STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

STEPHAN GUY, )

)

Respondent. )

Case No. 11-2084

)

RECOMMENDED ORDER

A final hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes, before Administrative Law Judge Cathy M. Sellers of the Division of Administrative Hearings on October 20, 2011. The hearing was held by video teleconference at sites in Miami and Tallahassee.

APPEARANCES

For Petitioner: Christopher LaPiano, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUES

The issues are whether Petitioner has demonstrated that Respondent should be suspended and terminated from employment with the Miami-Dade County Public Schools, pursuant to section

1012.34, Florida Statutes, for failure to correct performance deficiencies; and whether Petitioner should be terminated for just cause, pursuant to section 1012.33, Florida Statutes, for incompetency due to inefficiency.

PRELIMINARY STATEMENT

On April 13, 2011, the Miami-Dade County School Board (―Petitioner‖) took action to suspend Respondent Stephan Guy (―Respondent‖) and to terminate his employment for alleged failure to correct performance deficiencies pursuant to section 1012.34, and alleged incompetence due to inefficiency, pursuant to section 1012.33.1/

Respondent timely requested an administrative hearing pursuant to sections 120.569 and 120.57(1), and this matter was referred to the Division of Administrative Hearings (―Division‖). The hearing initially was scheduled for June 13, 2011, but was continued and rescheduled for August 29, 2011, then for October 20, 2011. Petitioner’s Notice of Specific Charges was filed on September 27, 2011. The parties filed a Joint Prehearing Stipulation on October 17, 2011.

The final hearing was conducted on October 20, 2011.

Petitioner presented the testimony of Renny Neyra, Eida Herrera, Sylvia Arango, and Nirva Nazire, and offered Petitioner’s Exhibits 1 through 12, which were admitted into evidence pursuant to the parties’ stipulation. Respondent testified on

his own behalf and offered Respondent’s Exhibits 1 through 18, which were admitted into evidence over objection.

The two-volume Transcript was filed with the Division on November 9, 2011. Pursuant to Respondent’s Motion for Extension of Time to File Proposed Recommended Orders, filed on

November 16, 2011, the parties were given until November 29, 2011, to file their proposed recommended orders. Respondent’s Proposed Recommended Order was filed on November 23, 2011, and Petitioner’s Proposed Recommended Order was filed on

November 29, 2011; both were considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Parties and Background

   
   

   1. Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes.

   2. Respondent has been employed with the Miami-Dade County Public School District (―District‖) as a teacher of Emotional/Behavioral Disabled (―EBD‖) students since 2001. He initially was a part-time teacher, substituting for a teacher on maternity leave. He became a full-time teacher with the District in the 2002-2003 timeframe.

      
      

   3. At the time of the events that gave rise to this proceeding, Respondent was employed as a full-time teacher at Pine Villa Elementary School (―Pine Villa‖), pursuant to a professional services contract.

   4. At all times material, Respondent’s employment was governed by the collective bargaining between Miami-Dade Public Schools and the United Teachers of Dade (―UTD‖), Petitioner’s rules, and Florida law.

2. The 2009-2010 School Year

   
   

   1. In the 2009-2010 school year, Respondent taught second grade and third grade EBD students. EBD students are disabled due to persistent emotional or behavioral responses that may interfere with their learning ability. It is common for EBD students to academically perform below grade level; accordingly, they need to be in a smaller class with a more structured learning environment.

   2. Renny Neyra became the Pine Villa Principal at the beginning of the 2009-2010 school year, and held the position through the 2010-2011 school year.

   3. According to Ms. Neyra, Respondent had difficulty teaching his class, and the test data for his students showed no improvement in their performance.

   4. Ms. Neyra requested and received assistance for Respondent from the District, consisting of expert personnel on

      
      

      special assignment to assist in areas in which Respondent’s performance was perceived to be lacking.

   5. Ms. Neyra did not place Respondent on 90-day performance probation pursuant to section 1012.34 during the 2009-2010 school year because she felt it would be unfair to do so. She testified that she wanted to afford Respondent the opportunity to obtain professional performance assistance so that he could improve his teaching skills, which, in turn, would help his students.

3. The 2010-2011 School Year

1. Because of Respondent’s perceived difficulties in planning for and teaching students of different grade levels during the 2009-2010 school year, Ms. Neyra decided to assign Respondent only third grade EBD students for the 2010-2011 school year.

2. In the 2010-2011 school year, Respondent’s class consisted of 11 students. This is slightly smaller than the typical third grade EBD class in the District, which generally consists of 16 to 17 students.

3. For the 2010-2011 school year, an interventionist, curriculum specialist, and full-time paraprofessional were assigned to assist Respondent in his classroom.2/ Ms. Neyra testified that it was unlikely an interventionist or curriculum

   
   

   specialist would have been assigned to Respondent’s classroom, had he been performing well.

   1. IPEGS Evaluations of Respondent

      
      

4. Teachers employed by the District are evaluated pursuant to the Instructional Performance Evaluation and Growth System (―IPEGS‖). IPEGS entails assessor observation of, and provision of written comments on, teacher classroom performance.

5. Five separate IPEGS evaluations of Respondent were conducted in the 2010-2011 school year, on September 23, 2010; October 25, 2010; December 7, 2010; January 26, 2011; and February 28, 2011.

6. In the September 23, 2010, evaluation, Ms. Neyra observed that Respondent had incomplete lesson plans; failed to provide clear, specific, and sequential directions and guidance; did not use teaching strategies that engaged the students; and did not clarify the lesson for the students. The specific IPEGS Performance Standards (―Standards‖) in which Ms. Neyra determined Respondent deficient were Standards 2 - Knowledge of Learners; 3 – Instructional Planning; and 4 – Instructional Delivery and Engagement.

7. Respondent was informed of the observed deficiencies and placed on Support Dialogue for a 21-day period. Support Dialogue entails the provision of mutually-determined support

   
   

   strategies designed to remedy the deficiencies identified in the evaluation.

8. Ms. Neyra conducted a second evaluation of Respondent’s teaching on October 25, 2010, and observed the same deficiencies. She also observed deficiencies in Respondent’s performance with respect to Standard 8 – Learning Environment.

9. Following this evaluation, a Conference-for-the-Record (―CFR‖) was held to inform Respondent that he was being placed on 90-day performance probation pursuant to section 1012.34(3), and to obtain Respondent’s and UTD’s input regarding measures to address Respondent’s performance deficiencies. As a result of the CFR, Respondent was provided an Improvement Plan containing specific direction regarding correction of his performance deficiencies.

10. Assistant Principal Dorothy Pinkston evaluated Respondent’s classroom teaching performance on December 7, 2010, after which another Improvement Plan was provided to Respondent.3/

11. Ms. Neyra conducted another evaluation of Respondent’s classroom teaching performance on January 26, 2011, and found Respondent deficient in Standards 2, 3, 4, and 8. According to Ms. Neyra, Respondent did not attend to students’ needs and did not provide teacher-directed instruction.

    
    

12. As a result of the January 26, 2011, evaluation, Respondent was provided another Improvement Plan.

13. Ms. Neyra conducted a fifth evaluation, termed a

    
    

    ―confirmatory observation,‖ of Respondent’s classroom teaching performance on February 28, 2011. She again determined that he had not corrected the previously identified performance deficiencies.

    1. Respondent’s Students’ Performance on Objective Assessments

    
    

14. Ms. Neyra testified that in addition to the IPEGS evaluations, Respondent’s students’ performance on interim assessments in math and reading and the Florida Assessments for Instruction in Reading (―FAIR‖), administered by the District, played a role in her decision to terminate Respondent’s employment.

15. Student performance assessments, termed ―benchmark assessments,‖ for math and reading are administered by the District at the beginning of the school year. ―Interim assessments‖ for math and reading are administered in the fall and winter of the school year. These assessments are used to measure student performance prior to taking the Florida Comprehensive Assessment Test (―FCAT‖) later in the school year. Where performance deficiencies are identified, students can be provided remedial instruction to better prepare them to take the FCAT.

    
    

16. Petitioner presented documentary evidence regarding Respondent’s students’ performance on the interim assessments for math and reading in the 2010-2011 school year. This evidence compared Respondent’s students’ performance to that of all third grade students in the District, and to that of third grade ―disabled students‖ throughout the District. Petitioner did not present any evidence comparing Respondent’s students’ interim assessments scores to those of other EBD third grade students in the District.

17. Petitioner’s documentary evidence was not supported by testimony of any witnesses qualified and competent to analyze the scores or to explain what the scores demonstrate or mean,4/ or by any other competent evidence. Without such testimony or other competent evidence, meaningful determinations Respondent’s students’ scores and their use in evaluating Respondent’s performance pursuant to section 1012.34(3) cannot be made.

18. Moreover, Petitioner’s documentary evidence did not provide information that could be used to accurately compare Respondent’s students’ scores to those of other similarly situated students. The uncontroverted evidence established that EBD students generally perform below grade level in their school work and on objective assessment measures; accordingly, Respondent’s students’ interim assessment scores cannot be meaningfully compared to those of all other third grade students

    
    

    in the District. Although Petitioner’s evidence did compare Respondent’s students’ scores to those of third grade disabled students, the ―disabled students‖ category includes students with all types of disabilities, not only emotional and behavioral disabilities. Petitioner provided no evidence to support its contention that EBD students perform comparably to all other disabled students on the interim assessments. Absent evidence specifically comparing Respondent’s students’ interim assessment scores with those for comparable students——i.e., other third grade EBD students in the District——it cannot be determined whether Respondent’s students’ performance is attributable to teaching deficiencies on his part, or to their emotional and behavioral disabilities.

19. Petitioner also provided documentary evidence, supported by the testimony of reading coach Eida Herrera, regarding Respondent’s students’ performance on the FAIR assessments. However, again, no evidence was presented specifically comparing Respondent’s students’ performance on the FAIR assessments to other third grade EBD students’ scores, so there is no context in which to meaningfully evaluate Respondent’s students’ FAIR assessment results for purposes of assessing his teaching performance pursuant to section 1012.34.

20. Respondent’s students’ scores for the FCAT were not reported until after Respondent was suspended and action was

    
    

    taken to terminate his employment. Accordingly, the FCAT scores did not, and could not, play a role in Ms. Neyra’s decision to terminate Respondent.5/

21. Ms. Neyra testified that once Respondent’s students’ FCAT scores were received, she compared them to the District- wide scores for EBD third grade students, and that Respondent’s students did not perform well when compared with other EBD third grade students in the District. She testified that this information confirmed the correctness of her decision to terminate Respondent’s employment.

22. However, as with the interim assessment scores, absent competent testimony by qualified persons or other competent evidence regarding FCAT scores and their analysis and use, accurate determinations regarding Respondent’s students’ FCAT scores and their meaning and use in assessing his classroom teaching performance pursuant to section 1012.34 cannot be made.

23. In any event, Ms. Neyra testified that the primary reason she decided to terminate Respondent was that he did not remediate the performance deficiencies she had observed in the IPEGS evaluations.

24. Ms. Neyra testified regarding the need for three other professionals to assist Respondent in his classroom, and the expense involved in providing this support. However, Petitioner

    
    

    did not present any expert testimony addressing incompetency relative to Respondent’s specific circumstances.

25. Respondent testified on his own behalf. He has a master’s degree in exceptional student education, varying exceptionalities, and ten years’ experience as a teacher of EBD students.

26. Respondent credibly testified that he has had positive evaluations throughout his teaching career and has not previously had problems with any other principals with whom he has worked.

27. Respondent’s testimony established that he is intimately familiar with each of his students’ specific academic and personal issues. He credibly testified, in substantial detail, regarding the instructional and behavioral management measures in which he engaged, on an individual student basis, to address each student’s specific academic and personal issues,6/ and to try to help each student learn.

28. Respondent also credibly testified regarding the challenges involved in teaching his students——many of whom had significant behavioral and emotional issues and came from severely socially and economically disadvantaged backgrounds—— while at the same time keeping order in his classroom.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to sections 120.569 and 120.57(1), Florida Statutes.

30. This is a penal disciplinary proceeding brought pursuant to sections 1012.33 and 1012.34 and Florida Administrative Code Rule 6B-4.009(1)(a), to uphold Respondent’s suspension from employment and to terminate Respondent’s employment with Petitioner. Because this proceeding does not involve the loss of a license or certification, Petitioner bears the burden to prove each element of the charged offenses by a preponderance of the evidence, rather than by the more stringent clear and convincing evidence standard. See McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2nd DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Lake Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

31. Petitioner seeks to suspend and terminate Respondent pursuant to section 1012.34 based on Respondent’s alleged failure to correct performance deficiencies. Section 1012.34(3) provides in pertinent part:

    1. The assessment procedure for instructional personnel . . . must be primarily based on the performance of

       
       

       students assigned to their classrooms . . . as appropriate. Pursuant to this section, a school district’s performance assessment is not limited to basing unsatisfactory performance of instructional personnel . . . 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:

       
       

       1. 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:

          
          

          1. Performance of students.

          2. Ability to maintain appropriate discipline.

          3. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.

          4. Ability to plan and deliver instruction and the use of technology in the classroom.

          5. Ability to evaluate instructional needs.

          6. Ability to establish and maintain a positive collaborative relationship with students’ families to increase student achievement.

             
             

          7. Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.

          
          

       2. All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.

          
          

       3. 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.

          
          

       4. 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.

          
          

          * * *

          
          

32. Section 1012.34(3) requires that, in terminating teachers for failure to correct performance deficiencies, primary consideration must be given to student achievement as

    
    

    measured by the FCAT or other local assessments where the FCAT is not available. Young v. Palm Beach Cnty. Sch. Bd., 968 So. 2d 38 (Fla. 4th DCA 2006); Sherrod v. Palm Beach Cnty. Sch. Bd., 963 So. 2d 251, 253 (Fla. 4th DCA 2006). See School Bd. of Miami-Dade Cnty. v. Rosa, Case No. 08-1495 (Fla. DOAH Dec. 16, 2008; Sch. Bd. of Miami-Dade Cnty. Jan. 14, 2009); School Bd. of

    Miami-Dade Cnty. v. Escalona, Case No. 04-1654 (Fla. DOAH Nov. 23, 2004; Sch. Bd. of Miami-Dade Cnty. Jan. 28, 2005).

33. Here, Ms. Neyra testified that her primary consideration in deciding to terminate Respondent’s employment was that he failed to remedy the performance deficiencies identified in the IPEGS evaluations. Accordingly, Petitioner failed to demonstrate that the requirements of section 1012.34(3) are met for purposes of terminating Respondent’s employment for failure to correct performance deficiencies.7/ See Sherrod, 963 So. 2d at 252 (―[T]he term primary in the statute unmistakably makes student performance on annual tests the first consideration in any teacher evaluation.‖) (emphasis in original).

34. Further, under any circumstances, Petitioner did not demonstrate that Respondent’s students’ interim assessments performance and FAIR assessment performance were attributable to Respondent’s failure to correct performance deficiencies, as

    
    

    required under section 1012.34(3), to terminate his employment contract.

35. Accordingly, Petitioner has failed to establish, by a preponderance of the evidence, that Respondent failed to correct performance deficiencies such that he should be suspended and terminated pursuant to section 1012.34.

36. Petitioner also seeks to suspend and terminate Respondent’s employment pursuant to section 1012.33. Section 1012.33(6)(a) provides that a member of instructional staff employed under a professional services contract may be suspended or terminated at any time during the term of his or her employment contract for just cause, as provided in section 1012.33(1)(a). Section 1012.33(1)(a) defines ―just cause‖ to include incompetency.

37. Rule 6B-4.009(1) defines ―incompetency‖ as ―an inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. The rule further provides in pertinent part:

    Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel or expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

    
    

    (a) Inefficiency: . . . (2) repeated failure on the part of the teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience . . . .

    
    

38. Here, the evidence did not establish that Respondent’s failure to communicate with and relate to his students deprived them of minimum educational experience——or even that they were deprived of a minimum education experience. The evidence showed that Respondent was intimately familiar with each of his students’ circumstances and challenges, and that he attempted to tailor his instruction to meet their individual needs. Under these circumstances, it cannot be concluded that Respondent’s students were deprived of a minimum education, particularly as a result of any failure on Respondent’s part. Moreover, while Respondent’s students’ performance on the interim assessments and the FAIR assessments generally was shown to be low, the evidence did not link their performance to any failure on Respondent’s part; indeed, under the evidence presented, an equally plausible conclusion is that their performance is attributable to their being emotionally and behaviorally disabled, or to other circumstances.8/

39. Accordingly, Petitioner failed to establish, by a preponderance of the evidence, that just cause exists to suspend

and terminate Respondent’s employment pursuant to section 1012.33 and rule 6B-4.009.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order rescinding the action taken to suspend and terminate Respondent from his employment and paying Respondent’s back salary and any other benefits owed.

DONE AND ENTERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2011.

ENDNOTES

1/ Unless otherwise noted, all references are to 2010 Florida Statutes.

2/ A full-time paraprofessional also was assigned to the other EBD class at Pine Villa.

3/ Pine Villa Assistant Principal Dorothy Pinkston conducted an IPEGS assessment of Respondent on December 7, 2010. Ms.

Pinkston did not testify at the hearing regarding her assessment.

4/ Petitioner presented the testimony of a reading coach and a curriculum specialist to explain the meaning of Respondents’ interim assessments and FAIR scores and how they compared to scores of other students in the District. However, these witnesses were not established as competent and qualified to testify about these issues.

5/ In Sherrod v. Palm Beach County School Board, 963 So. 2d 251 (Fla. 4th DCA 2006), the court recognized that FCAT results may not be available during the school year until after the 90-day probationary period under section 1012.34, has ended, and observed that because the probationary period must be given effect, ―the issue of teacher termination may have to stretch over two years.‖ Id. at 253.

6/ Most, if not all, of Respondent’s students come from severely socially and economically disadvantaged backgrounds. Some come from broken homes where they do not receive adequate care, and come to school dirty and disheveled. Others have parents who are incarcerated or have substance abuse issues. Others are not properly administered medications that have been prescribed for them. Still others are speech and language impaired. Many exhibit difficulties in attending and learning.

7/ Under any circumstances, Petitioner failed to provide evidence establishing that Respondent’s students’ assessment scores were attributable to deficiencies in Respondent’s teaching, rather than to their emotional/behavioral disabilities.

8/ Rule 6B-4.009(1) provides that expert witness testimony may serve as the basis for an authoritative decision regarding incompetency in an individual case. In a case such as this, where low student performance may well be due to circumstances other than teacher incompetency, expert testimony may be helpful to authoritatively determine whether incompetency exists such that there is just cause for suspension or termination under section 1012.33.

COPIES FURNISHED:

Mark S. Herdman, Esquire Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Christopher J. La Piano, Esquire Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308

Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 11-002084TTS

Orders for Case No: 11-002084TTS