vs. ) Case No. 10-6919
Respondent. )
Pursuant to notice, a formal hearing was held in this case on October 12, 2010, by video teleconference, with the parties appearing in Lakeland, Florida, before June C. McKinney, a duly- designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.
For Petitioner: Donald H. Wilson, Jr., Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Whether Polk County School Board ("School Board") has just cause to terminate Judy Gail Vann ("Respondent" or "Vann") pursuant to Section 1012.34, Florida Statutes.
School Board advised Respondent by letter dated July 15, 2010, that Superintendent McKinzie recommended her termination from employment. Vann requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on August 2, 2010.
At the final hearing, Petitioner presented the testimony the following witnesses: Alan Harrell, Amy Hardee, Dr. Wayne Dickens, and Jose Farinas. Petitioner's Exhibits 1 through 12 were admitted in evidence. Respondent testified on her own behalf and Respondent's Exhibits 1 through 4 were admitted into evidence.
The Transcript of the final hearing was filed on October 29, 2010. The parties agreed to file their proposed recommended orders within 15 days of the filing of the Transcript. The parties have timely filed their Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Respondent started working for the School Board in 2000. During the last ten years, she has taught English.
In November 2008, the School Board recommended Respondent's termination for excessive absenteeism, dishonesty, ongoing gross insubordination, and not preparing lesson plans. The case came before the Division of Administrative Hearings in Case Number 09-0955.1
On August 20, 2009, a Recommended Order was entered concluding that a preponderance of the evidence in that case did not support the alleged acts in the charging document, and Respondent was reinstated with full back pay.
After the School Board reinstated Respondent, for the 2009-2010 school year, she was assigned to Traviss Career Center ("Traviss") to teach 11th and 12th grade English. Prior to this assignment, Respondent had never taught in a high school.
Traviss is a school for high school students and adults. Both high school diplomas and certificates in a career field or vocational trade are available to graduates.
Traviss students that are trying to achieve a regular high school diploma take the FCAT.
Seventy-seven percent of the student population at Traviss who took the 2008-2009 FCAT were reading at level two or below. Level two is a fifth-sixth grade reading level.
Polk County requires that the 11th and 12th grade students do the same work as their counterparts at the traditional schools and follow the same curriculum maps.2
Alan Harrell ("Harrell"), the assistant director of curriculum, was Vann's supervisor at Traviss. His primary responsibility is to oversee the academic programs. Such duties include monitoring lesson plans and learning guides, and keeping the curriculum maps on target. Harrell also oversees students' grades and makes sure students are getting the right courses for their diploma.
Harrell supervised Vann during the six periods she taught a day. Three of the classes were English III for juniors and three were English IV for seniors.
Vann tried to be creative when teaching the curriculum maps. When the students were required to study Shakespeare, Chaucer, and epic works such as Beowulf, she would often-times show modern movies like Hercules to keep the students interested. Harrell did not think the movies were the best teaching methods for the students.
Harrell made regular visits to Vann's classroom and met with her about various issues periodically.
During Harrell's second meeting with Vann on October 16, 2009, some items discussed were students' grades, homework, and lesson plans.
On November 17, 2009, Harrell emailed Vann to instruct her about her lesson plans for the two previous weeks. The email stated:
Please post your lesson plans for week of 11/09/2009 and for week of 11/16/2009. They should be posted on Friday prior to the next week so we have some guideline for the substitute to be able to follow when the teacher is absent.
During Harrell's fifth meeting with Vann on November 30, 2009, Harrell discussed several areas of concern. The first was her lesson plans not being posted.
During the first semester, Vann was absent from school approximately 15 days.
On December 11, 2009, Harrell met with Vann again to discuss proper protocol and procedures for preparing lesson plans. Harrell also discussed Vann's numerous absences and the effect on the students.
On January 11, 2010, Harrell contacted Vann again about incomplete lesson plans by email. It stated:
In reviewing your lesson plans for the week of 1/11/2010, I observe a number of discrepancies that need to be corrected.
"same as above" under PLANNING does not define the objectives.
"same as above" under PLANNING does not define the Standards/Benchmarks.
Under Procedures/Activities, a description of what the intended activity is going to be needs to be described.
As previously discussed your lesson plans need to be in line with the curriculum map.
On January 13, 2010, Vann emailed Harrell and informed him that she had "reposted the completed version of the lesson plan template for 1/11/10."
Deficiencies in Vann's performance as a teacher and absences from school continued into the second half of the school year.
Vann's posted lesson plans were incomplete or insufficient, and she would email lesson plans to the school on the mornings when she was absent.
Vann was absent approximately 10 days without pay between January 7, 2010, and February 11, 2010, including the 11th.
The emails Vann sent during that period listed the following explanations for her absences: January 7, 2010, "I have no voice."; January 11, 2010, "Sick . . ."; January 12, 2010, at 5:19 a.m., "Sick since Friday . . . trying to see doctor today"; January 12, 2010, at 5:24 a.m., "As stated my lesson plan template was incomplete for 1/11/10 because I have been sick and was unable to complete the template."; January 19,
2010, "I have been down with a Migraine for three days and I hope to be able to see the doctor today."; February 9, 2010, "I am having very severe back problems and have a doctor's appointment today."3
On February 12, 2010, Respondent was in a car accident on the way from school on Thornhill Road. A car slammed into her going approximately 55 miles per hour in the drizzling rain.
Vann first sought medical treatment on February 25, 2010, from a chiropractor, Dr. Sundermeyer.4 Vann was treated the rest of the school year for her back and spine by the chiropractor.
As a result of Vann's continuing decline in performance, on February 25, 2010, Respondent received a Notice of Unsatisfactory Performance, which advised that she had performance deficiencies and was being placed on a 90-day probationary period pursuant to Section 1012.34(3)(d), Florida Statutes.
The Notice of Unsatisfactory Performance informed Respondent that she had failed to perform satisfactorily in the following aspects or duties of her job:
You have had excessive absences.
You have failed to prepare and maintain current lesson plans for your classes. In addition to the fact that the preparation of lesson plans is a requirement of your job, your failure to prepare such plans has made
it extremely difficult to maintain the educational process for your students during your absences.
The management of your classroom environment, including student discipline, has been extremely poor.
You have failed to prepare and deliver appropriate or effective teaching strategies for your students.
You have failed to maintain an appropriate and distinct relationship as a teacher with your students.
A meeting was held on March 1, 2010, with Vann to discuss recommendations and a plan of action to provide assistance in correcting the deficiencies identified in the Notice of Unsatisfactory Performance. Dr. Dickens, Harrell, Mrs. Amy Hardee("Hardee"), Ms. Angela Dawson, and Vann with her PEA representative attended the meeting.
At the March 1, 2010, meeting Vann was informed that she needed to correct the following deficiencies: excessive absences, lesson plan preparation, classroom management, effective teaching strategies, and maintaining an appropriate and distinct relationship with her students.
After the meeting, Vann and her union representative met with Hardee, the senior curriculum coordinator of language arts. Vann indicated that her textbook resources were out of date and requested Hardee fix the problem. Hardee immediately
located literature and grammar books and made arrangements to have them delivered to Vann.
On March 2, 1010, Vann received her 90-Day Corrective Action Plan that specified the following five areas that Respondent was to correct during her probationary period from March 2, 2010, to May 30, 2010:
Excessive Absences-It was agreed that you will provide Traviss Career Center a doctor's note when you are ill. You will also make a diligent effort to contact Ms. Loretta Stewart(Principal Secretary) before 6:30am when you are not going to be
at work. This will allow sufficient time to obtain a substitute instructor for your class.
Lesson Plans-To assist you with improving your classroom management skills, it was suggested that PD 360 be used. Outlines of the segments are attached for your use.
Classroom Management-To assist you with preparing lessons for your class, it was suggested PD 360 be used. Outlines of the segments are attached for your use.
Effective Teaching Strategies-To assist you in developing effective teaching strategies, it was suggested PD 360 be used. Outlines of the segments are attached for your use.
Maintaining a distinct relationship-It was recommended that you refrain from use of unprofessional language and allowing disruptive student behavior during instructional time. You are to work on building a better instructional relationship with your students and expect the respect you deserve.
* * *
Traviss will provide a substitute for you on Mondays and Thursdays for the remainder of this school year to allow you time to work in the above mentioned areas of deficiency. It is your responsibility to be present at school and working on the criteria listed above.
To address the issues with lesson plans, classroom management, and effective teaching strategies, Hardee assigned Vann 39 segments of Professional Development 360 ("PD360") training to view and complete the questions during her probationary period.5
Vann had less than seven hours of PD360 training to complete during her 90-day probationary period. Respondent was provided a list of the 24 modules addressing classroom instruction and 15 modules on differentiated instruction. Each module included a video Vann was to view, followed by approximately six reflection questions that were to be answered on-line by her.
On March 2, 2010, Vann acknowledged her understanding and agreement to adhere to the corrective action plan with her signature.
To ensure that Vann was successful in completing her PD360 training, a substitute instructor was hired for classroom instruction to allow Vann some time to complete the professional development plan during the 90-day probationary period.
However, Respondent chose not to come to work and was absent most of the remainder of the school year.
While on probation, from March 3, 2010 to May 5, 2010, Respondent was absent without pay 12 days during March and 17 days during April 29 days.6
Respondent claims that she was not at work because she was sick and couldn't attend. However, Respondent only provided one medical note excusing her from working due to illness.
Vann provided the School Board a note that excused her from work from March 17, 2010, until March 18, 2010, which was on an Auburndale Chiropractic, LLC Authorization for Absence form.7
Respondent also provided the School Board a letter dated May 10, 2010, that specified treatment but did not indicate Vann was prohibited from attending work. The letter was from the same chiropractor, Dr. Sundermeyer, on Auburndale Chiropractic, LLC letterhead, not an Authorization for Absence form as previously submitted by Respondent for the March 2010 excused absence. The letter on her chiropractor's letterhead stated:
To Whom It May Concern:
I am writing in regards of my patient, Judy Gail Vann. I have been treating Ms. Vann for neck pain and lower back pain since February 25, 2010. She has been under my constant care 3 times per week since she
started her treatment in this office. Please feel free to contact me if you have any questions concerning my patient's health.
Thank you,
Dr. Sara Sundermeyer8
During her probationary period, Vann never sought treatment from a medical doctor other than the chiropractor, Dr. Sundermeyer.
Respondent was not prohibited from attending work due to her illness.9
Vann failed to provide a doctor's note indicating that she could not attend work for her 29 days of absences without pay during her probationary period.
Vann improved with her lesson plans. However, starting April 13, 2010, Respondent submitted the same lesson plans for all classes, no matter whether for the 11th or 12th grade students, and did not distinguish between the separate curriculums required for each grade.
While on probation, Vann viewed only 15 of the assigned 39 PD360 modules.10 She completed one of the 15 reflection questions and answers, which was a total of two and one-half hours of the seven hours assigned.
Vann also failed to meet either the criteria of contacting Ms. Loretta Stewart (Principal's Secretary) when
absent or making the contact before 6:30 a.m. some mornings including: April 5, 2010; March 17, 2010; and April 15, 2010.11
By letter dated May 14, 2010, Principal Dickens ("Dickens") informed Vann that a decision had not yet been made on her reappointment at Traviss. The letter further informed Respondent that she had failed to fulfill several of the requirements for her 90-day Corrective Action Plan, including not providing a doctor's note covering all of her absences for illness when she was ill and unable to report to work and failing to complete the PD360 segments designed to help her with her classroom management skills, lesson plans, and effective teaching strategies.
On June 3, 2010, Dickens recommended to Superintendent Gail McKenzie that Respondent's employment be terminated for failure to comply with the 90-day Corrective Action Plan, and her failure to perform her duties as an English teacher. The following items were identified as not being completed during the probationary period: failure to provide physician's notes when absent; Dr. Dickens' secretary was not contacted on days Respondent was absent; and the failure to complete the PD360 training.
By letter dated July 15, 2010, Respondent was informed that the Superintendent would recommend her termination because Vann had "failed to correct [her] performance deficiencies,
failed to complete [her] Professional Development Plan, and that there is 'just cause' for [her] termination pursuant to Section 1012.34, Florida Statutes."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).
In this proceeding, Petitioner seeks to terminate Respondent's employment. Petitioner bears the burden of proof, and the standard of proof is by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
The decision in this case ultimately turns on the proper application of Section 1012.34(3), Florida Statutes, which provides in pertinent part:
The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate. Pursuant to this section, a school district's performance assessment is not limited to basing unsatisfactory performance of instructional personnel and school administrators upon student performance, but may include other criteria approved to assess instructional personnel and school administrators' performance, or any
combination of student performance and other approved criteria. The procedures must comply with, but are not limited to, the following requirements:
An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. The assessment must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee’s performance. Student performance must be measured by state assessments required under
s. 1008.22 and by local assessments for subjects and grade levels not measured by the state assessment program. The assessment criteria must include, but are not limited to, indicators that relate to the following:
Performance of students.
Ability to maintain appropriate discipline.
Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.
Ability to plan and deliver instruction and the use of technology in the classroom.
Ability to evaluate instructional needs.
Ability to establish and maintain a positive collaborative relationship with students’ families to increase student achievement.
Other professional competencies, responsibilities, and requirements as established by rules of the State Board of
Education and policies of the district school board.
All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.
The individual responsible for supervising the employee must assess the employee’s performance. The evaluator must submit a written report of the assessment to the district school superintendent for the purpose of reviewing the employee’s contract. The evaluator must submit the written report to the employee no later than
10 days after the assessment takes place. The evaluator must discuss the written report of assessment with the employee. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file.
If an employee is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements:
1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time.
2.a. If the employee holds a professional service contract as provided in s. 1012.33, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following the receipt of the notice of unsatisfactory
performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period. During the 90 calendar days, the employee who holds a professional service contract must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee who holds a professional service contract may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies.
b. Within 14 days after the close of the 90 calendar days, the evaluator must assess whether the performance deficiencies have been corrected and forward a recommendation to the district school superintendent. Within 14 days after receiving the evaluator’s recommendation, the district school superintendent must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the district school superintendent will recommend that the district school board continue or terminate his or her employment contract. If the employee wishes to contest the district school superintendent’s recommendation, the employee must, within 15 days after receipt of the district school superintendent’s recommendation, submit a written request for a hearing. The hearing shall be conducted at the district school board’s election in accordance with one of the following procedures . . . .
During the 2009-2010 school year, Respondent had performance deficiencies. The School Board addressed the
deficiencies and attempted to help Vann improve as a teacher by properly following each step of Subsection 1012.34(3)(d), Florida Statutes.
A finding of unsatisfactory teacher or administrator performance may be made under Section 1012.34(3), Florida Statutes, without consideration of student performance. Strictly reading the language of the statute, it clearly states "the assessment procedure . . . must be primarily based on the performance of the students assigned to their classrooms or schools, as appropriate." (emphasis added.)
Section 1012.34(3) further expands the assessment procedure with the wording "is not limited" and makes it obvious that three separate and distinct considerations are provided to which a school board could terminate a teacher: student performance; other criteria approved to assess instructional personnel performance; or any combination of the two.
In circumstances such as those present here, it is only appropriate to assess Vann based on the observations/evaluations at issue to determine the outcome of this case. Such "other criteria" was specified in her 90-day Corrective Action Plan.
Despite the fact that the first requirement of the Corrective Action Plan required medical documentation to excuse her from work, Vann chose not to come to work claiming she was
ill. Vann only reported to work six days in March 2010 and six days in April 2010.
For Vann's excessive absences, Respondent provided a single Authorization for Absence form from her chiropractor excusing her from one day of work on March 17, 2010. Even if Respondent was sick, she was not ill enough not to attend work or her doctor would have provided another Authorization for Absence form for her absences as she did on March 17, 2010. Vann's actions were blatant in that she was well aware of what an Authorization for Absence form excusing her from attending work was when she provided the School Board the treatment letter dated May 10, 2010, as a request that the remainder of her approximate 29 absences be excused.
Respondent also failed to complete the PD360 segments set forth as criteria in her 90-day Corrective Action Plan. Vann had access to virtual PD360 training 24 hours a day and could have worked on it when she was out of the office just as she emailed lesson plans when she was absent. The School Board went overboard to assist Vann to improve her deficiencies by hiring a substitute teacher to provide Respondent extra time to complete the 39 professional development segments. However, Vann chose not to do it. She viewed 15 segments assigned, less than half, and only completed one of the segments out of 39.
By failing to complete the PD360, Vann missed out on her training to improve her deficiencies in classroom management skills, lesson preparation skills, and development of effective teaching strategies.
Respondent also failed to meet the criteria of the Corrective Action Plan by not reporting her absence to the Principal's Secretary on March 17, 2010, and failing to contact the school twice of her absence before 6:30 a.m.
Vann did not make any effort to complete the Corrective Action Plan. She was not fulfilling her role as a teacher. Respondent ceased attempting to even make the pretense of doing her job including providing the same class work to both 11th and 12th graders. Petitioner met the burden and established that Vann neither attempted to meet her performance deficiencies nor corrected them during her 90-calendar-day probationary period. Respondent failed to meet the "other criteria" of the Corrective Action Plan approved to assess her. Therefore, just cause exists to terminate Vann pursuant to Section 1012.34(3)(d)(2)b.
Respondent asserts in her proposed recommended order that 1012.34 establishes a process for assessing teacher's performance tied to student achievement. Respondent further relies on Sherrod v Palm Beach County School Board, 963 So. 2d
251 (Fla. 4th DCA 2006) and Young v. Palm Beach County School
Board, 968 So. 2d 28 (Fla. 4th DCA 2006), to set forth the proposition that school districts have to base teacher termination decisions primarily upon data and indicator of changes in student's standardized test performance.
Even if this matter was decided based on the two Fourth District of Appeal cases Sherrod and Young as asserted by Respondent, Petitioner would still have met it burden in this matter.
This case is distinguishable from the two Fourth District of Appeal cases in that Vann's performance problems were based on unexcused absenteeism not similar to the performance problems claimed in Sherrod and Young. Vann negligently missed so many days of school it would have been impossible for the School Board to base Vann's assessment on student performance as a guide because there is no way to determine what contribution Respondent made to any of the students' performances.
Section 1012.34(3) contemplates the ability of the School Board to perform an assessment. It presupposes that a teacher is present and teaching for student performance evaluation. The School Board did not have the ability to perform an assessment of Respondent's relationship to the student performance because of the small number of days where Vann actually taught the students. Further, during her 90-day
probationary period a substitute was there in Vann's stead. Any student performance results would have been based on the substitute's work. The success of students is dependent on educators, not a substitute.
Since Vann was absent a majority of the year and during her probationary period as she avoided compliance with the Corrective Action Plan, to conclude that Respondent contributed to the students' performance when she wasn't teaching would be an improper assessment. The undersigned therefore rejects Respondent's proposition that "other criteria approved to assess instructional personnel" should only be considered after primarily considering student performance. Therefore, under the circumstances of this case, Polk County still met its burden and demonstrated just cause to terminate Respondent.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Polk County School Board enter a final order ratifying Vann's termination from further employment in Polk County Public Schools.
DONE AND ENTERED this 21st day of December, 2010, in Tallahassee, Leon County, Florida.
JUNE C. MCKINNEY
Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2010.
1 Both parties included DOAH Case Number 09-0955 in their findings of fact. It is undisputed in Case Number 09-0955 that Respondent was absent from work for 30 days in 2006-2007 and 29 days in 2007-2008.
2 A curriculum map is a guideline set by Polk County for what the students should be learning in that discipline.
3 See Petitioner's Exhibit 2.
4 See Respondent's Exhibit 2.
5 PD 360 is the School Board's virtual training tool that can be accessed on-line. The system contains hundreds of different modules addressing various aspects of professional development. It can be completed at one's own pace and at any time during a planning period, after school, or at home on the computer.
6 Vann was at work six days in March 2010 and six days in April 2010. She also missed May 3, 4, and 5, 2010.
7 See Petitioner's Exhibit 8.
8 See Respondent's Exhibit 1. The note fails to persuade the undersigned that Vann was ill enough not to attend work or was medically authorized to be excused from work. Petitioner's Exhibit 8 demonstrates both Dr. Sundermeyer's authorization for a patient not to attend work and Vann's knowledge of a proper note to provide to her employer to be excused from work.
9 The undersigned finds that Respondent's testimony that she could not attend work because she was ill is not persuasive. If Respondent had been medically prohibited from working, then
Dr. Sundermeyer would have provided her an Authorization for Absence form for her numerous unexcused absences like she did for the March 17, 2010, absence.
10 Respondent viewed 17 modules but two were not assigned as part of her 90-day Corrective Action Plan.
11 On March 17, 2010, Respondent did not email Loretta Stewart regarding her absence. She emailed Harrell and cc'd Linda May.
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19, North, Suite 110
Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP
Dr. Gail McKinzie, Superintendent Polk County School District
Deborah K. Kearney, General Counsel Department of Education
Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514
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.
