The Issue The issue in this case is whether just and good cause exists to terminate Respondent from his employment as an educational support employee with Miami-Dade County Public Schools.
Findings Of Fact The Parties At all times material to this proceeding, Petitioner was a duly- constituted school board charged with the duty to operate, control, and supervise free public schools within Miami-Dade County, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes. At all times material to this proceeding, Respondent was employed by the District as an electrician at Maintenance Service Center 4 (hereafter, "MSC4") in Miami-Dade County, Florida. As such, Respondent was subject to applicable Florida Statutes, applicable State Board of Education rules, Petitioner's policies and procedures, and the Dade County Schools Maintenance Employees Committee ("DCSMEC") Contract.2 Charges in the Amended Administrative Complaint The Amended Administrative Complaint alleges that between May and July 2019, Respondent misrepresented his working time on daily status forms and forged the signatures of worksite administrators on daily status forms. The Amended Administrative Complaint charges Respondent with having violated Florida Administrative Code Rules 6A-5.056(2) and 6A- 10.081 and School Board Policies 4210, 4210.01, and 8700. The Amended Administrative Complaint alleges that the conduct in which Respondent is alleged to have engaged, and the violations with which he has been charged, constitutes just cause to suspend Respondent without pay and terminate him from his employment position with the District. 2 The version of the DCSMEC Contract in effect between July 1, 2018, and June 30, 2021, was in effect at the time of the alleged conduct giving rise to this proceeding, and, therefore, applies to this proceeding. Evidence Adduced at the Final Hearing Background Respondent was hired by the District as an electrician in February 2007. He worked at Maintenance Service Center 3 until September 2008, when he was reassigned to MSC4. MSC4 is one of four District maintenance service centers that the District operates. MSC4 is several acres in area and contains trucks, storage facilities, a fueling station, and dumpsters. The geographic service area for which MSC4 is responsible stretches from Southwest 168th Street, in Miami, southward to the Miami-Dade County/Monroe County line. District employees assigned to MSC4 perform work at District facilities within the MSC4 service area. Respondent's work hours at MSC4 were from 6:00 a.m. to 2:30 p.m. He worked at MSC4 from September 2008 until December 2020, when he was suspended without pay and Petitioner took agency action to terminate his employment with the District. Respondent's home is located approximately 21 miles north of the northern boundary, and over 30 miles north of the southern boundary, of the MSC4 service area. During his employment at MSC4, Respondent engaged in the typical tasks performed by electricians who work for the District. Specifically, he handled work orders sent to MSC4 from District school facilities, entailing a wide range of electrical issues that arose, including loss of power, lighting issues, air conditioning, kitchen equipment, electrical wiring, damaged motors, and other tasks. Electricians are—and, at the time of Respondent's alleged conduct giving rise to this proceeding, were—assigned work by a foreman at MSC4. Work orders for specific jobs at specific facilities would be given by the foreman to the electrician, who would travel to the facility and perform the requested work. An electrician could be given several work orders on a given day, and if the work assigned through a work order was not completed that day, the electrician would return the following day to complete the work. If the electrician finished all of the work assigned through a work order, he or she was to contact the foreman, who would dispatch the electrician to another location to complete another work order. Electricians kept track of their work each day on a Daily Status Form ("DSF"), which (as the name indicates) was required to be completed by the electrician and submitted to the foreman on a daily basis. On each DSF, the electrician would provide a brief description of the work performed; enter the amount of time spent on a particular job; state whether the job was completed; and obtain the signature of the principal or authorized representative, who, by signing the DSF, verified that the work described on the DSF for that facility was, in fact, performed. At the time of the alleged conduct giving rise to this proceeding, Respondent's supervisors were Michael Thomas and a person referred to in the record as "Mr. Hetzer."3 At that time, and at the time of the final hearing in this proceeding, Timothy Jones was the director of MSC4, so was the supervisor for Thomas, Hetzer, and Respondent. At the time of Respondent's alleged conduct giving rise to this proceeding, he was assigned a District work vehicle having Vehicle Number 202209. Telogis Vehicle Tracking Software Installed in District Vehicles In 2016, the District purchased new Ford trucks for MSC4. The vehicles came equipped with global positioning system ("GPS") hardware and Telogis software, a Verizon Connect software product. Via cellular signal, the Telogis software tracks, among other things, the location and speed of 3 The record does not refer to Mr. Hetzer's first name. Hetzer died in January 2020, so was unavailable to testify at the final hearing. equipped District vehicles. The software enables the District to efficiently manage its fleet of vehicles. Respondent, along with the other MSC4 employees and the members of the DCSMEC union, was informed by Jones that the District vehicles used by employees at MSC4 were equipped with the Telogis software. The work vehicle assigned to Respondent, Vehicle Number 202209, was equipped with the Telogis software. The evidence establishes that Respondent knew his vehicle was equipped with the Telogis software. The data for each District vehicle is gathered by the Telogis software and electronically stored by Verizon Connect in a records storage and maintenance platform called Fleet. Verizon Connect customers have access to the data stored in the Fleet platform for purposes of monitoring the location and performance of their vehicles, and they can print out reports of their vehicle data that is stored in the Fleet platform. The competent, substantial, and persuasive evidence establishes that the Telogis software functions accurately in recording the vehicle location, speed, and other monitored features. No competent or persuasive evidence was provided showing that the Telogis software was generally unreliable or that it had a significant error rate.4 Respondent's Alleged Conduct Giving Rise to this Proceeding On or about July 12, 2019, Hetzer, who was Respondent's immediate supervisor at the time, and Jones found Respondent sleeping in his work vehicle. This incident caused Jones to investigate Respondent's work-related records for the preceding few months, because, as Jones put it, "I just wanted to see what Mr. Fleites had been up to." Jones testified, credibly, that had he found other employees sleeping on duty, he also would have accessed the Telogis software reports for their vehicles. 4 See paragraph 66, below. As part of the investigation, Jones or Hetzer accessed, and printed out, the Telogis software reports for Respondent's work vehicle for the period from May 1 to July 12, 2019.5,6 Also as part of the investigation, Jones reviewed Respondent's DSFs for the period from May 1 to July 12, 2019. Jones compared the Telogis software reports for Respondent's vehicle with the DSFs that Respondent had completed for the period from May 1 to July 12, 2019. Based on the information provided by the Telogis software for Respondent's District vehicle, Jones determined that on numerous days during the period between May 1 and July 12, 2019, Respondent either was not at the specific location he had recorded on the DSF for that day, or he was not present at a specific location for the amount of time he had stated for that day. Specifically, on May 1, 2019, Respondent's DSF stated that he was at Redondo Elementary School ("Redondo") for eight full hours; however, the Telogis report indicated that he was not at Redondo at all that day. Rather, the Telogis report showed that he drove to his home, as indicated by "JF" in 5 Jones testified that either he or Hetzer printed out the Telogis software reports for Respondent's work vehicle. He could not specifically recall whether he personally printed out the reports, but he testified, credibly, that he was trained in how to read and analyze the vehicle data in the reports, and he was authorized to print such reports. 6 The Telogis reports admitted into the record fall within the business records exception to hearsay rule codified in section 90.803(6), Florida Statutes. Petitioner presented the testimony of Avram Polinsky, a records custodian employed by Verizon Connect, who is directly involved in the preparation and storage of the Telogis records and in making them available in report-form for customer use. Polinsky authenticated the Telogis records and his testimony established that the records were made at or near the time the data comprising the records was compiled by the Telogis software system; that these records were kept in the ordinary course of Verizon Connect's business; and that it was a regular practice of Verizon Connect to keep such records and make them available for use by customers. Accordingly, the Telogis records constitute business records pursuant to section 90.803(6). See Jackson v. State, 877 So. 2d 816, 817 (Fla. 4th DCA 2004)(computer printouts generated at the request of a party in connection with litigation fall within the business records exception). Moreover, the Telogis reports are directly relevant to the charges against Respondent, and, therefore, are admissible in this de novo proceeding. the report, which, as found above, was approximately 21 miles north of the northern boundary of the MSC4 service area, and spent close to an hour there. He also drove to unidentified locations in Miami-Dade County, to the District's Redland vehicle fueling station, to the MSC4 facility, and then back to the fueling station. Respondent's DSF for May 2, 2019, stated that he worked eight hours at the South Dade Skills Center ("SDSC"). However, the Telogis report shows that he was only at SDSC for approximately 17 minutes. Had Respondent completed the work ordered at SDSC in that amount of time, as discussed above, he was supposed to contact his foreman to receive another work assignment for that day—which he did not do. The Telogis report also shows that Respondent drove to his home, to unidentified locations in Miami-Dade County, to the Redland fueling station, and to the MSC4 facility. Respondent's DSF for May 3, 2019, stated that he spent eight hours at Miami Heights Elementary School. However, according to the Telogis report for that day, he did not go to the school, but instead, went home and also drove to the Redland fueling station and the MSC4 facility. Respondent's DSF for May 7, 2019, stated that he was at the Air Base K-8 Center for eight hours; however, the Telogis report for that day shows that he was not at that facility at any time on that date. The Telogis report shows that he went home, went to various unknown locations in Miami-Dade County, went to the Redland fueling station multiple times, and went to the MSC4 facility. Respondent's DSF for May 8, 2019, stated that he was at the Peskoe K-8 Elementary School for eight hours; however, the Telogis report for that day shows that he was not at that facility at any time on that date, but, instead, went home, went to unknown locations in Miami-Dade County, went to the Redland fueling station multiple times, and went to the MSC4 facility. Respondent's DSF for May 9, 2019, states that he worked eight hours at the MSC4 facility. However, the Telogis report for that day showed that, in addition to being present at the MSC4 facility for two short periods of time, he drove 68 miles that day, to several unknown locations in Miami-Dade County, and to the Redland fueling station five times. Respondent's DSF for May 13, 2019, states that he worked eight hours at Redland Elementary School; however, the Telogis report for that day shows that he was only present at that location for slightly over seven minutes. The Telogis report shows that he made several stops at the Redland fueling station, three stops at the MSC4 facility, and three stops at unknown locations in Miami-Dade County. Respondent's DSF for June 3, 2019, states that he worked eight hours at Miami Heights Elementary School. However, the Telogis report for that day shows that he did not go to that school at all on that date, but, instead, went home, drove to the Redlands fueling station several times, and drove to unknown locations in Miami-Dade County. Respondent's DSF for June 4, 2019, states that he worked eight hours at Redondo. However, the Telogis report for that day indicates that he did not go to the school at all on that date, and that instead, he drove home, made four stops at the Redland fueling station, and made two stops at unknown locations in Miami-Dade County. Respondent's DSF for June 5, 2019, states that he worked eight hours at South Miami Heights Elementary School. The Telogis report for that day shows that Respondent did not go to this school at all on this date, but instead went to Redondo, drove home, made four stops at the Redland fueling station, and made two stops at the MSC4 facility. Respondent's DSF for June 6, 2019, states that he worked eight hours at Gulfstream Elementary School; however, the Telogis report for that day shows that he did not go to that school at all on that date, but instead drove home; went to various locations in Miami-Dade County, including a busway station; made five stops at the Redland fueling station; and made multiple stops at the MSC4 facility. Respondent's DSF for June 10, 2019, states that he worked eight hours at South Dade Middle School. However, the Telogis report for that day shows that he did not go to that school, but instead made two very brief stops at two other schools, and made stops at the Redland fueling station and the MSC4 facility. Respondent's DSF for June 11, 2019, states that he worked eight hours at South Dade Middle School. However, the Telogis report for that day shows that he was only present at that school for slightly over 41 minutes. The Telogis report shows that he went to three unknown locations in Miami- Dade County, made five stops at the Redland fueling station, and multiple stops at the MSC4 facility. Respondent's DSF for June 13, 2019, states that he worked eight hours at Laura Saunders Elementary School. However, the Telogis report for that day shows that he was at the school for slightly over 42 minutes, and that he made stops at unknown locations in Miami-Dade County, at the Redland fueling station, and at the MSC4 facility. Respondent's DSF for June 17, 2019, states that Respondent worked eight hours at Homestead Elementary School. However, the Telogis report for that day shows that he did not go to that school on that date, and instead stopped at McArthur South High School—for which no work had been requested—for slightly over 26 minutes. He also made stops at an unknown location in Miami-Dade County and two stops at the Redland fueling station. Respondent's DSF for June 18, 2019, states that Respondent worked eight hours at Redondo. However, the Telogis report for that day shows that he did not go to that school on that date, and instead briefly stopped at South Miami Heights Elementary and Herbert A. Ammons Middle School, although no work had been requested for either school. He also drove home, made five stops at the Redland fueling station, and made two stops at the MSC4 facility. Respondent's DSF for June 19, 2019, states that Respondent worked eight hours at Miami Heights Elementary School. However, the Telogis report for that day shows that he did not go to that school, or to any other school, on that date. He made three stops at unknown locations in Miami- Dade County and two stops at the Redland fueling station. Respondent's DSF for June 24, 2019, states that he worked eight hours at the Medical Academy for Science and Technology. However, the Telogis report for that day shows that he was on site at this school for slightly over 21 minutes. The Telogis report also shows that he made a brief stop at Redland Elementary School, despite no work order being issued for that school that day; and that he made stops at three unknown locations in Miami-Dade County, three stops at the Redland fueling station, and stops at the MSC4 facility. Respondent's DSF for June 25, 2019, states that he worked eight hours at Whigham Elementary School; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report shows that Respondent stopped at Redland Elementary School for slightly over 28 minutes, notwithstanding that no work had been requested for that school on that day. The Telogis reports also shows that he made five stops at the Redland fueling station and two stops at unknown locations in Miami- Dade County. Respondent's DSF for June 26, 2019, states that he worked eight hours at Air Base Elementary School; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report also shows that he made two stops at unknown locations in Miami-Dade County. Respondent's DSF for June 28, 2019, states that he worked eight hours at Air Base Elementary School; however, the Telogis report for that day shows that he only was present on site at that location for approximately 53 minutes. The Telogis report shows that Respondent drove home, stopped at three unknown locations in Miami-Dade County, and made four stops at the Redland fueling station. Respondent's DSF for July 8, 2019, states that he worked 6.5 hours at Caribbean K-8 Center; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report shows that Respondent drove home, made three stops at unknown locations in Miami- Dade County, and three stops at the Redland fueling station. Respondent's DSF for July 9, 2019, states that he worked eight hours at R.R. Morton Elementary School; however, the Telogis report for that day shows that he was at that location for slightly over one hour and 36 minutes, and that he briefly stopped at Redland Elementary School, notwithstanding that no work had been requested for that school on that day. The Telogis report also shows that he made four stops at the Redland fueling station and four stops at unknown locations in Miami-Dade County. Respondent's DSF for July 10, 2019, states that he worked eight hours at Campbell K-8 Center; however, the Telogis report for that day shows that he was at this location for slightly over 39 minutes. The Telogis report shows that Respondent drove home, made three stops at the Redland fueling station and two stops at unknown locations in Miami-Dade County. Respondent's DSF for July 11, 2019, states that he worked eight hours at Caribbean K-8 Center. However, the Telogis report for that day shows that he was only present at that location for one hour and 36 minutes. The Telogis report shows that Respondent made two brief stops at Miami Heights Elementary School, notwithstanding that no work had been requested for that school on that day, and that Respondent made two stops at unknown locations in Miami-Dade County. Respondent's DSF for July 12, 2019, states that he worked eight hours at Redland Elementary School; however, the Telogis report for that day shows that he was present at that location for a total of three hours and 21 minutes. The Telogis report shows that Respondent stopped at the Caribbean K-8 Center, notwithstanding that no work had been requested for that school on that day. The Telogis report also shows that he made four stops at the Redland fueling station, three stops at unknown locations in Miami-Dade County, and one stop at the MSC4 facility. As discussed above, when maintenance work is performed at a District facility, the employee must fill out the DSF, describing the work and stating the number of hours of work performed at the facility, and the employee must obtain the signature of the school's principal or authorized designee. The purpose of obtaining that signature was to verify that the work addressed on the DSF was performed. Here, the persuasive evidence establishes that Respondent falsified or forged signatures on some of the DSFs he submitted. Specifically, Respondent's DSF for May 8, 2019, contains the employee number of James Tuning, a foreman at MSC4, and a signature purported to be Tuning's. Tuning testified, credibly, that the employee number on the form was his, but was not written in his handwriting, and the signature on the DSF was not his. He further testified that, under any circumstances, he would not have been authorized to sign DSFs for work performed at the facilities serviced by employees at MSC4. Respondent's DSFs for June 17, 26, and 28, 2019, contain the employee number of Melissa Vincenti, the principal's secretary at Air Base Elementary School, and a signature purported to be Vincenti's. Vincenti testified, credibly, that the DSFs did contain her employee number, but that the number was not written in her handwriting, and the signature on the DSFs was not hers. The evidence establishes that she did not give permission for Respondent, or anyone else, to sign the DSF for her. Respondent's DSF for July 8, 2019, contains the employee number of Darryl Lyles, the head custodian at Caribbean K-8 Center, and a signature purported to be Lyles's. Lyles testified, credibly, that the employee number on the DSF was his, but the signature was not his. The evidence establishes that he did not give permission for Respondent, or anyone else, to sign the DSF for him. Respondent's Prior Disciplinary History Respondent previously has been disciplined by Petitioner. Specifically, in 2010, Respondent was suspended from his employment with the District for eight days without pay for having left work early, which constituted payroll fraud. In addition to being suspended without pay, Respondent entered into a settlement agreement with Petitioner under which he agreed to reimburse the District for 20 work hours. Respondent's Defenses Michael Thomas, a retired supervisor who worked at MSC4 in 2019, testified that when the Telogis software was installed in District vehicles, he repeatedly assured the District employees at MSC4 who were using the Telogis-equipped vehicles that the data generated by the software system would "never be used against them in a derogatory or disciplinary manner." Thomas testified that he was authorized by his supervisor, Timothy Jones, to tell the employees that the data gathered by Telogis for their vehicles would not be used for disciplinary purposes. However, Jones directly contradicted Thomas's testimony on this point. Jones testified that he did not direct anyone, including Thomas, to tell employees that the Telogis data would not be used for disciplinary purposes. Rather, he told his foremen that he was not using the data for disciplinary purposes at that time. On questioning, Thomas acknowledged that he never had given written assurances to employees that the Telogis data would not be used to support disciplinary action. Furthermore, in any event, there is nothing in the DCSME Contract— which establishes the terms and conditions of employment for those to whom the contract applies, including Respondent—that provides that the Telogis data would not be used as a basis of, or to support, disciplinary action against District employees who violate School Board policies.7 Thomas also testified that the Telogis system had a 20 percent inaccuracy rate. However, on questioning, Thomas acknowledged that this assertion was "anecdotal," and that he did not have any data to support this assertion. He also acknowledged that he was aware of only one vehicle, out of the 21 vehicles dispatched from MSC4, that ever had any Telogis software accuracy issues. He further testified that that particular vehicle was not assigned to Respondent, and that to his knowledge, the Telogis software installed on Respondent's vehicle did not have any accuracy issues. Respondent testified that on July 12, 2019, the day that Jones and Hetzer found Respondent in his vehicle at the MSC4 facility, he was not sleeping, but was instead waiting for rain to pass so he could pick up materials and return to the school to complete the work. However, as found above, this testimony was directly contradicted by Jones, who testified that on that day, he, along with Hetzer, found Respondent sleeping in his vehicle. Thus, Respondent's testimony on this point was not credible. Respondent also testified that Tuning, Vincente, and Lyles gave him their employee numbers and gave him permission to sign the DSFs on their behalf. Respondent's testimony was directly contradicted by the testimony of Tuning, Vincenti, and Lyles, all of whom testified that they had not given Respondent their employee numbers; had not signed the DSFs; and had not authorized Respondent to do so on their behalf. Thus, Respondent's testimony on this point was not credible. Respondent also testified that on the days he had driven home during the work day, he had done so in order to take medication for pain he 7 To that point, any verbal representations made to employees regarding the use of the Telogis software would not, and did not, supersede the DCSME Contract. experienced due to medical issues.8 He testified that he had been given permission to do so by a former supervisor, William Barroso, and that he did not know if his subsequent supervisors were aware that Barroso had given him such permission. In any event, Jones testified that permission to return home for personal reasons, such as to take medication, during work hours could only have been granted by a current supervisor. During the operative time period of May 1 through July 12, 2019, Barroso was not Respondent's supervisor. Therefore, in order for Respondent to have been excused from his job duties during his work hours, he would have needed to obtain permission from his supervisor at the time. There was no evidence presented showing that Respondent had obtained such permission, and the most plausible inference from Respondent's own testimony is that he did not obtain such permission. Respondent also asserts that in using the Telogis records for his District vehicle in support of its proposed disciplinary action at issue in this proceeding, Petitioner has singled out Respondent and treated him disparately as compared to other employees, who have not been subjected to discipline on the basis of Telogis records for their District vehicles. However, this assertion is undercut by the credible testimony of Carlos Diaz, Director of Professional Standards for the District, who stated that Telogis records have, in fact, been used to impose discipline on other District employees. IV. Findings of Ultimate Fact As noted above, Petitioner has charged Respondent with misconduct in office under rule 6A-5.056(2) for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 4210, Standards of Ethical Conduct; School 8 Respondent testified that he kept his pain medication at home, rather than with him at work, so that he would not be tempted to take more than the prescribed amount. Board Policy 4210.01, Code of Ethics; and School Board Policy 8700, Anti- Fraud.9 Whether an offense constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct violates a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from a standard of conduct is not a conclusion of law, but is instead an ultimate fact). The competent, substantial, credible, and persuasive evidence presented in this proceeding establishes that on multiple occasions, Respondent submitted, to his supervisors, DSFs on which he had intentionally misrepresented the description of the work that he ostensibly had performed and the number of hours he had worked. As further discussed below, Respondent's conduct in this regard violated School Board Policies 4210, 4210.01, and 8700. The competent, substantial, credible, and persuasive evidence also establishes that on several occasions, Respondent falsified or forged signatures of persons, without their permission, on DSFs that he submitted to his supervisors for the purpose of representing that he had performed the work described on the DSF and/or had worked the number of hours represented on the DSF. 9 As further discussed below, it is determined that rules 6A-5.056 and 6A-10.081 do not apply to Respondent, who is not a Florida educator and has no interaction with students in the District. As further discussed below, Respondent's conduct in this regard violated School Board policies 4210, 4210.01, and 8700.
Conclusions For Petitioner: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 For Respondent: Teri Guttman Valdes, Esquire 1501 Venera Avenue, Suite 300 Miami, Florida 33146 1 All references to chapter 120 are to the 2021 version. All other statutory references are to the 2019 and 2020 versions of Florida Statutes, which were in effect at the time of the alleged conduct giving rise to this proceeding. As a practical matter, none of the substantive statutory provisions applicable to this proceeding were amended in the 2020 legislative session, so the 2019 and 2020 versions are the same.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order suspending Respondent without pay and terminating his employment. DONE AND ENTERED this 22nd day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S CATHY M. SELLERS 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 22nd day of November, 2021. Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Teri Guttman Valdes, Esquire Teri Guttman Valdes LLC 1501 Venera Avenue, Suite 300 Miami, Florida 33146 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132
The Issue Whether the Petitioner's decision not to renew the Respondent's professional service contract for the 1998-99 school year should be sustained.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). At the times material to this proceeding, Loretta Young was a science teacher employed under a professional service contract by the School Board and assigned to North Dade Middle School ("North Dade"). She was initially hired by the School Board as a substitute teacher in February 1987, was subsequently hired as a full-time teacher, and then placed on a professional service contract at some time after the 1994-95 school year. Ms. Young is a member of United Teachers of Dade and is governed by the Contract Between the Dade County Public Schools and the United Teachers of Dade ("Contract"). The Teacher Assessment and Development System ("TADS") is the instrument which has been used by the School Board since the 1984-85 school year for evaluating teachers' performance. TADS is certified by the State of Florida as an appropriate evaluation system, and TADS and all of the materials associated with TADS, including the training requirements, are incorporated into Article XIII of the Contract. TADS is based on the assumption that a teacher must perform certain basic teaching behaviors in order to be effective in the classroom, and it is a baseline instrument; that is, it does not distinguish between a teacher whose performance is minimally acceptable and a teacher whose performance is exceptionally good. The assessments of teacher performance are derived from actual observations of the teacher teaching in the classroom. The observations normally last for an entire class period. TADS interim and annual evaluations are normally done by school principals or their designees, but the actual observations of a teacher's performance can be done by anyone on an administrative level who is certified as proficient in the use of the system. Certification requires four days of training, and a person is not considered proficient in the system unless he or she passes several examinations. The number of times each year a teacher is observed as part of the TADS process is based on the teacher's contract status. A teacher under a professional service contract must be observed at least one time during the school year unless the teacher has received an annual evaluation of unacceptable at the end of the previous school year. In such a situation, several observations are required because the deficiencies on which the unacceptable evaluation is based are considered remediated, or corrected, only when the teacher achieves two consecutive acceptable summative decisions, or assessments.1 Only then can such a teacher receive an annual evaluation of acceptable. The TADS manual provides the framework for assessing the classroom performance of a teacher. It is divided into several parts: The Classroom Assessment Instrument contains assessment items, directions, definitions, and the ground rules for making an observation; the Record of Observed Deficiencies/Prescription for Performance Improvement ("Record") is a form designed to assist the observer in organizing the information derived from an observation; the Interpretive Guide, describes in detail the teaching behaviors which are to be the subject of the observation, together with an explanation of the basis for acceptable performance ratings in each category. TADS is divided into two sections. Component A deals with teaching behaviors which are the subject of observation of the teacher's performance in the classroom. The decision categories included in Component A of TADS and the specific behaviors, or indicators, are the following: CATEGORY I - PREPARATION AND PLANNING THE TEACHER SHOWS EVIDENCE OF PREPARATION AND PLANNING IN STRUCTURING THE LEARNING EXPERIENCES OF STUDENTS. The teacher develops lesson plans. The classroom activities reflect evidence of effective instructional planning. CATEGORY II - KNOWLEDGE OF THE SUBJECT MATTER THE TEACHER DEMONSTRATES SUBJECT MATTER COMPETENCE WHILE TEACHING. Subject matter content. Subject matter presentation. CATEGORY III - CLASSROOM MANAGEMENT THE TEACHER ADMINISTERS ACTIVITIES WELL SO THAT PUPILS ARE ABLE TO UNDERSTAND EXPECTATIONS AND WORK EFFICIENTLY WITH LITTLE DISRUPTION. Most of the observation period is devoted to some form of instruction rather than to organizational activities, i.e., roll taking, distribution of supplies/materials and regrouping for instruction. The teacher uses strategies to prevent, identify and redirect off-task learners. Pupil behavior is managed appropriately. CATEGORY IV - TECHNIQUES OF INSTRUCTION THE TEACHER INSTRUCTS AT LEVELS WHICH ARE COMMENSURATE WITH THE INTELLECTUAL AND DEVELOPMENTAL NEEDS OF LEARNERS, PRESENTS CONTENT IN SEQUENTIAL AND ORDERLY FASHION, AND FACILITATES INTERACTIONS PERTINENT TO LESSON OBJECTIVES. Instructional materials and methods are appropriate to the needs and abilities of the learners. Pupil performance on learning objectives is monitored. Opportunities are provided for verbal interaction. Opportunities are provided for active involvement. Media are used to facilitate instruction. Instruction follows a sequence. Clear explanations and directions are provided. Directions and explanations are clarified when necessary. CATEGORY V - TEACHER-STUDENT RELATIONSHIPS THE TEACHER ESTABLISHES POSITIVE AND CONSTRUCTIVE RELATIONSHIP WITH STUDENTS TO STIMULATE AND MAINTAIN A POSITIVE LEARNING ENVIRONMENT. Attempts to systematically involve all students in class activities. Promotes a positive interpersonal environment. CATEGORY VI - ASSESSMENT TECHNIQUES THE TEACHER UTILIZES A VARIETY OF INFORMAL AND FORMAL ASSESSMENT TECHNIQUES WHICH MOTIVATE AND ENABLE STUDENTS TO LEARN AND WHICH ASSIST THE TEACHER IN UNDERSTANDING THE DEGREE OF STUDENT LEARNING AND THE DEGREE TO WHICH INSTRUCTIONAL OBJECTIVES ARE BEING ATTAINED. Makes informal assessments of student learning and progress during the lesson. Makes formal assessments of student academic and/or vocational progress. Component B of TADS consists of Category VII, which measures a teacher's performance of his or her professional responsibilities. Teachers are assessed on a continuing basis with respect to this category, and the decision categories for the professional responsibility component are the teacher's compliance with School Board rules and with the provisions of the Contract. Data relating to professional responsibility are used only in making the decision regarding a teacher's annual evaluation. The Record is an essential component of TADS. It is the form in which the person conducting a formal observation of a teacher's performance describes in detail the observed behavior that is found deficient, organized by categories. The observer also includes in the Record a detailed description of "prescription plan activities" designed to assist the teacher in correcting the observed deficiency or deficiencies and to identify resources, usually school personnel, which the teacher may or must consult in order to complete the prescribed activities. A date by which the activity must be completed is identified in the report, as well. The teacher is entitled to provide in the Record an explanation of the behavior that was cited as deficient. TADS was used in assessing Ms. Young's teaching performance, and most of the observations of her classroom teaching lasted two hours because this was the length of a class period for her science classes, many of which were on block scheduling. Ms. Young began the 1996-97 school year "on prescription,"2 as a result of an external observation conducted on May 30, 1996, by Elizabeth Rivero, an assistant principal at North Dade, and Dr. Gus Loret de Mola, a District Science Supervisor. In this observation, Ms. Young's performance was found unacceptable in parts A and B of the preparation and planning category, in all three parts of the class management category, and in parts F and G of the techniques of instruction category. The Report contained prescription plan activities which Ms. Young was expected to complete in August and September of the 1996-97 school year. Ms. Young's TADS Annual Evaluation reflected an overall unacceptable rating, and a Summary of Conference-for-the- Record held June 6, 1996, reflects that Ms. Young was advised of this rating and of the fact that the prescriptions contained in the Record would carry over into the 1996-1997 school year. On September 19, 1996, Eunice Davis, who became principal of North Dade in September 1996, conducted a formal observation of Ms. Young's teaching performance as she taught a science class. In the Record of the observation, Ms. Davis identified two deficiencies in part B and three deficiencies in part C of the classroom management category and two deficiencies in part F and two deficiencies in part G of the techniques of instruction category. The deficiencies in classroom management related generally to Ms. Young's failure to redirect students who were either disruptive or off-task and her failure to make clear to the students her expectations regarding their behavior. The deficiencies in techniques of instruction related generally to Ms. Young's failure to put the components of the lesson in the appropriate sequence, her failure to provide closure of the lesson, and her failure to explain and/or demonstrate clearly an assignment involving use of a ruler which the students obviously did not understand. Ms. Davis included prescription plan activities for each deficiency identified, which were to be completed by October 11, 1996. Ms. Young provided in the Record an explanation of why she did not deal appropriately with a student who kept her head on her desk for approximately thirty minutes of the class period, but no changes were made in the Record regarding the cited deficiencies in Ms. Young's teaching performance. On December 11, 1996, a Mid-Year Conference-for-the- Record was held with Ms. Young, Ms. Davis, Ms. Rivero, and Georgeanna Vagias, Ms. Young's union steward. The conference was summarized in a memorandum dated December 11, 1996. As recited in the summary, one purpose of the conference was to review Ms. Young's performance assessment to date. Ms. Young was reminded that she had received an unacceptable observation on September 19, 1996, followed by an acceptable observation on October 21, 1996, which resulted in a summative assessment of unacceptable. Ms. Young was further advised that, because she had been rated unacceptable in her TADS annual evaluation for the 1995-96 school year, remediation of her cited deficiencies would be accomplished only when she had received two consecutive summative ratings of acceptable. Additional assessment procedures were explained to Ms. Young, and she stated she had no further questions. In addition to the deficiencies found in Ms. Young's performance in the classroom assessment component of TADS during the fall of 1996, Ms. Young was cited for deficiencies in the area of professional responsibility. These deficiencies were discussed during the December 11, 1996, Mid- Year Conference-for-the-Record. As recited in the summary of the conference dated December 11, 1996, the other purpose of the conference was to review the results of an investigation into an incident in which Ms. Young allegedly committed battery on a student. Ms. Davis read the statements of Ms. Young, the victim, and the witnesses to the incident during the conference. Ms. Young was given the opportunity to speak, and she stated that she was not guilty of the offense charged; in response to a question from the union steward, however, Ms. Young admitted that she had touched the student. After reviewing all of the statements and the results of the investigation, Ms. Davis concluded that the charge against Ms. Young was substantiated. According to the summary, the resulting discipline consisted of the Conference-for-the- Record and the preparation of a TADS Record of Observed Deficiencies/Prescription for Performance Improvement. The Record, prepared December 11, 1996, reflected two deficiencies in the professional responsibility category. Ms. Young was cited for being non-compliant with School Board rules relating to corporal punishment and to the responsibilities and duties of teachers and with the portion of the Dade County Public Schools/United Teachers of Dade Contract dealing with student discipline. Ms. Young was also cited for being non-compliant with site directives regarding the use of physical means to discipline students. In the Record, which Ms. Davis signed on December 17, 1996, she included prescription plan activities to assist Ms. Young in remediating these deficiencies, with a completion date of February 17, 1997. Ms. Young provided an explanation of the incident in the Record, in which she stated that, as she closed the door of the classroom from the outside (because she needed to make a quick trip to the office), the victim grabbed the door handle and tried to keep her from closing the door. Ms. Young stated in her explanation that she "simply removed [the student's] hand from the door." Ms. Young's mother died in the winter of 1997, and Ms. Young was absent from North Dade beginning on January 6, 1997. In a letter dated February 11, 1997, Ms. Davis requested that Ms. Young notify the school with respect to her employment intentions. The options presented to Ms. Young were to notify Ms. Davis of the date she intended to return to school, to request leave, to resign her position, or to retire. Ms. Young responded by informing Ms. Davis that she intended to return to work on March 3, 1997, and she did so. During the time that Ms. Young was absent from school, Ms. Davis notified Ms. Young that performance deficiencies cited during the 1996-97 school year had not been remediated and that she was recommending that Ms. Young's professional service contract not be renewed for the 1997-98 school year. This information was conveyed to Ms. Young in a letter dated February 20, 1997, with the reference "CONFERENCE DATA DELINEATED FOR RECOMMENDATION FOR NON-RENEWAL OF PROFESSIONAL SERVICE CONTRACT." The information was provided to Ms. Young by letter because she was absent during the time that the conference was required to be conducted. A copy of Ms. Young's interim evaluation, in which her performance was rated unacceptable, was enclosed with the letter. Ms. Young was advised in the letter that assessment procedures would continue and that a conference-for-the-record would be held when she returned to school. Ms. Young signed the interim evaluation form on February 24, 1997. The promised conference-for-the-record was held on March 7, 1997; in attendance were Ms. Young, Ms. Davis, Thomas Sippio, assistant principal at North Dade; and Georgeanna Vagias, Ms. Young's union steward. The summary of the conference, dated March 10, 1997, recites that Ms. Young was advised that it had been recommended that her professional service contract not be renewed because her first summative assessment for the 1996-97 school year was unacceptable, based on the unacceptable observation conducted on September 19, 1996, and on an acceptable observation conducted on October 21, 1996. According to the summary, Ms. Young apprised that, because she had received an annual evaluation of unacceptable for the 1995-96 school year, remediation of the deficiencies in performance would occur only when she achieved two consecutive acceptable summative assessments. Ms. Young was also informed at the conference that, should her professional service contract not be renewed, the possibility existed that she would not be appointed for an annual contract. The summary reflects that Ms. Young indicated during the conference that she understood the seriousness of her situation. In a letter dated March 10, 1997, the Superintendent of Schools notified Ms. Young that she was being charged with unsatisfactory performance during the 1996-97 school year in the area of "Category VII-Professional Responsibilities." Ms. Young was further advised that her employment might be terminated if the performance deficiency was not corrected during the 1997-98 school year. Ms. Young was offered a meeting with Dr. Joyce Annunziata, Senior Executive Director of the School Board's Office of Professional Responsibility, to discuss her unsatisfactory performance and her right to request a transfer. Finally, Ms. Young was notified that her performance would continue to be evaluated during the remainder of the 1996-97 school year and during the 1997-98 school year. In a letter dated March 20, 1997, Dr. Annunziata advised Ms. Young that she had not been recommended for renewal of her professional service contract and that the School Board had acted on this recommendation: Assessment of your performance will continue throughout the 1996-97 and 1997-98 contract years as a follow-up to the completion of prescriptive guidelines. This is your official notification that unless the performance deficiencies are remediated, your employment with Dade County Public Schools will terminate at the close of the 1997-98 contract year. On March 21, 1997, Ms. Rivero conducted another formal observation of Ms. Young's teaching performance as she taught a seventh grade science class. In the Record of the observation, Ms. Rivero identified two deficiencies each in parts A and B of the planning and preparation category; three deficiencies in part B and two deficiencies in part C of the classroom management category; and two deficiencies in part A of the techniques of instruction category. The deficiencies in preparation and planning generally related to Ms. Young's lack of a lesson plan, with the resulting lack of the required competency-based curriculum objectives for the lesson. The deficiencies in classroom management related generally to Ms. Young's failure to redirect students who were either disruptive or off-task. The deficiencies in techniques of instruction related generally to the lack of appropriate instructional materials and methods. Ms. Rivero included prescription plan activities for each deficiency identified, which were to be completed by April 16, 1997. Ms. Young provided in the Record an explanation of her performance with respect to each deficiency identified by Ms. Rivero, but Ms. Rivero concluded that the explanations were not sufficient to change her determination of the deficiencies in Ms. Young's teaching performance. Ms. Young was given an overall summary rating of unacceptable in the summative assessment of her teaching performance signed by Ms. Rivero on March 26, 1997. This rating was based on the October 21, 1996, and March 21, 1997, formal observations of Ms. Young's teaching performance. The overall rating derived from ratings of unacceptable in the preparation and planning, classroom management, and techniques of instruction categories. Because Ms. Young had two consecutive summative assessments in which her teaching performance was rated unacceptable, an external observation of her teaching performance was conducted on April 23, 1997, by Ms. Davis and Ted Boydston, a District Science Supervisor. Ms. Young was observed teaching a seventh grade science class. In the Record of the observation, Ms. Davis and Mr. Boydston identified two deficiencies in part B of the planning and preparation category; two deficiencies each in parts A and H and three deficiencies in part E of the techniques of instruction category; and three deficiencies in part B of the assessment techniques category. The deficiencies in preparation and planning related generally to Ms. Young's failure to develop a lesson plan that filled the entire class period and her failure to adhere to the lesson plan she had prepared. The deficiencies in techniques of instruction related generally to the lack of appropriate instructional materials and methods; Ms. Young's failure to use any media other than the chalkboard to demonstrate lab activity (it was noted that she did not use the chalkboard effectively); and her failure to correct wrong answers and to clarify the confusion of individual students and of the class as a whole. The deficiencies in assessment techniques related generally to Ms. Young's failure to develop effective tools to assess instructional objectives and to use more than one kind of assessment tool. Mr. Boydston and Ms. Rivero included prescription plan activities for each deficiency identified, which were to be completed by May 16, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the deficiencies cited. Another external observation of Ms. Young's teaching performance was conducted on May 28, 1997, by Thomas Sippio, an assistant principal at North Dade, and Carnell White, the Director of District I of the school district. Ms. Young was observed while she was teaching a seventh grade science class. In the Record of the observation, Mr. Sippio and Mr. White identified two deficiencies each in parts B, F, and G of the techniques of instruction category. These deficiencies in techniques of instruction related generally to Ms. Young's failure to provide feedback to the students or to suggest ways that the students could improve their performance; her failure to establish the necessary background for the planned lesson or to complete the lesson within the class period; and her failure to communicate clearly with the students and to explain matters about which the students were confused. Mr. Sippio and Mr. White included prescription plan activities for each deficiency identified, which were to be completed by September 22, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies. On June 11, 1997, a Conference-for-the-Record was held with Ms. Young, Ms. Davis, and Ms. Rivero in attendance.3 As recited in the summary dated June 13, 1997, the purpose of the conference was to discuss Ms. Young's unacceptable performance and her future employment with the Miami-Dade County public school system. Ms. Young's performance to date was reviewed; she was offered assistance to help her improve her performance in the 1997-98 school year; she was advised that her teaching performance was rated unacceptable in her annual evaluation for the 1996-97 school year and that her salary was frozen as a result; she was informed that a teacher could be terminated from employment if two years of unremediated performance deficiencies were accumulated; and she was offered assistance from the Dade County School Referral Agency. According to the summary, Ms. Young acknowledged during the conference that she understood the seriousness of her position. In her TADS Annual Evaluation for the 1996-97 school year, Ms. Young was rated unacceptable in the following Component A categories: preparation and planning; classroom management; techniques of instruction; and assessment techniques. Ms. Young was also rated unacceptable in Component B, the professional responsibility category, of the TADS. The annual evaluation was based on observations conducted on September 19, 1996; December 11, 1996; March 21, 1997; April 23, 1997; and May 28, 1997. On October 10, 1997, Ms. Rivero conducted the first observation of Ms. Young's teaching performance for the 1997- 98 school year. Ms. Young was observed as she taught a science class. In the Record of the observation, Ms. Rivero identified one deficiency in part B of the planning and preparation category and two deficiencies each in parts A and C and three deficiencies in part B of the classroom management category. The deficiency in preparation and planning was based on Ms. Rivero's observation that Ms. Young completed less than half of the lesson outlined in the lesson plan for that class. The deficiencies in classroom management were related generally to Ms. Young's failure to use class time efficiently, her failure to redirect or effectively redirect students who were either disruptive or off-task, and her failure to make her students aware of her expectations regarding their behavior. Ms. Rivero included prescription plan activities for each deficiency identified, which were to be completed by November 3, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies. On December 17, 1997, a Mid-Year Conference-for-the- Record was held, with Ms. Young, Ms. Davis, Ms. Rivero, and Ms. Vagias, Ms. Young's union steward, in attendance. As recited in the summary, the purpose of the conference was to discuss Ms. Young's unacceptable performance assessment to date and her future employment with the Miami-Dade County public school system. Ms. Young was reminded that she had received an unacceptable observation on October 16, 1997, followed by an acceptable observation on December 11, 1997, which resulted in a first summative assessment of unacceptable. Ms. Young was advised that, because her TADS annual evaluation for the 1996-97 school year was unacceptable, she needed two consecutive acceptable summative decisions for remediation of the cited performance deficiencies. She was further advised that her employment with the school system could be terminated if she had unremediated performance deficiencies for two consecutive years. According to the summary, Ms. Young acknowledged at the conference that she understood the seriousness of her situation and knew what she needed to do to remediate the performance deficiencies. On February 20, 1998, Thomas Sippio, an assistant principal of North Dade, conducted a formal observation of Ms. Young's teaching performance as she taught a science class. In the Record of the observation, Mr. Sippio identified two deficiencies each in parts B and C of the classroom management category and three deficiencies each in parts A, B, and H, four deficiencies in part C, and two deficiencies each in parts F and G of the techniques of instruction category. The deficiencies in classroom management related generally to Ms. Young's failure to redirect students who were off-task and her failure to make clear to the students her expectations regarding their behavior. The deficiencies in techniques of instruction related generally to Ms. Young's failure to use materials and methods appropriate for the needs of her students; her failure to explain the lesson, to acknowledge many students who had questions, and to answer adequately those questions she did address; her failure to provide feedback to students about the strengths and weaknesses in their performance; her failure to provide information necessary for the students to understand the lesson; and her failure to clarify the confusion of most students in the class. Mr. Sippio included prescription plan activities for each deficiency identified, which were to be completed by March 16, 1998. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies. On March 9, 1998, a Conference-for-the-Record was held, with Ms. Young, Ms. Davis, Ms. Rivero, and Ms. Vagias in attendance. As recited in the summary dated March 16, 1998, the purpose of the conference was to discuss Ms. Young's performance to date, her prescriptive status, and her future employment with the Miami-Dade County public school system. Ms. Young was reminded that she had received an unacceptable observation on October 16, 1997, followed by an acceptable observation on December 11, 1997, which resulted in a first summative assessment of unacceptable and that she had received an unacceptable observation on February 20, 1998, which resulted in a second summative assessment of unacceptable. Ms. Young was further advised that, because she had been rated unacceptable in her TADS annual evaluation for the 1995-96 school year, remediation of her cited deficiencies would be accomplished only when she had received two consecutive summative ratings of acceptable. Ms. Young was advised that her employment with the school system could be terminated if she had unremediated performance deficiencies for two consecutive years. According to the summary, Ms. Young was also told that she would receive an unacceptable annual evaluation for the 1997-98 school year if she did not remediate all cited deficiencies. Finally, Ms. Young was given an EMP-7 Instructional Form, in which it was recommended that she be terminated at the end of the 1997-98 school year. Ms. Young voiced several concerns during the conference, and these were addressed by Ms. Davis and Ms. Rivero. The letter from the Superintendent of Schools notifying Ms. Young that he was recommending that her professional service contract not be renewed for the 1998-99 school year was dated March 12, 1998. The School Board considered the recommendation at its meeting on March 18, 1998, and decided not to renew Ms. Young's professional service contract and not to reappoint her to a teaching position for the 1998-99 school year. Nonetheless, because Ms. Young had two consecutive summative assessments in which her teaching performance as rated unacceptable, an external observation of her teaching performance was conducted on May 5, 1998, by Ms. Davis and Dr. Gustavo Loret de Mola, a District Science Supervisor. In the Record of the observation, Ms. Davis and Dr. Loret de Mola identified one deficiency in part A and three deficiencies in part B of the knowledge of subject matter category; one deficiency in part A and two deficiencies in part C of the classroom management category; and four deficiencies in part F and two deficiencies in part H of the techniques of instruction category. The deficiencies in knowledge of subject matter were related generally to the existence of substantive errors in Ms. Young's presentation and to her failure to present information in the appropriate sequence, her failure to address important aspects of the topic being presented, and her failure to present information on more than one cognitive level. The deficiencies in classroom management related generally to Ms. Young's failure to begin the lesson promptly, her failure to make her expectations regarding behavior clear to the students, and her failure to deal appropriately with students who were disruptive and/or off- task. The deficiencies in techniques of instruction related generally to Ms. Young's failure to establish a background for the lesson, her failure to include necessary topics, her failure to present information in an appropriate sequence, and her failure to assess and appropriately address her students' confusion. Dr. Loret de Mola and Ms. Davis included prescription plan activities for each deficiency identified, which were to be completed by September 25, 1998. Ms. Young chose not to provide an explanation for her performance in the Record with respect to the cited deficiencies. Ms. Young received a rating of unacceptable in her TADS annual evaluation for the 1997-98 school year, and the Superintendent's non-reappointment nomination was not rescinded. In her defense, Ms. Young testified that she always prepared good lesson plans and kept order in her classroom. She testified that she always did every activity prescribed for her in the records of the observations in which her performance was found unacceptable. Finally, Ms. Young attributes the unacceptable observations to bad motives on the part of the persons conducting the observations.4 Ms. Young's observations regarding the motives of those persons evaluating her performance are rejected as contrary to the more credible proof presented by the School Board. The evidence presented by the School Board is sufficient to establish that Ms. Young's teaching performance during the 1996-97 and 1997-98 school years was unsatisfactory and remained unremediated at the end of the 1997-98 school year. The evidence is also sufficient to establish that Ms. Young was provided with the required notices of her unsatisfactory performance and was offered appropriate assistance and inservice training opportunities during the 1996-97 and 1997-98 school years to assist her in improving her performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining its decision not to renew Loretta L. Young's professional service contract for the 1998-99 school year. DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida. ___________________________________ PATRICIA HART MALONO 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 3rd day of August, 1999.
Findings Of Fact At all times material, Respondent Raimundo Manuel Dante was enrolled as a student at W. R. Thomas Junior High School in Dade County, Florida. During the course of two periods of enrollment at W. R. Thomas Junior High School, Respondent has had numerous disciplinary referrals. On one occasion, Respondent was recommended for assignment to the Dade County opportunity school program, but his mother withdrew him before the formal proceedings could be resolved. He was transferred back to W. R. Thomas Junior High primarily due to failing grades at a private school. During summer school for 1984, Respondent was tardy on six occasions. He earned three "D" grades and one "C" grade out of four academic subjects. He was absent three days in the "C" course, mathematics, and four days in each of the other courses, including homeroom. Because of the short timeframe for summer school (July 9, 1984 through August 17, 1984), the Respondent's absences and tardies are excessive. During the regular 1984-1985 school year, Respondent was assigned to the eighth grade. His absences span a minimum of eleven to a maximum of thirty- nine in various classes during the final grading period alone. This is clearly excessive and not conducive to any learning activity. His final grades were failing in all classes except "vocational basic," in which he obtained a "D." On December 12, 1984, Mrs. Gomez referred Respondent to Mr. Helip, who as assistant principal has primary responsibility for discipline at W. R. Thomas Junior High School. The referral was not only for disruptive behavior on that date, but was a culmination of a number of occasions when Respondent had behaved similarly. The nature of Respondent's disruptive behavior on December 12, 1984, involved coming to the front of the room without permission and "answering back" disrespectfully to Mrs. Gomez when she did not grant him permission to leave the room to conduct business he should have handled prior to the beginning of class. This was repetitive of similar behavior which had gone on the previous day and which had not resulted in a student management referral at that time. On December 12, Mrs. Gomez also gave Respondent a detention assignment for social talking which was disrupting the class and he uttered a disruptive and insulting retort in Spanish to the effect that nothing would happen to him if he did not comply with the detention assignment. Mrs. Gomez, who speaks and understands Spanish, then considered all Respondent's past misbehavior in the referral of December 12, including his consistent failure to come to her class equipped with appropriate books, paper and writing implements. On April 26, 1985, Mrs. Gomez referred Respondent to Mr. Helip due to his ten tardies in the last two-week period, for kissing girls while sitting atop his desk, and for wandering about the room, talking, and being off task on April 26 and on several prior occasions. Respondent's remarks, when reprimanded orally by Mrs. Gomez, were interpreted by her as disrespectful and threatening. All counseling with the parents in the 1984-1985 school year appear to have dead-ended. During the regular 1985-1986 school year, Respondent was assigned to the ninth grade. His absence record was less than the previous school year but still varied from four to eight days' absence during the final grading period, depending upon which class was involved. This is also excessive and not conducive to any formal learning experience. His final grades were four failures and one "C" out of the courses attempted. During the 1986 summer session, Respondent was absent five days, which was again excessive in view of the summer session's abbreviated timeframe (July 7 through August 15, 1986). Out of two ninth grade subjects attempted, Respondent failed one and got a "D" in the other. On September 16, 1986, in the course of the regular 1986-1987 school year, Mrs. Robbie referred Respondent for discipline due to his yawning, talking, and back talk to her which disrupted her class. Mrs. Robbie had referred Respondent a number of times in the previous year. He failed her class in that school year, and, therefore, on September 16, 1986, Mr. Helip reassigned him to another English teacher without taking any punitive action against him. During the first grading period of the regular 1986-1987 school year, Respondent had been absent eleven days before the occurrence of the incident which precipitated his administrative assignment to the Dade County opportunity school system. At that time, he had failing grades in every one of the six subjects attempted. At the end of the first grading period, Respondent's conduct grades were all failing. The incident which precipitated administrative assignment of Respondent to the opportunity program involved Ernie Ortiz, a 17-year old ninth grader. Upon leaving the school grounds at the close of a school day in October 1986, Ortiz was "tailed" by a slow-cruising brown Camaro automobile with at least four young men in it. Ortiz saw Respondent in the car. A B-B gun was fired from the car at Ortiz who was on the sidewalk. Ortiz was hit by the B-B shot fired from the car and was subsequently treated at a hospital. The next day, Ortiz saw the same car at school and reported the incident to Mr. Helip. Although Ortiz was never able to say whether Respondent was driving or who shot him, the school resource officer found a pellet gun and pellets, a knife, and a roach clip in the car identified by Ortiz, and Respondent admitted to Mr. Helip that the gun was his. Mr. Helip recommended expulsion of Respondent because he believed a weapons charge had been made against Respondent. Instead, based upon all the circumstances, the school board made an opportunity school placement. There is no competent substantial evidence to show that any criminal charge was made against Respondent. In the past, counseling, corporal punishment, and outdoor suspensions have been tried with regard to Respondent but to no avail. The regular Dade County school program resources have been exhausted as regards Respondent.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Douglas MacArthur Senior High School-South. DONE and RECOMMENDED this 13th day of March, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 13th day of March, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mr. and Mrs. Raimundo Dante 1095 S.W. 134th Court Miami, Florida 33184
Findings Of Fact Petitioner, Rafael A. Duharte, is a native of Cuba who moved to this country some sixteen years ago. He has lived in Miami since 1972. In 1976, Duharte obtained a bachelor's degree in Spanish from Biscayne College, and approximately eighteen months later received a master's degree in special education from the same institution. He is certified as a teacher by the State Department of Education. In October, 1977 Duharte began teaching at Montanari Residential Treatment Center (Montanari) in Miami, Florida, a school which specializes in teaching mentally retarded students. He continued to work there until February, 1984. In 1978, he filed an application with petitioner, School Board of Dade County, seeking a teaching position in the Dade County School System. He filed additional applications in 1980 and 1985. On all applications he acknowledged his employment at Montanari. Duharte also made inquiry as to openings with the Department of Instructional Staffing (Department) at least once a year after 1978. On two of those visits (June, 1984 and April, 1985), he met briefly and informally with a Department coordinator. The Department interviews all teaching applicants and makes recommendations as to whether a candidate should be hired. In February, 1984 Duharte was verbally informed by a school official that he was dismissed from employment with Montanari. He received nothing in writing memorializing this action but rather was told that he was being dismissed because of complaints from students. However, he did receive a letter of recommendation from Montanari which is now in petitioner's personnel files. In February, 1984 Duharte made application for and was accepted as a substitute teacher with petitioner. As a general rule, no background check is run on a substitute's application, and consequently no inquiry was made with Montanari, Duharte's former employer. Duharte began teaching as a substitute teacher in March, 1984 and continued doing so for the remainder of the school year as well as the entire school year 1984-85. On September 26, 1985 Duharte filed his third application with petitioner for employment as a full-time teacher. On the application was the following question: "Have you ever been removed or dismissed from any position?" Duharte checked off the answer "No". As a prerequisite to employment, Duharte was interviewed by a Department coordinator. However, he was asked nothing specific concerning the circumstances under which he left Montanari. Under petitioner's then existing policy, a background check was normally made of full-time applicants. In this case, the coordinator merely talked to Duharte's assistant principal at the school where he was a substitute. After no adverse information was disclosed, Duharte was hired to teach at Citrus Grove Junior High School. Several months later, the coordinator had an occasion to call Montanari concerning a different applicant, and learned that Duharte had been dismissed. This was confirmed by Duharte at a conference for the record, a meeting required by the teacher's union contract prior to the commencement of formal disciplinary action against teachers. At that meeting, Duharte stated he did not answer "yes" to the question because he knew he would not be hired if he gave a truthful answer. Duharte was then suspended by petitioner effective March 5, 1986. He has remained suspended without pay since that time. His suspension precipitated the instant proceeding. At final hearing, Duharte confirmed he had been orally dismissed from Montanari but was never given anything in writing concerning his dismissal. Therefore, he contended that to answer "yes" to the question would be acknowledging that Montanari had a valid reason for terminating him. He expressed a sincere desire to be employed and stated that he had nothing to hide. Indeed, he pointed out that during one of his informal meetings with Department personnel in April, 1985 he disclosed to a coordinator that he had been dismissed from Montanari. This was confirmed by a coordinator who testified at final hearing. However, the coordinator did not learn that Duharte was hired by the School Board until "months later". Duharte also indicated that had he been asked by the coordinator at the September, 1985 interview, he would have disclosed his dismissal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be dismissed from employment with petitioner. All other charges should be dismissed. Respondent should be permitted to refile an application for employment setting forth the circumstances under which he was terminated from his prior employment. A decision can then be made based upon the merits of the application. DONE and ORDERED this 21st day of November, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 21st day of November, 1986.
Findings Of Fact Respondent has a bachelor's degree in secondary education in English, which she received from Penn State University in 1973. After graduation, she took ballet lessons for six months in New York and then returned home to recuperate from pneumonia. She returned to Philadelphia and taught in a private school for a short time. She then attended a graduate program at Temple University and received her certification as a reading specialist in 1977, although she did not complete her master's degree. While she was in graduate school, she was a long-term substitute for one and one-half years in Philadelphia. She returned home to Miami Beach, Florida, because she was assigned to a school which she considered undesirable and because she had some dental problems. Respondent started teaching in the Dade County Public Schools in September of 1980 at Robert E. Lee Junior High School. During most of that school year, William R. Jones, who is currently the principal of Robert E. Lee Junior High School, was the assistant principal for curriculum at that school. As such, he received numerous complaints concerning Respondent and her classroom instruction from other teachers, from students, and from parents. Therefore, he observed Respondent teaching. Jones attempted to help Respondent with her teaching presentation, a fact which was acknowledged by Respondent at the formal hearing in this cause when she admitted that he had helped her a great deal in the field of teaching. However, during the 1980-1981 school year she responded to his assistance inappropriately. She told Jones that he had conditioned her to respond favorably to him sexually, and she told other teachers of her physical attraction to Jones. Respondent began to display bizarre behavior at school. On three occasions she was found lying on the front lawn of the school. The students thought that she was asleep, ill, or possibly dead, and this understandably caused commotion in the classrooms. After the first such occasion, Jones told her not to do it again. However, on two subsequent occasions she was found lying on the front lawn of the school. On another occasion, Respondent hysterically interrupted a conference Jones was having with another member of the school staff. He told Respondent that he was involved in a conference, but she refused to leave. She vacillated between laughing and crying. Finally, Jones advised Respondent that if she did not leave, he would call school security. She continued to refuse to leave, and he was compelled to terminate his conference so that he could talk to her. She then indicated that she had nothing to say to him. At the conclusion of the 1980-1981 school year, after Jones had become the principal of Robert E. Lee Junior High School, he was conducting a faculty meeting. Respondent got out of her seat and began to yell and scream. She ran about the cafeteria where the meeting was being held and made threats toward Jones. Due to this disruption, Jones had to end the faculty meeting and send Respondent home. After observing Respondent's classroom technique, Jones determined there was a need for her to obtain additional help or training in Preparation, planning and techniques of instruction. For example, Respondent changed her classroom activity six or seven times during the class period; she would start the class on an assignment and three or four minutes later, before the class had finished, would change the assignment to something else. Jones requested Respondent to attend the Teacher Education Center. She refused to attend. Jones had Respondent transferred from her regular class of approximately 30 to 35 students to a smaller classroom with 13 to 15 students in the hope that she would be able to cope with this reduced-size class. The attempt was unsuccessful. Both Jones and his new assistant principal, Mr. Bonilla, still found Respondent's performance to be unacceptable. In his final evaluation of the school year, Jones rated her as unacceptable. About halfway through the 1980-1981 school year, Jones advised the executive director for the Division of Personnel Control of the Dade County Public Schools, Dr. Patrick Gray, of Respondent's difficulties. After Jones's and Bonilla's annual evaluation of Respondent at the end of the 1980-1981 school year, Gray held a conference with Respondent and referred her to a psychiatrist, Dr. William Gustafson. As a result of his evaluation, Gustafson advised that Respondent was definitely emotionally disturbed and in need of psychiatric treatment. He further opined that Respondent was definitely not able to function as a teacher at the present. Thereafter, Respondent requested a medical leave of absence without pay for psychiatric reasons, and that leave was approved. About this same period of time, Dr. Gray's office received an undated letter from Respondent charging Jones with numerous acts of unprofessional conduct. Among other things, she alleged that Jones, a married man, was having an affair with a fellow educator and that that person had become pregnant. In fact, that faculty member had never been pregnant. During the 1981-1982 school year, Respondent was on a leave of absence from the Dade County Public Schools on medical leave for psychiatric reasons. It is the school system's policy to pay the premiums on hospitalization, vision and dental insurance during such a leave of absence, and this was done for Respondent. Midpoint in that school year, Respondent advised that she wished to return to work, and Dr. Gray arranged to obtain a medical evaluation by psychiatrist Charles B. Mutter. Dr. Mutter reported that Respondent's judgment was impaired, her insight was nil, and she had marked emotional difficulties warranting further psychiatric treatment. He found she had a schizoid predisposition and was in a borderline state with marked anxiety. As a result of Mutter's evaluation, Respondent did not return to work. On March 2, 1982, Dr. Gray received a report from Dr. Gustafson advising that Respondent had returned to treatment with him. Gustafson stated that she was still quite impaired by her condition, although she had improved in some respects. That same day, Gustafson telephoned Gray to advise that Respondent was no longer in treatment and that she considered Gustafson and Gray to be in a conspiracy against her. Gustafson further opined that Respondent had potential for desperate actions and needed continuing therapy. On June 16, 1982, Gray received a letter from Respondent requesting that her medical leave be extended for another year. However, on July 2, 1982, Gray received a report from Dr. Gustafson recommending only a two-month extension of Respondent's medical leave. On August 4, 1982, Gustafson wrote to Gray stating that Respondent had been successfully able to function as a teacher in a private school over the past summer. At that time, it was his opinion that she could handle the responsibilities of a classroom teacher once again. Gustafson's opinion at that time was based in part on Respondent's representation that she had been teaching a classroom of students during the preceding summer. He stated later that had he known that Respondent was only tutoring one student at a time during her summer employment, a fact which Respondent acknowledged at the hearing, he would have been more cautious about his recommendation that she was able to return to work. On the strength of Gustafson's recommendation, Respondent was returned to work in the Dade County Public Schools. She was assigned to Hialeah-Miami Lakes Senior High School, a school with a low incidence of student disruption and of high student test scores. Hialeah-Miami Lakes was in the top one-third of Dade County schools academically as well as in student activities and in the overall operation of the school. Respondent was assigned to teach English/Communications. Respondent's classes each lasted 55 minutes. During the first nine weeks of the school year, she typically assigned students a test which took approximately five to ten minutes to complete. For the rest of the class, she told them to read material of their own choosing. The students either read or slept. While the students were testing themselves and/or reading and/or sleeping, Respondent stared at the ceiling or else read a book. Sometimes she giggled to herself, even though there did not appear to be anything to laugh at occurring at the time. Some of the students felt that she screamed at students without good cause and "acted crazy." Some students requested to be transferred out of her class. The assistant principal in charge of curriculum at Hialeah-Miami Lakes Senior High School observed Respondent's class and found that there was no teaching being done. Further, although the Faculty Handbook at Hialeah-Miami Lakes requires that a minimum of two grades a week be placed in the teacher's grade book for each student, and although Respondent was advised of this requirement, she had no grades in her grade book by the end of the seventh week of school. Instead, she placed colored squares in her grade book. Although this coloring system may have held meaning for Respondent, a substitute or new teacher for the class would not be able to understand anything from this form of grading system. A conference was held with Respondent, the principal of the school, and the assistant principal for curriculum in the principal's office regarding Respondent's unacceptable performance. At that time, both the principal and assistant principal found Respondent's behavior to be bizarre. She grabbed her arms and started to giggle and laugh even though no one had said anything to precipitate any laughter. Although Respondent insists that her testing of the students was absolutely necessary, it normally takes other teachers one week at the most to accomplish the same testing of the students prior to commencing instruction. Respondent was still testing in the seventh week of school and had not yet begun to instruct or teach the students. Other teachers observed Respondent's behavior during the time she was at Hialeah-Miami Lakes and became concerned to the degree that five of them approached the principal regarding Respondent. Raymond Harrell, the language department head at Hialeah-Miami Lakes, described Respondent's behavior, including her inappropriate giggling. Harrell and another teacher, Gary Graziani, related an incident concerning a school- sponsored television program, which is run every other Friday for 15 minutes and is part of the school curriculum. Respondent was upset about the noise from the televisions and stated to them and others: "We have got to stop the noise, I cannot teach with that noise, it's pounding in my blood." It was suggested that she might take her class to the auditorium on the days that the newscast was run; however, she refused and insisted that the noise must be turned down. She stated: "It's like being behind a train. I just can't take it, I just can't take it." No other personnel at the school, including the teacher who had Respondent's classroom before her, had complained about the noise from the televisions. On another occasion, while Harrell was chairing a department meeting concerning curriculum, Respondent raised her hand and gave a 10- to 15-minute speech about the history of her high school curriculum and the way she did things in Pennsylvania. Her comments had nothing to do with the subject of the meeting, and she told the department head to be quiet and pay attention. Harrell, who has also observed Respondent staring at the ceiling and even talking to the ceiling, is of the opinion that she is absolutely incompetent to be a teacher. During the month of October 1982, the principal of Hialeah-Miami Lakes Senior High School requested Dr. Charles Sherwood, the regional supervisor for the Dade County schools, who has extensive background in reading and in English, to come to Hialeah-Miami Lakes to evaluate the reading program at that school. On October 15, 1982, Dr. Sherwood complied with that request, and, as part of his evaluation, he observed Respondent. Dr. Sherwood observed Respondent give a test to her students which required approximately five or six minutes to administer and take. She collected the test sheets and told the class to find something to read. Some students looked at magazines, others talked with each other, and Respondent sat down in a chair and looked at the ceiling. She was not teaching at all. Although Respondent's students were required to have writing instruction, she did not give them any. Dr. Sherwood questioned Respondent as to the materials and supplies she would be using, and she advised him that she would find some when she needed them. The materials that she did have and intended to use when she finished testing the students were not appropriate for her class. Dr. Sherwood does not believe that Respondent is competent to teach school. When the principal of Hialeah-Miami Lakes raised questions as to Respondent's fitness to teach, she was again referred to Dr. Patrick Gray. Gray again referred her for psychiatric evaluation, and, although Respondent resisted, eventually the evaluation did take place. On November 5, 1982, Respondent agreed to see Dr. Anastasia M. Castiello, a board certified psychiatrist. Dr. Castiello diagnosed her as schizophrenic. Dr. Castiello concluded his report on his November 5, 1982, evaluation of Respondent as follows: . . . Finally, in response to your specific question, i,+ is my opinion that Miss Ronburg's mental condition is such at the present time that she would be unable to properly function as a teacher and as a matter of act [sic], it is unlikely that she could function in whatever capacity in a job situation of any kind. After reviewing Dr. Castiello's evaluation, Dr. Gray concluded that the school system had exhausted its efforts to help Respondent and would not be able to be of further assistance to her. He did not feel that medical leave of absence would achieve any further positive results and therefore recommended the termination of Respondent's employment with the school system. On the basis of his educational background and his experience in the area of personnel control, Dr. Gray believes that Respondent clearly lacks the competence to perform the assigned functions of an instructional staff member in Dade County Public Schools. Effective November 18, 1982, Respondent was suspended from her employment with the Dade County Public Schools, and the school board instituted proceedings to dismiss her from employment. On February 7, 1983, Respondent's attorney took the deposition of Dr. William Gustafson who had first seen Respondent in the spring of 1981. Dr. Gustafson agrees that Respondent is suffering from schizophrenia, which he describes as an inability to differentiate what is real from what is unreal and a difficulty in arranging thoughts in an orderly, reasonable, and rational manner. When he first saw her, Gustafson believed that Respondent was delusional about her situation at Robert E. Lee Junior High School and her feelings about Mr. Jones. He noted her inappropriate laughter, from which it appeared that she was responding to things that were within herself. Although Gustafson believes that Respondent has improved somewhat, as of the date of his deposition, his diagnosis remains the same. Dr. Gustafson has been hampered in his treatment of Respondent by her refusal to come for treatment as often as the psychiatrists recommend to be desirable and necessary for treatment of her condition and by Respondent's refusal to take the medication prescribed for her. After her suspension from her employment, Respondent visited Gustafson, who became concerned that she had suicidal feelings, and he hospitalized her for this reason. She checked out of the hospital within three hours. Gustafson believes that if Respondent continues in treatment and accepts medication, she can recover. She has not, however, admitted that she is sick, and she continues to refuse medication and treatment. As of his deposition on February 7, 1983, Gustafson had not seen Respondent in his office for approximately one month. In fact, he had seen her only three or four times since he hospitalized her in November of 1982 and has no reason to believe that she will come in to see him any more often than she has in the past. He believes that in order to be of assistance to her, he should see her once or twice a week for hourly sessions. Since Respondent has only seen Dr. Gustafson approximately 12 times over the period of two years between her first referral to him and the date of the formal hearing in this cause, Dr. Gustafson cannot be considered as her treating physician, and his opinion is entitled to only the same weight as the opinions of the other two psychiatrists who have evaluated Respondent. The most recent psychiatric evaluation of Respondent was performed by Dr. Charles B. Mutter on March 23, 1983. Dr. Mutter is the same psychiatrist who evaluated her in January 1982. Dr. Mutter found that Respondent's judgment is impaired, and her insight is superficial. He further found that she needs more intensive psychotherapy than she is receiving and is in definite need of medication to help her remain more stabilized." Dr. Mutter concluded that Respondent's present mental state precludes her from teaching. He would only recommend that Respondent be permitted to return to the classroom with two stipulations: that she continue treatment with Dr. Gustafson on at least a twice-monthly basis, and that she take medications prescribed by Dr. Gustafson on a consistent basis. At the formal hearing in this cause, Respondent admitted that she would not take medication for her illness even though she has been advised to do so by the psychiatrists. She also testified that she does not feel that she requires psychiatric treatment in order to perform the role of a classroom teacher. Since all three psychiatrists agree that Respondent needs continuing regular therapy and medication in order to improve, and since Respondent refuses to undergo therapy and take medication, it is clear that until she chooses to follow medical advice she will not improve and cannot function as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the suspension of Respondent Donna Ronburg, dismissing her from her employment with the School Board of Dade County, Florida, and denying her claim for back pay. DONE and RECOMMENDED this 30th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 30th day of June, 1983. COPIES FURNISHED: Phyllis O. Douglas, Esquire School Board of Dade County Lindsey Hopkins Building, Room 200 1410 NE Second Avenue Miami, Florida 33132 William du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Deborah Harkleroad.
Findings Of Fact Respondent Deborah Harkleroad has been employed by the School Board as a teacher for ten years. She is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to Section 1012.33, Florida Statutes.1/ During the first two years of her employment, the 2001- 2002 and 2002-2003 school years, Ms. Harkleroad was assigned to Tavares Middle School. At the start of her third year in the fall of 2003, she transferred to Fruitland Park as that school's first elementary literacy coach. During the 2007-2008 school year, Ms. Harkleroad transitioned into teaching a regular third-grade class at Fruitland Park. She remained in that position during the 2009- 2010 school year. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains 6 sections and subsections. The subsections are further divided into sub- subsections. The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I triggers the NEAT procedure and further evaluations. The IPPAS provides a voluntary alternative evaluation for experienced teachers who have received scores of 12 on the Appraisal I for the two immediately preceding years and have a professional service contract with the School Board. This alternative is called "PG-13," and allows the teacher to select a “professional growth” objective for the school year, work with an administrator in devising a strategy for attaining the objective, and demonstrate the attainment of the objective. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. In order to become eligible for the voluntary PG-13, a teacher must have received no Appraisal II reports during the two years immediately preceding entry into PG-13. In order to remain eligible for the PG-13, a participating teacher must continue to meet the standard competency level for teaching performance, which includes receiving no Appraisal II reports. Since the 2004-2005 school year, Ms. Harkleroad had participated in the PG-13 evaluation process every year except 2007-2008, when she had back surgery and was unable to complete her PG-13 project. For the 2007-2008 school year, Ms. Harkleroad received an Appraisal I score of 12. On March 19, 2009, Ms. Harkleroad received an Appraisal II report from the principal of Fruitland Park, Melissa DeJarlais. The "Area of Concern" listed on the Appraisal II form was "Personal Characteristics and Professional Responsibilities." Dr. DeJarlais wrote the following explanation of Ms. Harkleroad's deficient performance: On 3-5-09, teachers required to administer the FCAT assessment were mandated to attend the annual FCAT administration training. Mrs. Harkleroad was observed nodding off and/or sleeping during this training. She later explained that she did not feel well and it was possible that her prescribed medication was causing her to be overly sedated. As a precautionary measure, Mrs. Harkleroad's testing responsibilities were changed to that of a proctor thus requiring us to assign another instructional person to her classroom for the express intention of administering the FCAT. Mrs. Harkleroad did not perform her proctoring duties and instead spent time working on school related activities not germane to FCAT testing. These activities included printing her substitute or lesson plans while students were actively taking the FCAT assessment thus compromising the testing environment. At the time she received the Appraisal II, Ms. Harkleroad wrote the following response: In response to the Professional/Personal Action Report dated 3-19-09, I was running a temperature of 102.6 and my blood pressure was dipping dangerously low due to being sick on 3-5-09. I should have taken a sick day on this date, but I didn't due to the diminishing amount of teaching time left before the FCAT. I did fully perform my duties as a proctor for the math FCAT testing, and I did not at any time perform the activities alleged. During the time when I was printing my students' cloze practice reading assignments, no students were actively taking the test. At the hearing, Dr. DeJarlais offered no first hand testimony regarding the allegation that Ms. Harkleroad did not perform her proctoring duties and printed documents in the classroom while the FCAT was being administered. She testified that she relied on the reports of the test administrator and the testing coordinator in issuing the Appraisal II to Ms. Harkleroad. Ms. Harkleroad testified that, unlike the previous principals she had worked for at Fruitland Park, Dr. DeJarlais had never liked her or appreciated the extra work she did in compiling data that tracked student performance on the FCAT and other standardized tests. Ms. Harkleroad testified that she had always received "rave reviews" for the extra work she did in creating and maintaining the school wide data bank for tracking standardized test scores. She resented the fact that Dr. DeJarlais neglected to rave over the data notebooks when Ms. Harkleroad presented them to her. Ms. Harkleroad felt personally snubbed and concluded that Dr. DeJarlais did not like her. As to the events of March 5, 2009, Ms. Harkleroad surmised that the test administrator was trying to make "brownie points" with Dr. DeJarlais by maliciously reporting falsehoods about Ms. Harkleroad's actions in the classroom. Ms. Harkleroad asserted that the administrator was a friend of Dr. DeJarlais, and that the principal simply took the administrator's word for what happened without conducting any further investigation. Ms. Harkleroad disputed the incident to Dr. DeJarlais to the point of crying, and she was so upset she had to leave school early that day. She testified that at the time she was unaware that the CBA allowed her to file a union grievance over the Appraisal II. Neither party called the test administrator, Kimberly Belcher, to testify. Based on the testimony, the undersigned is not inclined to second-guess Dr. DeJarlais' decision to take the word of Ms. Belcher as to what occurred in the classroom on March 5, 2009. Ms. Harkleroad offered only speculation as to any motive Ms. Belcher had to concoct a story about Ms. Harkleroad's actions during the FCAT. To accept Ms. Harkleroad's version of events, it is necessary to believe not only that Dr. DeJarlais was out to get Ms. Harkleroad, but that Dr. DeJarlais' vendetta against Ms. Harkleroad was such common knowledge that Ms. Belcher knew she could win "brownie points" by lying about the teacher to the principal. The evidence does not support such a chain of inferences. Ms. Harkleroad testified that during the meeting about the Appraisal II, Dr. DeJarlais emphasized that she would no longer be eligible for the PG-13 evaluations and would have to revert to the Appraisal I evaluation. Ms. Harkleroad stated, "I knew then, when she told me that, that she was out to destroy my career." This extraordinary statement was premised on Ms. Harkleroad's assertion that she has a severe panic disorder that renders her unable to withstand the situation presented by an Appraisal I, in which she must teach while an evaluator sits in the room and judges her performance. Ms. Harkleroad asserted that Dr. DeJarlais was aware of this condition, and purposely contrived to force Ms. Harkleroad back into the Appraisal I process in order to get rid of her. At this point, it is useful to digress from the main narrative to provide a brief history of Ms. Harkleroad's medical travails. She testified that she has a severe form of stress or panic disorder that makes her paranoid and unable to function in situations in which she thinks people are judging her. Earlier in her career, she was able to control the panic attacks with a prescribed medication, Xanax (alprazolam), and was able to perform well in Appraisal I situations. At some unspecified time prior to the 2005-2006 school year, Ms. Harkleroad underwent spinal fusion surgery. During the 2005-2006 school year, Ms. Harkleroad was involved in an incident requiring her to restrain a kindergarten student who was throwing wooden chairs in the library. Ms. Harkleroad's back was injured. Ms. Harkleroad alleged that the School Board's contract workers' compensation physician misdiagnosed the injury and sent her back to work. Two years later, another physician examined Ms. Harkleroad's MRI from the incident and determined that her fusion had been shattered. During the 2007-2008 school year, Ms. Harkleroad had major back surgery that kept her away from school for 12 weeks. When she returned to work during the spring semester of 2008, she was in a body cast, followed by approximately five months in a brace. Ms. Harkleroad testified that the damage to her back was so severe that it could not be completely repaired. She was subject to muscle spasms due to pressure on her sciatic nerve. The pain became so severe that in February 2009 she began seeing a physician for pain management. The physician prescribed what Ms. Harkleroad called "pretty heavy duty" medications such as Oxycontin (oxycodone). Ms. Harkleroad's physicians advised her that Xanax cannot be taken with Oxycontin. Therefore, she was forced to forego her panic disorder medication after February 2009. Dr. DeJarlais came to Fruitland Park at the start of the 2008-2009 school year. Ms. Harkleroad was unsure how much Dr. DeJarlais knew about her medical history, though she specifically recalled telling Dr. DeJarlais that she was the teacher who had back surgery and came back in a body cast. Ms. Harkleroad also recalled that, in her first conversation with the new principal, she told Dr. DeJarlais about her panic disorder. Dr. DeJarlais testified that she was unaware that Ms. Harkleroad claimed any disabilities. She knew that Ms. Harkleroad took pain medications for her back, but knew no specifics about them. Ms. Harkleroad testified that at the time of the FCAT administration meeting on March 5, 2009, she was sick and had just started on the pain management medications. She had taken Nyquil for a cold on top of the Oxycontin, and the combination caused her to fall asleep at the meeting. As noted above, she absolutely denied the other statements in the Appraisal II. Shortly after receiving the Appraisal II, Ms. Harkleroad was involved in an automobile accident that kept her out of work for the remainder of the 2008-2009 school year. She had further surgical procedures on her back and remained on pain medications as the 2009-2010 school year began. Patricia Nave, a veteran administrator, arrived at Fruitland Park as assistant principal at the start of the 2009- 2010 school year. Dr. DeJarlais assigned Ms. Nave to conduct the Appraisal I performance evaluations of Ms. Harkleroad. Ms. Nave did not know Ms. Harkleroad before August 2009, and testified she was not aware that Ms. Harkleroad had anxiety issues. On February 18, 2010, from 12:45 p.m. until 1:45 p.m., Ms. Nave observed Ms. Harkleroad and scored her on the Appraisal I form. Ms. Nave gave Ms. Harkleroad a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. Under the section "Teaching Procedures," Ms. Harkleroad was rated unsatisfactory in the sub-subsection titled "Gives clear and explicit directions" within the subsection titled "Displays skills in making assignments." Under the section "Classroom Management," Ms. Harkleroad was rated unsatisfactory in the sub-subsections titled "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." In the area of Teaching Procedures, Ms. Nave testified that in making an assignment, the teacher is expected to use appropriate vocabulary. The teacher tells the students what the assignment is and when it is due, then checks with the students to ensure they comprehend the assignment before releasing them to do the work. Ms. Harkleroad did not make a comprehension check. She simply told the students what to do. In the area of Classroom Management, Ms. Nave had "many, many concerns" regarding Ms. Harkleroad's "conscious modeling to modify attitudes and behaviors." Ms. Harkleroad made unacceptable comments to students throughout the lesson, such as: "I don't understand what you're not getting, probably because you're not paying attention," "Your rudeness scale is going up," and "You are all just counting, not paying attention to what you are counting." Ms. Nave found that Ms. Harkleroad was not setting a proper example to the students. The teacher is expected to be respectful and to set an example by being fair. Ms. Harkleroad was neither consistent nor fair. At times, she would scold the students for calling out without raising their hands, but at other times she would allow them to call out. Some children were walking around the room when they should have been sitting down for the lesson. Ms. Harkleroad admonished some of the students for walking around but allowed others to do it. She allowed the students to engage in off-task behavior. Ms. Harkleroad testified that in her experience, evaluations last for about 35 minutes. She testified that she was doing fine for the first 35 minutes of Ms. Nave's evaluation. However, when Ms. Nave stayed beyond the 35-minute mark, Ms. Harkleroad began to panic, believing that Ms. Nave intended to stay until she could find something wrong. Her performance fell apart in the latter part of the hour. Ms. Harkleroad stated that she told Ms. Nave about her panic disorder after the evaluation. Ms. Nave noted no dramatic change in Ms. Harkleroad's performance from the first half to the second half of her one- hour observation. Ms. Nave also had no recollection of Ms. Harkleroad discussing her panic disorder at any time, before or after the evaluation. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Ms. Nave met with Ms. Harkleroad on February 22, 2010 to go over the Prescription/Assistance form. Ms. Nave noted the areas of deficient performance and recommended that Ms. Harkleroad review sections of the IPPAS manual that prescribe methods for the areas in which she had been found deficient and watch certain DVDs on effective teaching methods. Ms. Nave gave Ms. Harkleroad four weeks, rather than the usual three weeks, to correct the deficiencies and undergo another observation. To further lessen the pressure on Ms. Harkleroad, Ms. Nave exercised her prerogative to use the February 18, 2010, Appraisal I as an "observation" rather than a formal appraisal that would be counted against Ms. Harkleroad. School Board records indicated that Ms. Harkleroad checked out the recommended DVDs from the Fruitland Park library. Ms. Harkleroad testified that she watched the DVDs. Ms. Nave performed a second Appraisal I on Ms. Harkleroad on March 26, 2010. This appraisal also resulted in a total score of 10. On this appraisal, deficiencies were found under the sections titled "Classroom Management" and "Presentation and Knowledge of Subject Matter." As to Classroom Management, Ms. Harkleroad was rated unsatisfactory in the same sub-subsections as on the February 18, 2010, appraisal: "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." As to Presentation and Knowledge of Subject Matter, Ms. Harkleroad's performance was found unsatisfactory in the sub-subsection titled "Uses questioning techniques" under the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." Ms. Nave testified that in the area of questioning techniques, the preferred technique is to ask a question, wait for the students to process the question, and then call on one student to answer the question. Ms. Harkleroad was asking "multiple questions," meaning that she would ask a question, then ask another question or ask the same question in a different way, before the students had a chance to respond. Ms. Nave stated that teachers are counseled not to ask multiple questions because it confuses the children. Ms. Nave stated that Ms. Harkleroad failed to exhibit another aspect of proper questioning. A teacher should ask a question, and then call the name of a student to answer the question. Asking the question before calling on a student ensures that the whole class pays attention to the question. If the teacher calls on one student, then asks the question, the other children are off the hook and feel free to pay less attention. Ms. Harkleroad frequently called on students before asking a question. Ms. Harkleroad agreed that her performance during this evaluation was "awful." Ms. Nave had come in to the classroom a day or two before and stayed for about 25 minutes. According to Ms. Harkleroad, "Everything went great. I thought that was my evaluation. A couple days later, here she comes in again. And immediately that's like, 'Okay, what are they doing? They couldn't find anything wrong that time, so they're coming in to find something wrong this time?'" She had a panic attack, and knew that the evaluation was "horrible." Again, Ms. Nave made no note of the dichotomy claimed by Ms. Harkleroad. Her observations were consistent over time. Ms. Nave saw no "great" lessons taught by Ms. Harkleroad. Nonetheless, Ms. Nave continued to encourage Ms. Harkleroad to improve her performance and genuinely believed that "she could get it together" with hard work and a sincere commitment to the recommendations she was receiving. On March 29, 2010, Ms. Nave completed a Prescription/Assistance form and reviewed it with Ms. Harkleroad. Ms. Nave again stated the areas of deficient performance and listed sections of the IPPAS manual that addressed Ms. Harkleroad's deficiencies. Ms. Nave also obtained the assignment of Linda Bradley, a School Board employee who works as a mentor to beginning teachers, to visit Ms. Harkleroad's class every week to observe and assist her with her ongoing remediation strategies. The Prescription/Assistance form provided that Ms. Harkleroad would correct her deficiencies by the end of the school year, June 9, 2010. Ms. Harkleroad would then go through a 90-day performance probation period during the upcoming school year. Also on March 29, 2010, Dr. DeJarlais issued a memorandum to Ms. Harkleroad titled "Performance Probation" that read as follows: Pursuant to the provisions of Florida Statutes 1012.34, I am writing to inform you that you have performance deficiencies in the areas of Classroom Management and Presentation and Knowledge of Subject Matter. Based on the deficiencies, I am placing you on performance probation for 90 calendar days beginning on 8-23-2010. The 90 calendar days will end on November 23, 2010. By letter dated March 31, 2010, Superintendent of Schools Susan Moxley warned Ms. Harkleroad of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Both Ms. Nave and Dr. DeJarlais testified as to other problems with Ms. Harkleroad's performance in the classroom. The parents of two children in Ms. Harkleroad's class complained that their children were receiving too many disciplinary referrals to the office. Upon investigation, the administrators agreed with the parents and Ms. Harkleroad was counseled on the issue. As an alternative to referring minor disciplinary cases to the office, teachers at Fruitland Park are allowed to send students to another teacher's classroom for a time. Placed in a strange class with students who do not know him, the recalcitrant student usually will calm down and quietly do his work. Ms. Harkleroad's grade level peers complained to Ms. Nave that Ms. Harkleroad took excessive advantage of this option, sending children to their classrooms more frequently than should have been necessary. Ms. Nave's major problem with Ms. Harkleroad was her classroom management, her "with-itness," in Ms. Nave's terminology. Ms. Harkleroad too often appeared unaware of the things she was saying to the children, and unaware of what the children were doing in the classroom. She would not notice that children were up and walking around the classroom during lessons. Ms. Nave stated that during her observations, as many as 12 out of 22 children in Ms. Harkleroad's classroom would not be focused on the lesson, and Ms. Harkleroad did nothing to put them back on task. Dr. DeJarlais noted that some parents had complained about Ms. Harkleroad's odd behavior at a student assembly. Her speech was slurred, she called out the same student's name more than once, and she seemed disoriented. Dr. DeJarlais witnessed the assembly, and agreed with the parents that there was a problem. She spoke to Ms. Harkleroad about maintaining a sense of awareness on stage.2/ Dr. DeJarlais mentioned several other minor incidents. In the spring of 2010, Ms. Harkleroad did not fill out her report cards correctly. She once walked into the wrong grade level meeting and had to be directed to the right one. There was an incident in which she placed a child on the floor during a disciplinary timeout, and Dr. DeJarlais counseled her to use a desk. During a walkthrough, Dr. DeJarlais saw Ms. Harkleroad teaching the wrong subject. In each of these instances, Dr. DeJarlais counseled Ms. Harkleroad rather than giving her an official disciplinary or performance write-up. Ms. Harkleroad was convinced that Dr. DeJarlais was intentionally using her panic disorder to get rid of her. This was based partly on a conversation Ms. Harkleroad claimed to have overheard in which Dr. DeJarlais referred to Ms. Harkleroad as a "liability" because of her use of pain medications. Ms. Harkleroad believed that Dr. DeJarlais thought of her as a drug addict. She testified that Dr. DeJarlais made frequent comments that insinuated that she was an addict, asking whether she had a "problem" or needed "counseling." Ms. Harkleroad believed these insinuations were intended to add to the pressure she felt at school and therefore increase the anxiety and panic she would feel during her evaluations. Dr. DeJarlais denied ever calling Ms. Harkleroad an addict or even suggesting such a thing. She did recall that she and Ms. Nave had conversations with Ms. Harkleroad about her nodding off in front of the class, and that Ms. Harkleroad mentioned that she might need to adjust her medications. Dr. DeJarlais did not pry into the kinds of medications Ms. Harkleroad was taking. Ms. Harkleroad spoke to her several times in general terms about seeking help for medical conditions such as back pain. Dr. DeJarlais' only suggestion regarding counseling came when Ms. Harkleroad told her that she feared she was having a nervous breakdown. Dr. DeJarlais credibly denied doing anything to intimidate or humiliate Ms. Harkleroad. Ms. Nave confirmed that she had seen Ms. Harkleroad appear to be sleeping or nodding off while standing in front of the class. At the time, Ms. Nave was unaware that Ms. Harkleroad took prescribed pain medications. Ms. Nave stated that Ms. Harkleroad was unaware that she was nodding off and denied it until Dr. DeJarlais confirmed that two other persons had reported seeing Ms. Harkleroad nod off. At that point, Ms. Harkleroad stated she would go see a physician. Ms. Harkleroad testified that her physician assured her that she could not have been falling asleep on her feet. The physician stated that one of her medications may have been causing mini seizures that resembled nodding off. Ms. Harkleroad testified that she passed this information on to both Dr. DeJarlais and Ms. Nave, though neither of the administrators recalled such a conversation. Given her feelings about Dr. DeJarlais, it was not surprising that Ms. Harkleroad chose the option of transferring to another school for the 2010-2011 school year. Ms. Harkleroad testified that she chose a transfer only after Dr. DeJarlais made it clear that she would prefer for Ms. Harkleroad to move on to another school. Dr. DeJarlais denied expressing such a preference. Ms. Nave recalled that she and Dr. DeJarlais met with Ms. Harkleroad to discuss her options for the 2010-2011 school year, which included transferring to another school or trying to work through the probationary process at Fruitland Park. Ms. Nave testified that when the discussion turned to the 90-day probationary period, Ms. Harkleroad mentioned that she might be having a nervous breakdown. This conversation occurred near the end of the school year, and was the first mention of any mental problems that Ms. Nave could recall. Ms. Harkleroad testified that the "nervous breakdown" conversation was more complicated than Dr. DeJarlais and Ms. Nave indicated. Ms. Harkleroad stated that she told the administrators that she was having multiple anxiety attacks, one after the other, and that she would have a nervous breakdown "if they kept on pushing me and pushing me." Though she had requested assignment to a middle school, Ms. Harkleroad was transferred to Beverly Shores Elementary School ("Beverly Shores") for the 2010-2011 school year and assigned to a third-grade classroom. At the end of the 2009-2010 school year, the School Board notified Jeffrey Williams, the principal at Beverly Shores, that Ms. Harkleroad would be joining his staff in August 2010. The notice informed Mr. Williams that Ms. Harkleroad was on performance probation, and that her issues were classroom management and presentation of subject matter. Mr. Williams also received a phone call from Dr. DeJarlais to discuss the transfer. Dr. DeJarlais did not go into the details surrounding Ms. Harkleroad's probation aside from stating that she believed the move would be good for Ms. Harkleroad. Mr. Williams contacted Ms. Harkleroad and suggested they meet to discuss her transition to Beverly Shores. Ms. Harkleroad met with Mr. Williams at his office. Ms. Harkleroad told Mr. Williams that she had received a deficiency in her IPPAS evaluation and had requested a transfer, though Beverly Shores was not really where she wanted to be. Ms. Harkleroad mentioned that she had a back problem. Mr. Williams did not recall anything in the conversation concerning panic attacks, an anxiety disorder, or any other condition that would hinder Ms. Harkleroad's ability to pass an Appraisal I evaluation. Ms. Harkleroad denied telling Mr. Williams that she did not want to be at Beverly Shores, though she conceded that she told him she would rather be in a middle school because her back problems made it difficult to keep up with younger children. Ms. Harkleroad testified that she told Mr. Williams about her panic disorder, and further told him that she could not take medication for it because of the medication she took for her back pain. She requested that Mr. Williams use the PG- evaluation tool, or record her class, anything other than having people come into her classroom to judge her. She said that Mr. Williams replied that the rules required the use of the Appraisal I. Mr. Williams did not see Ms. Harkleroad again until school started in August 2010. He assigned assistant principal Tanya Rogers to be the supervising administrator handling all issues related to Ms. Harkleroad's job performance. During the first 90 days of the 2010-2011 school year, Mr. Williams limited his involvement to walkthroughs of Ms. Harkleroad's classroom. Ms. Rogers is an experienced assistant principal who has performed many teacher evaluations under the provisions of the IPPAS and the CBA. Ms. Rogers knew that Ms. Harkleroad was on performance probation, and saw to it that her Prescription/Assistance form from Fruitland Park was implemented at Beverly Shores. Linda Bradley was retained as Ms. Harkleroad's instructional coach, and Ms. Harkleroad was offered classes through the school's learning resource center. Ms. Rogers conducted frequent classroom walkthroughs and met with Ms. Harkleroad to assist her in preparing for her evaluation. Upon her arrival at Beverly Shores in August, Ms. Harkleroad discovered that her classroom was "filthy. There were mouse droppings all over. It took four of us six hours to get the room just clean enough that I'd bring my stuff in there. No air conditioning. . . It was almost six weeks before that air conditioning was fixed." Mr. Williams testified that the classroom was clean when Ms. Harkleroad arrived at the school in August 2010. Ms. Harkleroad estimated that the air conditioning was not repaired until September 27, and testified that the temperature reached 100 degrees in the afternoons. She had complained to Ms. Rogers but nothing was done until the date of the second observation by Ms. Rogers, when Ms. Harkleroad repeatedly noted how hot it was in the classroom and how difficult for the students to concentrate on their lessons. Ms. Harkleroad also testified that there was a "horrible" burning smell in the classroom. She complained to Mr. Williams about it. Eventually, on December 9, 2010, the Lake County Health Department came to the school to investigate the source of the smell. Ms. Harkleroad denied having called the Health Department. Ms. Rogers agreed that Ms. Harkleroad complained about the air conditioning in September. However, Ms. Rogers testified that she entered a work order and that the air conditioning was repaired on September 7. Ms. Rogers recalled no complaints about a smell in the classroom, though she did acknowledge that the Health Department was at the school on December 9, and that it found everything in Ms. Harkleroad's classroom to be in satisfactory condition. Mr. Williams recalled that Ms. Harkleroad complained about an odor in her classroom. Mr. Williams was convinced that Ms. Harkleroad had called the Health Department for the simple reason that the inspectors went straight to her classroom when they arrived at the school. However, Mr. Williams had no firm evidence that Ms. Harkleroad made the call and no way of knowing whether a concerned parent had made the call. In the absence of any stronger evidence, Ms. Harkleroad's denial is credited. There was no indication that either Ms. Rogers or Mr. Williams took retaliatory action against Ms. Harkleroad for her various complaints about conditions in her classroom, or that the performance appraisals Ms. Harkleroad received at Beverly Shores were based on anything other than her performance in the classroom. As part of her efforts to help Ms. Harkleroad prepare for her Appraisal I, Ms. Rogers conducted two classroom observations using the "Screening/Summative Observation Instrument" of the Florida Performance Measurement System ("FPMS"). This form was developed by the Florida Department of Education to enable an observer to calculate the frequency of effective and ineffective teaching techniques. In the first observation, conducted on September 7, 2010, Ms. Rogers found performance deficiencies in the areas of classroom management and presentation and knowledge of subject matter. In the second observation, conducted on September 27, 2010, Ms. Rogers found performance deficiencies in the same two areas, particularly in the area of managing student conduct. Ms. Rogers testified that she saw a great deal of choral reading and review of prior knowledge taking place in the classroom but observed no teaching of new content. She also noted that Ms. Harkleroad had a punitive approach to classroom management, and took a sarcastic tone with the children that tended to escalate discipline problems rather than calm them. Based on her observations, Ms. Rogers wrote a Prescription/Assistance form on September 29, 2010, and met with Ms. Harkleroad to go over the needed improvements. Ms. Rogers recommended weekly visits by Ms. Bradley, who would conduct FPMS observations in the problem areas and provide specific feedback to Ms. Harkleroad. Ms. Rogers also recommended specific classes offered at the School Board's staff development training facility: "Increasing Student Engagement," "Motivating Students," and "Classroom Management for Elementary Teachers." Ms. Rogers wrote that Ms. Harkleroad "will correct these behaviors by October 25, 2010, two weeks after staff development opportunity." Ms. Harkleroad testified that she attended one of the recommended classes, but found that it was unrelated to anything occurring in her classroom. She declined to attend the other classes. As the end Ms. Harkleroad's 90-day performance probation approached, Ms. Rogers notified Ms. Harkleroad of her intent to perform the Appraisal I. Ms. Harkleroad requested a conference with Ms. Rogers prior to the evaluation. At the conference, Ms. Harkleroad requested that Mr. Williams perform the Appraisal I evaluation. Ms. Rogers testified that Ms. Harkleroad told her that she found it difficult to respect women in positions of authority. Ms. Harkleroad believed that women should be at home taking care of their children, and that society's problems could be traced to women working outside the home. Ms. Rogers found this logic confusing because Ms. Harkleroad was herself a woman working outside the home. When Ms. Rogers pointed this out, Ms. Harkleroad responded that she did not have children. Ms. Rogers responded that her own children were grown and not living with her. Ms. Harkleroad asked Ms. Rogers whether her daughter stayed home with her children. Ms. Rogers replied that her daughter worked. Ms. Harkleroad said, "See, that's what I'm talking about. That's what's wrong with society." At the hearing, Ms. Harkleroad testified that her request had nothing to do with any general complaint about women in the workplace.3/ Her problem was with Ms. Rogers, whom she found to be unreasonably critical. Ms. Rogers conducted her first observation before Ms. Harkleroad even had a chance to learn the names of the children in her classroom, then told Ms. Harkleroad that she was an incompetent teacher, which caused Ms. Harkleroad to lose all respect for her. Thus, she told Ms. Rogers that she preferred to have Mr. Williams perform her Appraisal I. Ms. Rogers' version of the conference with Ms. Harkleroad is credited. Mr. Williams testified that Ms. Rogers came to him and told him that Ms. Harkleroad did not respect women in authority. Ms. Harkleroad did not think she could get a fair evaluation from Ms. Rogers and requested that Mr. Williams perform the appraisal. Without delving too deeply into the reasons for Ms. Harkleroad's request, Mr. Williams agreed to perform the Appraisal I. Ms. Rogers and Mr. Williams agreed that he declined to take the file that Ms. Rogers had developed on Ms. Harkleroad. He wanted a clean slate, and did not want to be influenced by the prior observations of Ms. Rogers. He wanted to evaluate what was happening in the classroom without preconceptions. Mr. Williams intended to evaluate Ms. Harkleroad as he would any other teacher. He entered Ms. Harkleroad's classroom several times during the week before the evaluation and performed a lengthy walkthrough to assess the overall learning environment. Mr. Williams conducted the Appraisal I on or about November 22, 2010.4/ He gave Ms. Harkleroad a score of 11. Mr. Williams found a deficiency in the section titled "Presentation and Knowledge of Subject Matter." Ms. Harkleroad was rated unsatisfactory in the subsection titled, "Communicates and presents subject matter in a manner that enables students to learn." This subsection contains seven sub-subsections, and Mr. Williams graded Ms. Harkleroad unsatisfactory in six of them: "Treats concepts/cause and effect/or states and applies rules;" "Teacher directed/guided practice is provided;" "Uses questioning techniques;" "Directs lesson;" "Provides periodic review;" and "Poses problems, dilemmas, and questions to promote critical thinking." Mr. Williams found these deficiencies because there was no direct instruction taking place in the classroom that would satisfy those areas of observation. Shortly after the evaluation, Ms. Harkleroad told him that she "just didn't have it today" and that she knew her performance had not been good. Ms. Harkleroad testified as to her problems with Mr. Williams' evaluation. These problems were related to her panic disorder and to an illness she claimed she had on the day of the evaluation. When Mr. Williams did his preparatory walkthrough of her classroom on the Friday before the evaluation, Ms. Harkleroad mistakenly believed that he was conducting the Appraisal I. As she had with Ms. Nave's earlier pre-evaluation classroom visit, Ms. Harkleroad claimed that the lesson went very well. She was jubilant that she had passed the evaluation. Mr. Williams noted no variance between what he observed on his walkthroughs of Ms. Harkleroad's classroom and what he observed during the November 22, 2010, Appraisal I. On the following Monday morning, Ms. Harkleroad was at an IEP meeting when she started pouring sweat and finding it difficult to breathe. The problem became worse as the day went by. She told Mr. Williams how sick she felt and that she might have to go home. Less than 30 minutes later, Mr. Williams appeared in her classroom to conduct the Appraisal I. Ms. Harkleroad stated that Mr. Williams' arrival "just blew it." She knew then that "all they wanted to do was fire me. They didn't care how they did it." After the evaluation, Ms. Harkleroad's husband picked her up from school because she was too ill to drive. Ms. Harkleroad testified that she was diagnosed with bacterial pneumonia. She did not return to school until the Monday after Thanksgiving, November 29, at which time Mr. Williams met with her to review her evaluation. Mr. Williams testified that Ms. Harkleroad said nothing to him about being sick and that he would have rescheduled the evaluation had he known. Before and during the evaluation, she showed no signs of illness. It was only after the evaluation, when they were discussing her poor performance, that Ms. Harkleroad appeared to become ill. Mr. Williams called the school nurse and Ms. Harkleroad's husband. Ms. Harkleroad later told him she had been hospitalized, but Mr. Williams had no firsthand knowledge of her medical treatment. On November 29, 2010, Mr. Williams conducted a post- evaluation conference with Ms. Harkleroad. He presented her options, which at that point were limited to resigning her position or facing formal termination procedures by the School Board. To Mr. Williams' surprise, Ms. Harkleroad chose termination. He was surprised because termination would likely end Ms. Harkleroad's teaching career. When Mr. Williams inquired further, Ms. Harkleroad told him that she chose termination in order to preserve her unemployment benefits. At the hearing, Ms. Harkleroad testified that she chose termination because resigning would have constituted an admission she had done something wrong. As to aspects of Ms. Harkleroad's performance outside the formal evaluation, Mr. Williams stated that there had been a couple of parent complaints. One child was moved out of her classroom due to what the parent termed "poor communication" with Ms. Harkleroad. Mr. Williams had to tell Ms. Harkleroad to stop asking the child why he had moved from her class. In a memorandum to Dr. Moxley dated December 9, 2010, and titled "Recommendation of Termination," Mr. Williams wrote as follows, in relevant part: Pursuant to Florida Statutes 1012.34, I am writing to inform you that Mrs. Deborah Harkleroad has completed his/her 90-calendar day performance probation and has failed to correct his/her performance deficiencies. I do not believe that Mrs. Harkleroad can correct said deficiencies and his/her employment should be terminated. I have complied with all applicable provisions of Florida Statutes 1012.34.... On the morning of December 13, 2010, Ms. Harkleroad wrote the following email to Dr. Moxley: Before a final decision is made on my employment status, I would like the opportunity to meet with you in order to discuss my current situation. It is my contention that I was performing my duties as a teacher in a manner that supported Literacy First guidelines on the date and time my evaluation was conducted. If I had been doing any type of activity other than something similar to what I was doing, I would not have been in compliance with established guidelines. Literacy First is a research-based, data-driven, comprehensive program designed to accelerate reading achievement. Beverly Shores implements the Literacy First program,5/ which includes explicit directives as to what should take place in whole group and small group instruction. Ms. Harkleroad did not raise Literacy First concerns with Mr. Williams at the time of the evaluation or even at the November 29 conference. After the fact, however, she contended that during the hour in which Mr. Williams conducted the evaluation, the Literacy First schedule called for her to perform whole group activities, which do not include "instruction." The children were building fluency by engaging in group reading practice. Had Mr. Williams stayed through the next hour, he would have seen explicit instruction when the class was broken into small groups. Ms. Harkleroad's argument that Literacy First mandated that she not teach the class is not credited. As early as her first observation on September 2, 2010, Ms. Rogers had noted that Ms. Harkleroad's whole group method appeared limited to "echo reading" rather than any of the other various strategies called for by the Literacy First program. Ms. Rogers did not formalize this observation in writing because echo reading is a legitimate Literacy First strategy, and she wanted to give Ms. Harkleroad the benefit of the doubt. Mr. Williams understood Ms. Harkleroad's class schedule, and as principal of Beverly Shores he understood the Literacy First guidelines. When he conducted his evaluation, he knew that Ms. Harkleroad's class was involved in whole group reading. It was in this context, with a full understanding of what should have been happening under Literacy First, that Mr. Williams concluded that no instruction took place during his observation. Ms. Harkleroad was not leading the class. Dr. Moxley did not meet with Ms. Harkleroad. By letter dated December 13, 2010, Dr. Moxley informed Ms. Harkleroad that, pursuant to section 1012.34, Florida Statutes, Ms. Harkleroad had failed to correct performance deficiencies identified by her principal and Dr. Moxley intended to recommend to the School Board that Ms. Harkleroad's employment be terminated as of January 10, 2011. At the hearing, Ms. Harkleroad contended that she had placed the School Board on notice of her panic disorder before the 2009-2010 school year, and that she specifically requested that school administrators use the PG-13 evaluation process as an accommodation to her disability. Ms. Nave recalled Ms. Harkleroad requesting that she be allowed to use the PG-13 evaluation. Ms. Nave stated that Ms. Harkleroad gave no reason for the request, other than an assertion that she had earned the right not to go through the Appraisal I process. Ms. Harkleroad testified that she also pleaded with Mr. Williams to allow her to use the PG-13 evaluation because of her panic disorder. Mr. Williams flatly and credibly denied that any such conversation occurred.6 Dr. DeJarlais had no recollection of Ms. Harkleroad asking for the PG-13 evaluation. She testified that Ms. Harkleroad made no complaints about the Appraisal I procedure until after the evaluation had been completed. The testimony of the four administrators permits the inference that, far from being open with her superiors about her mental and physical problems, Ms. Harkleroad tended to downplay them because of the intense scrutiny she felt she was receiving regarding her job performance. On several occasions, Ms. DeJarlais and Ms. Nave made tentative inquiries into Ms. Harkleroad's emotional well being only to have Ms. Harkleroad sidestep their questions with vague assurances that she was seeing a doctor.7/ Out of respect for her privacy, the administrators left it at that and focused on her classroom performance. The first duty of the school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. If Ms. Harkleroad's panic disorder required an accommodation, it was her responsibility to come forward and request it. The evidence established that she did not do so. It was not the duty of her superiors to tease the information out of her. As Mr. Williams pointed out, he is responsible for 55 teachers at Beverly Shores. He does not have the time to delve into all their personal lives and medical conditions, and tries to respect their privacy. Under all the circumstances, his focus was properly on the classroom. Aside from alleging a conspiracy of sorts to get rid of her,8/ Ms. Harkleroad could not explain why four experienced school administrators would lie about having no recollection of talking with her about her panic disorder, though they all testified that they knew about her back problems and had at least some knowledge that she took pain medications. Ms. Harkleroad testified that two previous principals at Fruitland Park, Joan Denson and Charles McDaniel, had been aware of and made accommodations for her panic disorder. She called neither of these former principals as witnesses to corroborate her version of events. The failure to corroborate her testimony was a theme of Ms. Harkleroad's overall presentation. She offered no documentary evidence regarding her medical condition. None of her physicians were called to testify. No fellow employees, friends or neighbors were called to testify that Ms. Harkleroad had discussed her panic disorder with them. Ms. Harkleroad testified that her students and their parents loved her as a teacher, but she called none of them to testify. Ms. Harkleroad's only supportive witness, teacher Norma Jean Miller, had not worked with Ms. Harkleroad for several years and only knew her as a literacy coach, not a classroom teacher. Ms. Miller knew of Ms. Harkleroad's back problems, but said nothing about a panic disorder. In the absence of corroborating evidence, it strains credulity beyond all reason to accept the sole word of Ms. Harkleroad that Dr. DeJarlais decided to get rid of her because of her drug use, realized that Ms. Harkleroad's panic disorder was a means to insure that she failed her evaluations, then apparently recruited the administration of another school to complete the process.9/ Because there is no evidence beyond Ms. Harkleroad's less than credible testimony to establish that the evaluation process was conducted in bad faith, it is found that the administrators at Fruitland Park and Beverly Shore judged Ms. Harkleroad on the merits of her teaching performance and graded that performance accordingly. Ms. Harkleroad complains that the criteria used in the evaluations were vague to the point of opacity, and did not take into account that different teachers may have different approaches to their work. She believes that some of the standard rules for classroom instruction are "ridiculous." When Ms. Rogers told her that she should make the children raise their hands and be called on before speaking in class, she airily dismissed the criticism as a "philosophical difference." Though the specific problems with Ms. Harkleroad's classroom performance were eminently correctible, her obstinacy and/or obtuseness in rejecting pointed advice from her superiors made it clear that she was highly unlikely ever to correct her performance deficiencies. The evidence established that the process followed by School Board personnel in evaluating Ms. Harkleroad's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA. The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. However, even though all procedures were correctly followed in the evaluation process, the School Board failed to establish grounds for terminating Ms. Harkleroad's employment pursuant to Section 1012.34(3), Florida Statutes, because it failed to offer evidence, apart from the anecdotal reports of the evaluators, that Ms. Harkleroad's teaching performance adversely affected the academic performance of the students assigned to her classroom.10/ The assessment procedure is to be "primarily based on the performance of students," and the absence of data such as FCAT scores or other objective comparators renders the School Board's case insufficient under section 1012.34, Florida Statutes.11/ The issue then becomes whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1), Florida Statutes. On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Harkleroad for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 24th day of June, 2011.
The Issue Whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board.
Findings Of Fact Petitioner is a duly-constituted district school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida. Article IX, § 4(b), Fla. Const. In 2010, Whitley started working for the School Board as a school security monitor. During the 2016-2017 school year, Whitley was assigned to Thomas Jefferson Middle School (“Thomas Jefferson”) as a security monitor. He remains employed in that role at Thomas Jefferson presently. Whitley’s job duties and responsibilities include, but are not limited to, maintaining the safety of the children, ensuring the children make it to class on time, assisting with any problems that may be going on in the school, and monitoring the security cameras. At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a continuing contract. The incident giving rise to this proceeding occurred on February 6, 2017. On February 6, 2017, Whitley was patrolling his assigned hall and noticed that M.G., a 13-year-old sixth grader, was out of class and sitting at Respondent’s desk in the hallway. Whitley requested that M.G. get out of the chair, and M.G. refused to get out of the desk. According to M.G., after M.G. refused, Whitley flipped the desk while he was seated, which caused M.G. to fall and hit his head on the floor. There is conflicting evidence as to what happened when Whitley approached the desk (“incident”). At hearing, M.G. credibly testified that he reported the incident to Principal Robin Atkins the same day and that he also got an ice pack for his head. Almost a month later, the Office of Professional Standards opened an investigation regarding the incident. Afterward, Respondent was notified that M.G. accused him of flipping the desk that he was sitting in and causing him to hit his head as a result. In 2017, law enforcement interviewed Respondent. The matter was ultimately turned over to the School Board's General Investigative Unit (“GIU”). The investigation took approximately two years to conclude. Even though Thomas Jefferson maintained security footage and recorded videos of the hallway where the incident occurred, no video footage existed for anyone to review regarding the incident. Based on its investigation, on or about May 30, 2019, GIU determined that there was probable cause to support the allegation that Respondent had violated School Board Policy 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare. Respondent learned about the determination soon thereafter. After summer break, when Respondent returned to work, on or about August 27, 2019, Carlos Diaz, the district director of the School Board's Office of Professional Standards conducted a conference-for-the-record (“CFR”) meeting to discuss the pending allegations from the GIU case. Respondent was present at the CFR with his union representative. Following the CFR, the Disciplinary Review Team (“DRT”) met. DRT considered Respondent’s repeated and similar conduct for inappropriate contact with students and Respondent’s prior directives in its decision to discipline Respondent. DRT recommended that Respondent be terminated. The recommendation was adopted by the School Board. Prior Disciplinary History During his employment with the School Board, Whitley has been disciplined twice regarding inappropriate touching of students prior to the incident. The School Board kept a record of Respondent’s discipline in Whitley’s personnel file. On or about April 16, 2013, Whitley received a written reprimand after an investigation concluded that he shoved and touched a student’s shoulder repeatedly. Whitley’s reprimand directed Respondent to “[r]efrain from any physical touching of students.” In November 2013, Whitley was suspended for 12 workdays without pay after an investigation concluded that Respondent inappropriately picked up and dropped a student to the ground. The CFR memorandum regarding Respondent’s November 2013 occurrence directed Whitley to: “adhere to School Board Policies 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare”; “refrain from inappropriate communications with students”; and “refrain from inappropriate physical contact with students.” Hearing At the final hearing, M.G. provided persuasive credible testimony regarding the incident. He testified that he was sitting in Whitley’s chair in the hall. M.G. also admitted that he refused to move and told Respondent “no” when told to move. Whitley testified that M.G. “jumped” out of the chair. The undersigned does not credit Whitley’s testimony based on his contradictory statements about the incident, which diminish the trustworthiness of his testimony.1 Findings of Ultimate Fact Accordingly, the undersigned finds that M.G.’s credible testimony established that Whitley initiated contact with M.G., grabbed the desk to lean in, and flipped M.G., who was seated, out of the desk. As a result of Whitley’s actions, M.G. landed in a manner where his “hand hit the ground,” head hit the concrete floor, and, by doing so, jeopardized M.G.’s health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: finding Respondent in violation of rules 6A-5.056(2) and (4), 6A-10.081, and School Board Policies 4210, 4210.01, and 4213 as charged; and upholding Respondent's termination from employment for just cause. DONE AND ENTERED this 29th day of October, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 29th day of October, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The central issue in this case is whether Respondent is guilty of the conduct alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner is authorized to operate, control and supervise all public schools within the School District of Dade County, Florida. At all times material to the specific charges in this case, Respondent, Norris L. Barker, was employed by Petitioner as a teacher with the Dade County school system. Pursuant to a one-year contract, the terms of which are not in evidence, Respondent was employed in September, 1987, as a math teacher at Miami Southridge Senior High School (Southridge). During the spring of 1987, prior to his employment with Petitioner, Respondent wrote to several school systems offering to donate Xerox memorywriters to the respective schools through a fund raising project which the various school systems were requested to endorse or promote. It was Respondent's goal to raise $8 million to be used to purchase the equipment. The Dade County Public Schools, through the then Superintendent, declined to endorse the fund raising project. After Respondent became employed with the Petitioner, he continued with his plan to raise money for education. Eventually, the project became known to Mr. Rodgers, the principal at Southridge, who advised Respondent that the school could not sanction the fund raising activities and that Respondent would have to obtain permission from a higher administrative source. Respondent did not receive permission to utilize the school name or the endorsement of the school district. As principal, Mr. Rodgers routinely makes informal observation visits to classrooms. These visits are intended as an informal review of the particular class or teacher. The duration of such visits is generally brief, lasting only a few minutes, and no written report or evaluation is made as a result of such visits. During Respondent's time at Southridge, Mr. Rodgers made several such informal visits to Respondent's class. Mr. Rodgers determined, as a result of the informal visits, that Respondent needed assistance with classroom management. This was indicated due to the number of students who were "off task" in Respondent's class. Mr. Rodgers felt that Respondent needed help in finding ways to keep the students working, not talking. On November 23, 1987, Respondent wrote a letter to Mr. Rodgers which expressed Respondent's concern that discipline problems among the ninth graders would adversely affect their performance on the SSAT. Apparently, Respondent believed the disruptive behavior of a few students was adversely influencing the learning conditions for the rest of the class. On November 24, 1987, William Machado, assistant principal in charge of the math department, performed a formal observation of Respondent. This observation was in accordance with the teacher assessment and development system and recorded Respondent's deficiencies in several specific areas of performance. It also provided a prescription plan for performance improvement which offered constructive comments to assist Respondent in deficient areas. Of the six areas evaluated, Mr. Machado found Respondent had problems and was deficient in four: knowledge of the subject, preparation and planning, classroom management, and techniques of instruction. Respondent was required to complete the prescription plan activities before January 11, 1988. All four of the prescription plan activities required Respondent to refer to the Prescription Manual which was available to Respondent. Further, with regard to Respondent's lesson plans, he was to seek the assistance of Jean Freedman, the math department head. Respondent talked briefly with Ms. Freedman and she offered him the benefit of her lesson book as an example of the type of plan Mr. Machado wanted Respondent to provide. As a means of further assistance, Respondent was to visit peer teachers' rooms to observe how the suggested activities might be incorporated into the teaching setting. Respondent did not submit the lesson plans in accordance with the prescription for performance improvement. There is no evidence as to whether or not he visited peer teachers' rooms. He did not observe Ms. Freedman's class as recommended. In the period immediately following Respondent's formal evaluation, he was absent from school a number of days the total of which exceeded his authorized sick leave. On December 19, 1987, Respondent climbed a 150 foot Southern Bell relay tower located on private property. It was Respondent's stated intention to remain atop the structure to raise $8 million for education. Respondent left a note stating that if the money were not raised by January 4, he would "meet God." Respondent did not have provisions for an extended stay. He was dressed in short pants, tennis shoes and a short-sleeved shirt. The weather conditions that evening were quite cool. Officer Collins responded to a call regarding Respondent's presence atop the tower. He unsuccessfully attempted to talk Respondent into coming down. When his efforts failed, Officer Collins requested negotiators who then talked with Respondent for several hours in further effort to have him voluntarily come down. These efforts also failed. After some four hours, the SWAT team came in to remove Respondent from the tower. Members of this team scaled the tower from Respondent's blind side and forced Respondent into the bucket of a fire truck extension ladder. Afterwards, Officer Collins took Respondent to the crisis intervention center where he was involuntarily committed for observation. He was released following a two day period of observation. The incident of Respondent's tower climbing was widely published in Miami newspapers and received coverage on local radio and television stations. These accounts of the incident identified Respondent as a Dade County high school teacher and, in some instances, identified Southridge. As a result of the media coverage, Mr. Rodgers received telephone calls from concerned parents and teachers regarding Respondent's conduct. On January 7, 1988, Mr. Rodgers recommended that Respondent be dismissed from employment at Southridge. The recommendation was based upon Respondent's performance in the classroom (TADS observation 11/24), Respondent's lack of professional judgment as shown by his conduct on December 19, 1987, the concerns expressed by parents and students regarding Respondent's emotional and mental fitness to regain control of students assigned to his classes, and the degree of public notoriety given to the incident of December 19. When Respondent attempted to return to Southridge on January 6, 1988, he was referred to the Office of Professional Standards and has not returned to the classroom.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order confirming the administrative decision to terminate the employment of Respondent for just cause stemming from his misconduct in office. DONE and RECOMMENDED this 21st day of November, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 21st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0599 Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted to the extent that it provides Respondent was employed by a one year contract and assigned to Southridge. It is presumed the year intended was the entire 1987-88 school year. Paragraphs 2-6 are accepted. Paragraph 3 is rejected to the extent that it concludes Respondent did not try to improve. While the evidence established Respondent did not complete lesson plans as requested, there is no evidence that he did not try to do so. Also, while he did not visit Mrs. Freedman's class, he may have visited other master teachers for assistance. The record does not establish whether or not he could have met the prescriptions had he not been absent or had he been able to return after the holidays. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraphs 10, 11, 12, 13 and 14 are accepted. Rulings on Respondent's proposed findings of fact: Respondent's paragraphs while not identified as findings of fact will be treated as such and considered in order as presented. The first paragraph is rejected as argument, or conclusions unsupported by the record. The first two sentences of the second paragraph are accepted. The remainder of that paragraph is rejected as speculation, unsupported by the record in this cause. With regard to the numbered paragraphs the following rulings are made: Paragraph 1 is rejected. While it is clear that the evaluation cannot be considered proof of Respondent's inadequate knowledge of the subject matter, there is no evidence as to how the computation was made to reach that conclusion (the TADS criteria) nor is there evidence that Mr. Machado was "over zealous." The deficient area was one of four which Respondent would have had to work on had he chosen to refrain from other conduct which further eroded his effectiveness as a teacher. Paragraph 2 is rejected as unsupported by the record. Paragraph 3 is rejected as argument, unsupported by the record. Paragraph 4 is accepted. Paragraph 5 is rejected as, contrary to the weight of the evidence. Paragraph 6 is accepted only to the extent that it suggests the fund raiser was not done in the name of the school or the board. When a private interest is pursued, the teacher must take reasonable steps to assure that the activity is not associated with the employer. To the extent that failing to take reasonable precaution would lead to public notoriety and adverse publicity, Respondent is accountable. Paragraph 7 is rejected as comment, argument or contrary to the evidence admitted in this cause. There is, however, no finding that Respondent wrongfully utilized the school name or misrepresented the board's interest in his project. Paragraph 8 is rejected as contrary to the weight of the evidence. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is rejected as conclusion or argument. No finding has been made to suggest Respondent suffers from a mental illness. Paragraph 11 is rejected as conclusion or argument. Paragraphs 12-17 are rejected as conclusions or argument in some instances unsupported by the record or contrary to the weight of the evidence presented. COPIES FURNISHED: Norris L. Barker 420 Northeast 18th Avenue, Unit #9 Homestead Florida 33030 Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building Annex 1550 North Miami Avenue Miami, Florida 33136
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
