed to submit lesson plans for review each Monday. She also emphasized in that letter of
April 26, 2004, that he should adhere to his lesson plans, as prepared, in his teaching presentation to the extent possible, so that when administrators observed his room they would be able to determine exactly what he was performing at the time simply by looking at his lesson plan book.
In the meantime, Mr. Waters was given an improvement notice on February 20, 2004, by Ms. McFarland. This was because of her concern that he was not fully cooperating with procedures and recommendations concerning behavior management; recommendations made by behavior management consultants on contract with the School Board. Those consultants were working with him and his emotionally handicapped (EH) student class at that time. During their meetings and contacts with Mr. Waters and his EH student class that year he had exhibited a good level of agreement and cooperation with their recommendations to him regarding changes in behavior management methodologies for his class, but the consultant, Dr. Adams, perceived that he was slow or reluctant to actually carry them out. Later in the spring of
that school year, Dr. Adams took Mr. Waters on a tour at Kate Sullivan Elementary and another school, to observe how behavior management models or methodologies were employed in EH classes at those schools and which Dr. Adams opined he was later reluctant to implement in his own class. They communicated these concerns about his perceived intransigence in changing his behavioral management style or methodology to the administration at Oakridge, which resulted in the February 20, 2004, improvement notice from Ms. McFarland. Significantly, however, Ms. Haff, in her observations of the Respondent's performance during the following school year found that he had received the higher level of training in the "Champs program" concerning behavioral management, and had been and was successfully implementing it in his class and with his students to a great degree, although, of necessity, adapting it to the needs of his students and his role then as a resource teacher, rather than as a discrete EH classroom teacher during the following 2004-2005 school year.
Ms. Huckaby changed his assignment from duty as a direct class EH
teacher to that of "resource teacher" after the 2003-2004 school year.
Mr. Waters had a meeting with Ms. McFarland on February 20, 2004, to discuss that improvement notice, and her concerns that he was not fully cooperating with the recommendations of the behavior management consultants in terms
of not carrying out their recommendations. During the course of that meeting she stated, "You know its not me that’s behind this"
implying to him that Ms. Huckaby was actually the instigator of the improvement notice concerning this subject matter.
Apparently Mr. Waters contacted union officials for the Leon County Teachers Association (LCTA) complaining that the improvement notice was too general and did not specifically point out what must be done to correct the perceived problem. In response to those concerns, in part, Ms. McFarland issued a subsequent improvement notice on April 27, 2004, with a few more specific expectations and which updated the status of
Mr. Waters's efforts to address the concerns raised in the February 20th revised improvement notice.
Ms. McFarland observed Mr. Waters' class on March 11 and March 16 and did a "part A" teacher's assessment document for each observation. Mr. Waters was due to be evaluated using the Accomplished Teacher Summary Form for 2003-2004 and so the assessment part A form was not required to be completed for him. Nonetheless, Ms. McFarland told Mr. Waters that these were really informal observations and she was completing these observation forms in order to get some practice using them since it was her first year as an administrator, formally observing and evaluating teachers independent of Ms. Huckaby. The Respondent did not get a copy of these assessment part A documents until June of that year and did not get an opportunity to discuss them with Ms. McFarland.
Ms. McFarland also completed the Accomplished Teacher
Feedback Summary Form for the 2003-2004 school year. That form states that overall assessments must be satisfactory if all the
required areas are completed. Ms. McFarland described Waters' performance unfavorably in the "comments" section of the form and gave him an overall performance rating of "below expectancy level." He received this Accomplished Teacher Summary Form rating document on or about September 22, 2004. During the month of October he inquired of Ms. McFarland, union officials, and school district officials concerning the meaning of his overall "below expectancy" rating for the 2003-2004 school year.
Apparently an attorney for the school district informed him that the evaluation was considered satisfactory on the Accomplished Teachers Summary Form, unless school administrators produced an evaluation document that indicated an overall "needs improvement" rating. Ms. McFarland had informed him that the Accomplished Teacher document reflecting the below expectancy rating was his only official evaluation. Although Mr. Waters received confirmation that the use of the Accomplished Teachers Summary Form rendered his 2003-2004 evaluation to be automatically a satisfactory one, it is also clear that Ms. McFarland intended to give him the below expectancy rating and for some reason mistakenly used the wrong form and procedure.
During October 2004 the Respondent met with Ms. Huckaby to discuss some matter unrelated to his performance rating. During the course of that meeting, at which only Ms. Huckaby and the Respondent were present, Ms. Huckaby became angry at the Respondent and engaged in a tirade, calling him "the worst teacher she had ever seen, as well as making other unprofessional comments." Mr. Waters then stated to the effect that he did not
think he was such a bad teacher since he had consistently received satisfactory evaluations. Ms. Huckaby then indicated that she felt he had received a needs improvement evaluation for the 2003-2004 school year, to which Mr. Waters retorted that based upon the Accomplished Teachers Summary Form being used his evaluation was deemed to be satisfactory overall. Ms. Huckaby then angrily threatened him with an unsatisfactory evaluation for the upcoming 2004-2005 school year.
Only a week or two elapsed after this meeting and comment by Ms. Huckaby when, at Ms. Huckaby's behest, Mr. Waters inclusion class was changed to a "pull-out reading group," meaning that he then had to work with a new reading curriculum and plan his own reading lessons using that curriculum instead of relying upon and carrying out the regular classroom teacher's daily lesson plan reading goals, which had been the program he had been instructed to perform previously. Ms. Eydie Sands was dispatched by Ms. Huckaby to observe Mr. Waters' reading class and made critical observations during follow-up meetings with Mr. Waters and Ms. Huckaby; the team-taught writing group jointly taught by Mr. Waters and Ms. Wacksman, which had worked well in rendering progress to the students in writing, was abruptly separated into two sections by Ms. Huckaby with no explanation or apparent reason; thereafter on approximately November 6, 2004, Ms. Huckaby gave Mr. Waters a lengthy letter of harsh criticism as to almost all aspects of his teaching performance and directed him to immediately comply with 13 directives contained in the letter.
Additionally, Mr. Waters' 2004-2005 school year resource teacher schedule was changed five times, adding further confusion to an already difficult year, which started with a new classroom assignment. The new room was piled high with boxes of materials for many teachers and classrooms other than his own. This circumstance required him to spend his entire pre-planning time moving and clearing out his newly assigned room so that he could use it. Significant changes and requirements were imposed for lesson plans, student progress monitoring requirements, and the new A3 computerized IEP technology, as well as a substantially increased amount of related paperwork burdens placed upon all teachers at the school, including Mr. Waters, through Ms. Huckaby's policy directives.
One directive in the November 6, 2004, letter from
Ms. Huckaby required Mr. Waters to again submit weekly lesson plans to school administrators by 8:00 a.m. every Monday morning. The normal procedure provided for having lesson plans to be examined from time to time, after advance administration notice to the faculty of their lesson plan review dates. Despite lesson plan component changes made unilaterally by the administration in both the 2004-2005 and 2005-2006 school years which added several time-consuming, ill-defined requirements to the previous less formal structure for lesson plans, the Respondent's lesson plans during those years remained detailed and organized when compared to those of his fellow special education teachers who apparently were deemed to have performed this task appropriately.
In carrying out this instruction Mr. Waters tried to obtain model lesson plans and to incorporate the new requirements into his plans. They were consistently unacceptable to
Ms. Huckaby, however, and ultimately cited as one of the reasons for his termination recommendation. Similar, and even less detailed lesson plans of his colleagues that had been found acceptable, were not reviewed or remained the same even after administrators provided plan improvement instructions, without those teachers being subjected to discipline therefor.
In an effort to comply with the directive concerning his lesson plans and because the new lesson plan components imposed were difficult to understand and reasonably apply, especially for an ESE teacher and students, Mr. Waters sought to obtain model plans and lesson plan advice, but received little or no meaningful help. His mentor teacher assigned for 2004-2005, Michelle Smith, did not respond to his request for samples of her lesson plans. The Oakridge administration gave him only limited excerpts of two teachers' lesson plans for 2004-2005, which were confusing and did not themselves comply with the new lesson plan format imposed that year. In the 2005-2006 year the Respondent was not asked to submit lesson plans on a weekly basis and received no assistance with lesson plans until Ms. Palazesi, who was observing his class or classes that fall, in early November, wrote a model lesson plan, adapted from one of his actual lessons. Ms. Palezesi, however, was not aware of the lesson plan requirements in place at Oakridge then, and even her lengthy
lesson plan sample, for just one class period, did not meet all of Oakridge's lesson plan criteria imposed for 2005-2006.
It is noteworthy that the lesson plans for 2004-2005 and 2005-2006 of teacher Charles Robshaw, also a resource teacher for Special Ed at Oakridge clearly do not comply with the lesson plan requirements. This fact serves to corroborate the Respondent's contention that only he was held strictly accountable for the administration's excessively detailed and to some extent non-germane lesson plan requirements.
In both pertinent school years the Respondent was deemed deficient by Ms. Huckaby and Ms. McFarland in terms of timely or fully complying with student progress monitoring test data compilation requirements. The Respondent did keep abreast of his students daily classroom progress and maintained files on their work and test papers. In the 2004-2005 school year, however, in the early part of the year (September thorough mid- November) he encountered problems in timely complying with submitting the "cover sheet" student progress test data information as part of the curriculum notebook he was required to supply the administration, through the mechanism of either monthly or bi-weekly progress monitoring meetings between teachers and the administration. He was given a needs improvement notice as to this issue, and as the year progressed, he complied with these requirements.
In the 2005-2006 school year he inadvertently missed
the initial progress monitoring meeting because he became confused as to when his fourth grade team was supposed to meet
for the progress monitoring session and he candidly admitted that was his own mistake. Ms. McFarland did not criticize him for that, but simply reminded him that he had missed the meeting. A subsequent meeting early in the fall of 2005 was scheduled with Ms. McFarland and he did attend with his notebook (or other required data) for a 3:00 p.m. meeting. He had an pre-existing appointment after school at 3:30, which he could not miss, and he informed Ms. McFarland of that fact. She excused him from the meeting. After those two early progress monitoring meeting discrepancies in September 2005, however, the Respondent complied with his progress monitoring requirements and those issues were not again raised with him, until raised as one of the reasons in Ms. Huckaby's final decision in late December 2005 as to why she recommended his termination. Significantly, the school administration only checked to see that teachers other than
Mr. Waters had completed similar student data compilations only
once or twice early in each school year. Subsequently, each year the administration was less interested in actually inspecting such data and course test score charts plotted on spread sheets/graphs by most teachers.
In neither of the two school years in question was
Mr. Waters given a full planning period or a week after students arrived to prepare for his resource assignment ESE students.
These are privileges which were customarily given to resource teachers in prior years. Despite the meager planning time he was accorded on the administrator's schedule, in reality he lost significant valuable planning time by escorting students to and
from classes and due to his morning duties. Adequate planning time is crucial to the work of special education teachers, particularly if one is deemed to be struggling with lesson planning, IEP preparation and timeliness issues, and related A3 IEP technology time demands.
The Respondent asked for schedule changes to improve his ability to meet the new administration demands, as, for instance, to allow time during the day to input IEP requirements into the A3 system to prepare IEP documents, instead of at the end of the school day when all the ESE teachers were on the A3 system, which slowed it down drastically. Ms. Huckaby, however, never agreed to provide such schedule changes so that he could more efficiently use his planning time. Indeed, in the 2005-2006 school year, Ms. Huckaby scheduled Mr. Waters to spend 26.25 hours teaching students each week which is more than the 25 hour per week maximum teaching time provided by the collective bargaining agreement while still providing him less than a full class period of uninterrupted planning time.
Sometime in the 2003-2004 school year the system for
generating individual education plans (IEP) changed from paper IEPs or the so called "gibco" IEP system (apparently a school based software operated system) to a district-wide computer net system called the "A3 IEP." This was a difficult system to learn and to use in completing IEP's without mistakes in the first effort. The District made training available in 2004, particularly in the summer of 2004 and subsequently.
It can take as much as three hours to create IEP's "from scratch" on the A3 system and to input all the necessary student demographic and test score history data to upgrade a previously hand-written or gibco-generated IEP in converting it to an A3 IEP. This is especially so for newly trained or partially trained teachers. Complicating these time constraints were the Respondent's limited planning time, with competing meetings being held in the conference room area where cumulative ("cume") folders were housed at Oakridge, which are necessary to the student data research required to generate the IEP's. Thus teacher access to the demographic and testing information needed for IEP completion was somewhat restricted at times.
Moreover, Mr. Waters had his only significant block of continuous planning time, when he could work on IEP's, immediately after school. This is the time of day when the A3 IEP computer network operates very slowly because most of the ESE teachers in the entire district are attempting to use it immediately after school hours.
These factors are part of the reasons Mr. Waters in the Spring of 2004 had an occasion when IEP's were prepared somewhat late and computer-generated progress reports on one occasion were submitted several days late. It is also true that the Respondent and Ms. Wacksman were not formally trained on the A3 system until late January 2005. This delay in receiving the A3 system training appears to have been due to both the Respondent's and Ms. Wackman's delay in seeking the training and the district's and the school's inattention to scheduling the training sessions.
With regard to the occasion testified to by Ms. Petrick concerning his late preparation of, or need to correct mistakes in some IEPs, the Respondent established that he immediately corrected the minor mistakes in several of the IEPs he prepared and that, when Ms. Petrick contacted him about the need for him to make corrections, in several instances the corrections had already been made on the original IEP in question but had not gotten corrected on her copy.
Moreover, four or five of the students who had to have corrected IEPs, or whose IEPs were submitted slightly late were students who the Respondent himself had identified to his administration as being wrongly placed by the administration. The students were supposed to have been in a fourth grade level program and instead were in a first or second grade level program. This necessitated re-constituting their IEPs. The Respondent, after alerting the administration to its error also completed the new IEPs on these students.
In any event, it is true that Mr. Waters could have begun sooner and more timely prepared the IEPs involved and the same is true of the occasion when the somewhat late progress reports caused his reprimand by Ms. McFarland. It is also true, however, that the requirement of using the cumbersome A3 system to prepare IEPs, more particularly the lack of adequate usable planning time, and the somewhat chaotic effects of five schedule changes during that school year imposed by Ms. Huckaby also contributed to the issue encountered near the end of that year concerning timeliness and corrected IEPs. Although the
Respondent received less than satisfactory evaluation ratings as to professionalism and ethics because of the issue regarding delays and mistakes in the IEPs described above, these were a small number of occurrences, concerning very few students, at one particular period of time in the school year. They did not cause any delay or other adverse effect in the provision of ESE services to students nor the loss of any federal, state, or other special education funds, or adverse effects on the school's rating. Moreover, this aspect of Mr. Waters' performance improved after this occasion.
Ms. Huckaby and Ms. McFarland made significant changes in required lesson plan and progress monitoring formats, and student progress charting. These requirements were considerably more time demanding and were accompanied by rigid reliance on upgraded, scripted reading and standardized math curricula with the advent of the 2005-2006 school year. These new requirements were to be applied by all ESE teachers for their students.
Ms. Huckaby imposed a severely time-constrained, scripted reading curriculum for Mr. Waters' class and also a mandatory new vocabulary program that took up to 15 minutes more of his reading class time block each day. She also required an additional fluency probe-recording requirement to be carried out weekly in all reading classes, including Mr. Waters', which required an average time for completion of five minutes per student.
Mr. Waters' reading mastery (RM) curriculum required class time scheduled during the first ninety minutes of his day in the 2005-2006 year. This was clearly impossible to carry out
and remain consistent with the RM program's lesson sequence requirements, particularly with the addition of the fluency probe and vocabulary project requirements that Mr. Waters and all teachers were required to include in their reading classes that year. In fact, the reading mastery schedule for Mr. Waters was impossible to carry out within the allotted time period, even when one was not additionally delivering the required vocabulary project lesson and doing the reading probe requirement. In this regard one of the individuals asked to assist Mr. Waters in the 2005-2006 school year was Donna Haff, of the FDLRS staff.
Ms. Haff, in working with Mr. Waters, tried to develop a better means for him to address the RM scheduling problem. She began that effort by "model teaching" his scripted RM classes in order to better understand his problem. This means that she simply tried to teach the RM class herself to see if it could be done within the mandatory curriculum and time period in which
Mr. Waters was required to do it. Despite her extensive experience and familiarity with RM curriculum and her experience teaching it as a trainer for teachers, Ms. Haff was unable to complete the RM lesson in the time allotted to Mr. Waters, even without performing the mandatory new vocabulary program or any reading fluency probe requirements. She concluded that his RM schedule could not reasonably be carried out. She informed
Ms. Huckaby of that conclusion. Ms. Huckaby expressed her frustration to Ms. Haff concerning this problem by asking, "Do you realize how much time we have put into this?" Ms. Huckaby
decided not to act on Ms. Haff's advice and decided not to make any changes in Mr. Waters' 2005-2006 RM schedule.
On or about June 3, 2005, Ms. Huckaby imposed an improvement notice on Mr. Waters, listing items in his instruction and teaching management that she felt needed improvement and concomitantly imposing a 90-day probationary period running from a date in September through early December 2005. Making only two observations of Mr. Waters' teaching herself, she relied upon reports of Margot Palazesi's 13 observations of Mr. Waters' classroom and teaching during the 2005-2006 school year from generally September through December. Ms. Palazesi's primary expertise, however, was in IEP compliance, IDEA compliance and grant funding compliance. She has a great deal of training in exceptional student education including a PHD degree, but she was not trained or qualified to work within and with regard to Leon County's performance observation and assessment for teacher evaluation, as either an administrator or a classroom mentor. Ms. Palazesi was unfamiliar with the lesson plan requirements at Oakridge and with the CHAMPS behavioral program requirements. She acknowledged that she understood
Mr. Waters had the CHAMPS program implemented in the behavioral
management aspect of his class and teaching, but she had little familiarity with what it entailed. She did acknowledge, however, that he had an award system for behavior and academic performance for his students built into and actively followed in his classroom.
Ms. Palazesi also was not certified in reading and had not taught a reading mastery class in 20 years. Nonetheless, she made 8 of her 13 observations of Mr. Waters' teaching in his RM class. She did not have any understanding of the impossible double-scripted reading class schedule for his two reading groups that he was required by Ms. Huckaby to execute within the 90 minute time block. Through her interaction with Mr. Waters she came to understand from him that there was more material in the double-scripted reading curriculum than could be delivered in the
90 minute period, as Ms. Haff's testimony also showed. Ms. Palazesi, nonetheless, criticized his lecture teaching style, without acknowledging that that teaching method might have been effectively imposed on Mr. Waters in large part due to the impractical time constraints placed upon his delivery of the reading program, the vocabulary requirement and the reading fluency assessment requirement, imposed on him by Ms. Huckaby.
Ms. Palazesi also noted, early in her observations, that Mr. Waters did not, in her view, engage in a review of material previously instructed, as, for instance, the day before, or inform the students what they would be learning in the lesson that day. Concerning one or more of her October observances, however, she acknowledged in her testimony that he had done that or started doing that. Moreover, one of her notations was acknowledged by her to be inaccurate in that she criticized him for not doing an introductory portion to his lesson, but then acknowledged that she had arrived some 10 minutes late, missing that portion of his lesson for that day. She also acknowledged
that he was receptive to following her suggestions for improvements she thought should be made in his classroom management, in terms of assigning student desks, changing the arrangement of the room as to where a work table was placed, etc., and he did so. Ms. Palazesi also noted that he had a very good rapport with his students, and that his students behaved well and did their work in his classroom. They were on task much of the time. Although she criticized him for departing from his lesson plan on her first observation, in later observations she acknowledged he appeared to adhere more to his lesson plan.
Ms. Palazesi was ostensibly dispatched to Mr. Waters' classroom to provide him technical ESE department-type assistance. However, she primarily engaged in making suggestions concerning ways that Mr. Waters could improve otherwise acceptable lessons and lesson plans and make improvements to his classroom management and the physical layout of his classroom. She acknowledges in her testimony that this was an exercise that she could have undertaken in any teacher's classroom and instructional regimen, and could have found ways to suggest improvements. Her suggestions, however, to the extent they were criticisms, appeared to have been relied on, and, inferentially, used to corroborate Ms. Huckaby's negative findings.
During the second part of the 2004-2005 school year and the first half 2005-2006 school year Mr. Waters used computer technology in his classroom. He received advice from Ms. Donna Haff on how to incorporate it as a relevant and exciting way to reinforce his course curriculum and began doing so. In each of
the 2004-2005 and 2005-2006 school years, he used power point technology in the form of game show question and answer formats ("Who Wants to be a Millionaire," "Jeopardy," and "Hollywood Squares/Tic Tac Toe"). He also employed other types of computer technology in his classroom on a regular basis, whether or not they were also noted in his lesson plans or were specifically observed by Ms. Huckaby, Ms. McFarland, or Ms. Palazesi. He demonstrated an ability to incorporate technology into his classroom instruction at least as effectively as most of his colleagues.
Despite this fact and Ms. Huckaby's own praise for
Mr. Waters' use of power point technology as a reinforcement tool in her December 14, 2005, observation, Ms. Huckaby still asserted to the Superintendent of the District in her letter recommendation for his termination that Mr. Waters did not adequately incorporate technology into his teaching and claimed that the December 14, 2005, lesson where she observed his use of technology marked "the first and only time he has integrated technology in the teaching and learning process." If Ms. Huckaby had made adequate observations of his teaching and his classes, or had even adequately conferred with Ms. Haff, she would have known of the extent of his use of technology in the classroom (or else perhaps she knew it and disregarded it). This statement to the Superintendent is one of the indicators of the level of bias Ms. Huckaby bore towards Mr. Waters.
Most of the ESE teachers, including Ms. George,
Mr. Waters, and Ms. Wacksman customarily do not employ
computerized grading of their students because of the unique, singular nature of each ESE student's problems, learning styles, abilities, and each ESE student's goals and the varying curriculum and social needs of each ESE student. These and the other individualized differences among ESE students render a hand-written old fashioned grade book the most effective way to make a record of each student's progress toward that student's IEP- codified goals. Ms. Huckaby gave Mr. Waters a negative rating in the area of technology use partly because he did not use a computerized grading system, but neither did any other ESE teacher at Oakridge. Mr. Waters was singled out for criticism for that aspect of his teaching and the others were not.
All teachers at Oakridge, particularly ESE teachers, during both the relevant school years, worked under increasing lesson plan requirements and student performance monitoring and documentation requirements and changes, as well as curriculum changes and related paperwork and time constraints. These were very stressful and no doubt were related in a significant part to the fact that the school had slipped from a "C" rating to a "D" rating on Ms. Huckaby's watch as principal. This no doubt caused significant tension and anxiety for all concerned on the instructional staff and in the administration. Only Mr. Waters, however, was held strictly accountable to all deadlines and all aspects of the burdensome documentation requirements and time constraints imposed during those two school years.
In the context of his limited planning time, the
excessive student contact time scheduled for him in 2005-2006,
the delays he encountered in getting A3 IEP System training (some of which were self-inflicted), the difficulties encountered in gaining sufficient access to the conference room where the cume folders were maintained in order to comply with progress monitoring requirements, as well as the repeated schedule changes to his 2004-2005 assignment schedule and the time constraints of his 2005-2006 reading mastery schedule, put the Respondent in a position where it was impossible for him to timely and fully comply with every requirement imposed on him. Ms. Huckaby's close monitoring of the Respondent, as compared to other teachers, under such circumstances, is reflective of her bias in favor of a recommendation of termination. It impelled her,
Ms. McFarland and Ms. Palazesi to document and exaggerate the significance of every minor error or omission that involved Mr. Waters.
Arranging for ESE meetings, monitoring and complying with deadlines related to IEP's, monitoring ESE consult situations and completing all IEP-related paperwork are the responsibilities of the assigned ESE teacher. The carrying out of these tasks, however, often involves frequent communications among, and timely cooperation with several other people, such as other ESE teachers, regular classroom teachers, school administrators, the District Staffing Specialist, and the ESE students' parents. Mistakes, delays, and miscommunications concerning these ESE teacher responsibilities will occur and while they are not desirable they are not unusual. When such problems arise they are normally corrected by all persons
involved as quickly and cooperatively as possible without resort to blame. Although Ms. Petrick became critical of paperwork problems and delays Mr. Waters was responsible for in the last half 2004-2005 school year, Oakridge school lost no federal funding because of them nor was it shown that any students suffered in academic or behavioral progress because of them. It is noteworthy that the IEP-related deficiencies concerning
Mr. Waters began to arise only in the second half of the 2004- 2005 school year around the same time that critical memoranda from both Ms. Huckaby and Ms. McFarland were becoming the norm. In any event, Mr. Waters improved in these areas in the 2005-2006 school year.
Mr. Waters received little of the help promised him in the September 2005 revised improvement notice document. He did not have a national board-certified mentor assigned him for 2005- 2006, did not get to meet with consultants from the Reading Mastery Plus Program, "Open Court," the "Great Leaps," or the Harcourt Brace Mathematics Programs. He did not meet with anyone from the Florida Inclusion Network. The administration did not provide adequate or meaningful assistance to him in either school year, but rather denied, delayed answering, or ignored his specific requests for more planning time, model lesson plans which would comply with Ms. Huckaby's lesson plan changes and requirements, relief from his impossible RM schedule for 2005- 2006, and his request for a transfer to another school. Instead of providing practical help to him (with the exception of Dr. Adams), the District focused its "assistance" mostly upon sending
more staff and district employees to observe him and provide resulting reports to Ms. Huckaby. (Ms. Smith and Ms. Sands in 2004-2005 and Ms. Palazesi in 2005-2006.)
During the 2005-2006 school year Mr. Waters work was being scrutinized over the 90 day performance improvement probationary period imposed by Ms. Huckaby which ended on December 8, 2005. During that time, however, his classroom activities were observed only once by Ms. Huckaby, on November 8, 2005. Ms. Huckaby's second observation of him took place nearly a week after the end of the probation period and was two and one- half hours long. It resulted in a critical observation report based primarily upon the last third of that classroom time when Mr. Waters had a formal lesson plan to take his writing class students to a "writing boot camp" session to be attended by all fourth grade teachers and students.
Ms. Huckaby, however, refused to let him follow his lesson plan for that day's writing class and insisted that he teach the group there in his room. It was the last day his writing class would meet before the Christmas break which is why he planned to let them go to the writing boot camp with students from other classes on that day. There were no lesson plans for the rest of that week that he could adapt to the remaining one- third of his class that day, with the students unexpectedly present because of Ms. Huckaby's order; it was the last day of school before the Christmas break, and lesson plans for the next day or other days remaining in the week were thus unnecessary. Nevertheless, Ms. Huckaby made negative comments concerning
allegedly inadequate planning for his writing group for the class that day after she concluded her observation.
Ms. Huckaby had access to Mr. Waters' lesson plans for his December 14, 2005, class and before her observations that day. She had previously reviewed his lesson plans while observing his class to be sure he was precisely following those plans as he had often been instructed to do. She no doubt reviewed his plans for the December 14th lesson and had to have seen the writing boot camp entry. Nevertheless, she refused to let his students attend the writing boot camp. It was by this means that she was able to document a purportedly inadequately planned writing class activity for that day and then relied upon those negative comments in support of her termination recommendation to the superintendent which, inferentially, she had already decided to write. Ms. Huckaby only observed
Mr. Waters classroom activities one time during the probationary
period. Her only other observation of his classroom activities occurred on the December 14, 2005, occasion, approximately a week after the probation period ended. School administrators, however, are required to periodically evaluate and apprise teachers of their progress during such a 90-day probationary period, which Ms. Huckaby did not do.1/
The Respondent was confronted with a significant increase in time consuming paperwork/reporting requirements lesson plan requirements and the other burdens depicted in the above findings of fact, which Ms. Huckaby placed upon him.
Other teachers and ESE teachers had to contend with some of these as well, although to a lesser extent and with less micro- management by Ms. Huckaby. Nonetheless, the Respondent made significant improvements in teaching methods, lesson plan quality and organization, classroom organization, the variety of planned classroom activities and his technology-supported lesson delivery methods.
Mr. Waters was effective enough in his teaching and had made sufficient progress so that he received the second highest number of votes for "teacher of the year" from Oakridge's faculty and staff. He thus only ranked behind one revered teacher who had received the award before and who had more recently received the most votes, but declined the award in order to allow someone else to get it. Mr. Waters complied with all reasonable requests made of him, by and large, and in those areas of less than acceptable compliance made the necessary improvements in his compliance. He satisfactorily executed his job duties in both 2004-2005 and 2005-2006 school years as long as he was at Oakridge. Notwithstanding those improvements in performance, Ms. Huckaby continued to evaluate him as if he had made no improvements, pronouncing in June 2005 the results she had angrily promised him in their October 2004 meeting. She re- confirmed that negative assessment in December 2005 with her
termination recommendation, made with only one observation by her during the actual period of his 90-day probationary status.
Mr. Waters' teaching and classroom management performance in 2004-2005 as well as 2005-2006 and Ms. Huckaby's and Ms. McFarland's criticism of it, culminating in the termination recommendation by Ms. Huckaby, did not result and was not predicated on his students' FCAT scores. Ms. Huckaby admitted as much in her testimony as to both relevant years.
The Petitioner attempted, in its rebuttal case only, to introduce test-related evidence that students of Mr. Waters in the 2004-2005 school year did not do well on standardized tests. That exhibit, and the information it was prepared from, however, were not made available at the hearing, during discovery, were not disclosed in the pre-hearing stipulation, and were not disclosed as a reason for Mr. Waters' performance criticism and termination by any charging document, notice or pleading by the Petitioner made a part of this record. The Petitioner in essence was using or attempting to use the proffered Exhibit 46 to buttress its case-in-chief because it was not rebuttal of anything raised or offered in the Respondent's case. Therefore, it was excluded on the basis that it constituted improper rebuttal evidence and, moreover, because of the non-disclosure problem referenced above, was not
admissible on due process of law and "notice pleading" principles.
Moreover, the information included in the charts in Petitioner's proffered Exhibit 46 is misleading with respect to comparative student progress issues by teacher. There is confusion as to which student was the pupil of Mr. Waters or another ESE teacher or teachers. It is difficult to determine based upon that exhibit, and the testimony proffered concerning it, an accurate comparison of student progress by the students depicted under Mr. Waters's teaching performance versus that of other teachers.
Further, the "Writes Upon Request" chart comparison contained in Petitioner's Exhibit 48 and the testimony related to it, was clearly not a reason used or considered in lodging performance-related criticism against Mr. Waters or ultimately in the decision to terminate him. It clearly could not have been considered until several months after Mr. Waters had been removed from the Oakridge school. Had those Writes Upon Request chart results been considered by Ms. Huckaby in the context of this case, they would not serve as preponderant evidence of sub- standard performance by Mr. Waters, considering the other evidence of the circumstances and abilities of his students in conjunction with his performance.
Mr. Waters is at minimum an adequate teacher and in some aspects of his performance a superior teacher, as, for instance, in his ability to advance his students' performance in writing and in terms of his ability to motivate his students and establish a good rapport, with an interest in learning, in his students. His classroom management skills, instructional methods and classroom demeanor fall within the parameters of acceptable performance and behavior as a teacher and an ESE teacher. He consistently and successfully relied upon his own behavior management reward system for his students, employed the Champs Program in his classroom and was successful at motivating his students to enjoy learning. In demonstrating a very good rapport with his students, he always created a classroom environment of mutual respect that is conducive to student learning and his students were learning. His overall performance for both school years at issue was objectively satisfactory despite Ms. Huckaby's biased assessment of his performance during those years and in her ultimate termination recommendation. In fact, the excessive number of areas of criticism by Ms. Huckaby concerning Mr. Waters job performance made it quite difficult to demonstrate mastery of every criticized area, much less to demonstrate it all in only two formal observation attempts by Ms. Huckaby.
Ms. Donna George is a 21-year career ESE teacher. She has a master's degree in the areas of learning disabilities, emotional handicap, and varying exceptionalities. She has spent
13 of her teaching years at Oakridge school. She is the ESE Department Team Leader at Oakridge, as well as the "technology contact" teacher, who trains and assists other teachers in implementation of technology programs and equipment at Oakridge. She assists in teacher technology training. She is also a National Board Certified ESE Teacher.
Ms. George is thus a leader on the staff at Oakridge.
She has observed in ESE meetings and in school-wide faculty meetings, throughout Ms. Huckaby's tenure as Principal, that Ms. Huckaby has an autocratic, dictatorial management style, and an aversion to allowing commentary or questions regarding her policies, directives or programs at Oakridge. Ms. Huckaby has demonstrated little tolerance for questions or comments she perceives to reflect less than complete agreement with her positions or policies. Indeed, although Ms. George is the ESE team leader, she seldom has asked questions or sought clarifications of Ms. Huckaby during such meetings, because of her fear that she would be yelled at, treated with disdain, anger or even with reprisal. Such has also been the experience of Ms. Wacksman and others. Ms. George established that
Ms. Huckaby's management style had driven many good teachers
away from Oakridge. A survey by the district staff concerning long-term teacher retention rates showed that Oakridge had the lowest retention rate at 17 percent. The next lowest school in the survey had approximately 30 percent retention rate. This survey encompassed the period beginning with the 1999-2000 school year to present.
Ms. George observed that Ms. Huckaby often responded to questions or comments from Mr. Waters with both verbal and non-verbal ques, such as eye rolling or turning away or other mannerisms, that generally showed disdain for his questions or his opinions. Ms. George unequivocally opined upon cross- examination by the Petitioner that Ms. Huckaby clearly does not like having Mr. Waters on her staff and was "out to get him."
According to Ms. George, Mr. Waters asked questions more frequently than others in faculty meetings, but his questions generally were reasonable ones. He apparently also would attempt to make humorous comments, at times which often irritated Ms. Huckaby and other teachers as well.
It is likely that some of his motivation to question Ms. Huckaby and her motivation to treat him with disdain, stemmed from their strained relationship starting with the student disciplinary incident described above. In any event, Ms. George's testimony is accepted in establishing that
Ms. Huckaby had a bias in favor of removing the Respondent from
her staff, which colored her judgment in making many of her criticisms of his teaching, which long pre-dated his probationary period and which, along with her scant actual observations of his instructional prowess, caused some of his improvements to be overlooked or disregarded, and which caused him to be evaluated more critically than his colleagues as to some performance requirements.
In fact, the preponderant evidence establishes that in an objective sense his performance as a teacher, although not flawless, was acceptable and improved in a number of areas. As found in more detail above, in consideration of the circumstances imposed on him by the school administration, in his capacity as a resource teacher, with the time and schedule constraints and disadvantages that status entails, he performed in at least a satisfactory way in the 2004-2005 and 2005-2006 years at issue.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).
Subsections 1012.34(3)(a)-(c), Florida Statutes (2006), provide for the pertinent methodology for teacher performance assessment and evaluation to be followed by school districts. Subsection 1012.34(3)(d)1.2.a, Florida Statutes
(2006), provides for the manner of notice of performance deficiencies for instructional personnel, opportunities for corrective action, for a probationary period and hearing procedures for contesting performance-related issues.
Subsection 1012.34(3)(d)2.b.(II), Florida Statutes (2006), provides for proceedings before an administrative law judge in accordance with Section 120.569 and 120.57(1), Florida Statutes (2006), in the event a recommendation for termination of a contract is disputed.
The evidence and facts establishing the controversy over Mr. Waters' evaluation in 2004, culminating in the hostile meeting between him and Ms. Huckaby in October 2004, coupled with the facts found regarding their relationship after the student discipline incident, support the inference that Ms. Huckaby decided contemporaneously with or before the October 2004 meeting to embark upon a course of action to bring about the Respondent's termination.
The above findings of fact show that Ms. Huckaby made a decision to embark on a mission to terminate Mr. Waters after he challenged her harsh criticism of his teaching, and her claim that he had received a "needs improvement" evaluation for the 2003-2004 school year. Immediately after the October 2004 meeting the courses of action taken by Ms. Huckaby, referenced in the above findings of fact ensued. Thus what had been relative
minor criticisms as to Mr. Waters' evaluation, within the context of the "accomplished teacher" evaluative methodology, became a more frequent series of apparently serious criticisms, culminating in a less than satisfactory evaluation in most rated areas of the evaluation process at the end of the 2004-2005 school year. This then progressed, as delineated in the above Findings of Fact, to Ms. Huckaby's December 16, 2005, recommendation of termination to the superintendent for a wide variety of alleged deficiencies.
The alleged deficiencies asserted by Ms. Huckaby were predicated mostly upon on the observations of other persons she dispatched to observe and report to her concerning Mr. Waters' performance, upon which (with her two observations) she based her recommendation of just cause for termination to the superintendent. The record, however, contains substantial, preponderant evidence, supportive of the above findings of fact, that Mr. Waters is indeed in many or most respects a capable and caring teacher. His students like and respect him and enjoy being in his classroom. They were shown to work enthusiastically, to thrive under his supervision and to progress academically and socially. The testimony of National Board Certified Teacher, District Mentor, Technology Trainer and Oakridge ESE Chair Person Donna George is compelling in her description of the rapport she observed to exist between
Mr. Waters and his students and the almost "magical results" he
obtained from her former writing students in his subsequent writing program the following year. Cathy Wacksman is a 32-year
veteran Leon County teacher and has been an ESE teacher for 32 years, the last 20 of them served at Oakridge. Her testimony is rendered especially significant because of the substantial amount of time she spent actually working together in the same classroom as a team teacher with Mr. Waters. She thus established that he made impressive academic results with his students and engendered a great deal of respect flowing between him and his students. He delivered quality teaching and a positive outcome for his students based upon her lengthy observations of his teaching and classroom management.
These eye witness accounts of Mr. Waters' quality of teaching and positive outcomes by respected veteran ESE teachers outweigh the district's purported "research-based" method of measuring performance in his classroom. Students, including special education students, can respond well to more than one kind of teacher, using a curriculum in more than one specific way.
Ms. Huckaby contended that decisions at Oakridge were
made collaboratively with the school faculty members and that she encouraged questions and comments from faculty members. That contention is inconsistent with the greater weight of the evidence to the contrary. In fact, the record contains substantial evidence supporting the conclusion that Ms. Huckaby does not tolerate clarification or questions regarding her pronouncements, policies or directives, which she believes are perfectly clear. She has little tolerance for faculty members who express concern or disagreement with her ideas or policies.
The testimony of Ms. George and Ms. Wacksman particularly establishes that Ms. Huckaby has a penchant for displaying disdain or anger to teachers who ask questions, or make comments, express concerns and especially disagreements in her presence.
They testified that Mr. Waters was the primary faculty member who would incur Ms. Huckaby's anger by asking questions or making comments during faculty meetings. In fact, Ms. Wacksman has a practice of trying not to speak at all at faculty meetings, even if she feels the need to ask a question, out of fear of incurring Ms. Huckaby's anger if Ms. Huckaby did not like her comment or question. Ms. George, similarly, has been very reluctant to ask questions or make comments at faculty meetings. She testified that if she had a question, she would wait until after the meeting and get her question answered privately by another person. She testified that she wanted to avoid "getting yelled at." In fact, in the Petitioner's cross-examination Ms. George opined unequivocally that she believed that Ms. Huckaby was "out to get" Mr. Waters, that is, to terminate him.
Ms. George also has observed that Ms. Huckaby's
management style and attitude has driven many good teachers away from Oakridge. In this regard, as mentioned in the Findings of Fact, a survey was done by the district staff concerning long- term teacher retention rates. That study showed that Oakridge had the lowest teacher retention rate in the district, by far, over the period of the last 6 to 7 school years.
Additionally, in this regard, Mr. Waters testified to
having angry exchanges with Ms. Huckaby, particularly during the late October 2004 meeting between him and Ms. Huckaby where he challenged her assessment of his performance as being a "needs improvement" for the 2003-2004 school year. He maintained that his rating under District rules or policies should be a satisfactory. The above findings of fact based upon the greater weight of the evidence, show that this event largely triggered the steps Ms. Huckaby began taking toward Mr. Waters' termination. She denied behaving in an unprofessional or vindictive way toward the Respondent, but those self-serving denials are not credited. The greater weight of the testimony and evidence concerning her personality and management style show that she is capable of vindictiveness against teachers who dare to disagree with her or question her policies or judgment.
A key example of this characteristic can be found in
the way she handled the last observation, one of only two she made of Mr. Waters, on December 14, 2005. This was Mr. Waters last chance to prove to Ms. Huckaby that he was worthy of keeping his job. After having observed him properly follow his reading mastery scripts and engage in an "exciting" power point review presentation for almost two hours, Ms. Huckaby insisted on staying another 40 minutes to observe his writing class. She had every right to observe a teacher as long as she desires, but it is reasonable to infer from this situation that she stayed longer in his class in the hopes of observing an opportunity to crictize his writing class and the writing instruction for that date. She denied knowing that Mr. Waters only had plans that day for the
writing group to attend the last "writing boot camp session." At this session the students were to complete the essays they had been working on throughout the first part of the school year.
The session was to be with the entire fourth grade group and all the fourth grade teachers. Ms. Huckaby's testimony that she denied having any idea that he had planned to send his writing group to that session that day is not credible for the following reasons. First, it is not credible that a "hands on principal," like Ms. Huckaby, who was reviewing his lesson plans would not have known that all fourth grade writing groups were planning to attend their last writing boot camp on that last day before the winter holidays, including Mr. Waters' writing group. Secondly, she had complained repeatedly about his inadequate lesson plans, and as a general practice, always looked at lesson plans of those she was going to observe in order to understand what they would be doing in the classroom during that observation. Additionally, Mr. Waters knew that a decision about his employment future was imminent when Ms. Huckaby observed him on December 14, 2005. It is incredible that he would not have at least told Ms. Huckaby of his intention to take the writing group to the writing boot camp that day, when it became clear to him that she intended to remain in his room to observe him teach a writing class for
which, for understandably legitimate reasons, he had no other
plans.
Assuming that Ms. Huckaby knew that Mr. Waters had no specific plans for the writing group, other than going to the writing boot camp that day, it must be inferred that she ordered
him not to take the class so that she could support negative references about her last observation of him in the classroom. This is because he would have a substantial period of time when he was unexpectedly required by Ms. Huckaby to teach the writing group without lesson plans because she had countermanded his instructions for that writing group that day. Her notes from that observation that day are consistent with that purpose, with regard to the writing class part of her observation.
Ms. Huckaby also completed an assessment part B on November 10, 2005, to be associated with her November 8, 2005, "Form A" observation for the 2005-2006 school year. Mr. Waters, however, testified that Ms. Huckaby only completed a 2005-2006 assessment Part B at the time of her December 14, 2005, observation of him. He supported that testimony by noting that pages 9 and 10 of the Petitioner's Exhibit 4 are practically identical and both pages include the names of students he had only in the 2004-2005 school year. Those students names were appropriately included on the first of Ms. Huckaby's two part B forms dated November 10, 2005, (Petitioner's Exhibit 4, page 9), correctly completed with reference to the prior 2004-2005 school years, as part of the resolution of Mr. Waters' grievance that was brought about by Ms. Huckaby's failure to give Mr. Waters any supporting documentation of the Part B evaluative area problems, prior to giving him the 2004-2005 final evaluation which had included several negative part B ratings. The inclusion of those same student names on the form Ms. Huckaby created to represent the next school year, 2005-2006, however, makes no sense, and the
Respondent maintains that it is reasonable to draw an inference from this situation that Ms. Huckaby created the pertinent part B form for 2005-2006 after the fact, to make sure she would not again be determined to have inadequate part B documentation in 2005-2006.
Ms. Huckaby based her termination recommendation to Superintendent Montford in part on her statement that the Respondent incorporated technology into his classroom program for the first and only time on the occasion of the December 14, 2005, lesson which she observed, just before the termination recommendation was made. This statement is not accurate. There was extensive testimony from Ms. George, Ms. Wacksman, Ms. Haff, and from the Respondent, which establishes that the Respondent has a better than average command of technological adaptations to enhance classroom instruction. He incorporated them into his instruction in several ways on a regular basis. Ms. Huckaby routinely reviewed the Respondent's lesson plans. Those lesson plans in 2004-2005 and 2005-2006 regularly reference use of power point technology and other computer-related activities as vehicles for curriculum review. Unless Ms. Huckaby had, in fact, not reviewed his lesson plans and not heard comments from others who had reviewed them, or observed his classroom, then she could not truthfully state to Superintendent Montford that December 14, 2005, was the first lesson and time in which he had incorporated technology into his classroom program. This situation also demonstrates that Ms. Huckaby's supporting documentation and her hearing testimony about what she observed of Mr. Waters'
performance (on only two occasions) (and what she claims she understood from reports of others to her) and how it compares to what other teachers at Oakridge are purportedly expected to do in the classroom, is entitled to little credit or weight.
Oakridge's decline from a "C" to a "D" rating understandably caused anxiety on the part of the administration, resulting in a number of curriculum planning, progress monitoring, and behavior management program initiatives that placed substantial new class management, curriculum and paperwork burdens on the teachers. Around this same time the district was moving toward the exclusive use of the more time- consuming A-3 network computer system process for IEP documentation. The substantial changes occurring in procedures and curriculum during the two years in question indeed caused substantial additional burdens in terms of paperwork and time constraints on all teachers. Ms. Huckaby, however, held Mr. Waters to a more strict accountability in incorporating each of those changes into his classroom planning, instruction and documentation methodology than she did his colleagues.
The testimony of Ms. George and Ms. Wacksman concerning
the burdensome and often unproductive nature of the new improved lesson plans and other paperwork and more time-intensive duties created by the administration initiatives and concerning their own partial compliance, occasional non-compliance and individualized responses to the various protocols without repercussion, demonstrates the administration's uneven enforcement of Oakridge's new requirements. Similarly, a
comparative review of the 2004-2005 and 2005-2006 lesson plans of Mr. Waters and fellow resource teacher Charles Robshaw demonstrates, at a minimum, that Mr. Waters' professional documentation was being scrutinized and criticized to a greater degree than that of his most similarly-situated colleagues. In fact, with regard to the testimony of Ms. George and Ms. Wacksman concerning occasional non-compliance or partial compliance with the various new protocols, even Ms. Huckaby acknowledged in her testimony that leeway was allowed for teacher creativity and discretion in carrying out the various protocols. Such discretion or creativity was not allowed the Respondent with impunity, however.
Substantial evidence establishes that extensive procedural and documentation requirements associated with student IEPs involved the participation and cooperation of ESE teachers, regular classroom teachers, school administrators, parents, and district staffing officials and that IEP meeting short cuts, deadline problems, and data entry errors are not uncommon and are generally easily resolved. In fact, staffing specialists are sent by the district to schools specifically to provide technical assistance, to oversee IEP-related paperwork and procedures, and to generally help improve ESE teachers' efficiency and accuracy. This is because the district understands the difficulty of implementing legally compliant special education programs. In the instant case Ms. Huckaby and those reporting to her viewed every minor or routine problem involving Mr. Waters as critical with regard to his special education duties and IEP data-related
duties. He was not given credit in the evaluating process, however, for the fact that his IEP-related performance improved from April of 2005 forward.
As found above, Ms. Huckaby took immediate steps after the October 2004 meeting to make Mr. Waters teaching situation more difficult in a number of ways. She did not expedite the request by Ms. Wacksman and the Respondent to get A3 computer training for entry of IEPs in the fall of 2004. She offered the Respondent no meaningful assistance in acceptable ways to incorporate new planning requirements into his lessons and refused to provide him with an entire class period block of uninterrupted planning time when he requested such help in meeting her increased demands. She changed his class schedule five times that year. In the 2005-2006 school year Ms. Huckaby gave the Respondent a scripted reading class assignment with time parameters that were impossible to carry out. She then relied upon a series of reports from observations made by Ms. Palazesi, a district ESE official who was not really qualified concerning Oakridge curriculum, lesson plan requirements, behavior programs or even the scripted reading program she repeatedly observed Mr. Waters trying to implement. In fact, Ms. Palazesi observed Mr. Waters trying to perform his impossible RM schedule on 8 of her
13 visits to his classroom. Moreover, the Petitioner did not
provide the limited amount of assistance that it had promised Mr. Waters for the 2005-2006 school year, over and above
Ms. Huckaby's repeated refusal to
honor his specific practical requests for help, such as the request to alter his RM schedule in that same year.
The testimony of Donna Haff concerning Mr. Water's RM assignment sheds light on the true motivation of Ms. Huckaby. Ms. Haff, who worked for FDLRS, was the only person who ever seemed willing to provide practical assistance to Mr. Waters.
When Mr. Waters expressed concern about the RM schedule, Ms. Haff "model taught" an RM lesson to see if it could reasonably be completed. She found that it was not possible for her to get through the lesson in accordance with Mr. Waters' assigned time schedule, even though she was something of an RM expert and a reading teacher trainer. When Ms. Haff subsequently informed
Ms. Huckaby that the RM schedule that she created for Mr. Waters presented a real problem, her only response to Ms. Haff was, "Do you realize how much time we have put into this situation?"
Ms. Haff testified that she was already aware of Mr. Waters' employment jeopardy before this discussion with Ms. Huckaby and wanted to convey to Ms. Huckaby that the impossible RM time schedule could pose an impediment to a sustainable termination. She was aware that Ms. Huckaby was on a path towards termination of the Respondent. The comment by Ms. Huckaby reinforces other evidence that the real reason for the time and effort that went into the documentation of virtually every mistake by Mr. Waters was to create record support for a pre-determined decision to terminate him. Ms. Huckaby maintains that she wanted to rectify the RM time schedule situation, but was just unable to find an acceptable solution. She took no steps to resolve the RM
schedule problem, however, and there is no credible evidence that she intended to do so or to take other actions that might enhance Mr. Waters' chances of success. Significantly, Ms. Huckaby never denied any aspect of the discussion that she had with Ms. Haff about Mr. Waters' difficult RM schedule nor did she ever deny making the statement that Mr. Haff attributed to her. Ms. Haff's testimony establishes that Ms. Huckaby was not interested in solving the problem that she created for Mr. Waters.
The greater weight of the evidence thus establishes that the termination decision was actually made in early November 2004 (or earlier) and that the documented problems that followed fell into several categories: true but minor; true but not different in comparison to Mr. Waters' colleagues; exaggerated as to their significance; and not Mr. Waters' fault and arising from impossible time demands, excessive scrutiny of only his compliance level versus that of other teachers who were not so scrutinized and Ms. Huckaby's ultimate refusal to give him the benefit of the doubt concerning his compliance efforts and her failure to recognize improvements he made. Thus, in consideration of the preponderant weight of the credible evidence, Ms. Huckaby's management of the performance observation, improvement, and evaluation process in the two school years at issue was biased and inequitable. A significant portion of Ms. Huckaby's testimony was characterized by lengthy narrative answers laced with jargon, to questions which did not require narratives. She sometimes answered by re-stating earlier testimony about her "research-based justifications" and on a
number of occasions gave answers to direct questions by re- phrasing the questions. She therefore was instructed multiple times to give direct answers. Her findings and conclusions, and her testimony concerning them, are entitled to little credibility as a basis for the termination of the Respondent.
The Student Performance Issue
Section 1012.34(3), Florida Statutes (2006), provides in pertinent part as follows:
The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate . . . (emphasis supplied).
. . . the assessment must primarily use data and indicators of improvement and student performance assessed annually as specified in s. 1008.22 Student
performance must be measured by state assessments required under s. 1008.22 and by local assessments for subject and grade levels not measured by the state assessment program. (Emphasis supplied).
This statute has been interpreted by the Fourth District Court of Appeal in two recent teacher performance termination cases. The statute has been construed to require school districts to rely first and foremost upon standardized testing data showing that a teacher's students have performed poorly as the primary basis for the performance-related termination of a tenured teacher. See Young v. Palm Beach County School Board, 2006 Fla. App. Lexis 19965, 31 Fla. L. Weekly 2987 (Fla. 4th DCA November 29, 2006) (motion for re-hearing pending);
Sherrod v. Palm Beach County School Board, 2006 Fla. App. Lexis 18705; 31 FLWD 2781 (Fla. 4th DCA November 8, 2006).
In the Sherrod decision, the court reversed a school board's final order of termination which had adopted a recommended order of an Administrative Law Judge supporting dismissal, based upon such factors as the teacher's failure to timely post grades, failure to provide instruction consistent with suggested time lines, failure to enter student grades properly into the computer system, and failure to exercise proper control over his students. The Administrative Law Judge found those reasons significant enough to justify a performance-based termination, irrespective of the absence of evidence that standardized test data played any role in the termination decision. This list of the types of performance problems the Palm Beach County School Board claimed it encountered with
Mr. Sherrod is similar to those alleged against the Respondent in
the instant case. The Sherrod rational and holding is applicable to the instant case situation.
In reversing the Board's final termination action in the Sherrod case, the court rejected the argument that student performance need not be the primary focus under circumstances where other deficient areas might be "reasonably" deemed more crucial. The Sherrod court also rejected as irrelevant the argument of the School Board that it is impossible to rely upon standardized test scores at the end of a 90-day statutory performance probation period that begins early in the school year, since FCAT testing take place in February/March of each
school year. Id. at 3. Although the Sherrod court acknowledged that principals and other professional educators may be best suited to determine whether a teacher's performance is unacceptably poor for a variety of reasons, it nonetheless held that the pertinent statute's clear language makes it obvious that the Legislature intended that school districts base teacher termination decisions primarily upon data and indicators of changes in student standardized test performance.
The case of Young v. Palm Beach County School Board, supra presented a situation in which the Palm Beach County School Board, had rejected a recommended order of an Administrative Law Judge and instead rendered a final order upholding the teacher's termination. The final order was based upon the school principal's detailed description of performance problems observed in the areas of management of student conduct, presentation of subject matter, learning environment, lesson planning, and student assessment, rejecting the Administrative Law Judge's conclusion that student standardized testing-based indicators are necessary under the pertinent statutes. Id. Ultimately, the Young Court agreed with the Administrative Law Judge and vacated the Board's final order dismissing the teacher on the grounds that the Board's position was not supported by competent substantial evidence.
In reiterating the holding of the Sherrod court that
the Legislature's use of "primarily" in the pertinent statutes means that standardized performance testing of students must be assessed as the first consideration, the Young Court summed up
the situation as follows:
Regardless of the good intentions of the school board in relying on what it felt were suitable criteria to evaluate teacher performance, by depending on an assessment procedure not primarily based on student performance as measured by state FCAT tests or local assessments, the school board failed to follow the applicable law.
Each of these cases from the Fourth District Court of Appeal is instructive regarding the outcome of the case at hand. Despite the existence of critical memos, observations, evaluations, reprimands, etc., about a variety of Mr. Waters perceived documentation and performance deficiencies and aside from the findings and conclusions made herein regarding the weight and credibility to be described to such evidence regarding many of the alleged performance deficiencies, it is clear that the termination decision involved herein was not based on consideration of the relative strength or weakness of the performance of Mr. Waters' students on standardized tests. Indeed, Ms. Huckaby makes no mention of such consideration in her six-page recommendation letter regarding termination dated December 16, 2005, provided to Superintendent Montford. Pointedly, upon cross-examination, Ms. Huckaby admitted that the recommendation for termination was made before any FCAT testing had taken place and she admitted that her recommendation of termination was not based upon the results of Mr. Waters' students' FCAT testing, nor were her prior years determinations based on FCAT scores. Ms. Huckaby did not clarify, modify, or reject those responses in the re-direct portion of her testimony
and no other witness in the remaining portion of the Petitioner's case-in-chief testified about Mr. Waters' students' FCAT or other standardized test scores for the years 2004-2005 or 2005-2006.
It must be concluded therefore, that an analysis of such test scores was not a primary consideration in the ultimate decision of Ms. Huckaby and the Superintendent to terminate
Mr. Waters employment. No analysis of, or information based upon, such test scores was disclosed in any charging documents, or other form of notice, in discovery, in the pre-hearing stipulation nor was it offered in evidence in the Petitioner's case-in-chief, in the de novo context of this proceeding.
The Petitioner did attempt to offer into evidence, in its rebuttal case, test score-related information which was not admitted into evidence and which the Petitioner subsequently proffered. That test score-related information did not serve to rebut anything offered in the case-in-chief of the Respondent, however, therefore this limited amount of FCAT-related evidence was not admitted into evidence, in part, because it was not proper rebuttal. If it had been so admitted it would only have served to buttress the case-in-chief of the Petitioner, when it should have been available to be offered in the Petitioner's case-in-chief, if at all.
Moreover, it was also excluded on notice and due process-type grounds as well, because it was never disclosed before it was offered in the rebuttal case of the Petitioner either prior to hearing in the pleading or discovery process, in
the pre-hearing stipulation or during the course of the hearing theretofore. Moreover, it was demonstrated at hearing, through additional proffered testimony, that the proffered exhibit's information if considered at all, was considered only after the termination decision was made, and also was based on inaccurate student roster information. Thus, it did not fairly demonstrate poor performance by Mr. Waters' students as compared to those of similarly-situated ESE teachers. It did not clearly indicate which of any students depicted thereon, as to test scoring information, were Mr. Waters' students as opposed to other ESE teachers' students. Therefore, even if the proffered evidence had been admissible, it would have little probative value.
It thus must be concluded that the Petitioner failed to demonstrate compliance with the teacher performance termination requirements based upon the statutory interpretation outlined in the Sherrod and Young decisions. This is so, even if the Petitioner's assertions of inadequate job performance by the Respondent were accurate and unbiased, which in fact they are not.
In summary, the Petitioner has failed to prove by
preponderant evidence that the Respondent performed his teaching duties in a less than satisfactory way in the two relevant school years. Contrarily, as found and concluded above, the errors and omissions pointed out by the administration concerning his job performance during those years, in part, were not as critical or serious as represented to be by the Petitioner and Mr. Waters remedied some deficiencies satisfactorily by strenuous effort
during the performance improvement period. Moreover, his allegedly inadequate performance with some of the Oakridge requirements, policies and directives was demonstrated to be no more significant in nature or degree than the inadequacies of a number of his colleagues who were not criticized for those similar failings.
Thus the evidence of the Petitioner, based upon the above findings and conclusions is not preponderant and persuasive in its attempt to demonstrate that the Respondent performed unsatisfactorily during the relevant time periods. The Respondent's teaching effort, if viewed in an objective, unbiased fashion, under a standard no stricter than that applied to his colleagues, although not flawless, amounted to satisfactory performance. Accordingly, based upon those circumstances and based upon the above judgment as to credibility concerning the Petitioner's evidence and the basis for the termination decision, the Respondent is entitled to be re-instated to a similar special education teaching position with reimbursement for lost wages and benefits and to be made whole.
Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Leon County School Board re-instating the Respondent to a similar special education teaching position, with reimbursement for lost wages and benefits, in a manner so as to be "made whole" from the date of termination.
DONE AND ENTERED this 31st day of July, 2007, in
Tallahassee, Leon County, Florida.
S
P. MICHAEL RUFF 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 Clerk of the
Division of Administrative Hearings this 31st day of July, 2007.
ENDNOTE
1/ § 1012.34(3)(d), Fla. Stat. (2006). COPIES FURNISHED:
Carolyn D. Cummings, Esquire Carolyn Davis Cummings, P.A.
462 West Brevard Street Tallahassee, Florida 32301
Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547
Tallahassee, Florida 32302
Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street
Tallahassee, Florida 32304-2998
James J. Parry
Chief of Labor Relations Leon County School Board 2757 West Pensacola Street
Tallahassee, Florida 32304-2998
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 |
|---|---|---|
| Jul. 31, 2007 | Recommended Order | Petitioner failed to establish by preponderant evidence that the Respondent`s teaching quality and classroom management were so unsatifactory to justify termination and failed to prove that students` test scores did not show adequate performance. |
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