The Issue The issue is whether Respondent's employment with the District School Board of Taylor County, Florida, should be terminated.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She was, when first employed, a teacher at Gladys Morse Elementary School and then was employed as a teacher at Taylor Elementary School. Until January 19, 2005, she taught at Taylor Elementary School. Her employment was pursuant to a professional services contract. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or have a physical handicap or handicaps. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities, she is County Coordinator for the Special Olympics. The School Board operates the school system in Taylor County. The School Board is a party to a Master Teacher Contract (Master Teacher Contract), with The Taylor Education Association, which is an affiliate of the Florida Education Association, the American Federation of Teachers, the AFL-CIO, and the National Education Association. This contract governs the relations between teachers, and others, and the School Board. Accordingly, it governs the relations between the School Board and Dr. Whalen. Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crises Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction-Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, the act of lying upon a child could prevent a child from breathing which could result in injury or death. Ms. Kriedler teaches CPI throughout the District. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. A memorandum dated April 7, 2003, and signed by Principal Sylvia Ivey, was presented to Dr. Whalen by Principal Ivey. The memorandum addressed conversations that Dr. Whalen had with two of her colleagues on April 3, 2003. The memorandum recited that these conversations raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video- taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The record reveals that Dr. Whalen's classroom was already being video-taped as early as November 20, 2002. It is certain that the classroom was being video-taped daily from April 2003, until the end of the school year. By January 2005 the practice of video-taping Dr. Whalen's classroom on a daily basis had ended. The incident giving rise to this case was not video-taped. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your Classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. During January 2005, a school resource officer, who is a deputy sheriff, was available should it become necessary to physically restrain a child who was a threat to himself or herself or others. On January 19, 2005, J.R. a female, was a student in Dr. Whalen's classroom. J.R. was ten years old and in the third grade. J.R. had been a student in Dr. Whalen's classroom since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair at the hearing. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student when once he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered the CD player and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Vincent Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed J.R.'s back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten under the circumstances described. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks are consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or wound like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding as to the origin of the marks on J.R.'s back. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is found that the assault on Dr. Whalen was sudden and unexpected. J.R. was suspended from Taylor Elementary School for ten days following this incident. Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. Dr. Whalen received memoranda of counseling on December 2, 2002, and April 7, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Whalen be immediately reinstated to her former position without diminution of pay or benefits, pursuant to the Master Teacher Contract. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2005. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Oscar M. Howard, Jr., Superintendent Taylor County School Board 318 North Clark Street Perry, Florida 32347
The Issue Should the State of Florida, Education Practices Commission (EPC), impose discipline against Respondent, who holds Florida Educator's Certificate No. 292611, for the alleged violations set forth in EPC Case No. 001-0121-A?
Findings Of Fact Stipulated Facts: Respondent holds a Florida Educators Certificate (FEC), number 292611, in the areas of General Science, Physical Education, and Middle Grades. Respondent's FEC is valid through June 30, 2005. At all times relevant to this proceeding, Respondent was employed as Physical Education Teacher at Sante Fe High School (Sante Fe) in the Alachua County School District. Additional Facts: During his career Respondent has been employed by the Alachua County School Board as part of the instructional staff. His career spans 33 years. Respondent taught physical education at Sante Fe from 1974 through 2001. In the last two years he has taught at Bucholz High School in drivers education. The physical education curriculum at Sante Fe, to include the spring of 2000, emphasized physical activity for the students three days a week. Two days a week were devoted to classroom instruction. The physical fitness instruction emphasized cardio vascular conditioning and building endurance in the participants' muscles. The physical activity took place both inside the gymnasium and outside on the school grounds. The physical activity involved stretching before engaging in the prescribed activity. A typical physical fitness class taught by Respondent would have had 35 to 48 students. In the spring of 2000 two of the students taught physical education by the Respondent were E.C. and L.B., who were ninth graders. On the whole, the proof is not clear and convincing that Respondent inappropriately stared at the students E.C. and L.B. when they were doing their exercises in the physical education class in the spring of 2000, as they claim. During the spring of 2000 E.C. and L.B. went to Respondent's office to exchange a basketball which was flat for one that was not. After the students asked for a new basketball Respondent replied "well that's not the only thing that's flat" while looking in the direction of the students. The students took this remark to be intended as sexual innuendo concerning the chest of the student E.C. but their impression was gained outside the context of another remark made at that time directed to those students referring to them as a "bunch'a airheads." When the set of remarks are considered together they do not constitute remarks that are perceived as sexual harassment or sexual innuendo as alleged in the Administrative Complaint. To refer to students as "airheads" is not appropriate, however that remark is not the subject of the Administrative Complaint. The comments made by Respondent directed to E.C. and L.B. were overheard by a male student, F.T.B. M.H., whom one can infer was a student at Sante Fe, showed Respondent her midriff where she had been sunburned. Respondent commented "M., you need to put sunscreen on. You're going to get burnt up." No other facts were established concerning Respondent and the student M.H. Contrary to the material allegations in the Administrative Complaint, no proof was presented concerning the allegation that Respondent told female students in his class that the shorter their shorts were, the higher their grades would be.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint in all its counts. DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2003.
The Issue The issues in this case are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2018), and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Amended Administrative Complaint; and, if so, what discipline should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted at the hearing, and the parties' stipulations, the following Findings of Fact are made: Petitioner is the agency head of the Florida Department of Education. Petitioner is responsible for investigating allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is responsible for filing an administrative complaint, and prosecuting the case in an administrative hearing pursuant to chapter 120, Florida Statutes, if the educator disputes the allegations. Respondent holds Florida Educator's Certificate 631669, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2025. Respondent has been a teacher for at least 25 years; quite a few of those years were in other states. She has not been previously disciplined by the Education Practices Commission in connection with her Florida certificate. No evidence was offered to show any prior discipline against Respondent's educator license or certificate in another state.5 At the time of the allegations in the Amended Administrative Complaint, Respondent was employed by the OCSB as a mathematics teacher at Howard Middle School, part of the Orange County Public Schools (OCPS) system. Respondent began working at Howard Middle School on August 6, 2018, for the pre-planning week for teachers prior to the arrival of students for the start of the school year. Kimberly Beckler was the new principal for Howard Middle School that year, although she had been employed by the OCSB since 2004, most recently as a senior administrator in the District's office. She started work as 5 Respondent was disciplined by the OCSB for the incident at issue in this proceeding, receiving a written reprimand. It appears that this is the only disciplinary blemish on an otherwise clean record during her 25-year teaching career; no evidence was offered to prove any other discipline imposed against Respondent. principal at Howard Middle School shortly before the teachers' pre-planning week. The Amended Administrative Complaint at issue in this proceeding is predicated on the following allegations of fact: On or about September 6, 2018, during an active assailant drill at Howard Middle School, Respondent directed several of her students to go into her classroom closet. Respondent went into the closet with the students, turned the closet light off, and closed the closet door. Respondent's remaining students were left inside the classroom for a period of time without direct adult supervision. Some of the students who remained in the classroom were confused by what Respondent did, and at least one student was "scared" because she did not know what would happen if the drill were real and the Respondent left her and the other students in the classroom alone. The parties stipulated that on September 6, 2018, the Howard Middle School administration conducted an active assailant drill. Before the drill, in August 2018, Respondent and other teachers at Howard Middle School were instructed to complete safety training regarding how to proceed during an active assailant drill. The training included two online video modules and a six-question test. Teachers were reminded several times in August that they were required to complete the training and certify having done so before the end of August. Respondent testified she did not remember this training or watching the videos, but is sure that if she was required to view them, she would have done so. As a "reminder" of the instructions detailed in the training videos, a written summary was provided to Howard Middle School teachers at some point prior to the September 6, 2018, drill. Respondent acknowledged that she received the summary written instructions prior to September 6, 2018, when the first drill of the new school year was conducted. The same summary information was provided on posters in each classroom. The summary instructions included various steps for teachers to take in their classrooms. The step at issue in this case requires teachers to move all classroom occupants out of the line(s) of sight through windows. To comply with this "out of sight" instruction, teachers had to consider the lines of sight through narrow windowpanes in the classroom doors. In addition, for classrooms on the ground floor with exterior windows, lines of sight from outside the building also had to be considered. Respondent taught different math classes in six or seven class periods, but all of her classes were held in the same classroom, which was not on the ground floor. According to Principal Beckler, Respondent's classroom was on the second floor. Respondent could not remember whether her classroom was on the second or third floor. All witnesses agreed that for purposes of conducting an active assailant drill, the line of sight through the exterior windows did not have to be considered, because classroom occupants could not be seen through the exterior windows by someone outside the building. For Respondent, then, the only line of sight she had to address was through the narrow window panel in the classroom door. Principal Beckler testified that instructions for active assailant drills were the subject of much discussion during the teachers' pre-planning week and at administrative meetings. Principal Beckler said that teachers were instructed to identify the lines of sight applicable to their particular classrooms and then identify areas in their classrooms where they could safely move occupants out of the lines of sight. It would have made sense, as part of general teacher training in preparation for lockdown active assailant drills, to provide those instructions to teachers. At the hearing, Respondent heard Principal Beckler's testimony; she did not deny being given this instruction, nor was she asked about it. There was no clear proof that the verbal instructions described by Principal Beckler were provided to or discussed with Respondent as part of a group of teachers in August 2018. Nonetheless, even without such instruction, identifying lines of sight through windows into one's own classroom, so as to know where to move classroom occupants so they are out of view, would have been a reasonable, prudent step to prepare to apply the written instructions that were admittedly provided to Respondent. Stated differently, it would be unreasonable for a teacher, knowing that he or she would be expected to act quickly in an active assailant drill to move students out of the lines of sight of windows, to not prepare for that drill by identifying the reaches of that line of sight for their own classroom. Respondent testified that the September 6, 2018, active assailant drill was the first such drill ever conducted by OCPS. Her testimony was refuted by the more credible adamant testimony by Principal Beckler and by Respondent's witness Altamont Coley, who was an administrative dean at Howard Middle School in charge of the active assailant drill on September 6, 2018.6 Several student witnesses also confirmed that they had participated in the same type of lockdown active assailant drill previously, although their other teachers conducted the drills differently, not in a way that left students feeling unprotected. Respondent's testimony reflected some confusion on her part regarding the various type of drills conducted by OCPS. For example, she testified that she had participated in "lockdown" drills before at an OCPS school, and that in at least some prior lockdown drills, the instructions were 6 Principal Beckler's clear, credible testimony was elicited in the following question and answer sequence: Q: "And the September 6, 2018, drill was the first ever active assailant drill in Orange County Public Schools, correct?" A: "That is absolutely false." Q: "Okay. But it was Ms. Carty's first, correct?" A: "No, that is false. Ms. Carty was employed by OCPS the year prior." (Tr. 150-151). Equally clear and credible was Altamont Coley's testimony given in the following question and answer sequence: Q: "And was the September 6, 2018, drill the first ever active assailant drill in Orange County Public Schools?" A. "Oh. No, sir. No, sir. I have participated in drills before that. Even at previous schools. On my previous school before coming to Howard." Q: "Were they specifically active assailant drills? The ones that you're – the previous ones?" A: "Yes, sir." (Tr. 208-209). to lock the door and "hide" in the classroom. She also testified that in some "lockdown" drills, she only had to lock the door, did not have to hide, and could continue teaching. Based on the evidence, Respondent confused different types of drills and the requirements for each type of drill.7 Contrary to Respondent's claim that the September 6, 2018, drill was a completely new procedure, the clear and credible evidence established that the drill was a "lockdown" active assailant drill that was not new to OCPS, had been conducted in prior school years, and was not new to Respondent, who had prior experience in "lockdown" drills in which she was required to move the classroom occupants out of view through windows. Howard Middle School teachers were informed before the drill that a drill was going to take place sometime on September 6, 2018, but they were not told specifically when during the school day. That would simulate the "surprise" element of an actual active assailant situation. Respondent's classroom where she taught her math classes on September 6, 2018, was large. It was one of the larger-sized classrooms at Howard Middle School. Without knowing the class period during which the drill would occur, Respondent could not know exactly the number of classroom occupants she would have to move out of view, but she would know the approximate number. For example, the geometry class Respondent was teaching when the drill was held was capped by state law at 25 students. However, only 23 students were enrolled in that class. And at least one student was confirmed to have been absent that day. 7 Respondent testified that "there's a difference between a lockdown and an assailant drill. An assailant drill was, you know, first time for me and I believe first time, you know, issued in the school. So that's a completely different type of drill." (Tr. 225). Without delving into confidential material, suffice it to say that the claim that a "lockdown" drill is different from the active assailant drill conducted on September 6, 2018, is contrary to the nomenclature used by OCPS. See Respondent's Exhibits 10 (in effect since before September 6, 2018) and 11 (similar to prior versions in effect since before September 6, 2018). The only window through which someone could see into Respondent's classroom was a very narrow vertical windowpane, set into part of the upper half of the classroom door. The door itself was recessed from the classroom wall, with a little entry alcove formed by side walls that appear to be ten to twelve inches in width.8 The narrow width of the window combined with the recessed design of the doorway left only a very restricted line of sight into the classroom from the hallway. Respondent's classroom was rectangular. The two longer walls were: the exterior wall on the opposite side of the classroom from the door; and the wall separating the classroom from the hallway (hallway wall). The long hallway wall was broken up by the recessed classroom door, with about one-third of the hallway wall to the left of the door (facing the door from inside the class) and about two-thirds of the hallway wall to the right of the door. The two side walls appear to be somewhat shorter than the hallway and exterior walls. For someone in the hallway peering into the classroom through the classroom door window, the exterior wall across the classroom would most likely be completely visible; the two side walls would be partially visible (those parts closest to the exterior wall), and both parts of the hallway wall, on either side of the recessed door, would be completely hidden from sight. Although Respondent did not say that she ever tried to identify the reaches of the lines of sight through her classroom door window, she testified that she believed one wall was completely out of the line of sight, and the two side walls were partially hidden from view through the door window—the parts of the side walls closer to the exterior wall would be within the line of sight. Respondent's classroom had an interior walk-in closet. The closet door was off one of the side walls, close to the hallway wall. Principal Beckler 8 Petitioner's Exhibit 17B (Bates-stamped 022) shows one side wall forming the classroom door's entry alcove. A landscape-oriented (horizontal) chart is hanging on the alcove side wall, close to the top. The chart appears to be on standard letter-sized paper, with the 11- and-one-half inch side easily fitting across the side wall. testified credibly that she examined the line of sight through Respondent's classroom window door, and the closet door could not be seen from the hallway. The classroom pictures in evidence provide visual corroboration. At the time of the drill, there were no more than 22 students in Respondent's class. Including Respondent, there were, at most, 23 occupants. When the announcement was made over the public address system for the drill, Respondent said she instructed her students to hide along the longer part of the hallway wall (to the right of the door, from inside the class, facing the door). She had the students sit down in a single row along that wall from the classroom door alcove, under the smart board, to the far corner. She then quickly proceeded to turn off the classroom lights and computer monitors. When Respondent finished these steps, she saw that approximately five or six students had not yet found a place to hide. Respondent testified that they were all standing directly in front of the classroom door window. That was the one spot in the classroom where the students could not be. Respondent testified that she did not think it was possible to hide another five or six (or seven, including herself) people along the hallway wall. She said the rest of the students were sitting on the floor up against the hallway wall under the smart board, and that to add any more people would have required that they sit on top of each other. Respondent testified that she had never been unable to hide all of her students in her classrooms before: "When we had lockdowns and things of that nature, I never had that issue. So that, you know, it shocked me. That was the very first time in my entire career that happened to me." (Tr. 248). Respondent decided the remaining students should hide inside the large walk-in closet. She gave this step some thought. First, she thought that, to comply with the drill instructions, she would have to turn off the closet light. Then her thought process continued beyond the drill instructions, imagining that someone in the hallway might be able to see the open closet door, and even if the closet light was out, that person might suspect from the open closet door that there were people in the closet. Therefore, Respondent decided that she would have to not only turn off the closet light, but also close the closet door completely. But this decision gave rise to another line of thought. Respondent testified she became concerned that if she left students alone in the dark in a closed closet, they could act inappropriately, such as by touching each other inappropriately, because there were both males and females. To address this concern, she joined the five or six students in the closet, turned off the light, and closed the door. Respondent's concern for leaving five or six students in the closet unsupervised apparently did not provoke a similar concern for the other 16 or 17 students left unsupervised in the classroom. However, as Principal Beckler credibly stated, a teacher's number one responsibility is to supervise her students. That means having eyes on all students in the classroom at all times, because things can otherwise get out of control very quickly. Respondent acknowledged that as a classroom teacher, she was responsible for supervising all her students. She understood "supervise" to mean "observe and direct." Her duty to supervise the students in her classroom did not stop during the lockdown active assailant drill. If Respondent had focused her thoughts on finding places in her large classroom for all students to hide out of sight, rather than on the unreasonable solution she seized on to separate the class by hiding a few students—then joining them—in the closet, she would have easily found a reasonable solution that did not require leaving most of her class unsupervised. Respondent had several reasonable options to meet the requirements of the drill while also continuing to supervise all her students. Respondent could have kept the closet door open or partially open so that natural light would have kept the closet from being dark. The closet door opened out into the classroom, with the door opening on the side away from the classroom door, towards the exterior windows. Accepting Principal Beckler's testimony, borne out by the pictures, that the closet door could not be seen from the hallway through the narrow window in the recessed classroom door, Respondent could have remained in the classroom while being able to see the students in the closet and the students lined up along the hallway wall under the smart board. Rather than resorting to hiding students in the closet, though, Respondent had several clear options within the classroom itself. There was ample room in the classroom for all 22 students and Respondent to have sat on the floor out of view of the classroom door window. The line of sight through the door window would have been a cone-shaped area, narrow at the window and widening out to the exterior wall. That left substantial portions of the classroom's floor space hidden from view. Inexplicably, Respondent apparently only considered having students sit on the floor in a single row, with their backs against the hallway wall under the smart board to the corner, with possibly a few students sitting in the space around the corner against part of the side wall. These 16 or 17 students apparently sat shoulder-to-shoulder against those walls. It would have been very easy for the remaining five or six students, plus Respondent, to sit on the floor in a second row facing the row of students sitting against the wall. It is clear from the pictures in evidence that there was ample floor space to allow students to sit two-deep along the smart-board wall and, if necessary, around the corner along the side wall. There was more space still in the area along the hallway wall on the other side of the classroom door, and around the corner to the partial side wall where the closet door is located. Respondent could have directed the five or six students standing in front of the classroom door to sit on the floor along the hallway wall to the left of the door, and around the corner to the closet door. Respondent could have had all the students sit on the floor in a triangular area (fitting for a geometry class), with two sides formed by the smart-board hallway wall where she said most of them were sitting and the part of the side wall furthest from the classroom door, filling in the floor space outward from both of those walls. Any number of different configurations were not only possible, but were obvious and clearly reasonable. There was more than enough floor space in Respondent's large classroom for 23 occupants (including Respondent) to hide out of the limited line of sight through that very narrow windowpane in the recessed classroom door. Respondent's claim that she could not hide a maximum of 23 occupants out of the limited sight line through the door window somewhere in her large classroom is simply not credible. Respondent's claim is contradicted by the visual evidence. It is also contradicted by the credible testimony of Principal Beckler, who said that although Respondent's classroom was one of the larger classrooms, no other teacher has had to hide students in classroom closets; no other teacher has ever had a problem moving all classroom occupants to places within the classroom itself that were not within the lines of sight of windows. Finally, Respondent's claim is contradicted by Respondent's own testimony. When she was asked in her deposition how many students were in her class during the drill, she gave this candid response: "It had to have been a large class for us not to fit in the two sides of the classroom. Maybe 28 to 30. I'm not certain. But they should have that record at the school, I would think." (Pet. Ex. 20 at 34). As it turns out, though, there were no more than 22 students in the class. Respondent's testimony stands as an admission that she could have (and therefore should have) fit the smaller number of students out of window view in her classroom. The drill lasted for approximately five minutes—including several minutes after Respondent secreted herself away with five or six students in the closet. Respondent could not see the 16 or 17 students in the classroom for at least several minutes. In fact, Respondent acknowledged that she could not even see the five or six students in the closet with her, because they were not near her and it was completely dark. Respondent claimed that she would be able to hear any noise made by the 16 or 17 students in the classroom but admitted that she heard nothing. C.K., one of the students who went into the closet with Respondent because she thought it was safer than staying out in the classroom, testified that they could not hear what students outside in the classroom were saying through the closed closet door. C.K.'s testimony was more credible than Respondent's contrary testimony. Respondent did not offer any basis for her belief that she could hear through the closed closet door (such as if she reported having closed herself in the closet to test whether sounds made in the classroom would be audible). For at least several minutes, the 16 or 17 students in the classroom were completely unsupervised. After the public address announcement that the drill was completed, Respondent and her students returned to regular classroom activities. No student voiced concern at the time regarding how the drill was conducted. Although not expressed directly to Respondent that day, several students did, in fact, have concerns. Since this was an active assailant drill, when the class was supposed to practice what to do in an actual active assailant situation, Respondent's separation of the students, leaving three- quarters of the class unsupervised in the classroom, left several students confused and apprehensive. On the day of the drill, one student, N.S., went home upset, told parent J.S. about the drill, and expressed confusion and fear. As N.S. explained: [Ms. Carty] left the rest of the class out in the classroom while she was in the closet. She did not tell the class where to go or hide during the drill. I was very confused and did not know where to go. I was also scared because I did not know what would happen if the lockdown was real and if Ms. Carty would leave us alone in a real lockdown. (Tr. 51-52; Pet. Ex. 8).[9] Other students who testified at the hearing expressed at least some of the same confusion and concern with the unusual procedure employed by Respondent to separate the class and leave most of the class alone in the classroom. Student M.P. testified to having felt "a little unprotected" being left out in the classroom. M.P. explained feeling unprotected this way: "[A]ccording to my other teachers I've been with, they've done it a lot differently, which is supposed to better protect the students and I felt like she did it a little differently." (Tr. 34). Student C.S., one of the students in the closet, credibly testified: "I was feeling a little afraid for my classmates if this was a real active assailant. After the drill we came out of the closet. Everything went kind of back to normal. Most of the students that were left outside didn't seem upset, but I could kind of tell they were." (Tr. 69-70). Prior to giving the all-clear announcement, several administrators checked all hallways to make sure they were empty and checked all classroom doors to make sure they were locked. There was no classroom-by- classroom assessment to determine how each teacher fared in carrying out the drill instructions within each classroom—that would have taken a very long time. Immediately after the drill, Dean Coley sent an email to all staff 9 Counsel for Respondent attempted to undermine N.S.'s testimony about being scared, but he did not succeed. He suggested that N.S. was afraid because it felt like an actual assailant situation. N.S. disagreed: "No. Because I've done active shooter drills before." Counsel then tried to get N.S. to agree that the fear was only of the idea of an active assailant in the building, but N.S. made it clear that the fear was also caused by the way Ms. Carty carried out the drill, leaving N.S. and others alone in the classroom. Ultimately, in the following exchange, counsel conceded that N.S. was actually harmed by being scared from the way the drill was conducted: Q: "Okay. So apart from being scared, you were not actually harmed by the active assailant drill on September 6, 2018, correct?" A: "Correct." Q: "And you did not – and did you quickly recover from being scared on September 6, 2018?" A: "I guess, yeah." (Tr. 56, emphasis added). Respondent's PRO mischaracterized N.S.'s testimony, claiming N.S. admitted to suffering no actual harm. N.S. answered the question as posed, agreeing that "apart from being scared," N.S. was not actually harmed. pronouncing the drill a success, while providing teachers with another "reminder," repeating the summary instructions for active assailant drills. Respondent did not report any concerns to the administration about how the drill was carried out in her classroom, either immediately after the drill or at any subsequent point. She did not report that she had been "shocked" to discover there was not enough space in her large classroom to move all occupants out of the line of sight through the classroom door window. She did not request assistance from an administrator to help plan for future drills by identifying the window's sight line so as to identify all the space within the classroom out of the window's line of sight. Instead, as of the hearing in June 2021, Respondent testified that she would like Principal Beckler to show her where in the classroom she could have hidden everyone. It is troubling that, if Respondent had been truly "shocked" on September 6, 2018, by an inability to hide everyone in the classroom as she claimed, she did not immediately bring this shocking discovery to the administration's attention and worked to address the problem. Shortly after student N.S. told parent J.S. about being scared by how Respondent carried out the drill in her classroom, J.S. sent an email to the administration voicing their concern. Upon receiving this email, the administration at Howard Middle School launched an investigation into the incident. The students who were in Respondent's class during the incident were asked to write brief statements about the incident. Several of those students testified at the hearing. Respondent also wrote a brief statement, which she signed and dated on September 24, 2018. Her statement was as follows: During the last drill where we had to hide and turn off the lights. I stayed in the closet with several students because I told them I cannot turn on the lights. The other students hid under a desk in the main classroom with the lights off. They did have sunlight from the windows. I asked them to remain quiet during the drill. When the drill was over we all took our seats and resumed class. No one indicated being frightened to me. Respondent made no mention in her written statement of her "shocking" discovery during the drill that there was not enough space within the classroom to hide all students out of sight. On October 22, 2018, after the investigation was completed and a predetermination meeting was held, Respondent was given a disciplinary letter of reprimand for misconduct by failing to properly supervise her students during the September 6, 2018, drill. She was also given non- disciplinary written directives to: (1) establish a safe, caring, and nurturing environment conducive to learning and the physical and psychological well- being of students; and (2) maintain proper supervision of her students at all times; students are not to be left alone unsupervised. Respondent refused to sign either document, despite the statement in both documents that "[m]y signature indicates only that I have received a copy of this [reprimand/directive]." At the hearing, Respondent did not deny having received the letter of reprimand and the directives. In December 2018, Respondent requested a transfer to another OCPS school. Respondent's request was granted, and she taught at Memorial Middle School in Orange County during the spring 2020 semester. At the end of the spring 2020 semester at Memorial Middle School, Respondent was informed that her teaching contract was not going to be renewed for the upcoming school year. No explanation was given for the nonrenewal. Respondent testified that she is having trouble finding another regular teaching position, but is working as a substitute teacher. She speculated that the reason why she is having difficulty finding a regular position is the pendency of this disciplinary proceeding, but had no non- hearsay evidence on which to base her speculation. It would be fair to say, however, that Respondent's ability to work in her chosen career and in the job of her choice may be impacted by the outcome of this proceeding, although the opposite may also be true once the outcome is no longer an uncertainty. Respondent raised as an "affirmative defense" to the Amended Administrative Complaint "that the allegations in this case underlie anti- black racism and/or animus directed against her as an African-American teacher." See Answer With Affirmative Defenses at 2, ¶ 2. However, Respondent offered no evidence to prove that any non-African American teachers acted similarly during an active assailant drill but were not charged with the violation alleged in this case. Instead, the unrefuted testimony by Principal Beckler was that no other teacher ever had a problem hiding all students within the classroom, and no other teacher ever separated his or her class to hide with some students in the closet while leaving other students unsupervised in the classroom. The allegations and charge at issue here are narrowly focused on Respondent's admitted conduct during the September 6, 2018, lockdown active assailant drill. The claim of racism as a defense to the allegations and charge at issue in this proceeding is wholly unwarranted. Ultimate Findings of Fact Respondent failed to make reasonable effort to protect her students from conditions harmful to learning and/or to their physical health, mental health and/or safety. She could not see three-quarters of her class for at least several minutes during an active assailant drill when she was in the closet with five or six students. Indeed, she could not see the five or six students who were in the closet with her. Nor could Respondent hear the unsupervised students out in the classroom from behind the closed closet door. Several students—most notably N.S. who went home upset that day to report what happened to parent J.S.—reasonably were concerned about what would happen if an active assailant actually entered the school, and whether they and their classmates would be protected. While there was no evidence of significant or lasting effects on the students' mental health and no student were physically harmed, the conditions created by Respondent during the drill were harmful to students' mental health in the short-term, and to students' safety. Indeed, the whole point of the active assailant drill is to appropriately prepare everyone in the school for an active assailant situation so that if they ever had to respond to an actual active assailant, they would have practiced and could respond automatically, knowing exactly what they needed to do to take the appropriate precautions for their safety and their physical and mental health. Respondent failed to make reasonable effort to protect her students by supervising and leading all her students through the proper drill steps. Instead, she undermined the goal of creating conditions to protect students, by leaving most of her students to fend for themselves— unsupervised, unprotected, and anxious about what would happen in an actual active assailant situation.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Peter Caldwell, Esquire Florida Education Association Legal Department 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order finding Respondent guilty of violating section 1012.795(1)(j), Florida Statutes (2018), through a violation of Florida Administrative Code Rule 6A- 10.081(2)(a)1., imposing a six-month probation on terms established by the Education Practices Commission, including a required Continuing Education course in professional standards for Educators, and issuing a letter of reprimand to Respondent as discipline for her violation. DONE AND ENTERED this 30th day of September, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2021. COPIES FURNISHED: Peter Caldwell, Esquire Florida Education Association Legal Department 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether just cause exists to suspend Respondent without pay for a total of ten days, based on two separate incidents.
Findings Of Fact Mr. Marshall has been a teacher in Broward County for approximately 20 years. At all times pertinent to the instant case, Mr. Marshall was employed as a math teacher at McArthur High School. Prior to working at McArthur High School he had taught math at Hollywood Hills High School, and then at Flanagan High School. During his tenure at Hollywood Hills High School, Mr. Marshall was placed on a Performance Development Plan (PDP), which required Mr. Marshall to remediate and reteach math lessons in an effort to obtain 70 percent comprehension in his classes. During his tenure at Flanagan High School, Mr. Marshall was once again placed on a PDP, which included the same requirements as the previous PDP at Hollywood Hills. Mr. Marshall was next transferred to McArthur High School for the 2007-2008 school year. Because Mr. Marshall had not completed the second PDP while at Flanagan High School, he was placed on a PDP and 90-day probationary period to start his tenure at McArthur High School. He successfully completed the PDP. During the fall of 2010, Mr. Marshall complained about Mr. Jose Gonzalez, the assistant principal who supervised the math department at the time. Mr. Marshall was then permitted to choose which assistant principal would supervise him. He chose Shawn Aycock, who at the time worked as the assistant principal for the language arts department. On November 5, 2010, Ms. Aycock observed Mr. Marshall in his classroom. Ms. Aycock noticed the following deficiencies: Mr. Marshall did not have the students start an activity as soon as the students entered the room, he had the students perform a task that had no educational value and was not tied to the day's activity, he gave inappropriate responses to students' questions, the students were confused with the lesson, he did not provide proper feedback to the students, he did not provide complete answers to student questions, he used vocabulary that was beyond the students' ability, he gave the students a sample problem but did not work through the problem with the students, and he made no attempt to re-teach the lesson or remediate in any way. On November 16, 2012, Ms. Aycock met with Mr. Marshall to discuss the observation. Mr. Marshall was confrontational, denied that the observation of hers was accurate, and accused Ms. Aycock of lying. Ms. Aycock had observed many teachers before she observed Mr. Marshall, but had never seen the need to write up notes after a meeting with a teacher. But after her meeting with Mr. Marshall, she did. Since then, she has not seen the need to write notes arising from a meeting with any other teacher. During the meeting, Mr. Marshall indicated that he would not water down his instruction for any student, and that he would have no problem with observations that were done ethically and did not consist of lies that were made by unqualified individuals. On November 19, 2010, Ms. Aycock provided Mr. Marshall with a memo detailing her concerns and expectations: Concerns: Students were asked upon entering the class to copy the day's objective. Students did not understand all of the math vocabulary used to explain the lesson. A student seeking further explanation on a problem was told,"If you didn't get it not to worry. It will not be on the quiz." Students were referred back to their notes when they questioned the lesson. Only two math problems were worked during a half an hour review. Expectations: All student activities should be of value and tied to the day's activity. Teacher will use math vocabulary consistent with student ability level and explain lessons in multiple ways. Insinuating that lessons are learned only for a test is inappropriate. All student questions will be answered and explained in full. During a review a minimum of five review problems will be worked per concept. Additionally, we discussed the importance of you checking your email. I am directing you to check your email prior to the conclusion of first period and again prior to the conclusion of fourth period. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received hours upon hours of assistance in these areas. My expectation is that you will follow the directives listed above immediately. If you feel you need assistance, please see me. Next, Ms. Aycock requested that Principal LaPace, who had an extensive math background, observe Mr. Marshall. He did so on January 7, 2011. Mr. LaPace's extensive notes regarding the observation detail Mr. Marshall's failure to have a proper lesson plan, his scattered presentation manner, and his ineffective management of the classroom. Mr. LaPace prepared a memo detailing his concerns and expectations: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. The objective on the board did not match the lesson being taught. Modeling sample problems were ineffective. Expectations: Always give clear and concise directions to students. Plan and deliver lessons so that are presented in sequential order. The lesson presented in class will align with the objective posted for the day. During a lesson a minimum of three sample problems will be worked per concept. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. When Mr. LaPace met with Mr. Marshall regarding his observation, Mr. Marshall disagreed with Mr. La Pace's observations, but did not indicate why he did. Mr. Marshall also declined all types of support from other staff members. The administration asked Mr. Marshall to provide documentation of remediation and retesting of students if he had over 35% of his students earning Ds or Fs. The documentation needed to be specific information regarding times that Mr. Marshall sat down with students in small group settings, or phone logs regarding communication with parents, or any type of specific information regarding steps that Mr. Marshall was taking to raise the level of success of his students. Mr. Marshall was never observed remediating or re-teaching, despite the fact that all teachers were asked to allot the final 30 minutes of a class to these activities. On February 17, 2011, Ms. Aycock, Mr. Gonzalez, and Mr. Marshall met for a Pre-Disciplinary Meeting. Mr. Marshall was given a verbal reprimand for insubordination. In the memorandum which documented the verbal reprimand, Ms. Aycock directed Mr. Marshall to: Reduce the number of students in your class receiving D's [sic] and F's [sic] to at or below thirty-five percent through re-teaching and remediating of those students. Check your school email throughout the day, a minimum of twice per day. Follow all directives given by and with proper authority. Failure or refusal to follow the above directives will result in further disciplinary action. On September 20, 2011, Ms. Aycock again met with Mr. Marshall to discuss concerns and expectations, and also to conduct a Pre-Disciplinary Meeting, wherein Mr. Marshall was issued a second verbal reprimand for insubordination. On September 22, 2011, Ms. Aycock wrote a memorandum detailing the conversation during the meeting, and reminding Mr. Marshall that from June 2010 through September 2011, he had attended seven meetings regarding the high percentage of students in his classes that were receiving Ds and Fs. At each meeting, he had been directed to reduce the number of students receiving Ds and Fs to at or below 35 percent, through remediation and re-teaching. Because Mr. Marshall had failed to comply with these directives, and had failed to provide a reason why he should not be disciplined, he was issued the second verbal reprimand. He was also directed to: Reduce the number of students in your class receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Follow all directives given by and with proper authority. Stemming from the same meeting, Ms. Aycock documented her concerns and expectations: Concerns: You are receiving a large number of student and parental complaints in relation to your teaching practices. Students are not being graded in a fair and consistent manner. The department grading policy is not being followed. Meaningful assignments are not being given to students. Students are not receiving corrective and immediate feedback as it relates to their assignments. Expectations: You will model lessons for students. You will differentiate instruction to meet the needs of all the students. You will develop and implement rubrics so students have clear expectations of class participation and effort requirements. All assignments will correlate to the standards as tested by the Geometry EOC. Students will receive corrective feedback within seventy-two hours. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. Around December 2011, Ms. Aycock was promoted to the position of Principal for a middle school, and Ms. Arnita Williams became Mr. Marshall's supervising Assistant Principal. Ms. Williams and Ms. Aycock once again conducted a classroom observation of Mr. Marshall, and Ms. Williams documented her concerns and expectations as follows: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. You did not address students' questions and concerns. Modeling sample problems was ineffective. You did not provide and use the correct mathematical vocabulary. Expectations: Always give clear and concise directions to students and check for understanding. Plan and deliver lessons so they are presented in sequential order. Students' questions and concerns need to be addressed. Mathematical vocabulary on student's level should be used. In previous memos additional directives were given. Below were the following expectations: You will develop and implement rubrics so students have clear expectations of class participation and effort. Provide a copy of your participation rubric to Ms. Aycock by the close of business on Friday, September 26, 2011. Differentiate instruction every day the last 30 minutes of class the [sic] meet the needs of ask [sic] your students. Student will receive corrective feedback within seventy-two hours on all graded work. Reduce the number of students receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Daily indicate in your lesson plans interventions and strategies used to differentiate instruction. A minimum of two grades each week must be entered into pinnacle per student. Vocabulary used in class must be consistent with student's ability. Check your school email throughout the day, a minimum of twice daily (before and after school). During a lesson a minimum of three sample problems will be worked per concept. Follow all directives given by and with proper authority. You have been given the above directions numerous times in the past. It is my expectation that all directives will be implemented immediately. On December 12, 2011, Ms. Williams issued a written reprimand for failing to meet the performance standards required of his position as a math teacher. As grounds for the written reprimand, Ms. Williams focused on Mr. Marshall's repeated failure to reduce the number of students receiving Ds and Fs to at or below 35 percent through remediation and re-teaching, and his failure to follow all other directives given by and with proper authority. School administration consistently directed Mr. Marshall to remediate and re-teach daily; he advised the administration that he would do so on one particular day of the week. The administration denied that request. As a result of Mr. Marshall's non-compliance, students were moved from Mr. Marshall's class to other classes, which resulted in a disparate amount of students in other classes. While most math teachers had from 30-35 students in their classes, Mr. Marshall's class was reduced to about 17 students. On January 5, 2012, Ms. Williams conducted a pre-disciplinary meeting with Mr. Marshall, for failure to provide daily re-teaching and remediation for students the last 30 minutes of class, as he had been instructed to do numerous times. He was informed by letter that he was being recommended to the School Board for a three-day suspension. On October 10, 2012, approximately nine weeks into the next school year, Ms. Williams sent Mr. Marshall a memorandum that stated: Due to the large number of complaints, schedule changes, high failure rate and conferences, you are hereby directed to provide the following documentation for each of the 93 students (Juniors) who presently have a grade of F in your class at interims by October 15, 2012. Please provide copies to Ms. Williams and Ms. DiPaolo by 2:45 p.m. Interventions and strategies for each student Parent phone contact log On that same date, Mr. Marshall responded to this request by giving Ms. Williams a document that read as follows: MATHEMATICAL RUBRIC Tests/Quizzes Correct Problems 10pts. Completely Wrong 0pts. Total is 100% Please note that the total number of questions can affect the outcome. Since the reply by Mr. Marshall was completely lacking in usefulness and did not supply the information requested by Ms. Williams, she attempted once again to solicit the proper information from Mr. Marshall by sending an e-mail to him on October 15, 2012, at 6:03 a.m., giving him a second notice that the deadline for production of the requested information was that same day. Mr. Marshall never complied with the directive to provide information on each student who was failing his class. He never asked for more time to collect the information, and despite that fact that he admitted it would have been easy to retrieve his phone log and submit it, he never did so. Ms. Williams met with Mr. Marshall, informing him that he would be recommended to the School Board for a seven-day suspension. The greater weight of the evidence established that Mr. Marshall is guilty of gross insubordination for his conduct before and after July 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order suspending Mr. Marshall without pay for a total of ten days, based on his conduct before and after July 2012. DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 28th day of August, 2013.
Findings Of Fact At all times pertinent to this hearing, Respondent, Jay S. Markley, was employed as a teacher of mathematics at Osceola High School (OHS) , Kissimmee, Florida, under a continuing contract. A continuing contract conveys tenure status upon the teacher holding it. Mr. Markley had been employed at OHS for approximately nine years. During that period, in addition to being a teacher, he has held the positions of swimming coach, director of athletics, and chairman of the faculty council. Mr. Floyd J. Scott, Jr., was principal of OHS during the 1982-83 school year and had served as such for four years. When he first arrived at OHS, he found a poor environment. Students were scoring low on the achievement tests, a small percentage of graduates was going on to college; discipline was poor, student participation in sports and other extracurricular activities was low, and the teams fielded by the school did poorly. His charter, upon assuming the principal's position, was to bring up the school standards and performance. Among the several things he did to create a favorable change was to, during the 1982-83 school year, place emphasis on the need for teachers to file lesson plans, something that had not been done for quite a while in the past. During the first week of school, he began his programs of emphasis with a low key approach. He would mention the need for them to be filed at faculty meetings, included the requirement that they be filed in the teachers' handbook given to each teacher at the beginning of the school year, and hired a coordinator to work the problem, Ms. Shirley S. Phillips. As time went on throughout the year, more and more emphasis was placed on the subject. Lesson plans are used by teachers to coordinate the information to be passed on to the students. They are a continuity document to be used by substitute teachers to work from in the event the regular teacher is absent. They are used by administrators to insure that required topics are covered, as verification of compliance with the county's scope and sequence plan, as part of the evaluation of teacher performance. Of great importance is the fact that they are considered as an evaluation factor by the Southern Association of Colleges and Universities in its evaluation of high schools for certification. An absence of certification makes it extremely difficult for a graduate of the unaccredited school to gain admission to a college or university outside the State of Florida. The term "scope and sequence" is used to show that curriculum materials are tied together, the order and relationship of topics. The lesson plans are to insure that the daily activities of the teachers fulfill the scope and sequence goals. They are like a road map -- the ways to achieve the tasks set out in the scope and sequence. Rule 5.4.6 of the Osceola County School Board requires teachers to follow a system of unit and lesson planning and specifically provides that the mere citation of text and workbook pages is not considered an adequate lesson plan. Repeated mention is made of lesson plans in the teachers' handbook supplied to each teacher at the beginning of each school year. Respondent recalls receiving his in August or September, 1982, and was also aware of the requirements of Rule 5.4.6. The handbook, at Page 6, requires detailed lesson plans to be in the substitute folder and, at Page 44, states that required "lesson plans will be submitted for review each Friday for the next week" to the curriculum coordinator, at first Ms. Zey, and later Ms. Phillips. Respondent knew of these requirements and knew that, except for two lesson plans submitted at the beginning of the 1982-83 school year, he failed to file any more for the rest of the school year, though he contends he was preparing lesson plans, his style, throughout the school year. Ms. Shirley Phillips became curriculum coordinator at Osceola High School on February 1, 1983. One of the jobs given to her was to collect and coordinate lesson plans which she monitored through a check-off system originally used by her predecessor. Prior to that, however, on November 30, 1982, Assistant Principal Tommy Tate notified Respondent, in an observation report acknowledged by him, that two areas in his performance needed improvement because of no lesson plans. This was followed up by the evaluation report submitted on Respondent by Mr. Scott, the principal, on December 15, 1982, and acknowledged by Respondent on December 17, 1982, that he was to keep lesson plans updated. The time line specified for achieving this improvement was "this marking period," or, in other words, right away. On February 18, 1983, Ms. Phillips, fulfilling her duties pursuant to Mr. Scott's instructions, prepared a letter to a certain 20 faculty members, including Respondent 1/ . This letter, which was approved by Mr. Scott before being sent out, notified the recipients that they were delinquent in filing lesson plans and warned them they would be evaluated "unsatisfactory" unless they turned them in. Respondent received his copy of that letter. Somewhat later, when Ms. Phillips checked on who had still not filed their lesson plans, she found that several, including Respondent, were still delinquent. Most of these, however, except Respondent, did submit their lesson plans within a month and a half; and those who were delinquent, except for one teacher, Mr. Reeder, were not nearly so delinquent as Respondent either in number delinquent or time. Even Reeder, however, ultimately brought his plans up to date. On March 18, 1983, a second letter was sent out, drafted by Ms. Phillips, but signed by the principal, again reminding some nine or ten teachers who had not as yet complied with the previous letter, including Respondent, that he expected each teacher to file the lesson plans and that those who did not would not only be rated unsatisfactory, but would also be considered insubordinate. Respondent and several other teachers who testified in his behalf, and to whom the letter was directed, indicated they did not get it. It is, therefore, quite possible that this particular letter did not get the wide dissemination Mr. Scott thought it did. However, its follow-up, on April 11, 1983, sent to those who did not respond to the March 18 letter, was received by Respondent, as he submitted the letter called for in specific response to this April letter which, it is noted, also advised of the consequences for noncompliance. In his letter of response, dated April 14, 1983, Respondent clearly stated his position in opposition to preparing and submitting lesson plans and, while not specifically stating he would not comply with Mr. Scott's previously expressed requirements, clearly indicated he would not be doing so. No other conclusion can reasonably be drawn from his willingness to accept an evaluation of unsatisfactory and a classification of insubordinate. The principal displayed an inordinate amount of maturity and patience in his response to Respondent of April 19, 1983. Again restating his reasons for requesting lesson plans, he then graciously requested Respondent to reconsider and comply. Though couched in terms far less than directive, under the circumstances, it is clear this was an official request which was the force and effect of a direction. Notwithstanding this latitude he was given, Respondent again failed to comply with the requirement to submit lesson plans and, on April 27, 1983, both the principal and vice principal, Messrs. Scott and Tate, rated him unsatisfactory in the one area on the observation and evaluation forms dealing with lesson plans. All other areas were rated satisfactory. Mr. Tate indicated that at this second observation, Respondent told him he would photocopy lesson plans if they wanted them. From Respondent's words and the tone of voice in which they were said, Mr. Tate inferred that Respondent thought it was stupid to do lesson plans and he did not see why he should have to. Finally, on May 6, 1983, Mr. Scott sent a memo directly to Respondent only, recounting in summary from the prior history of this dispute and the authority for the requirement. Respondent was also ordered and directed, in writing, to turn in all lesson plans for the 1982-83 school year, including those due for the week of May 9 through 13 2/ , to Mr. Scott's office before 8:35 a.m. on Monday, May 9, 1983. He was also warned that his failure to comply would be deemed gross insubordination and willful neglect of duty and would subject him to disciplinary action. At the meeting between the two, in Mr. Scott's office on May 6, when this letter was given to him, Respondent indicates he was told he was the only one in the whole school who had not turned in lesson plans. At this point, he agreed to do them, but told Scott then that he could not get them done by 8:35 a.m. on May 9. By 9 a.m. or so on May 9, when Respondent still had not brought any lesson plans to the office or contacted Mr. Scott for an extension, Mr. Scott sent his secretary, Barbara Rousch, to Respondent's room to pick them up. When she arrived there, Respondent did not offer her any plans. When she asked for the plans, Respondent said he was working on them. Specifically, he said, "I'll have them for you. Maybe not today, but I'm cooking on them." When he said this, Respondent was sitting at his desk working on the lesson plans while the students were in the room. 3/ Ms. Rousch was standing by his desk, and he neither showed her nor offered to show her the plans he had completed, though he contends that he showed her, from his desk book, what he had done. He states that he had completed at that time a complete set of plans for one of three classes of Algebra I and some plans for his class in consumer math. He admits he still had remaining to do two sets for the remaining Algebra I classes and one set for his class in Algebra II. After Ms. Rousch left Respondent's office, there was no further discussion regarding the lesson plans. Respondent finished out the school day and after school went to his place of business off campus. It was then, about 5:30 p.m. on May 9, that Mr. Vogel, Assistant Superintendent of Schools, told him that he had been suspended and was not to come to school the next day. Nonetheless, he completed the lesson plans and himself turned in 31 weeks' worth to Barbara Rousch on May 12, 1983. His daughter turned in three more plans to Ms. Phillips the same day. Respondent has remained suspended without pay since May 9, 1983. Respondent has been employed at OHS under five different principals since January, 1975. During all this time, he does not recall the rules requiring lesson plans to have been enforced prior to the 1982-83 school year. Since the beginning of this year, the enforcement has become stricter as the year went on. After Mr. Scott had been principal for a year, he removed Respondent as athletic director without stating a reason. However, when it appeared that there was thereafter a shortage on the books of the athletic department, Respondent reported the matter to Mr. Scott, who said he would look into it. When Respondent told Scott he wanted to look at the books kept on several sports programs, he was denied access. When he asked Scott about it somewhat later and Scott said he had not done anything about it, Respondent went to the bookkeeper, who told him Scott had the books. There have been other conflicts between the two individuals, as well. When Scott first came to the school, the principal ran the faculty council meetings. When Respondent took over as chairman of the council, he advised Mr. Scott that he, Respondent, would run the meetings, and he dictated to the principal how things would be done. According to Respondent, Scott neither resisted nor made comment about this. Though these conflicts existed, they appear to Respondent to be the result of a lack of communication. Even though there was no outward animosity from Scott to him, he feels it must have been hidden within Scott, who, he now feels, is singling him out for discipline. He has never heard of any action this severe for lesson plans, so he feels there must be another reason. There is a clear pattern of resistance and disobedience demonstrated, however, by the above-cited evidence and Respondent's reaction throughout the year. For example, he states he turned in two weeks of plans in October, 1982, and until the remainder were turned in on May 12, 1983, no more, regardless of how many times he was reminded of the requirement. He got all the notices and memos except that of March 18, 1983, and was aware of the technical requirement to turn the plans in. Still, he did not, nor did he take any of the memos until May 6 as an order to turn them in. When, on that date, he got what he perceives as the first direction to turn the plans in, he did comply, although not on time even then, nor did he evidence any concern about not doing so. He contends that on the weekend of May 7 and 8, 1983, he worked 14 hours on the plans, but also admits he spent a reasonable portion of that weekend pursuing his off-campus swimming pool business. He interpreted the April 11 memo as an either/or proposition, either turn in the lesson plans, or say why you did not. He chose to write the letter and was willing to receive an unsatisfactory rating because he did not consider that had any effect on him -- a tenured teacher. It was not until the May 6 meeting with Scott that the administration was serious and that he had better turn the lesson plans in. Prior to that day, he did not know what gross insubordination meant. Scott told him he might be returned to annual contract status, but did not tell him he would be dismissed. From the beginning to now, he does not know why so much fuss is being made of lesson plans in light of the fact that as late as May 10, 1983, some teachers were delinquent in their lesson plans. Respondent contends that he does lesson plans his way. He writes out what he plans to cover on a yellow sheet and spends his time teaching rather than filling out forms. However, teachers are given at least one period out of each school day for planning. During this planning period, no students are there to be taught. Though some books have lesson plans prepared for the teacher in the instructor's workbook, those being used by Respondent this year did not have those plans included. Even if they had, the mere photocopy of book plans was deemed by this administration to be inadequate. Respondent, having first said he did plan his way, also says he has worked as a teacher for years without lesson plans. Lesson plans, even when submitted, are merely placed in a file and not used. Consequently, he could see no need for lesson plans. Though, by his own testimony, he knew of the requirement in the law and that it had been there for years, he felt it was a choice item, and he did not have the obligation to follow it. He contends that other than the requirements of scope and sequence and what is in the teachers' handbook, there is no direction as to what is a sufficient lesson plan. Numerous teachers who were employed at OHS during the 1982-83 school year confirmed Respondent's testimony as to the prior laxity in enforcing the requirement for lesson plans up until that year. There was also evidence from these teachers of an authoritarian atmosphere at OHS during the 1982-83 school year. Testimony revealed rumors being spread that Mr. Scott had a list of teachers he wanted to get rid of that included Respondent, among others. Yet, not one individual, except Respondent, including several who moved voluntarily to St. Cloud High School this year, testified that any threats were made to them or suggestions that they move by Mr. Scott or anyone in the administration of OHS. Those who moved voluntarily because they were "advised" they were on the "hit list" and should move testified they did so not at the instigation of the administration, but upon the advice of the teachers' union representative. The incidence of rumor and innuendo on the part of one side, attempting to paint the principal and the administration in a bad light, while ignoring the defiance of legitimate authority by Respondent, is clearly shown in the testimony of one teacher that the attitude among the faculty that year was "Hitler was alive and well at OHS." Yet, she admits she had no problem personally with Mr. Scott. He was very supportive of her. Even another teacher who was questioned by Mr. Scott regarding a leak of information to the press during the year and who transferred at the end of the school year, stated she had received no pressure from Mr. Scott, had been thinking of transferring anyway, and was also advised to do so by the teachers' union. One other teacher who was also interviewed by Mr. Scott regarding the press leak was approached afterwards by a union representative and asked if he wanted to meet with other teachers about this. The union representative told them it would be unhealthy for them to remain at OHS, and they should request to transfer out. This particular teacher, however, though he testified on behalf of Respondent, nonetheless desired to remain at OHS. Several teachers testified that Mr. Scott had said that the 1982-83 school year was going to be Mr. Markley's last year at OHS. Scott categorically denied ever having made that threat. The comment in question was made to him by someone else in the context that Respondent was leaving voluntarily to go into another business. Respondent is, in fact, engaged in the conduct of his own swimming pool business, which he started after being relieved as athletic director.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Jay S. Markley be found not guilty of misconduct in office, but guilty of gross insubordination; that his suspension effective May 9, 1983, be sustained; that he be dismissed from employment with the Osceola County School Board; and that he be denied pay from May 9, 1983. RECOMMENDED this 20th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983.
The Issue The issues for determination in this proceeding are whether Respondent fraudulently or dishonestly completed the professional orientation program required for teachers holding two year temporary certificates and, if so, what, if any, disciplinary action should be taken against Respondent's teaching certificate.
Findings Of Fact Respondent was employed as a teacher at Hickory Tree Elementary School ("Hickory Tree") in the Osceola County School District during the 1990-1991 and 1991-1992 school years. Respondent holds Florida Teaching Certificate 684324 in psychology. Respondent's teaching certificate is a two year nonrenewable certificate. All teachers certified in Florida must complete a professional orientation program before receiving a five year professional educator certificate. Teachers who do not complete the program the first year are not entitled by right to a second year to complete the program. However, they may be granted an additional year to complete the program at the discretion of the assistant principal. Credit received by a teacher in the first year is not cumulative. A teacher who does not complete the professional orientation program in the first year must satisfy all of the requirements in the program during the second year. Respondent failed to complete the professional orientation program during the 1990-1991 school year. Respondent was granted an additional year to complete the program. There are 27 Florida Essential Generic Competencies which must be satisfied in order to complete the professional orientation program. A teacher complies with each item by submitting a written document which is kept in a portfolio during the school year and evaluated by a supervisor and the assistant principal. Item 24 requires a teacher to construct or assemble classroom tests to measure student achievement of objectives. A teacher must create his or her own test to evaluate what students learned from a lesson given by the teacher in the classroom. A teacher is not permitted to use form tests or tests prepared by other teachers to satisfy this requirement. The test must be the teacher's original work. During his first year of teaching, Respondent satisfied item 24 in the professional orientation program by submitting a test that demonstrated his competency to construct or assemble classroom tests. During the second year, however, Respondent submitted a different test. Respondent submitted a test on simple machines during his second year in the professional orientation program. The test was substantially identical to a test written by Ms. Margaret Ann Walek, another teacher at Hickory Tree at the time. Ms. Walek wrote the simple machines test in a previous year to satisfy her own professional orientation program requirement. The simple machines test was written by Ms. Walek to evaluate third grade students on concepts such as pulleys, levers, and basic functions of machines. It was created solely by Ms. Walek in her handwriting and transcribed by her mentor-teacher for the ditto master before being submitted to Ms. Walek's students. Ms. Walek used the simple machines test the following year in typed form. Respondent used a copy of the same test to satisfy item 24 in his professional orientation program. The similarity in the two tests was not detected by Respondent's supervisor or the assistant principal at the time Respondent submitted the simple machines test. Respondent received a satisfactory score for successfully completing the professional orientation program during the 1991-1992 school year. In December, 1992, the assistant principal was reviewing all of Respondent's records as a result of a charge of discrimination filed by Respondent against the assistant principal after his employment was terminated for reasons not at issue in this proceeding. The assistant principal called Ms. Walek to the office. Without knowing the purpose of the inquiry, Ms. Walek identified a copy of both the ditto version of the simple machines test and the typed version as her original work. Respondent submitted evidence during the formal hearing that the allegations against him were made in retaliation for his charge of discrimination. However, Ms. Walek is no longer employed as a teacher in the Osceola County School District. She is employed in the private sector and has no discernible secondary gain for testifying on behalf of Petitioner. Her testimony on behalf of Petitioner during the formal hearing was credible and persuasive and was corroborated by competent and substantial evidence. Respondent completed the professional orientation program and obtained his teaching certificate by fraudulent means. He converted the work of another teacher and submitted it as his own in order to complete the professional orientation program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of obtaining his teaching certificate by fraudulent and dishonest means, within the meaning of Section 231.28(1)(a) and Florida Administrative Code Rule 6B- 1.006(5)(a) and (h), and suspending Respondent's teaching certificate for two years from the date of Respondent's termination of employment. DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact All of Petitioner's proposed findings of fact are accepted in substance. Respondent's Proposed Findings of Fact Respondent did not submit proposed findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire 411 East College Avenue Tallahassee, Florida 32301 Joseph Egan, Jr., Esquire P.O. Box 2231 Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Donald L. Griesheimer, Director Education Practices Commission Department of Education The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
