The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a high school teacher assigned to Miami Norland Senior High School. Respondent holds a continuing contract. Respondent began teaching for the Dade County Public Schools during the 1968-69 school year. During that school year, the annual evaluation form utilized by Petitioner provided that a score of below 3.5 indicated unsatisfactory work. During that, his first year of teaching, Respondent received a score of 3.2 on his annual evaluation. For the next 15 years thereafter, Respondent was rated as being acceptable on his annual evaluations for each and every year. During the 1984 summer session, an incident occurred between Respondent and one of his students. As a result of Petitioner's investigation into the allegation that Respondent had committed a battery on that student, conferences were held between Respondent and administrative personnel. Respondent requested a leave of absence for the 1984-85 school year due to personal reasons, and his request for leave of absence was granted. Respondent was required, however, to undergo a psychological evaluation prior to returning to his duties as a classroom teacher. During that school year while Respondent was on leave of absence, he was evaluated by Dr. Gail D. Wainger, a psychiatrist to whom he was referred by Petitioner. Respondent thereafter saw Dr. Albert C. Jaslow, a private psychiatrist, on two occasions. Dr. Jaslow submitted two reports which contained, inter alia, a recommendation that Respondent be transferred to a different school. Dr. Wainger reviewed Dr. Jaslow's reports and her own earlier report and, on May 21, 1985, submitted a report to Petitioner stating, inter alia, that there was no barrier to Respondent's being reinstated into active teaching. Based upon that evaluation, Petitioner permitted Respondent to return to the same teaching position previously held by him for the 1985-86 school year. At the conclusion of that school year, Respondent was rated as being acceptable on his annual evaluation. Respondent again received acceptable annual evaluations for the following two years, i.e., the 1986-87 and the 1987- 88 school years. On his annual evaluation for the 1988-89 school year Respondent was rated as being unacceptable in the area of classroom management, one of the six categories of classroom performance. Pursuant to the rules governing the TADS evaluation system, a rating of unacceptable in any of the categories covered by the annual evaluation instrument requires an overall rating of unacceptable. On his annual evaluation for the 1989-90 school year Respondent was rated as being acceptable in all six categories of classroom performance, including the area of classroom management. It was specifically noted on his annual evaluation form that Respondent had performed satisfactorily during both of the official observations made of his classroom performance. However, Respondent was rated as unacceptable in the non-classroom category entitled professional responsibility. That rating of unacceptable in that one category required that Respondent's overall rating be unacceptable. The basis for the unacceptable rating in the area of professional responsibility involved the determination that Respondent had been disrespectful to students on two separate occasions. On April 16, 1990, one of Respondent's students called another of his students who had an unusual skin pigmentation condition "two-toned." Respondent immediately told the offending student, "do not call the girl two-toned." A conference for the record was conducted with Respondent on April 30, 1990, and Respondent was given a supervisory referral to the Employee Assistance Program. During the week of May 7, 1990, one of Respondent's students was being verbally abusive to the other students, and Respondent told him to stop. That student thereupon began being verbally abusive toward Respondent and using profanity. Respondent then said to that student, "you should talk. You look like Mr. Spock from Star Trek." A conference for the record was conducted with Respondent, and he was issued a formal reprimand. The summary of the conference for the record dated June 1, 1990, prepared by the principal of Miami Norland Senior High School states that the student involved has physically-deformed ears. On his annual evaluation for the 1990-91 school year Respondent was rated as being unacceptable in the areas of classroom management, techniques of instruction, and professional responsibility. Accordingly, he received an overall evaluation of unacceptable. During the 1990-91 school year there were no reported incidents of Respondent allegedly making disrespectful remarks to students. That basis for being rated unacceptable in the area of professional responsibility during the prior academic year was cured. The rating of unacceptable in the area of classroom management was based upon a number of observations of Respondent during the school year wherein the observers noted a lack of control in the classroom, Respondent's failure or inability to re-direct students who were off-task, Respondent's failure or inability to enforce classroom rules, and Respondent's failure or inability to deal with students who were tardy in coming to his class. As to his techniques of instruction, observers during that school year noted that Respondent was teaching from sub-standard books (without noting whether that was a matter within Respondent's control), that the students were confused by Respondent's directions on several occasions, that the students did not understand the lessons being taught, and that on several occasions Respondent made errors in math when writing examples on the board. Some of the observers also noted that Respondent spent too much time on some of the lessons that he was teaching. Numerous prescriptions were given to Respondent during that school year to improve his instruction and to manage his classroom, such as reading sections of the TADS manual and observing other teachers. Respondent complied with each and every prescription given to him. As to being unacceptable in the area of professional responsibility, Respondent failed to properly maintain student folders reflecting their work to justify grades being given to the students, and there were errors in Respondent's gradebook. It also became apparent that Respondent was not making parental contact for students that were performing unsatisfactorily. By March of the 1990-91 school year Respondent was directed in writing to make parental contact as required by Dade County Public School policy. By memorandum dated June 3, 1991, Respondent was notified that he was required to produce within 48 hours a complete up-to-date gradebook, a parent contact log substantiating parent contacts for the entire school year, and all student folders substantiating Respondent's gradebook. He was advised that if he did not do so, he would receive an unsatisfactory rating in the area of professional responsibility. The principal and assistant principal understood the directive to mean that Respondent must produce those documents by noon on June 6, and Respondent understood the directive to mean that he was to produce the documents on June 6. At noon, the principal was not available to Respondent. Respondent did produce many of the documents later that day. There was, of course, no parental log for the entire year since one did not exist. At the end of the 1990-91 school year a recommendation for dismissal was made. Based upon that recommendation, the School Board of Dade County, Florida, suspended Respondent from his employment effective at the close of the workday on July 25, 1991, for incompetency and gross insubordination. In 1984 Respondent filed a grievance against Assistant Principal Wessel and Principal Fowler at Miami Norland Senior High School. The subject of the grievance was that Assistant Principal Wessel had in a loud voice and in a demeaning manner criticized Respondent's lesson plans in front of other teachers, staff and students. The grievance was also filed against Principal Fowler to enlist his assistance in making Wessel refrain from repeated conduct of that nature. The Union considered the grievance to be valid and processed it through the grievance procedures. Thereafter, Respondent was advised by Fowler and Wessel that he had made a big mistake and he would be sorry for having filed that grievance. Respondent began to believe that he had lost the support of the administration and that his job was in jeopardy. When Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year he was moved to a classroom directly across from the main office. Respondent considered that action to be demeaning. He still achieved acceptable evaluations for that year and the following year. During the next school year, in the middle of February, the administration moved Respondent to an old metal shop room and gave his classroom to a new teacher. He still achieved an acceptable annual evaluation that year. For the following school year the administrators assigned Respondent to teach five low-level math classes using five different classrooms. For the last three years of his teaching career, the ones during which he received unacceptable ratings in different categories, Respondent was required to teach all low-level math classes. Although administrative personnel testified that some teachers like low-level classes, Respondent repeatedly made it clear that he did not want that assignment. Further, there is a specific contract provision between the Dade County Schools and the teachers' union prohibiting teachers from being locked into low-level classes year after year, as Respondent was. During the last several years while Respondent was achieving unsatisfactory ratings in some categories, while he was being switched from classroom to classroom, and while he was being required to teach only low-level classes year after year, the administrative staff actively undermined Respondent's authority and demeaned him in front of students and other teachers. They told teachers and students that they were trying to get rid of Respondent and that Respondent was a bad teacher. When Respondent referred disruptive students to the office, the administrative staff laughed or simply refused to take any follow-up action. On one occasion when Respondent referred a student to the office for throwing an eraser at another student, an assistant principal told the misbehaving student that he should have thrown the eraser at Respondent instead. Respondent "lost face" around the school. It became known that the students could misbehave in Respondent's classes with impunity. Even the students understood that Respondent was assigned only the most difficult of students. Although there was a new principal at Miami Norland Senior High School during Respondent's last year of teaching, the new principal, coincidentally, had been the principal for the 1984 summer session at Parkway Junior High School where Respondent had been involved in an incident with a student prior to taking his year's leave of absence from teaching. Under the new principal's administration, Respondent was retained in his assignment of five low-level math classes and was moved to the classroom directly across from the office. No evidence was offered that the new principal understood that efforts had been made to keep Respondent's authority undermined and to make him quit. It is clear, however, that no steps were taken to stop or reverse the damage to Respondent's reputation and ability to teach. In response to Respondent's referral to the Employee Assistance Program, Respondent did make the contact required of him. In fact, there were numerous contacts between Respondent and the personnel involved in that program. Additionally, Respondent was seen by Dr. Goldin, a mental health professional, on four occasions between April and June of 1990. Between June and September of 1990, he also saw an associate of Dr. Goldin eight times in individual sessions and four times in joint sessions with his wife. Respondent repeatedly requested transfers from his teaching assignment at Miami Norland Senior High School. Some of the requests were made to his principals and some of them were sent to the Office of Professional Standards. From the time that Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year, he requested transfers each and every year. He requested a transfer at least twice during his last year of teaching. Some of the requests for transfer were hardship requests and others were normal requests. Additionally, both Dr. Jaslow in 1985 and Dr. Goldin in 1990 recommended to the Office of Professional Standards that Respondent be transferred to a different school. All requests for transfer were ignored. During the last years of Respondent's teaching career, in addition to the stress placed upon him by the administrative staff's efforts to undermine and ridicule him, he experienced additional stress as a result of his wife's serious illness. He told a number of the administrative staff about the problem at home. The difficulty under which that placed him was part of the reason for the referral to the Employee Assistance Program. During those last years, during conferences with administrative staff regarding his performance, Respondent exhibited anxiety and showed signs of stress. He accused the administration of undermining him and of treating him unfairly. He even attributed some of the problems he was experiencing in the classroom to the administrators. Their reaction to Respondent's accusations was to accuse Respondent of being paranoid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent without pay for the 1990-91 school year and reinstating him as a full-time classroom teacher thereafter at a school other than Miami Norland Senior High School. DONE and ENTERED this 27th day of January, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4936 Petitioner's proposed findings of fact numbered 1, 4, 33, 35-37, 65, 67, 68, 72, and 74 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2, 3, 8, 11, 19, 32, 38, 58, 71, 75, and 77 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 5-7, 9, 10, 12-18, 20-31, 39-57, 59-64, 66, 69, 70, 73, and 76 have been rejected as being unnecessary in determining the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 34 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1, 4-11, 13, and 14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Copies furnished: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire 1450 N.E. Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Respondent holds Florida teaching certificate numbered 533966, covering the area of dental assistant on the vocational instructional level, which is valid through June 30, 1999. She holds a doctorate degree in community college teaching. Respondent began teaching at Miami-Dade Community College in 1979 and began teaching in the Dade County School System in 1983. In January of 1984 she began teaching at North Miami Senior High School and still teaches classes in health occupations at that school. At the start of the 1991-92 school year, Respondent was on maternity leave. She returned to work on April 1, 1992. Prior to Respondent's return to work, a substitute teacher was employed to cover Respondent's classes. The substitute teacher had never taught before. She telephoned Respondent several times a week for guidance and instructions. She did not have a code of conduct for students in the classes. The tests she administered to the classes were open book tests. Wendy Maisonet was a student in Respondent's second period medical skills class. During the 1991-92 school year and for the several years prior thereto Wendy had been warned, reprimanded, counseled, and suspended on a number of occasions both for cutting classes and for exhibiting defiance of school authorities. Wendy liked the substitute teacher because the students were allowed to do what they wanted in that teacher's class. When Respondent returned to work, she established a code of conduct for students in her classroom and enforced that code. Wendy did not like Respondent's methods of teaching, which included requiring the students to stay in their seats during class and not talk to each other. On April 7, 1992, Respondent gave Wendy a notice of unsatisfactory progress. On May 13, 1992, Respondent gave Wendy a second notice of unsatisfactory progress. Wendy believed that she never gave Respondent any problems in that class because, as she testified, she mostly slept during Respondent's class or just sat there and did nothing. On May 20, 1992, Wendy came to Respondent's class late. The class had already started when she came in. Wendy brought with her a petition which she had decided to circulate among the students in Respondent's second period class seeking to have Respondent fired because Wendy did not like Respondent's teaching methods or "her attitude." Wendy began circulating the petition during the class, which caused her to be in and out of her seat. She also talked back and forth with the other students, even those across the room from her, as the petition was being circulated. Respondent directed Wendy to be quiet. Respondent directed Wendy to stay in her seat. Wendy ignored those instructions. Thereafter, Wendy got up from her seat and walked across the room to retrieve her petition from Jose Perez. She talked to Jose and then began to return to her seat. As she was walking toward her seat with her petition in her hand, Respondent walked up to Wendy and took the paper from Wendy's hand. Respondent put the paper in her pocket, turned, and began walking away from Wendy. Wendy went after her, fully intending to take the paper back from Respondent. With both hands, she grabbed Respondent and held Respondent so firmly that Respondent could not move her upper body. Wendy then began shaking Respondent violently. Respondent was squirming and trying to break away from Wendy but could not. Respondent pleaded with Wendy to let her go, to get away from her, and to stop hurting her. Wendy continued shaking Respondent and would not release her hold. Respondent began crying, and she became afraid. Her heart started racing, and she felt dizzy. Respondent moved her head as though she were going to bite Wendy on the arm, and Wendy released her grip. Respondent did not bite Wendy. However, that trick made Wendy mad. She balled up her fists to punch Respondent, but one of the male students got between Wendy and Respondent. He stopped Wendy from striking Respondent and told Wendy to leave the classroom. Wendy then called Respondent "a fucking bitch", packed up her books, and left the classroom to go to the principal's office to complain about Respondent. Respondent summoned administrative personnel and the police. The police officer who arrived immediately after Wendy attacked Respondent interviewed both Respondent and Wendy. He examined Wendy's arms after Wendy accused Respondent of biting her, but Wendy's arms had no marks on them. At the final hearing, although Wendy testified that Respondent bit her, she admitted that it did not hurt and it did not leave a mark. On the other hand, Respondent showed administrative staff at the school the red marks on her upper arms caused by Wendy grabbing Respondent and holding her against her will. Those marks were still visible on Respondent's arms hours after the attack. Wendy was suspended for five days for her battery on Respondent. Wendy never returned to Respondent's class; instead, she had her mother come to the school and remove Wendy from that class. Respondent is 5 feet 4 inches tall. Wendy is 5 feet 8 1/2 inches tall. Wendy is quite overweight. Although Wendy testified she was not as overweight during the 1991-92 school year and only weighed 190 pounds at the time that she physically assaulted Respondent, the police report made on that date lists Wendy's weight as 237 pounds. Approximately a week to ten days after the attack, Respondent asked Mildred Hernandez, one of her second period students, to step outside the classroom so Respondent could speak to her for a moment. Respondent asked her if she had seen what happened on May 20, 1992. Mildred told Respondent what she had seen and also told Respondent that she had not been asked for a statement as part of the school's investigation. Respondent asked her if she would go to the assistant principal's office and tell the assistant principal what she had seen. Mildred told Respondent that she did not want to get involved and that the class was taking a test that period. Respondent gave her a pass to go to the principal's office and told her not to worry about the test because Respondent would give her an "A" on the test as long as she was at the assistant principal's office giving a statement. Respondent never asked Mildred to change her testimony. Respondent specifically asked her to tell the assistant principal truthfully what she had seen. By going to the assistant principal's office to give the statement, Mildred missed the rest of Respondent's class period and missed the beginning of her next class that day. Respondent knew that Mildred was an excellent student and did not think it was fair to make her miss the exam and then take a make-up exam when giving a statement was the reason for missing the exam. The substance of Mildred's statement and subsequent testimony was not related to receiving an "A" on that examination. After she gave her statement to the assistant principal, Respondent never discussed her statement with her, never asked her what had happened when she went to the assistant principal's office, and never again discussed the events of May 20, 1992, with her. Before Respondent returned to work from her maternity leave, Mildred had been receiving "A"s and "B"s in that class. For the nine-week grading period between Respondent's return to work and the end of the school year, Mildred received a "B" in Respondent's class.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 24th day of June, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-5697 Petitioner's proposed findings of fact numbered 1-3, 7 and 11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-6, 8-10, 13 and 14 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 12 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 1-17, 19-21, 23, and 25-27 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 18, 22, and 24 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed finding of fact numbered 28 has been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Robert J. Boyd, Esquire Bond & Boyd, P.A. Post Office Box 26 Tallahassee, Florida 32302 William Du Fresne, Esquire Du Fresne & Bradley 2929 Southwest Third Avenue, Suite One Miami, Florida 33129 Karen B. Wilde, Executive Director Education Practices Commission The Florida Education Center, Room 301 325 West Gaines Street Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Emmamaria Silva, currently holds Florida teaching certificate number 466263, covering the areas of early childhood education and elementary education, which is valid through June 30, 1994. Respondent has been employed as a teacher by the Dade County School District since 1980, and was so employed at all times pertinent to these proceedings. During the 1990-91 school year, respondent was employed as a kindergarten teacher at South Miami Heights Elementary School and taught English for Speakers of Other Languages (ESOL). Such class was designed to immerse the students in the English language through intense visual and auditory stimulation, and demanded of the teacher strong demonstrative or acting skills in addition to sound educational skills. Essentially, a teacher, such as respondent, would "bombard" the students with the English language and through various techniques, including demonstrations, achieve a level of comprehension without resort, if possible, to the children's native language. Necessarily, such a teacher, as respondent, is quite animated and demonstrative during the course of the program, and must evidence a caring and conscientious attitude. Here, petitioner charges that during the 1990-91 school year respondent used inappropriate techniques or physical force to discipline or control her students. With minor exception, the proof fails to demonstrate any significant transgression. First, petitioner charges that respondent "tied up" many students to a chair as punishment. In this regard the proof does demonstrate, with regard to the students Eric Lluis (Eric), Adrian Gonzalez (Adrian), Alexander DuQue (Alexander), Frankie and Yency, that the respondent did, on at least one occasion during the school year, wrap a jump rope around their chest and upper arms, as they were seated in their chair with their arms at their side. The rope was not, however, tied, but wrapped so loosely that it did not significantly restrain them. Such demonstrative act on respondent's part was responsive to those students moving away from their desks or walking around when they should have been seated and paying attention to her instruction. Apart from Adrian "feeling sad" because of his experience, none of the other students expressed any adverse reaction to respondent's action, and none were harmed. Apart form the foregoing, there is no proof that respondent ever "tied up" a student, with one exception. In this regard the proof demonstrates that on one occasion she bound Eric to a chair momentarily in response to his having "tied up" Adrian. According to respondent, she used such technique, and explained her action to Eric, to demonstrate the impropriety of his conduct. In her proposed recommended order respondent concedes, on reflection, that such action was not an appropriate method of discipline. Finally, petitioner charges that at some point during the 1990-91 school year respondent hit Eric and Adrian with her shoe, put soap in the mouths of Eric and Adrian for using "bad words," and put tape on the mouths of some students. The proof offered at hearing regarding these incidents failed, however, to reasonably explicate the circumstances surrounding the incidents, was vague and at times conflicting, and lacked sufficient detail from which a conclusion of impropriety could clearly be drawn. For example, regarding the accusation that respondent hit Eric and Adrian with her shoe, Adrian denies having been hit and no proof was offered regarding the circumstances surrounding the occasion Eric was purportedly hit to show how he was hit, why he was hit, or how hard he was hit. With regard to the accusation that respondent put soap in the mouths of Eric and Adrian for using "bad words," neither of these students was asked about the incident at hearing and the proof offered was less than compelling. Finally, with regard to the accusation that respondent put tape on the mouths of some students, the proof fails to identify such students or to demonstrate when, where, how or why such event occurred. Under such circumstances a conclusion of impropriety cannot clearly be drawn, and respondent's testimony that she never engaged in such punative conduct is credited As a consequence of the Dade County School District's investigation into the matter, respondent has received a letter of reprimand for using inappropriate disciplinary techniques on a student, and counseling regarding inappropriate disciplinary techniques. Apart from the incidents in this case, respondent has received satisfactory performance evaluations, and she continues to teach at South Miami Heights Elementary School without apparent further incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating the provisions of Section 231.28(1)(h), Florida Statutes, and Rule 6B- 1.006(3)(a) and (e), Florida Administrative Code, as heretofore found, dismissing all other charges against respondent, and imposing the penalty set forth in paragraph 12, supra. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April 1993.
Findings Of Fact During the 1985-86 school year, Respondent Francisco Gutierrez was a student in the eighth grade at Rockway Junior High School. Respondent was suspended a total of 38 days during the 1985-86 school year as a result of his defiant and disruptive behavior. Between November 1985 and April 1986 fourteen Student Case Management Referral Forms were written regarding Respondent's behavior by six different teachers. These complaints concerned Respondent's refusal to abide by school rules and involved such conduct as repeatedly refusing to serve detentions, refusal to work in class, preventing other students from working, refusing to sit or stand where instructed to by various teachers, refusal to refrain from talking with other students after being directed to stop talking, playing tackle football, refusal to "dress out" in his physical education class, "blasting" the foghorn during his physical education class, and throwing paper in the classroom. These various incidents resulted in Respondent's numerous indoor and outdoor suspensions. By the end of the third grading period during the 1985-86 school year, Respondent's grades were F3F in Art, D3F in Industrial Education, C2C in Physical Education, F3F in Mathematics, F3F in Language Arts, and F3C in Social Studies. Respondent's only passing grade of "C" in Physical Education was given to him by a teacher who had just taken over teaching that class two weeks earlier. Several conferences with Respondent's parents were held by school personnel during the school year. At those conferences it was learned that Respondent intended to fail in school so that when he was eventually promoted to Coral Park Senior High School, he would be older and physically more mature than others in his class and he would, therefore, be able to excel in sports. Respondent's plan is condoned by his father, and, accordingly, conferences with the parents in an effort to help Respondent were exercises in futility. In April 1986 a conference was held at Rockway Junior High School which culminated in the recommendation that Respondent be transferred into the educational alternative program at J. R. E. Lee which offers smaller classes, behavioral modification, and full-time psychologists. Respondent's own therapist agrees that Respondent is disruptive and disinterested in school and that Respondent could benefit from a more structured educational program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Francisco Gutierrez to the educational alternative program at J. R. E. Lee until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 9th day of September, 1986, at Tallahassee, 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 9th day of September, 1986. 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. & Mrs. Eugenio Gutierrez 9570 S.W. 28 Street Miami, Florida 33165
The Issue The central issue in this case is whether the Respondent, Sean F. McKinney, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
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: During the 1986-87 academic year; Respondent attended Miami Carol City Senior High School in Dade County, Florida. During the 1985-86 school year, Respondent attended junior high school and received failing grades in all of his academic courses. Respondent's promotion to Miami Carol City Senior High was done in error. Respondent's grades for the 1986-87 school year, the first two grading periods, were as follows: COURSE ACADEMIC GRADE EFFORT CONDUCT Mathematics 1st F 3 D 2d F 3 F Physical 1st F 3 F Education 2d F 3 F Language 1st F 3 F Arts 2d F 3 F Communications Social 1st F 3 D Studies 2d F 3 D Language 1st F 3 C Arts Readings 2d F 3 C Industrial Arts 1st F 3 F Education 2d F 3 F Science 1st F 3 F 2d F 3 F SYMBOLS: GRADE "F" UNSATISFACTORY EFFORT "3" INSUFFICIENT CONDUCT "C" SATISFACTORY CONDUCT "D" IMPROVEMENT NEEDED CONDUCT "F" UNSATISFACTORY Respondent was administratively assigned to the opportunity school on March 23, 1987. Respondent did not enroll at the opportunity school and did not attend classes. Consequently, Respondent's academic record for the 1986-87 term ends with the second grading period. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Carol City Senior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms and are used for behavior problems. During the first two grading periods of the 1986-87 school year Respondent caused nine Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's misbehavior is attached and made a part hereof. Theresa Borges is a mathematics teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. While in Ms. Borges' class, Respondent was persistently disruptive. Respondent was habitually tardy and/or absent from Ms. Borges' class. When Respondent did attend class he was ill- prepared and refused to turn in assigned work. When Respondent did attempt to do an assignment it was unsatisfactorily completed. The Respondent refused to work and would put his head down as if sleeping in class. On one occasion Respondent grabbed a female student between the legs. Respondent's disruptive behavior was exhibited on a daily basis in Ms. Borges' class. Larry Williams is an English teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. Mr. Williams caught Respondent fighting with another student in class. Respondent failed to complete homework assignments for Mr. Williams and turned in only 3-5 percent of his work. Respondent was disruptive and would walk around the classroom talking to other students. Since Respondent was habitually tardy he would interrupt the class with his late arrival. William E. Henderson is the assistant principal at Miami Carol City Senior High School. Mr. Henderson received the Student Case Management Referral forms that were submitted for Respondent and counseled with him in an effort to improve Respondent's conduct. Additionally, Cora McKinney was contacted with regard to Respondent's discipline and academic needs. Respondent's behavior problems were discussed in-depth with Mrs. McKinney. Such conferences did not result in any changed behavior on Respondent's part. While Mrs. McKinney made a sincere and continuing effort to bring Respondent's grades and behavior into line, such efforts did not alter Respondent's lack of progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Douglas MacArthur Senior High School-North. DONE and ORDERED this 24th day of August, 1987, in Tallahassee, 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 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1955 Rulings on Petitioner's Proposed Findings of Fact: Adopted in substance in FF #1. Adopted in substance in FF #3. Adopted in substance in FF #2. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #7. Adopted in substance in FF #7. Rejected as hearsay as to whether this student instigated the fight; otherwise adopted in substance in FF #7. Adopted in substance in FF #5 and attached Synopsis. Adopted in substance in FF #8. Adopted in substance in FF #8. Rejected as unnecessary. COPIES FURNISHED: Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Cora McKinney 3450 Northwest 194th Terrace Carol City, Florida 33054 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS SEAN F. MCKINNEY DATE INCIDENT DISCIPLINE September 26, 1986 excessive absences counseled October 16, 1986 excessive unexcused tardies and absences from class (period) Three days SCSI October 28, 1986 not attending classes conference with mother 3 days SCSI December 11, 1987 fighting excessive tardies 10 days suspension January 13, 1987 disruptive behavior, [grabbed girl between legs] five days SCSI February 5, 1987 defiant, refused to leave school property after hours 5 day suspension March 17, 1987 defiant, in halls unapproved time, left office without permission conference with parent, initiated opportunity school processing March 20, 1987 not attending school 10 day suspension
Findings Of Fact Respondent is a school teacher who has earned an associate's degree from Miami-Dade Community College, a bachelor's degree in education from the University of Miami and a master of science degree from Florida International University. Respondent has a valid and current Florida Teacher's Certificate and is certified in the areas of science and social studies. Respondent has been employed for thirteen years as a teacher by the Dade County School Board. He was employed for one year in 1965-69 re-employed in 1972 and continued his employment until his suspension on July 25, 1984. The Dade County School Board has an official policy of annual performance evaluations of all teachers. The criteria established by the Petitioner for the teacher evaluations are: (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction, (5) assessment techniques, (6) teacher-student relationship, and professional responsibility. For the years 1972 through 1983 Respondent was annually evaluated by the Petitioner, his job performance was found to be acceptable, and he was annually recommended for continuing employment with Petitioner. For the school year 1983-84 Respondent received an evaluation of "acceptable" and he was recommended for employment. However principal Henry Pinkney later amended his "acceptable" evaluation recommending that Respondent continue his employment under prescription. During the 1983-84 school year Quentin Collins was a student attending North Dade Junior High School where Respondent was one of his teachers. On May 10, 1984, Quentin Collins was one of approximately 30 students in a class taught by Respondent. On that date Collins was repeatedly talking, misbehaving, and disrupting the class. After several warnings by Respondents the student was directed to go to the teacher's desk in the front of the classroom. For the next several moments while Respondent attended to the other students in the classrooms Collins was at various times sitting, kneeling, squatting and leaning on or against the teacher's desk. After he decided to sit on the floors his back was against the teacher's desk and his legs were extended straight out so as to block the aisle next to that desk. After Respondent finished walking around the classroom and talking with other students, he turned to return to the area of his desk and literally, almost stepped on Collins' legs. As Respondent stepped over (and not on) Collins' legs, Collins raised his knees and grabbed Respondent's legs in such a manner that Respondent feared he was going to be "tripped" by the student. In a brief and sudden instant, Respondent grabbed both of Collins' legs, lifted him in the air, and then lowered Collins back down. During this brief bodily entanglement, Collins' head may have bumped the linoleum floor. The incident was not reported to the school administrators until four days later and Collins did not tell his mother about these events until a later date. Collins was examined by a physician four days after the incident. There is no evidence that the student sustained any injury or has any medical problems as a result of the incident of May 10, 1984. Although Respondent was evaluated as "acceptable" and recommended for employment by the principal of North Dade Junior High School after the incident with Collins and after the principal had been advised of the incident with Collins the May 15, 1984 Annual Evaluation of Respondent was amended by the principal on June 7, 1984 to show that Respondent was unacceptable in the area of professional responsibility. Even the "amended" Annual Evaluation fails to recommend that Respondent be terminated from his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Specific Notice of Charges filed against him reinstating Respondent as an employee of the Dade County School Board and awarding to Respondent full back pay for the period of time that he has been suspended from his employment DONE and RECOMMENDED this 8th day of May 1986, at Tallahassee 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 8th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2750 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 Dan J. Bradley Esquire 2950 Southwest 27th Avenue Coconut Grove Florida 33133 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 APPENDIX Petitioner's proposed findings of fact numbered 1-3 and 6 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, argument of counsel or conclusions of law. Petitioner's proposed findings of fact numbered 4 and 5 have been rejected as not being supported by the evidence herein. Respondent's proposed findings of fact numbered 1-11, 13, and 14 have been adopted either verbatim or as modified to conform with the evidence or style. Respondent's proposed finding of fact numbered 12 has been rejected as being immaterial. Respondent's proposed findings of fact numbered 15 and 16 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, argument of counsels or conclusions of law.
Findings Of Fact At all times pertinent hereto, Respondent, Gary Temple, was a teacher of mathematics at North Miami Junior High School, Dade County, Florida, and was an employee of Petitioner under a continuing contract. On March 22, 1983, at the close of the fifth period, Respondent noticed that the heavy door from the hall to the classroom was remaining open after the students left the room. Since this was unusual, he started toward the door to see what or who was holding it open and saw one of his students, Anthony Bermudez, throw a piece of paper, which hit Respondent in the face. When Respondent asked Bermudez why he threw the paper, Bermudez denied having done so. When Respondent asked Bermudez to come back into the room, Bermudez refused. Since Respondent did not want to make a scene in the hallway, Respondent grabbed Bermudez by the arm and pulled him back into the room. In the process of this pulling, Bermudez either stumbled or was pushed by Respondent and may have fallen against a student desk and the teacher's desk. Respondent says Bermudez was not pushed and did not hit the desks. Bermudez contends Respondent pushed him and he fell against the two desks. Another student, Lisa Judge, while not remembering any other details of the incident, including whether it was before or after class or who else, if anyone, was there, recalls seeing Respondent push Bermudez, who then fell. The proffers of the testimony of several other students who were present show that Respondent, in fact, pushed Bermudez, who then stumbled and collided with the desks. However, the cumulative evidence also shows that Bermudez has frequently thrown paper in Respondent's classroom before, is disrespectful and has been taken to the school office for discipline, by Respondent, at least three times previously. It also shows that Bermudez did throw paper at the time in question, and whether or not it was thrown directly at Respondent, he had reason to think it was. In any case, Respondent then immediately took Bermudez to the vice principal's office for discipline. Mr. Murray, the vice principal, was not there at the time, nor was anyone else with the requisite authority to take appropriate action. Therefore, since the next class period had begun, since Respondent had to plan for classes, and since Bermudez had a class to attend, Respondent gave him a pass to go, late, to his sixth period class. Bermudez suffered no injury as a result of this incident. Several days later, on Friday, March 25 1983, Respondent administered a test to his students in one of his early morning classes. It is his policy to grade tests immediately and make the grades available to the students as soon as possible. Therefore, when two of his students, Arlene Y. Pratt and Ann P. Miller, who had taken the test, asked to see their grades, Respondent told them if they would come to his classroom between classes, he would give them their grades. At the end of the fourth period, that day, Pratt and Miller showed up in Respondent's classroom asking to see their grades. Pratt indicates she asked for and got her grade. Miller was not given her grade because she had not finished the test. When the second bell rang, signaling the start of the next period, Respondent allegedly began to yell at them to get out of his classroom and pushed Pratt several times, which resulted in her bumping into the doorjamb and hitting her chest and head. She denies being disrespectful to Respondent or doing anything to provoke the attack. Respondent, on the other hand, states that he gave Pratt her grade and told Miller she did not have a grade because she had not finished the test. Pratt, however, was not satisfied with just the grade she wanted to see the test. Since at this point the bell starting the next period had rung and the students were already in the classroom, he told her she had to go. She refused several times to leave. Since he had to start his class, and since she was disrupting his class discipline, he admits he gently pushed her toward the door. At the door, she again refused to leave, so he nudged her with his hand, and she made contact with the door frame. Pratt contends she had pain in her chest and her head for about a week after this incident. Respondent denies she hit the door frame with enough force to cause that pain; and Pratt admits that just at that time, she came down with chicken pox, which could have caused her pain. Respondent did not report either incident. Pratt did not say anything about it in school that day, but mentioned it to her mother when she got home. The following Monday, Pratt and her mother reported the incident to Mr. Pittman, the principal who called Respondent into a meeting with all parties. No apologies were forthcoming from either side. Respondent understands that under the corporal punishment rule of the Dade County School Board, the principal has the sole authority to administer this action. The teacher has authority only to maintain order. In the past, however, when he has used the normal referral procedure to send disruptive students to the school administrators, he has not, in many instances, he feels, received the support he needs. Several of Respondent's colleagues who have known him as a teacher from five to ten years respect him as a competent teacher with a good reputation in his profession who maintains an orderly classroom, but who has not been known to ever have physically abused students.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be found not guilty of insubordination, incompetence, or misconduct in office, as alleged in the Notice of Charges dated June 22, 1983; that the School Board's suspension for ten days of Respondent be rescinded and that he be reinstated with full back pay. RECOMMENDED this 15th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137-4198 William Du Fresne, Esquire Du Fresne & Bradley 2929 S.W. Third Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. Second Avenue Miami, Florida 33132
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
Findings Of Fact At all times relevant hereto, respondent, Carlos C. Garay was a student in the school system of petitioner, School Board of Dade County. Most recently, he was a seventh grader at South Miami Junior High School until he withdrew from school on January 5, 1987. Petitioner proposes to reassign Carlos from the regular school program to J.R.E. Lee School. The basis for reassignment is Carlos' "disruptive behavior and failure to adjust to the regular school." This action was formalized in a letter dated December 17, 1986, a copy of which was forwarded to Carlos' mother. The reassignment prompted a request for a due process hearing. Carlos has been a student in the Dade County public school system since at least academic year 1984-85. That year he attended West Miami Junior High School (WJHS), and received final grades of F in all six subjects. His effort was generally rated insufficient, and his conduct was unsatisfactory in most classes for all grading periods. As a result of having a knife in his possession on or about June 7, 1985, Carlos was expelled from WJHS for the first semester of school year 1985- 86, and reassigned to another school for second semester. On February 3, 1986, he enrolled at South Miami Junior High School (SMJHS). At SMJHS, Carlos exhibited a continuing pattern of disruptive and rebellious behavior. This is documented in numerous case management referral forms received in evidence as petitioner's exhibits 2, 3 and 6. These forms are prepared whenever a student is referred by a teacher to the principal's office for disciplinary action. Carlos' conduct included incidents of disruptive behavior in class, hitting other students and refusing to obey his teachers. This conduct not only prevented Carlos from learning in the classroom, but also interfered with the educational process of other students. As a result of the above referrals, school officials held a number of conferences with Carlos' parents in an effort to improve his behavior. In addition, Carlos was given frequent counseling, and was referred to a child team study. None of these measures produced any positive change in his behavior. During 1986 Carlos did not demonstrate satisfactory academic progress. Indeed, he received more F's than any other grade. He also had numerous absences from class, and his effort in class was generally rated unsatisfactory. Because of his disruptive behavior and lack of academic progress, a reassignment of Carlos to an alternative school is justified.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Carlos C. Garay be reassigned to J.R.E. Lee School. DONE AND ORDERED this 23rd day of September, 1987, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Frank R. Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Ms. Carmelino Garay 6707 Southwest 215th Terrace Miami, Florida 33155 Dr. Leonard Britton Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1987.
The Issue The issue in this case is whether the Florida teaching certificate of Respondent, Edith E. Gonzalez, should be revoked, suspended or otherwise disciplined for the alleged violations set forth in an Administrative Complaint entered on September 21, 1992.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent hereto, Respondent has been a certified teacher in Florida holding Certificate No. 194394. Respondent is certified in the areas of administrative supervision, elementary education, varying exceptionalities, French, Spanish, gifted and special learning disabilities. Her certificate is valid through June 30, 1996. At all times pertinent hereto, Respondent was employed as a teacher at Miami Carol City High School (the "School") in the Dade County School District. The students enrolled in the Dade County Public School System hail from a variety of ethnic and cultural backgrounds. Miami Carol City High School has a student population that is predominantly black. Respondent is 62 years old and will be 63 in December. She is an immigrant from Lima, Peru and Spanish is her native language. Respondent has been a teacher for the School Board for 24 years. She also taught for 5 years in Catholic schools. In addition, she has taught in Korea and Ecuador. The evidence indicates that from 1985 through 1992, the School Board received various complaints regarding Respondent and/or her conduct in the classroom. Except as set forth below, the specific nature of those complaints was not established in this proceeding. In 1987, Respondent was investigated by the Professional Practices Services of the Education Practices Commission for inappropriate discipline techniques. As a result of that investigation, Respondent entered into a settlement agreement pursuant to which Respondent was placed on probation for one and a half years and issued a letter of reprimand. During the 1991/92 school year, the School Board was requested by the School to investigate allegations of inappropriate and derogatory comments purportedly made by Respondent. A formal fact finding investigation was conducted by the School Board. After the investigation was completed, a "conference for the record" was held between Respondent and School Board officials during which the investigative report was reviewed and Respondent's entire record with the School Board was discussed and considered. Respondent did not have an opportunity to review or provide input into the investigation until the conference for the record. During the conference, the School Board advised Respondent that the investigative unit concluded that the allegations of inappropriate and derogatory comments were true. Respondent was further advised that the Regional Supervisor for the School Board was going to initiate the steps necessary to suspend and dismiss her from employment. The evidence established that the School Board's decision to seek termination of Respondent's employment was based upon a review of her entire employment record with the School Board. The School Board investigation was completed on February 10, 1992, and the School Board moved to suspend Respondent and terminate her employment on or about April 1, 1992. While Respondent initially challenged the termination of her employment, on or about June 4, 1992, she decided to resign her position without a hearing. As a result, she never had an opportunity to confront the witnesses and/or challenge the investigation conducted by the School Board. The only direct evidence presented in this case regarding racial slurs and/or inappropriate and derogatory comments by Respondent was testimony from D. P., who was a student in Respondent's fourth period Spanish Class during the 1991/92 school year, and from Roxanne Mendez, who worked as a Media Specialist at the School. Their testimony was insufficient to establish that Respondent was racially prejudiced, or that she intentionally belittled, degraded, or made fun of students. The evidence established that Respondent's fourth period Spanish class was very difficult to control and included many students who misbehaved on a regular basis. Respondent admittedly had a difficult time in dealing with the class. On a couple of occasions, out of frustration, she told the students they were acting like "animals" or "savages" and told them they needed to be locked in a cage. While these comments may have been insensitive, they were not intended as racial slurs. The only student in the class who testified admitted that the comments were only made when the class was acting up and he was not personally offended by them. The evidence also established that, on some occasions when Respondent could not remember the name of a student, she would refer to them as "boy" or "girl". These comments were made to both black and white students and were not intended to be racially disparaging. While Petitioner contends that Respondent advised her students that she was prejudiced against blacks, the evidence established that any such comments were made sarcastically and/or in jest and were not taken seriously by the students. On one occasion when the students were particularly rambunctious, Respondent reprimanded them and told them they were acting "like a bunch of Haitians just off the boat." The exact circumstances surrounding this comment were not clearly established. Apparently, the aunt of one of the students was present when this remark was made and took great offense. As a result of this incident, Respondent's effectiveness as a teacher at the School was reduced. No evidence was presented of any other incidents which would justify discipline or revocation of Respondent's teaching certificate. Respondent clearly had a difficult time dealing with the serious discipline problems that existed at the School. Many of the students made virtually no effort to learn. On several occasions, students deliberately disrupted classes and Respondent's class in particular. Some of the students referred to Respondent as "Taco Bell." Based upon the evidence presented, it is concluded that Respondent was a dedicated teacher who was trying her best in a difficult situation. Respondent often emphasized to her class the need to be tolerant and overlook cultural differences with other individuals. R. W. was one of Respondent's students during the 1991/92 school year. Even though she was not in the fourth period class, her testimony was very persuasive and is given great weight. She testified that at no time during that year did she ever feel uncomfortable in any way by what the Respondent said or did in the classroom. She also testified that the Respondent never showed disrespect toward her or the class and that the Respondent never referred to students in any way which would indicate that she was prejudiced against black children. The only other student who testified, D. P., confirmed that Respondent did not make him feel ill at ease or uncomfortable or hurt or sad or offended in any way. According to him, the only critical comments made by Respondent were directed to students who were misbehaving. While on some occasions Respondent's comments may have been insensitive and ill- advised, the evidence was insufficient to establish that Respondent was racially prejudiced, and/or that she intentionally embarrassed students or deliberately made racial slurs or disparaging comments. The evidence presented regarding Respondent's personal life confirmed that she harbors no racial prejudices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 231.28(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint, but dismissing the remaining Counts. As a result of her violation of Section 231.28(1)(f), Florida Statutes, Respondent should be reprimanded and placed on probation for one year. DONE and ENTERED this 18th day of August 1993, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993.
