The Issue Whether Respondent, Latunya Gibbs ("Respondent" or "Gibbs"), committed the violations as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner, BCSB, is located at 600 Southeast Third Avenue, Fort Lauderdale, Florida. BCSB is in charge of the Broward County School District ("the District"). Robert W. Runcie is the Superintendent of BCSB. The Superintendent is statutorily obligated to recommend the placement of school personnel and to require observance with all laws, rules, and regulations. He is authorized to report and enforce any violation thereof, together with recommending the appropriate disciplinary action against instructional personnel employed by the Board. Gibbs is employed by BCSB as a teacher pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. She was first hired by BCSB on August 24, 1993. Gibbs holds a Florida Educator's Certificate in Elementary Education. The Superintendent recommended that Gibbs be terminated from her employment with BCSB. On October 2, 2018, the Board adopted the Superintendent's recommendation. BCSB provided all notice and process that was due as it pertains to the investigation and procedural requirements through the Board's adoption of the Superintendent's recommendation for termination. Gibbs was assigned as a teacher at MLE for school years 2015-16, 2016-17, and 2017-18. In 2015-16, Gibbs was assigned to teach second grade. On September 2, 2015, she was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. During the 2016-17 school year, Gibbs was assigned to teach third grade at MLE. Gibbs had 18 students in her class. On May 24, 2017, Gibbs received notice of an investigation into an allegation that she falsified records pertaining to student evaluations and achievements for promotion to the fourth grade. These records included student assessments for the Benchmark Assessment System and third grade Portfolios. On June 19, 2017, Gibbs received notice that the investigation was expanded to include an allegation that she submitted falsified documents to utilize FMLA leave and that she falsified a training certificate. Fabricated BAS Assessments The District uses the Fountas & Pinnell Benchmark Assessment Systems ("BAS"). It is used to determine a student's independent, instructional, and frustration reading levels. BAS assessments are conducted one-on-one by the teacher. In part 1 of the assessment, the student reads aloud and talks about the system's leveled fiction and nonfiction books, while the teacher observes and notes the reader's behaviors on constructed forms. In part 2, the teacher conducts a Comprehension Conversation. There is an optional part 3, which uses a reading prompt to elicit student response to the text. BAS assessments are done for all students in grade levels Kindergarten through 3, and for those students in grades 4 and 5 who score a one or two on the Florida Standards Assessment ("FSA"). For BAS, there are three assessment periods each school year. The District deadline for the third assessment period was May 26, 2017. MLE set an earlier internal deadline for its teachers of May 19, 2017, to insure that the District deadline would be met. On May 11, 2017, Gibbs was provided with a substitute so she could have the opportunity to complete BAS assessments. After school on Friday, May 12, 2017, there was a Response to Intervention ("RTI") meeting at MLE. Gibbs told Marlen Veliz ("Veliz"), MLE's Principal, that she had completed the BAS assessments for two of her 18 students. Gibbs stated that she was confident that she would be able to complete all student assessments by the May 19 deadline, and that she did not need a substitute for an additional day. Gibbs was at school on Monday, May 15, 2017, but then was absent for an extended period. She was absent on May 16 through 19, and 22 through 24. Principal Velez asked Ms. Shamequia Wright ("Wright"), a third grade teacher and union steward, and Ms. Hend Hafez ("Hafez"), an MLE Literacy Coach, to help assess Gibbs' students. On Thursday, May 18, 2017, Wright and Mr. Lawrence Hennequin ("Hennequin"), third grade team lead, entered Gibbs' classroom to look for the students' BAS folders. They could not find the BAS folders, and only found blank scoring sheets. They held up a BAS folder and asked the students where they could find the folders. The students informed Hennequin and Wright that they had never seen the folders. Hennequin and Wright left Gibbs' classroom to get their own materials so they could start assessing students. Wright proceeded to assess Gibbs' students on May 19 and May 22., 2017 On May 23, 2017, Hafez was asked to gather the BAS assessments that Wright had completed. Wright told Hafez that the assessments were on the round table in Gibbs' classroom. Hafez collected the BAS materials from the round table in Gibbs' classroom and provided them to the office. Upon trying to enter the BAS scores into the BASIS system, it was discovered that Gibbs had entered all of the students' scores on May 15, 2017. In order to have done this, Gibbs would have had to complete assessments for 16 students on that day. Principal Veliz knew this was an impossible task and, therefore, questioned the validity of the scores. Principal Veliz asked the District for a review. By May 26, 2017, the office had received all of the protocols--the student BAS folders containing the data for all three of the assessment periods--from all of the third grade teachers with the exception of Gibbs. The Assistant Principal, Joan Rosa ("Rosa"), made an announcement over the P.A. reminding all of the teachers who had not submitted their protocols to do so prior to 3:00 p.m. Gibbs never brought any of the protocols for any of the three assessment periods to the office. On May 26, 2017, Mildred Grimaldo ("Grimaldo"), Director of Literacy from the District, went to MLE to conduct a review and reassess Gibbs' students. The team conducted a reassessment of five students. Hafez reassessed the remaining students. It was found that the scores entered in BASIS on May 15, 2017, by Gibbs did not align with the reassessments completed by Grimaldo's team or Hafez. Of the 18 students in Gibbs' class, only six scored a three or above on the FSA. Six students scored a two and five students scored a one. One student was absent. Gibbs was scheduled for mandatory BAS training on January 13, 2017, but she did not attend. Gibbs received a verbal reprimand for missing the training. Gibbs received training as part of a calibration conversation that took place on April 4, 2017. The Literacy Coach also had previously shared (November 2016) a link to a Brainshark presentation, which included suggested best practices from Fountas & Pinnell and those implemented in the District. Gibbs did not review the Brainshark presentation. Incomplete Portfolios and Falsified Promotion Testing Section 1008.25(5)(b), Florida Statutes, and Board Policy 6000.1 indicate that any student in third grade who does not meet the reading promotion criteria, which is a two or higher on the FSA, can be promoted to fourth grade based on good cause promotion criteria. The good cause promotion criteria consists of the completion and passing of a third grade Portfolio as an alternative to a passing FSA score. All third grade teachers are required to have their students complete the third grade Portfolio. Student Portfolios are based on work completed by the students in connection with what they are being taught by the teacher. The teachers are to teach the State standards. The Portfolios gauge students' mastery of the reading information standards, reading literature standards, and language standards. There are eight cycles that were put together by the District to help teachers teach the reading information standards, reading literature standards, and language standards. Each cycle has certain tasks that students must complete. The tasks are to be graded by the teachers and kept as part of the Portfolios. The grade is based on a four point system, with one being the worst and four being the best. If a student does not score a three out of four on a particular standard, the student is then given an additional passage and multiple choice test. The student must receive at least a 70% on the multiple choice test to show proficiency in the standard. Scores for the Portfolio tasks as well as the multiple choice test, if necessary, are recorded on a form entitled Third Grade Assessment Portfolio: Cumulative Student Record Form ("Portfolio Record Form"). MLE had an in-house deadline of May 1, 2017, to submit all Portfolios along with the summary sheets. The District's deadline was May 5, 2017. On May 1, 2017, Gibbs emailed Hafez asking for assistance finishing the last tasks for the Portfolios. Principal Veliz received Gibbs' Portfolio Record Form and Portfolios on or about May 4, 2017. Veliz must sign each Portfolio Record Form. She also reviews the Portfolios. Veliz noticed that Gibbs' Portfolio Record Form indicated a perfect score, four out of four, for every one of her 18 students. Additionally, even though every student allegedly received a perfect score, Gibbs also had a score for the multiple choice test for every standard for every student. Had a student actually received a perfect score on the tasks, the multiple choice test would have been unnecessary. This raised a red flag for Veliz. Based on the concerns, Veliz asked Hafez and Rosa to bring her Gibbs' box of Portfolios. The box was sealed, almost completely, with duct tape. As a team, Veliz, Hafez, and Rosa opened Gibbs' Portfolio box. They spot checked a few of the students' work and noticed significant discrepancies in what Gibbs recorded and the student product. Hafez and Rosa were asked to review all of Gibbs' students' Portfolios. It took a week to review all of the Portfolios. The team found errors that included, but were not limited to: incorrect grading; the sample answer was provided (i.e., the teacher answer key); missing tasks; missing test items; task given multiple times despite mastery of the task; blank or incomplete tasks; discrepancy in time frame of dates; items done as homework as opposed to class work; missing multiple choice sheets; and the inclusion of non-summative task items. Veliz reached out to Ms. Nicole Mancini, Director of Elementary Learning, to have someone from the District rescore the Portfolios. Dr. Teri Acquavita and Ms. Shellie Gory ("Gory"), supervisors for the District, conducted a District review. There were discrepancies between the District review and Gibbs' grading. On May 9, 2017, Veliz emailed Gibbs requesting her monthly data along with the alternative portfolio multiple-choice assessments. Gibbs submitted the monthly data. Gibbs did not submit the multiple-choice alternative data, and has never submitted the multiple-choice data. However, on that same day, Gibbs sent two of her students to Hafez asking for copies of the multiple-choice tests. Gibbs told all of the parents that their students would be promoted. Unfortunately, five of Gibbs' students scored a one on the FSA. The Portfolios should have been used as good cause promotion criteria for those students, but they were too deficient. The students were promoted and placed into intervention programs the following year. Falsified Test Administrator Certificate School year 2016-17 was the first year that the FSA was to be given to students via computer. All MLE teachers were directed by Veliz to complete a Test Administrators' ("TA") Certification Course from American Institutes for Research ("AIR"). The FSA was given on April 27 and 28, 2017. On February 7, 2017, the school was scheduled to take an infrastructure practice test to make sure the school's system had the capacity to handle the testing by computers. On February 6, 2017, Gibbs received assistance from School Counselor, Ms. Gigi McIntire ("McIntire"), and the Micro-Tech, Mr. Osvaldo Hernandez ("Hernandez"), to create her password and receive a link for the infrastructure practice test. Gibbs' class did not take the infrastructure test. On February 8, 2017, Veliz met with Gibbs to discuss the fact that her class had not completed the infrastructure test and the importance of practicing with her students prior to the FSA. During the meeting, Gibbs claimed that she had not been given the link and she had not received the password until the very end because Hernandez had helped all other teachers and left her for last. This was not true, however, because Gibbs received her password and the link on February 6, 2017. Gibbs submitted a TA Certificate on March 13, 2017, which had her name handwritten on it and which did not state a date of completion of the course. The certificate looked as though it was a screen shot from the computer. The certificates that were submitted by all other teachers looked different. They had their names typed on the certificate and the date that the course was completed. Gibbs was supposed to have her students practice taking the test on a computer. The expectation was that students would have done this multiple times before having to take the FSA. On April 24, 2017, Veliz approached some third grade students and asked them how their computer practice test was going. Several students from Gibbs' class stated that they had not practiced yet because their teacher did not know how to log in. Students from other classes stated that they had practiced several times. This alarmed Veliz. Veliz asked McIntire to provide copies of all the TA Certificates. Veliz saw that the only certificate with a name handwritten in was that of Gibbs. Veliz contacted the AIR Help Desk. Mr. Anthony Nembhard ("Nembhard") confirmed that Gibbs had only used her password to log in on February 6, 2017, and had not logged in at any other time. Nembhard provided Veliz with Case No. 545991, and showed Veliz how to print a report indicating that Gibbs had not completed the course. It was uncovered that a teacher could scroll through the course without actually taking it and get to a "Congratulations!" page that looked like what Gibbs had submitted as her certificate. A screen shot of this page could be printed out. On April 25, 2017, Veliz went into Gibbs' classroom with Hernandez to assist students in practicing prior to the test. None of the students had any idea how to log in, did not know which browser to use, and every single one of them indicated that it was their first time accessing this practice test. The students were confused and did not know how to log in. This student confusion took place in the presence of Gibbs, Hernandez, and Veliz. When Gibbs was asked if she had her students do the practice test, Gibbs indicated she had done everything she needed to do. Gibbs' defense, that her printer was not functioning properly to print a complete TA Certificate, is not credible. Gibbs apparently printed a TA Certificate in which everything printed perfectly, except her name, which she handwrote. She offered no explanation for failing to provide instruction to her students on how to utilize the computer so they would be ready to take the FSA. Falsified FMLA Certification of Healthcare Provider Gibbs sought and was granted Family Medical Leave Act ("FMLA") intermittent leave in 2012. Gibbs reapplied for FMLA intermittent leave every year thereafter from 2013 to 2015, and was approved by Ms. Marjorie Fletcher ("Fletcher") of the BCSB Leaves Department on each instance. Gibbs submitted a FMLA certificate of healthcare provider form from ARNP Princy Bhat-Bhardwaj ("ARNP Princy"), certifying Gibbs' need for another FMLA leave for the period of November 15, 2015, to November 15, 2016. ARNP Princy is employed by Metcare, Gibbs' primary medical care provider. The frequency and duration section of the form on paragraph 11 were left blank. In order to process Gibbs' leave request, Fletcher faxed this form back to Metcare to request that it fill in the frequency and duration section of the form. The form was faxed back to Fletcher with the frequency and duration section of the form filled in. However, Fletcher noticed that the beginning and ending dates of the certification on paragraph nine, as well as the date of the signature on the bottom of the form, were whited out and written over. Fletcher called Metcare to verify their fax number which was fax-stamped at the top of the form. A person at Metcare could not verify the phone number listed on the top of the form. ARNP Princy confirmed to Fletcher that the handwritten portion of the date of the signature was not her handwriting. ARNP Princy also confirmed that the beginning and ending dates of the certification on paragraph nine of the form was not her handwriting. ARNP Princy testified that if she signs a form, it is her practice to date the form at the same time. According to ARNP Princy, Metcare's procedure for filling out and executing FMLA certifications is directed by the patient. In some instances, they fill out and execute FMLA certifications and directly send it to a patient's employer. In other instances, the form is handed back to the patient to submit to their employer. Gibbs submitted another FMLA certificate of healthcare provider from ARNP Princy, certifying Gibbs' need for another FMLA leave for January 29, 2016, to June 10, 2016. On May 23, 2017, legal counsel for Metcare, confirmed to the Leaves Department that it had not completed a FMLA certificate for Gibbs since January 2015. It is evident that one or more FMLA forms submitted on behalf of Gibbs were falsified. However, no evidence was presented that the documents were altered by Gibbs or that they were ever in her possession prior to their submission by someone to the Leaves Department. Although no one other than Gibbs would seemingly have a motive to modify these forms, Gibbs denied falsifying them. While Fletcher certainly had a legitimate basis to question the validity of these forms, there was insufficient evidence to demonstrate that Gibbs knowingly submitted false information to secure ongoing intermittent leave. Prior Discipline Gibbs has prior disciplinary actions consisting of two verbal reprimands and several corrective actions (i.e., summary memoranda). She received a verbal reprimand on January 27, 2017, for failing to attend the scheduled Professional Learning Community on BAS at McNab Elementary on January 13, 2017. She received another verbal reprimand on December 11, 2017, for intentionally exposing a student to unnecessary embarrassment or disparagement. Gibbs received received summary memos concerning: the need to attend all scheduled afternoon meetings; the need to promote positive interactions with students; the need to be punctual; the need to follow procedures and protocols for drills; the need to instruct for an entire period; the need to closely monitor and track student progress; the need to adhere to timelines and complete school-wide assessments in a timely manner; the need to understand standards; for sending a grammatically incorrect letter to a parent; for lack of intervention with behavior issues in the classroom; for intentionally exposing students to embarrassment with references to boyfriends and girlfriends; the need the adhere to timelines and complete school-wide assessments in a timely manner; and the need to use guided reading during the reading block. On September 2, 2015, Gibbs was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. The personnel investigation involved two issues. One issue was about conduct that occurred during the 2014-15 school year when she was assigned to Walker Elementary as a VPK teacher. The alleged conduct was that she charged parents a fee if their child was picked up late from VPK and that she planned on charging a fee for the end of school graduation ceremony. The other issue was for conduct that occurred during the 2015-16 school year. It was alleged that on August 26, 2015, she pushed a student out of the classroom and pinched his back. Based on these two incidents, the Education Practices Commission issued a letter of reprimand to Gibbs, which is part of her BCSB personnel file. Ultimate Findings of Fact The evidentiary record overwhelmingly reveals a pattern by Gibbs of misconduct, gross insubordination, incompetence, willful neglect of duty, and violation of school board policies. The evidentiary record amply supports suspension without pay and termination of her employment for just cause.
Conclusions For Petitioner: Denise Marie Heekin, Esquire Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 6th day of March, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 6th day of March, 2020. COPIES FURNISHED: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675 (eServed) Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, 10th Floor Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue for determination is whether Respondent should be suspended, without pay and benefits, and terminated from employment with Petitioner for the offenses set forth in the Amended Administrative Complaint.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: (a) the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an intern principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time intern principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: Finding that Doreen Maynard committed misconduct, immorality, and gross insubordination, violating section 1012.33(4)(c), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(2), (3), and (4); and Suspending Doreen Maynard, without pay and benefits, and terminating her employment. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 21st day of July, 2011.
The Issue Whether Polk County School Board ("School Board") has just cause to terminate Judy Gail Vann ("Respondent" or "Vann") pursuant to Section 1012.34, Florida Statutes.
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: Respondent started working for the School Board in 2000. During the last ten years, she has taught English. In November 2008, the School Board recommended Respondent's termination for excessive absenteeism, dishonesty, ongoing gross insubordination, and not preparing lesson plans. The case came before the Division of Administrative Hearings in Case Number 09-0955.1 On August 20, 2009, a Recommended Order was entered concluding that a preponderance of the evidence in that case did not support the alleged acts in the charging document, and Respondent was reinstated with full back pay. After the School Board reinstated Respondent, for the 2009-2010 school year, she was assigned to Traviss Career Center ("Traviss") to teach 11th and 12th grade English. Prior to this assignment, Respondent had never taught in a high school. Traviss is a school for high school students and adults. Both high school diplomas and certificates in a career field or vocational trade are available to graduates. Traviss students that are trying to achieve a regular high school diploma take the FCAT. Seventy-seven percent of the student population at Traviss who took the 2008-2009 FCAT were reading at level two or below. Level two is a fifth-sixth grade reading level. Polk County requires that the 11th and 12th grade students do the same work as their counterparts at the traditional schools and follow the same curriculum maps.2 Alan Harrell ("Harrell"), the assistant director of curriculum, was Vann's supervisor at Traviss. His primary responsibility is to oversee the academic programs. Such duties include monitoring lesson plans and learning guides, and keeping the curriculum maps on target. Harrell also oversees students' grades and makes sure students are getting the right courses for their diploma. Harrell supervised Vann during the six periods she taught a day. Three of the classes were English III for juniors and three were English IV for seniors. Vann tried to be creative when teaching the curriculum maps. When the students were required to study Shakespeare, Chaucer, and epic works such as Beowulf, she would often-times show modern movies like Hercules to keep the students interested. Harrell did not think the movies were the best teaching methods for the students. Harrell made regular visits to Vann's classroom and met with her about various issues periodically. During Harrell's second meeting with Vann on October 16, 2009, some items discussed were students' grades, homework, and lesson plans. On November 17, 2009, Harrell emailed Vann to instruct her about her lesson plans for the two previous weeks. The email stated: Please post your lesson plans for week of 11/09/2009 and for week of 11/16/2009. They should be posted on Friday prior to the next week so we have some guideline for the substitute to be able to follow when the teacher is absent. During Harrell's fifth meeting with Vann on November 30, 2009, Harrell discussed several areas of concern. The first was her lesson plans not being posted. During the first semester, Vann was absent from school approximately 15 days. On December 11, 2009, Harrell met with Vann again to discuss proper protocol and procedures for preparing lesson plans. Harrell also discussed Vann's numerous absences and the effect on the students. On January 11, 2010, Harrell contacted Vann again about incomplete lesson plans by email. It stated: In reviewing your lesson plans for the week of 1/11/2010, I observe a number of discrepancies that need to be corrected. "same as above" under PLANNING does not define the objectives. "same as above" under PLANNING does not define the Standards/Benchmarks. Under Procedures/Activities, a description of what the intended activity is going to be needs to be described. As previously discussed your lesson plans need to be in line with the curriculum map. On January 13, 2010, Vann emailed Harrell and informed him that she had "reposted the completed version of the lesson plan template for 1/11/10." Deficiencies in Vann's performance as a teacher and absences from school continued into the second half of the school year. Vann's posted lesson plans were incomplete or insufficient, and she would email lesson plans to the school on the mornings when she was absent. Vann was absent approximately 10 days without pay between January 7, 2010, and February 11, 2010, including the 11th. The emails Vann sent during that period listed the following explanations for her absences: January 7, 2010, "I have no voice."; January 11, 2010, "Sick . . ."; January 12, 2010, at 5:19 a.m., "Sick since Friday . . . trying to see doctor today"; January 12, 2010, at 5:24 a.m., "As stated my lesson plan template was incomplete for 1/11/10 because I have been sick and was unable to complete the template."; January 19, 2010, "I have been down with a Migraine for three days and I hope to be able to see the doctor today."; February 9, 2010, "I am having very severe back problems and have a doctor's appointment today."3 On February 12, 2010, Respondent was in a car accident on the way from school on Thornhill Road. A car slammed into her going approximately 55 miles per hour in the drizzling rain. Vann first sought medical treatment on February 25, 2010, from a chiropractor, Dr. Sundermeyer.4 Vann was treated the rest of the school year for her back and spine by the chiropractor. As a result of Vann's continuing decline in performance, on February 25, 2010, Respondent received a Notice of Unsatisfactory Performance, which advised that she had performance deficiencies and was being placed on a 90-day probationary period pursuant to Section 1012.34(3)(d), Florida Statutes. The Notice of Unsatisfactory Performance informed Respondent that she had failed to perform satisfactorily in the following aspects or duties of her job: You have had excessive absences. You have failed to prepare and maintain current lesson plans for your classes. In addition to the fact that the preparation of lesson plans is a requirement of your job, your failure to prepare such plans has made it extremely difficult to maintain the educational process for your students during your absences. The management of your classroom environment, including student discipline, has been extremely poor. You have failed to prepare and deliver appropriate or effective teaching strategies for your students. You have failed to maintain an appropriate and distinct relationship as a teacher with your students. A meeting was held on March 1, 2010, with Vann to discuss recommendations and a plan of action to provide assistance in correcting the deficiencies identified in the Notice of Unsatisfactory Performance. Dr. Dickens, Harrell, Mrs. Amy Hardee("Hardee"), Ms. Angela Dawson, and Vann with her PEA representative attended the meeting. At the March 1, 2010, meeting Vann was informed that she needed to correct the following deficiencies: excessive absences, lesson plan preparation, classroom management, effective teaching strategies, and maintaining an appropriate and distinct relationship with her students. After the meeting, Vann and her union representative met with Hardee, the senior curriculum coordinator of language arts. Vann indicated that her textbook resources were out of date and requested Hardee fix the problem. Hardee immediately located literature and grammar books and made arrangements to have them delivered to Vann. On March 2, 1010, Vann received her 90-Day Corrective Action Plan that specified the following five areas that Respondent was to correct during her probationary period from March 2, 2010, to May 30, 2010: Excessive Absences-It was agreed that you will provide Traviss Career Center a doctor's note when you are ill. You will also make a diligent effort to contact Ms. Loretta Stewart(Principal Secretary) before 6:30am when you are not going to be at work. This will allow sufficient time to obtain a substitute instructor for your class. Lesson Plans-To assist you with improving your classroom management skills, it was suggested that PD 360 be used. Outlines of the segments are attached for your use. Classroom Management-To assist you with preparing lessons for your class, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Effective Teaching Strategies-To assist you in developing effective teaching strategies, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Maintaining a distinct relationship-It was recommended that you refrain from use of unprofessional language and allowing disruptive student behavior during instructional time. You are to work on building a better instructional relationship with your students and expect the respect you deserve. * * * Traviss will provide a substitute for you on Mondays and Thursdays for the remainder of this school year to allow you time to work in the above mentioned areas of deficiency. It is your responsibility to be present at school and working on the criteria listed above. To address the issues with lesson plans, classroom management, and effective teaching strategies, Hardee assigned Vann 39 segments of Professional Development 360 ("PD360") training to view and complete the questions during her probationary period.5 Vann had less than seven hours of PD360 training to complete during her 90-day probationary period. Respondent was provided a list of the 24 modules addressing classroom instruction and 15 modules on differentiated instruction. Each module included a video Vann was to view, followed by approximately six reflection questions that were to be answered on-line by her. On March 2, 2010, Vann acknowledged her understanding and agreement to adhere to the corrective action plan with her signature. To ensure that Vann was successful in completing her PD360 training, a substitute instructor was hired for classroom instruction to allow Vann some time to complete the professional development plan during the 90-day probationary period. However, Respondent chose not to come to work and was absent most of the remainder of the school year. While on probation, from March 3, 2010 to May 5, 2010, Respondent was absent without pay 12 days during March and 17 days during April 29 days.6 Respondent claims that she was not at work because she was sick and couldn't attend. However, Respondent only provided one medical note excusing her from working due to illness. Vann provided the School Board a note that excused her from work from March 17, 2010, until March 18, 2010, which was on an Auburndale Chiropractic, LLC Authorization for Absence form.7 Respondent also provided the School Board a letter dated May 10, 2010, that specified treatment but did not indicate Vann was prohibited from attending work. The letter was from the same chiropractor, Dr. Sundermeyer, on Auburndale Chiropractic, LLC letterhead, not an Authorization for Absence form as previously submitted by Respondent for the March 2010 excused absence. The letter on her chiropractor's letterhead stated: To Whom It May Concern: I am writing in regards of my patient, Judy Gail Vann. I have been treating Ms. Vann for neck pain and lower back pain since February 25, 2010. She has been under my constant care 3 times per week since she started her treatment in this office. Please feel free to contact me if you have any questions concerning my patient's health. Thank you, Dr. Sara Sundermeyer8 During her probationary period, Vann never sought treatment from a medical doctor other than the chiropractor, Dr. Sundermeyer. Respondent was not prohibited from attending work due to her illness.9 Vann failed to provide a doctor's note indicating that she could not attend work for her 29 days of absences without pay during her probationary period. Vann improved with her lesson plans. However, starting April 13, 2010, Respondent submitted the same lesson plans for all classes, no matter whether for the 11th or 12th grade students, and did not distinguish between the separate curriculums required for each grade. While on probation, Vann viewed only 15 of the assigned 39 PD360 modules.10 She completed one of the 15 reflection questions and answers, which was a total of two and one-half hours of the seven hours assigned. Vann also failed to meet either the criteria of contacting Ms. Loretta Stewart (Principal's Secretary) when absent or making the contact before 6:30 a.m. some mornings including: April 5, 2010; March 17, 2010; and April 15, 2010.11 By letter dated May 14, 2010, Principal Dickens ("Dickens") informed Vann that a decision had not yet been made on her reappointment at Traviss. The letter further informed Respondent that she had failed to fulfill several of the requirements for her 90-day Corrective Action Plan, including not providing a doctor's note covering all of her absences for illness when she was ill and unable to report to work and failing to complete the PD360 segments designed to help her with her classroom management skills, lesson plans, and effective teaching strategies. On June 3, 2010, Dickens recommended to Superintendent Gail McKenzie that Respondent's employment be terminated for failure to comply with the 90-day Corrective Action Plan, and her failure to perform her duties as an English teacher. The following items were identified as not being completed during the probationary period: failure to provide physician's notes when absent; Dr. Dickens' secretary was not contacted on days Respondent was absent; and the failure to complete the PD360 training. By letter dated July 15, 2010, Respondent was informed that the Superintendent would recommend her termination because Vann had "failed to correct [her] performance deficiencies, failed to complete [her] Professional Development Plan, and that there is 'just cause' for [her] termination pursuant to Section 1012.34, Florida Statutes."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Polk County School Board enter a final order ratifying Vann's termination from further employment in Polk County Public Schools. DONE AND ENTERED this 21st day of December, 2010, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 21st day of December, 2010.
The Issue Whether the School Board of Broward County, Florida (School Board) has just cause to terminate Respondent's employment based on the allegations set forth in the Administrative Complaint dated May 13, 2010.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. At all times material hereto, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract. At all times relevant to this proceeding, Respondent was assigned to Ashe Middle School where she taught reading and language arts. Respondent holds a Florida educational certificate that has both reading and gifted endorsements. During the time Respondent taught at Ashe Middle School, the school was considered a low performing school. There was a high level of student turnover and a relatively high number of foreign students who did not speak English. Respondent had an advanced reading class that read on grade level. Most of her other students read below grade level.1 Pursuant to a collective bargaining agreement (CBA) with Broward Teachers Union and applicable law, which will be discussed in the Conclusions of Law section of this Recommended Order, School Board has adopted a system to assess teachers known as Instructional Personnel Assessment System (IPAS). Subsection (F)(1)b of Article 18 of the CBA contains the following guiding principle: b. The School Board and BTU [Broward Teachers Union] acknowledge that the assessment process should recognize the professional nature of teaching and supervision. Educational research has not identified a single uni-dimensional construct called "effective teaching." Teachers must pursue a variety of models of effective teaching. It is recognized, moreover, that the educational environment is complex and variable and great weight should be placed on teacher judgment to guide the activities of student learning. Subsection F(2)(e) of Article 18 of the CBA requires that the principal, director, or his/her designee evaluate each employee at least once a year utilizing IPAS. Rating criteria are defined on the IPAS form in the following categories: Instructional Planning Lesson Management Lesson Presentation Student Performance Evaluation Communication Classroom Management Behavior Management Records Management Subject Matter Knowledge Other Professional Competencies The evaluator rates the employee as to each criterion and for overall performance. The rating can be "satisfactory", "needs improvement", or "unsatisfactory." Subsection F of Article 18 of the CBA describes IPAS. Pursuant to the CBA, the assessment system requires a teacher, whose performance has been deemed deficient in one or more areas by an appropriate school administrator, to be placed on a Performance Development Plan (PDP). A school administrator develops the plan and monitors the employee's progress in completing the plan. Subsection F(2)(m)2 of Article 18 of the CBA provides as follows as to the use and implementation of a PDP: Use and implementation of this plan requires identification of deficiencies, definition of strategies for improvement, definition of an assistance timeline, definition of expected outcomes, definition of possible consequences for failure to remediate, completion of assistance activities, and documentation. Subsection (F)(2)f of Article 18 of the CBA provides as follows: The following five (5) techniques are used to gather data on employee performance. Assessors use multiple techniques to understand actual performance and develop performance ratings. Informal classroom observations: Informal observations are made periodically by the principal or designee. A follow-up conference is not required subsequent to an informal classroom observation if performance is deemed satisfactory. Formal classroom observations: Formal observations are primarily initiated by the principal or designee. Employees may, however, request a formal observation. These are not less than 30 minutes in duration and are conducted by the principal, director or his/her designee. The 30 minute time period may be shortened by mutual agreement between the principal and the affected employee. All observations of employees for the purpose of assessment shall be conducted with the full knowledge of the employee. A conference is conducted after each formal observation. The FPMS [Florida Performance Measurement System] or other educationally sound observation instruments which may be used for formal observation.[sic] Observations in non-classroom situations: Principals use opportunities outside the classroom to observe the performance of employees. A follow-up conference is not required subsequent to this type of observation if performance is deemed satisfactory. Review of records and data: Principals review a variety of work samples prepared by the employee. These may include lesson plans, reports, grade card comments, discipline referral documents, etc. In addition, specific records or plans may be requested for review. A follow-up conference is not required if performance is deemed satisfactory. Review of performance portfolio: The principal or designee and the employee may mutually decide that a performance portfolio is needed to provide additional information for the completion of the assessment ratings. The design of a portfolio is determined by the principal and employee. A follow-up conference is not required if performance is deemed satisfactory. A teacher placed on a PDP is given 90 calendar days, excluding school holidays and vacations, to correct the identified performance deficiencies. If, at the end of the 90- day probation period, the performance of the employee remains at an unsatisfactory level for one or more of the assessment criteria, a rating of U (for unsatisfactory) is given. At that juncture, the administrator can extend the PDP period, or he/she can refer the matter to the Office of Professional Standards for further proceedings. Mr. Luciani was the principal and Mr. Muniz was an assistant principal at Ashe Middle School during the 2006-07 school year. On December 11, 2006, Mr. Muniz wrote a memo to Respondent. The memo is quoted verbatim because it targeted problems that continued throughout Respondent's tenure at Ashe Middle School. The memo is as follows: This correspondence is to document the last few week's [sic] events when it was determined that your job performance has been less than satisfactory in the following areas: Behavior Management-managing student behavior Records Management-management of data Communications Instructional Planning On December 7, while doing a classroom visit that lasted 31 minutes I noticed a lack of classroom management. It took almost seven minutes to get the class under control to start your lesson. While there were only 11 students in your room, yet, only five students were on task. You continued to do your lesson despite the disruptions. I am not sure if you were aware or just ignored the disruptions. In the last few weeks you have banished, kicked out, or attempted to kick out students everyday for almost twelve consecutive days. In the past Mr. Hart, Assistant Principal, and I have mentioned that the students should be accompanied by an escort or if you have a receiving teacher you should wait at the door until the child is situated. In at least five occasions your students have been caught wandering the halls because you have kicked them out. There have been many times while on hall duty that I noticed you kicking students out and the class has not yet started. This is unacceptable. You are responsible for the students in your class. When they are unescorted the possibility of injury exist [sic] due to your negligence. The students have not sat down and you attempt to remove them from class. This is also unacceptable. Prior to our recent data conference it was 12:15 in the afternoon and you requested to find out what data you needed at the conference. I directed you to Ms. J. Shakir[,] reading coach[,] who assisted you in securing minimal data for the conference. Please note that there had been four data presentations regarding preparation for the data conferences conducted by Mr. Fleisher and Ms. Lumpkin form c-net. Ms. Shakir and Ms. Pickney also conducted data disaggregation workshops in the previous weeks. While at the conference itself you appeared to know very little with regard to your student data. You were not familiar with your BMA results or the progress your individual students or classes had made. There was no attempt made at providing categorical breakdowns of students which needed prescriptive strategies to address their needs. The confrontational manner with which you speak to children is a direct factor in the lack of classroom management. Your lack of communication skills has led to referrals on many students which have led to major consequences for students after the referrals led to escalated verbal confrontations. During various grade level meetings, I have requested that all teachers provide me with emergency lesson plans every two weeks. To date I have not received any of these plans. Our expectations for each of the above listed concerns are: First and foremost, resolve the discipline problems in compliance with the policies of the school, rules of the District School Board and [sic] the State Board and Florida Statutes. Next, maintain consistency in all application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction. You must prepare for your students all day every day. Lesson plans must be meaningful and relevant to your content area. Studies show that students who are authentically engaged are less prone to deviant [sic] behavior. You must maintain complete order in your classroom. The Principles of Professional Conduct for the Education Profession in the State of Florida requires that the educator make reasonable efforts to protect the students from conditions harmful to learning, and/or to the students' mental, and/or physical health and/or safety. In the next few weeks you will be provided with assistance from behavior specialists, reading/curriculum coach and c-net personnel to assist you in meeting expectations. In February 2007 Respondent was placed on a PDP. Mr. Muniz monitored Respondent's progress and opined that she had not successfully completed the PDP. Mr. Luciani disagreed and instructed Mr. Muniz to give Respondent a satisfactory evaluation, which he did.2 Mr. Luciani was the principal and Mr. Hart was an assistant principal at Ashe Middle School during the 2007-08 and 2008-09 school years. Mr. Hart received a written complaint from a student that on October 1, 2008, Respondent told the student that the student's mother was unfit and did not know how to raise the student. In response to that complaint, on October 3, 2008, Mr. Hart issued Respondent a letter addressing the inappropriate manner in which she had addressed students, which included the following: On numerous occasions you have been counseled regarding your inappropriate comments/behavior towards students. This behavior includes embarrassing, disparaging, and/or awkward comments and/or actions. It has recently been brought to my attention that, once again, you have exhibited this behavior. * * * I am directing you to cease and desist all actions/comments of this nature immediately. You are to speak to students in a respectful, professional manner at all times. Mr. Hart, Respondent, and the student's parent met to discuss the alleged statements made by Respondent to the student. During that conference, Respondent became angry and left the meeting. Later, Mr. Hart met with Respondent to give her a copy of his letter dated October 3. Respondent took the letter and walked out of the meeting without signing the acknowledgment that she had received the letter. Respondent slammed the door as she left Mr. Hart's office. Mr. Hart received numerous complaints from parents and, as a result, transferred several students from Respondent's class to another class. On February 5, 2009, Mr. Hart observed Respondent arguing with a student in her classroom. He admonished her in writing to not be confrontational with students. Respondent's conduct on February 5, 2009, was inconsistent with Mr. Hart's admonishment to her on October 3, 2008. In an undated memorandum subsequent to January 20, 2009, Mr. Hart set forth the following issues that continued to be of concern despite his previous discussions with Respondent: Parent phone calls from her classroom Completing assignments Checking emails Inputting grades into Pinnacle (a computer database) Being prepared for instruction On February 18, 2009, Mr. Hart issued a written reprimand to Respondent for her failure to input student grades into Pinnacle. Respondent was placed on a PDP on February 13, 2009. Noted under the categories "Lesson Management" and "Lesson Presentation" were the failures to meet the following criteria: Orients students to classwork, specifies purposes of activities and relationship to the objectives; Prepares the classroom materials and equipment for the presentation of the lesson; Selects and uses appropriate instructional techniques including available materials and technology which support learning of the specific types of knowledge or skills; and Asks questions which are clear and require students to reflect before responding. During the PDP period that began February 13, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. On May 28, 2009, Mr. Hart completed an IPAS evaluation that rated Respondent unsatisfactory overall and as to the following five categories: "Lesson Management", "Lesson Presentation", "Student Performance Evaluation", "Classroom Management", and "Behavior Management." Mr. Hart rated Respondent satisfactory as to the remaining five categories. Mr. Hart placed Respondent on a second PDP that extended into the 2009-10 school year. At the end of the 2008-09 school year, Mr. Luciani retired. Before the start of the 2009-10 school year, Ms. Peebles became principal of Ashe Middle School. Respondent failed to enter grades and other data for students during the first marking period of the 2009-10 school year. That failure hindered the assessment of each student's needs and made it more difficult to monitor each student's progress. On November 19, 2009, Ms. Peebles conducted an IPAS evaluation for Respondent as to the PDP Mr. Hart had placed her on at the end of the 2008-09 school year. Ms. Peebles found Respondent to be deficient in the same five categories as Mr. Hart's evaluation, and she rated Respondent's overall performance as unsatisfactory. During the PDP period that began May 28, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. After her evaluation of November 19, 2009, Ms. Peebles had the options of referring Respondent to the Office of Professional Standards for further proceedings or placing Respondent on another PDP. Ms. Peebles elected to place Respondent on another PDP (the last PDP) because Ms. Peebles was new to the school and she wanted to give Respondent another chance to prove herself. At the conclusion of the last PDP, Ms. Peebles conducted an IPAS evaluation, which was dated April 19, 2010. Respondent remained unsatisfactory in the same five categories as the previous evaluations by Ms. Peebles and Mr. Hart, and her overall evaluation remained unsatisfactory. Throughout her employment at Ashe Middle School, Respondent exhibited a pattern of being absent on Fridays and Mondays. Respondent failed to correct that deficiency after having been counseled by administrators. During the 2009-10 school year, Respondent repeatedly failed to timely provide or leave appropriate lessons after having been counseled by administrators to do so. Respondent was instructed to give her lesson plans to Ms. Brown, the Reading Coach and Reading Department Chairperson, during that school year. Respondent never provided Ms. Brown a complete set of lesson plans the entire year. During the 2009-10 school year, Respondent repeatedly failed to demonstrate that she could control her classroom. She made multiple calls to security on nearly a daily basis and she continued to kick students out of class, which left them in the hallways, unsupervised. The Benchmark Assessment Test (BAT) is a county created test that is administered twice a year in September and again in November. The test is designed to measure the progress, if any, the student has made between the testing dates. The test is also used as a predictor for the Florida Comprehensive Achievement Test (FCAT). The vast majority of Respondent's student's test scores depict either no growth or a regression in all classes. A Mini-BAT is an assessment tool used to develop and provide effective lesson plans as well as student growth. The teacher is responsible for administering the assessment tool to her students and thereafter inputting the results in the computer database. During the 2009-10 school year, approximately half of Respondent's students either were not tested or had no score inputted after being tested. The DAR Assessment is a two-part standardized test designed to measure a student's ability at word recognition and all reading frequency. The test is administered twice a year, once in September and again in January. Ms. Brown administered the tests at Ashe Middle School during the 2009-10 school year. Ms. Brown scored the tests and gave the score results to Respondent, who was required to input the scores in the computer database. The Florida Department of Education (DOE) requires that 90 percent of the students complete the tests, which gives a 10 percent leeway for students who are absent on test days. Students are placed in reading classes based on their test result. The tests also measure each student's progress, or lack thereof, between the test dates. Forty-five percent of Respondent's students had no scores. Nineteen percent of those with scores had no gain. Mock FCATs are periodically administered to students following Mini-BATs. The Mock FCATs administered to Respondent's students during the 2009-10 school year were created by Ms. Brown. Ms. Brown utilized previous iterations of the FCAT that had been released by DOE in an effort to simulate the actual FCAT process in terms of difficulty and complexity. The tests are graded by computer and the scores are given to the teacher to input into the computer database. The results of the Mock FCATs are used to develop instructional plans for students. Sixty-three of Respondent's 111 students (or 57 percent) had no score inputted in the computer database. Nine students who did receive a score made no progress between the dates of the two tests. School Board entered into a contract with a consulting firm named Evans Newton, Inc. (ENI) to assist schools in need of improvement. In 2009-10 school year, ENI provided an assessment test that teachers were to use to monitor students' progress. Respondent administered the assessment test to her class, gave the results to Ms. Brown to score, and recorded the scores in the computer database after receiving the scored results from Ms. Brown. More than 40 percent of Respondent's students had no score recorded for the assessment test. Ms. Brown testified, credibly, that she returned all scored results to Respondent. The lack of a score for over 40 percent of her class can only be explained by Respondent's failure to do her job. Respondent either did not administer the test to those students, she did not give the test results to Ms. Brown to score, or she did not input the scores in the computer database after receiving the results from Ms. Brown. The FCAT Reading Learning Gain is the document through which DOE reports test score results to school districts. During the 2009-10 school year, DOE required a 60 percent learning gain. Respondent's students did not achieve that goal during that school year. For three of the four years she taught at Ashe Middle School, Respondent's classes failed to achieve their FCAT goals. The administrators at Ashe Middle School followed all applicable procedures in formulating and implementing the PDPs and IPASs at issue in this proceeding. After her IPAS evaluation of April 19, 2010, Ms. Peebles referred Respondent's case to the Office of Professional Standards, which resulted in the termination proceedings at issue.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this May 23, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2011.
The Issue Did Respondent, Yolie Bauduy, violate section 1012.795(1)(g), Florida Statutes (2018)?1 Did Respondent, Yolie Bauduy, violate section 1012.795(1)(j)? 1 All citations to the Florida Statutes are to the 2018 codification unless otherwise noted. Did Respondent, Yolie Bauduy, violate Florida Administrative Code Rule 6A-10.081(2)(a)1.?
Findings Of Fact Parties Petitioner, Richard Corcoran, is the Commissioner of Education. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Ms. Bauduy holds a Florida Educators Certificate covering the areas of Autism Spectrum Disorder, Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education (ESE), and Middle Grades Integrated Curriculum. It is valid through June 30, 2025. Ms. Bauduy teaches at Gotha Middle School in the Orange County School District and did at the time of the events alleged in the Administrative Complaint. During the period during which the alleged acts occurred, Ms. Bauduy taught students with autism. She has served students with disabilities of Orange County as an educator in ESE programs for 16 years. She taught at Gotha Middle School for 14 of those 16 years. Other than discipline for the incidents that are the subject of this proceeding, the District has never disciplined Ms. Bauduy. The school has recognized Ms. Bauduy as an effective teacher. For instance, an evaluation resulting from seven days of in-class observation in November 2020 concluded that she was applying all four expected classroom strategies and behaviors. The Education Practices Commission has never disciplined Ms. Bauduy. Gotha Middle School and Ms. Bauduy's Class During the 2018-2019 school year, all of Ms. Bauduy's students had disabilities that required more assistance and support than needed by students in the general population. Because of their disabilities, Ms. Bauduy's students required a modified curriculum that was less rigorous than the standard curriculum. The modified curriculum included social, skills, personal skills, and independent function skills. Teaching those skills helps students learn to manage their behavior and become more independent. All of Ms. Bauduy's students had Individual Education Plans (IEP). These plans identify a student's disabilities, their effect, and behavior that may arise from them. They establish goals for the student in light of the student's disabilities. And they identify strategies for helping the students accomplish the established goals. The demands of teaching students with disabilities required additional staff in the classroom to assist Ms. Bauduy. The school determined that properly caring for and teaching the children required a three to one student teacher ratio. The students' IEPs also required this staffing ratio. For that reason, the school assigned two paraprofessionals to assist in Ms. Bauduy's class of ten people. This was in addition to Ms. Edoo, who was assigned to student E.K. one-on-one. Thus, the proper staffing complement for Ms. Bauduy's class was four adults. Throughout the 2018-2019 school year, Gotha Middle School experienced chronic staffing shortages. One paraprofessional position in Ms. Bauduy's class was vacant the entire year. The school engaged a long- term substitute. That person often did not show up for work. In those instances, the school sought, often unsuccessfully, to engage fill-ins from a temporary staffing agency. In addition, the school usually did not provide staff to cover the paraprofessionals' breaks and lunches. Throughout the year, Ms. Bauduy had to juggle staffing shortages as best she could. During the representative month of September 2018, Ms. Bauduy's class was short one adult seven full days and four partial days. On September 11, 2018, Ms. Bauduy's class was down two professionals. When the paraprofessional staff took their breaks or lunch periods, the staffing deficiencies worsened. Ms. Bauduy repeatedly advised the administration about the staffing deficiencies, sought assistance, and expressed her concerns about not complying with students' IEP requirements. Her communications included a September 5, 2018, email advising that a substitute had not arrived, a September 11 email forwarding an email from a paraprofessional advising she was not coming in, and a September 26 email advising that a substitute once again failed to arrive and asking for assistance. In January 2019, despite the chronic understaffing, the school transferred two students, T.M. and N.A., from other classrooms to Ms. Bauduy's class. These students' disabilities were more profound and required more supports than the other students. They were regular elopers, required diaper changes, and required individual nearly one-on-one prompting for tasks. Among other things, T.M.'s disabilities required having someone hold his hand during transitions. Placement of T.M. and N.A. in Ms. Bauduy's class was not appropriate. Ms. Bauduy continued sending emails expressing her concerns and frustrations about understaffing. She also repeatedly, without effect, sought to get the school to change mandatory meetings to her planning period or after school because the meetings caused her to leave the classroom and exacerbated the staffing problems. Between October 25, 2018, and March 4, 2019, Ms. Bauduy sent 17 emails requesting full staffing and advising of staff absences. Ms. Bauduay could not rely upon prompt responses when she called for assistance or additional staffing to put her room back in compliance with the required student/adult ratio. Sometimes she received a quick response. Sometimes no one came. Often there was a 20 to 30-minute delay before assistance arrived. Even when management responded to Ms. Bauduy's request for a schedule of when behavior staff would be available to support her students, management's response was conditional. For instance, Laura Fogarty, ESE Curriculum and Instruction Team Instructional Coach, conditioned the schedule of available staff that she provided as follows. Please remember, however, that this schedule is in a perfect world. The behavior support team's first priority is to respond to radio calls and have other responsibilities that don't always make it possible for them to be in your room for the times listed below. They may also have to leave to respond to a behavior call when they are in there. Below is the ideal, if everything goes right and there are no behavior calls or other areas that require their attention. The world in which Ms. Bauduy taught was neither perfect nor ideal. Ms. Bauduy's testimony about staffing difficulties and insufficient responses to requests for assistance differs from testimony of school representatives. Ms. Bauduy was more credible and persuasive than the school representatives. Four of the reasons for this judgment are Ms. Bauduy's sincere demeanor, documents such as emails and logs consistent with her testimony, the admission in Ms. Fogarty's email that even scheduled availability of support was not reliable, and the corroborating testimony of a paraprofessional who worked in Ms. Bauduy's room, Lauren Mueller. K.C. K.C. was a male sixth grade student in Ms. Bauduy's class. K.C.'s IEP specified that K.C. should always be supervised. It stated, "He requires continuous supervision as he is very impulsive and responds aggressively and or obscenely." K.C. also had a Behavioral Improvement Plan (BIP). It too noted a need for intensive intervention to address inappropriate touching of and advances toward female students. The BIP provided, among other things, "If outside the classroom, one on one supervision must be provided." The BIP went on to state that K.C.'s transitions out of the classroom should be limited to necessary transitions and that a staff member should provide one-on-one supervision during all transitions. Ms. Bauduy was aware of the contents of the IEP and BIP. At each day's end, Ms. Edoo usually escorted K.C. from class to the transportation loading area, after escorting her assigned student to the transportation area. This did not happen on September 11, 2018. This was one of the many days when Ms. Bauduy's room was short-staffed. Because of a vacant position and a paraprofessional not showing up, Ms. Bauduy was down to two adults, including herself, of the staff that should have been in the room. This excludes Ms. Edoo who was responsible for providing one-on- one care for a single student. The afternoon of September 11 the substitute paraprofessional was to escort the students, in shifts, to the transportation area. The substitute took a student to the transportation area and did not return. This left Ms. Bauduy the sole adult in the room, responsible both for getting the children to the transportation area and supervising students in the classroom. Ms. Edoo called Ms. Bauduy on the radio and said to release K.C. Ms. Bauduy thought that meant Ms. Edoo was returning to the classroom and would meet K.C. in the hall. Although her room had a telephone and a two-way radio, Ms. Bauduy knew from experience a response to a request for help would be slow, if there even was one. Faced with confounding choices, Ms. Bauduy explained to K.C. that she would release him to go directly down the hall to meet Ms. Edoo. K.C. did not go straight down the hall to Ms. Edoo, and Ms. Edoo was not in the hall. K.C. went to the bathroom that opened on the hall. A student, K.M., found K.C. laying naked, save for his socks, on the bathroom floor, masturbating. This scared and confused K.M. He went home and told his mother about the incident. She called the school. The next day a guidance counselor met with K.M. to discuss the incident and reassure him. Shortly after K.M. left for home, an ESE clerk, Elizabeth Elkholi, saw K.C. naked in the bathroom, through the open door. She called for Shantell Johnson, a behavior trainer. Ms. Johnson did not wish to enter the bathroom because K.C. was naked. A substitute, Stephen Harnishfeger, and Deputy Luna, a school resource officer, joined Ms. Elkholi and Ms. Johnson. Between them, these four adults kept K.C. in sight. K.C. got dressed in a stall. Ms. Johnson escorted him back to Ms. Bauduy's classroom. Ms. Bauduy was not aware of this activity until K.C. was returned to her room. K.C. could have left the school grounds during the period that he was unsupervised. Eventually the substitute reappeared and declared she was leaving for the day. Ms. Bauduy convinced the substitute to escort K.C. to the transportation loading area before leaving. The school suspended Ms. Bauduy for five days without pay for this incident. T.M. T.M. was a student on the autism spectrum that the school transferred to Ms. Bauduy's class in January. T.M.'s previous classroom, Ms. Franklin's, was adjacent to Ms. Bauduy's classroom. On February 25, 2019, the school had again failed to staff Ms. Bauduy's classroom in compliance with the requirements of her students' IEPs. That day the school required Ms. Bauduy to participate in an IEP meeting, scheduled for 30 minutes, during her planning period. The meeting took two hours, running through her lunch period and ending at 4:00 p.m. When Ms. Bauduy returned to the classroom, she realized none of her paraprofessionals had taken a break. So, she released them one at a time for a short break. While one paraprofessional was gone on break, the remaining one left the room with a student to go to the restroom and change a diaper. This left Ms. Bauduy alone with the students. At that time, Ms. Bauduy was providing directions to a group of students. She heard the door slam. She looked for T.M. and did not see him in the classroom. T.M. had slipped away from Ms. Bauduy's classroom out into the hall. He left through the classroom's only door. Ms. Bauduy immediately went to the doorway to look for him. She knew T.M. had a history of leaving the classroom but waiting just outside the door. She did not see him. Then Ms. Bauduy took a few steps outside the door of her classroom into the hall. To the left of Ms. Bauduy's classroom the hall met double doors just yards away that led to the outside and a nearby road. Ms. Bauduy was in the hall approximately 23 seconds seeking to ensure that T.M. had not gone to the left toward the double doors. During these 23 seconds there was no adult inside Ms. Bauduy's class room. She however was just feet from the only door. One of the students could have done something destructive or harmful. But the brief period of time that Ms. Bauduy was outside the classroom, her proximity to the door, and the very short distance she was from her students made that risk minimal. Ms. Bauduy saw the door to Classroom B104 close. This was T.M.'s former classroom, which was next to Ms. Bauduy's room. This reassured her that T.M. was safe. She ran back to her classroom. The students had spent the 23 seconds without incident. Then Ms. Bauduy called for assistance. A staff member came to return T.M. to Ms. Bauduy's room. When T.M. slipped away, Ms. Bauduy had no good choices. In the time it would take to call for assistance and wait for it to arrive, if it did, T.M. could have been out the doors and in the road. Ms. Bauduy's experience taught her that assistance was often slow to arrive and sometimes did not arrive at all. Stepping out in the hall to quickly see where T.M. went left the eight remaining students without direct adult supervision for 23 seconds. But Ms. Bauduy was just outside the only door out of the classroom. She made a reasonable choice, one that most reduced the risk of a bad outcome to T.M. and his classmates. The school suspended Ms. Bauduy for five days without pay because of this incident. F.O. F.O. was a student in Ms. Bauduy's class. F.O. was non-verbal and deaf. She was working on pre-academic skills. F.O. was a joyful and social student. She, however, was defiant. She did not like to be corrected. She wanted to be on her own, basically following her own schedule. When corrected, F.O. would shake her head, point her finger, and stick her tongue out. The school regularly delivered breakfast and lunch to the class. On September 11, 2019, F.O. ate breakfast around 10:00 a.m. After breakfast, F.O. and the other students had a short lesson and went to PE. After they returned to class, they had another short lesson. Afterwards, Ms. Bauduy gave the class another short break. Around 11:30 a.m., the lunch cart's arrival signaled the beginning of lunch to the class. The lunch service procedure began with placing meals on tables for students who could feed themselves. Then Ms. Bauduy and the paraprofessionals assisted students who needed help eating. F.O.'s lunch was placed in front of her. It was time for F.O. to pick up her toys and eat. She refused. Ms. Bauduy tried prompting F.O. several ways. Ms. Bauduy's efforts to persuade F.O. to put her toys up included gestures, pantomiming the desired actions, and modeling the actions by picking up some toys herself. This did not work. Ms. Bauduy took F.O. out of the classroom to see if a change in environment would help. Ms. Bauduy then took F.O. to the behavior specialist's classroom down the hall. But it was not staffed. They returned to Ms. Bauduy's classroom. There Ms. Bauduy tried to get F.O. to comply with simple directions like "put it down." F.O. would not respond. Also, F.O. continued to refuse to pick up her toys and eat lunch. Ms. Bauduy concluded that F.O.'s refusal to eat lunch was a defiance issue. Ms. Bauduy learned a behavior management strategy called "First – Then" in her applied behavior classes at the University of Central Florida. Ms. Bauduy kept a graphic depicting this strategy posted in her classroom. Other teachers and paraprofessionals in the school also used this strategy. It was a system where the "Then" was something the child wanted or wanted to do and the "First" was a task the child was resisting. After F.O. continued to play with toys and ignore her lunch. Ms. Bauduy decided to use the "First—Then" strategy by withholding F.O.'s lunch until she picked up her toys. She asked a paraprofessional, Ms. Lewis, to remove the food. Ms. Lewis refused. Ms. Bauduy then placed the lunch on a shelf so that other students would not eat it or play with it. Around 2:00 p.m., snack time, F.O. had put up her toys. Ms. Bauduy gave her the lunch. Ms. Bauduy's log for the day, sent home with each student each day, advised F.O.'s parents that F.O. would not listen or follow directions most of the day and that "lunch was delayed till she showed more compliance." Withholding lunch was not a proper use of the "First – Then" strategy. Meals are a regular part of the day and necessary for nutrition, although in this case the student repeatedly declined food. Withholding a meal, as opposed to withholding a treat, is not proper. Also, since F.O. was not interested in eating lunch, making lunch the "Then" was not a well-reasoned use of the strategy. Ms. Bauduy, however, did not withhold lunch as a punishment. But withholding lunch was not a reasonable behavior management strategy. The school suspended Ms. Bauduy for five days for this instance.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent, Yolie Bauduy, violated section 1012.795(1)(j), Florida Statutes, by violating Florida Administrative Code Rule 6A- 10.081(2)(a)1., and imposing a reprimand upon Respondent, Yolie Bauduy. DONE AND ENTERED this 24th day of November, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 for Petitioner to suspend Respondent from his employment as a teacher for ten days without pay in Case No. 19-3380; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to terminate Respondent's employment as a teacher in Case No. 19-3381.
Findings Of Fact The Parties Petitioner is the entity charged with operating, controlling, and supervising all district public schools in Broward County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.33. Respondent is employed by the District as a mathematics teacher at Miramar High School ("MHS") pursuant to a professional services contract issued in accordance with section 1012.33(3)(a). He holds a professional educator's certificate in mathematics for 6th through 12th grades. Respondent was employed by the District in 2007, and has been a teacher at MHS since the 2007-2008 school year, with the exception of most of the 2015-2016 school year, during which he was administratively reassigned with pay pending the outcome of a personnel investigation. He returned to teaching at MHS for the 2016-2017 school year, and was a teacher at MHS during the 2018-2019 school year, when the conduct giving rise to these proceedings is alleged to have occurred. The Administrative Complaints February Administrative Complaint The February Administrative Complaint, which gives rise to Case No. 19-3380, alleges that during the 2017-2018 school year and the first semester of the 2018-2019 school year, Respondent engaged in conduct that violated specified statutes, DOE rules, and School Board policies. Pursuant to the February Administrative Complaint, Petitioner seeks to suspend Respondent from his employment as a teacher for ten days without pay. Specifically, the February Administrative Complaint alleges that after previously having been disciplined for making racially insensitive and inappropriate comments to students, Respondent continued to use embarrassing or disparaging language toward students. As a result, a cease and desist letter was issued to Respondent on or about March 23, 2017, directing him to cease engaging in such conduct. The Administrative Complaint alleges that Respondent continued to use racially insensitive, embarrassing, and disparaging language toward students—specifically, that he referred to an African-American male student as "boy." The February Administrative Complaint also alleges that Respondent threatened to remove students who talked from his class; graded students based on their behavior, rather than their work product; and failed to grade student work in a timely manner. As a result of this alleged conduct, Respondent received a meeting summary memorandum on or about December 7, 2017. The February Administrative Complaint alleges that Respondent still failed to contact the parents of students who were failing and engaged in unfair grading practices, resulting in issuance of another meeting summary memorandum to him on or about April 27, 2018. The February Administrative Complaint alleges that in the first semester of the 2018-2019 school year, during a Code Red Drill, Respondent is alleged to have engaged in racially insensitive conduct by disparately disciplining African-American students for engaging in the same type of conduct in which white and Hispanic students engaged, without any disciplinary consequences. The Administrative Complaint also alleges that during the Code Red Drill, Respondent was so disengaged from his students that he did not know one of his student's name and, consequently, wrote a disciplinary referral for the wrong student. The February Administrative Complaint alleges that Respondent engaged in conduct demeaning to students. Specifically, it is alleged that Respondent did not respond to student questions regarding how to do problems; embarrassed a student by saying he did not understand fifth grade math; and wrote "1 + 1" on the board to mock students in his class. He also allegedly reduced a student's class participation grade for talking. The February Administrative Complaint alleges that Respondent spoke to a "black girl who is Jamaican in Creole because he assumes she is Haitian." The February Administrative Complaint alleges that Respondent embarrassed and degraded a student by saying he did not understand the classwork "because it's not fifth grade math." The February Administrative Complaint also alleges that Respondent demeaned students by saying "'slick stuff,' such as 'math is simple and we are used to [second] or [fifth] grade math.'" The February Administrative Complaint alleges that Respondent lowered the grade of a student for talking, and told her that she and several other students were "on his 'watch list'" of students who would have their grades lowered for talking. The February Administrative Complaint further alleges that when that student asked about Respondent's grading practices, he responded "you ask too much questions," causing the whole class to laugh. The February Administrative Complaint alleges that on or about October 10, 2018, during the administration of the Preliminary Scholastic Aptitude Test ("PSAT"), Respondent did not follow proper testing protocol. Specifically, it is alleged that Respondent did not pick up the testing materials on time, started the test late, and did not read all of the directions to the students. It is also alleged that he did not collect book bags and cell phones and place them at the front of the room, and that a cell phone rang during the test. Additionally, he is alleged to have allowed students to talk loudly during the test. The February Administrative Complaint alleges that Respondent took points off of a student's grade for talking. The February Administrative Complaint alleges that Respondent refused to allow students who had missed class due to a band trip to make up their class work. The February Administrative Complaint alleges that Respondent made demeaning comments about students' writing; used the word "horrible" to describe their work, which made them feel "dumb or stupid"; was "disrespectful and sarcastic"; and deducted students' class participation points for talking or asking for a pencil or paper. The February Administrative Complaint alleges that Respondent talked to students in a demeaning manner about being "slow" and told students he thought the Chinese were smarter than Americans. May Administrative Complaint The May Administrative Complaint, which gives rise to Case No. 19-3381, alleges that in the second semester of the 2018-2019 school year, Respondent continued to engage in conduct that violated specified statutes, DOE rules, and School Board policies. Specifically, the May Administrative Complaint alleges that in February 2019, Respondent threatened to put tape over students' mouths for talking; disparaged students through racially insensitive treatment and comments; and made insulting and offensive comments to students regarding their mental health and ethnicity. The May Administrative Complaint also alleges that Respondent wrote a "red list" of students' names on the board who were disruptive or talking and continued to engage in inappropriate grading practices, such as lowering students' grades as a means of discipline for behavior issues. The May Administrative Complaint also alleges that Respondent continued his practices of not contacting parents of failing students; not writing referrals to deal with disciplinary matters; and failing to create a discipline plan for dealing with behavior issues in his classroom, as directed. In addition, the May Administrative Complaint alleges that Respondent claimed that during the past four years, Respondent's students were manipulated by an assistant principal, Ms. Hoff, to write false statements against him, notwithstanding that Hoff had not been employed at MHS for the previous two years. Pursuant to the May Administrative Complaint, Petitioner seeks to terminate Respondent's employment as a teacher. Stipulated Facts Regarding Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of disciplinary corrective actions while employed as a teacher with the District.8 On or about February 13, 2013, Respondent received a verbal reprimand for failing to meet the performance standards required of his 8 Petitioner's Corrective Action Policy, Policy 4.9, section I(b), states: The types of corrective action may include, but are not limited to the following employment actions: verbal reprimands, written reprimands, suspension without pay, demotion, or termination of employment. There are other types of actions to encourage and support the improvement of employee performance, conduct or attendance that are not considered disciplinary in nature. These actions may include, but are not limited to: coaching, counseling, meeting summaries, and additional training. Policy 4.9, Corrective Action. Respondent cannot be subjected to discipline in these proceedings for previous violations of statutes, rules, or policies for which he has already been disciplined. See Dep't of Bus. & Prof'l Reg., Case No. 11-4156 (Fla. DOAH Dec. 19, 2011; Fla. DBPR Oct. 2, 2012)(multiple administrative punishments cannot be imposed for a particular incident of misconduct). However, under Policy 4.9, section III, the history of disciplinary corrective actions is relevant to determining the appropriate penalty, if any, to be imposed in these proceedings, and history of disciplinary and non-disciplinary corrective actions is relevant to determining whether Respondent subsequently engaged in conduct constituting gross insubordination, as charged in these proceedings. position, by failing to follow School Board policy and procedures and engaging in unprofessional conduct. On or about May 30, 2013, Respondent received a written reprimand for not following proper procedures, and being insubordinate by failing to follow such procedures after numerous directives. Specifically, he failed to contact the parents of students who had been habitually truant or were failing his class; arrived late to work several times; lied about parking in the student parking lot; and left students unsupervised on multiple occasions. On November 8, 2016, Respondent received a verbal reprimand for not providing accommodations to his exceptional student education ("ESE") students; not taking attendance; not grading students’ work or grading students’ work inaccurately; and failing to provide feedback to students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. This five-day suspension resulted from a personnel investigation by the District police department into allegations that Respondent made racist and racially insensitive remarks to students. The request for the investigation was made on or about October 16, 2015. Respondent was administratively reassigned out of the classroom on November 6, 2015, and was not released from administrative reassignment until August 15, 2016. Respondent originally challenged the five-day suspension in Case No. 17-1179TTS, but later withdrew his challenge, and the case was closed on May 19, 2017. The Commissioner of Education ("COE") also filed an administrative complaint with the Education Practices Commission, based on Respondent making racially, ethnically, and/or socioeconomically-driven disparaging comments toward students. Respondent entered into a settlement agreement with the COE under which he received a written reprimand; was fined and placed on probation for one year; and was assessed costs for monitoring his probation. The written reprimand was placed in his District personnel file. On or about October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; grading inaccuracies; refusing to accept work; grading student behavior rather than student work product; failing to contact parents; failing to follow a discipline plan; failing to grade student work in a timely manner; entering incorrect grades; failing to provide ESE accommodations to students entitled to receive such accommodations; and making disparaging remarks about colleagues. This letter of reprimand resulted from a personnel investigation conducted by the District police department regarding numerous allegations against Respondent. These allegations included, but were not limited to, unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; lowering grades based on behavior; failing to contact parents; grading and attendance inaccuracies; providing fake lesson plans to his assistant principal; and making remarks to a student that a fellow math teacher did not know what she was doing. The request for the investigation was made on or about November 21, 2016. Respondent did not challenge the letter of reprimand. Stipulated Facts Regarding Non-Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of non-disciplinary corrective actions while he was employed as a teacher with the District. On or about July 16, 2011, Respondent received a concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures, and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 20, 2011, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 31, 2012, Respondent received another concerns and expectations memorandum for failing to follow the District’s grading system. On or about January 7, 2013, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records of students and failing to follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his class; and making students feel disparaged or embarrassed. He was directed to ensure that students understand his grading criteria for classwork and homework; use strategies to help students with new knowledge; use strategies to help students practice and deepen the new knowledge in all lessons and activities; and not intentionally expose students to unnecessary embarrassment or disparagement. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students; failure to contact parents or write referrals for behavior issues; and concerns about his failure to provide daily remediation. Respondent was advised that he was expected to create and maintain a positive and pleasant learning environment in the classroom; use effective instructional strategies and feedback techniques that do not embarrass students; create and follow a discipline plan for his classroom; contact parents when students are failing; write referrals for referable acts; and remediate and teach students daily. Respondent was informed that his failure to correct these issues may result in disciplinary action. On or about March 23, 2017, Respondent was issued a cease and desist letter for his continued use of embarrassing and disparaging language toward students. On or about December 7, 2017, Respondent received a meeting summary for his use of embarrassing and condescending language towards the students, by referring to an African-American male student as "boy"; threatening to remove students from his class if they misbehaved during a formal observation; grading students on their behavior rather than their work product; and failing to grade student work in a timely manner. He was directed to refrain from using condescending language that makes students feel inferior in math; learn his students’ names and refer to them by name; create and follow a discipline plan for his classroom without removing students unless they have completely disrupted the teaching and learning process in the classroom; enter grades in a timely manner and refrain from deducting participation points from students' grades for talking; and contact parents and write referrals for student misbehavior. On or about April 27, 2018, Respondent received a meeting summary memorandum for failing to contact parents of students who had D's or F's in his classes, and for keeping inaccurate grades. Findings of Fact Based on Evidence Adduced at Final Hearing Based on the preponderance of the competent substantial evidence; the following Findings of Fact are made regarding the conduct charged in the February Administrative Complaint and the May Administrative Complaint. February Administrative Complaint The February Administrative Complaint charges Respondent with having engaged in conduct during the first semester of the 2018-2019 school year that is alleged to violate statutes, DOE rules, and School Board policies. By way of background, Tevin Fuller and Julian Cardenty were students in Respondent's financial algebra class in the 2017-2018 school year. Both credibly testified that during a class in the 2017-2018 school year, Respondent called Fuller, who is African-American, "boy" and "bad boy." Both Fuller and Cardenty were offended by Respondent's use of the word "boy" in referring to Fuller, and considered it a racially demeaning remark. They reported Respondent's conduct to Assistant Principal J.P. Murray. Fuller credibly testified that as a result of Respondent's disrespectful conduct toward him, he avoided attending Respondent's class. As discussed above, in December 2017, as a result, Respondent previously had been issued a summary memorandum—a non-disciplinary corrective action—which instructed him to, among other things, cease using racially demeaning terms toward African-American students, and cease using condescending language that made students feel inferior regarding their mathematical ability. The credible, consistent evidence establishes that during the first semester of the 2018-2019 school year, Respondent continued to make racially insensitive and demeaning comments, and engage in conduct directed toward students in his classes that they found embarrassing and offensive. Specifically, several students testified, credibly, that on one occasion during the 2018-2019 school year, after Respondent gave an unannounced quiz to his financial algebra class, he stated that he would not grade the quiz papers because he could "see the F's on their foreheads," or words to that effect. The credible evidence establishes that the students considered this remark as demeaning to their ability and intelligence, and they were offended. This testimony corroborated several written statements, admitted into evidence, which were provided by students at or about the time this incident took place. Two students, Malik Cooper and Nyesha Dixon, credibly testified that they witnessed Respondent belittle and mock a student, Jordan Lee, when he asked for assistance on a class assignment in Respondent's financial algebra class. Specifically, they saw and heard Respondent comment to Lee that he (Lee) did not understand the lesson because he could "only understand fifth grade math," or words to that effect. Dixon and Cooper both credibly testified that the whole class laughed at Respondent's comment to Lee. Dixon testified, credibly, that Lee appeared shocked and embarrassed by Respondent's comment. Although Petitioner did not present Lee's testimony at the final hearing, Lee provided a written statement that was admitted into evidence, describing this incident. An email from Lee's mother to Murray regarding this incident corroborates Dixon's and Cooper's testimony and Lee's reaction to Respondent's insulting comment to him. Two students, Breanna Dwyer and Malik Cooper, credibly testified that on one occasion, Respondent told his students that the Chinese were smarter and learned faster than Americans, a comment that the students interpreted as belittling their intelligence. Two students, Dorcas Alao and Nyesha Dixon, testified, credibly, to the effect that Respondent singled out Haitian students and made remarks to them, which those students found offensive. Specifically, they testified that Respondent would attempt to speak to Haitian students in Creole, that the students told him they found his behavior offensive, and that Respondent would "just laugh." Several students credibly testified, in more general terms, that Respondent frequently spoke down to them, treated them in a condescending manner, made rude remarks to them, and was disrespectful toward them, and that his conduct and remarks were insulting and made them feel as if they were ignorant and unintelligent. Additionally, one student, Whitney Malcolm, testified, credibly, that in response to her asking a question about a syntax error on a calculator, Respondent yelled at her loudly enough for the entire class to hear. Malcolm testified, credibly, that she was embarrassed by the incident. The credible evidence establishes that Respondent continued to lower students' academic course grades as a means of addressing behavioral issues, notwithstanding that he had been issued a meeting summary on April 27, 2018, directing him not to do so. Specifically, several students testified, credibly, that Respondent kept a "watch list" of students for whom he deducted points off their academic course grade for behavioral issues, such as talking in class. Murray credibly testified, and the MHS Faculty Handbook for the 2018-2019 school year expressly states, that student misbehavior cannot be reflected in the academic course grade, and, instead, is to be addressed in the conduct grade. Murray testified that he counseled Respondent numerous times on this issue and directed him to cease deducting points from students' academic course grades for behavior issues. The evidence regarding Respondent's history of disciplinary and non-disciplinary corrective actions bears out that he repeatedly has been directed not to lower students' academic course grades as a means of dealing with classroom behavioral issues. The competent substantial evidence also establishes that Respondent did not follow proper testing protocol when administering the PSAT to his homeroom students on October 10, 2018. Specifically, notwithstanding that all teachers, including Respondent, who were administering the PSAT had been given training and provided written instructions regarding picking up the exams, reading the instructions to the students, and administering the exams, Respondent did not timely pick up the exams on the day it was administered. The exams for his homeroom students had to be delivered to the room in which he was to administer the exam, and as a consequence, he was late starting the exam administration. The credible evidence establishes that Respondent instructed the students to turn off their cell phones, place them in their book bags, and put their book bags away. However, he did not collect students' book bags or require students to place their book bags at the front of the room, as expressly required by the exam proctor reminders document and the PSAT/NMBQT Coordinator Manual, both of which previously had been provided to the teachers, including Respondent, who were administering the PSAT. As a result of Respondent's failure to follow exam protocol, the students kept their book bags next to, or under, their desks, in violation of that protocol. A cell phone rang during one of the testing sessions. The persuasive evidence establishes that Respondent had instructed students to silence their cell phones and put them away; thus, the cell phone ringing during a testing session was the result of a student failing to follow instructions, rather than Respondent failing to provide such instructions. Two teachers, Tamekia Thompson and Richard Cohen, went to Respondent's classroom at different times on the day the PSAT was administered, to tell the students in his classroom to be quiet. Amaya Mason, a student in Respondent's homeroom class who took the PSAT that day, complained in a written statement, and subsequently testified, that students were talking during the testing sessions, while the students were in the process of taking the exam. Other students who took the PSAT in Respondent's homeroom class that day testified that students did not talk during the testing sessions, but that they did talk loudly during breaks between the testing sessions. Thus, the evidence does not definitively establish that students were talking during the testing sessions themselves. As a result of these testing protocol irregularities, Alicia Carl, the Student Assessment Specialist at MHS, contacted the College Board regarding the testing conditions in Respondent's classroom. Ultimately, the students' exam scores were not invalidated. The February Administrative Complaint alleges that Respondent refused to allow two students, Dejah Jeancharles and Asia Parker, to make up classwork they had missed, notwithstanding that they had excused absences due to a band trip. However, the credible evidence established that Respondent ultimately did allow the students to make up the missed work. The February Administrative Complaint charges Respondent with disciplining African-American students during a Code Red Drill conducted on or about September 6, 2018, while not subjecting white and Hispanic students to discipline for engaging in the same conduct during the Code Red Drill. The students' testimony regarding whether Respondent engaged in this conduct was conflicting, and the greater weight of the competent, credible evidence fails to establish that Respondent engaged in this behavior. The February Administrative Complaint alleges that on or about April 27, 2018, Respondent was issued a meeting summary for failing to contact parents of failing students and engaging in unfair grading practices. Murray testified, and Petitioner presented excerpts of Respondent's grade book showing, that as of March 6, 2018, approximately 75 percent of Respondent's students were earning either D's or F's in Respondent's classes. Murray testified that MHS has a policy, stated in the 2018-2019 Faculty Handbook, that teachers "shouldn't have that many D's or F's."9 Murray testified, and Petitioner presented evidence consisting of an email from Murray to MHS Human Relations Specialist Nicole Voliton, stating that he (Murray) had spoken to parents, who told him that Respondent had not contacted them regarding their children's failing grades. Murray also testified that Respondent acknowledged to him that he had not 9 However, the February Administrative Complaint does not specifically charge Respondent with conduct related to the amount of D's and F's his students earned. Additionally, as discussed below, the Faculty Handbook policy does not establish a mandatory compliance standard regarding the amount of D's and F's given students on which disciplinary action can be based. contacted the parents of all students who were failing his courses. Murray's email and his testimony regarding parents' statements made to him constitute hearsay evidence that has not been shown to fall within an exception to the hearsay rule in section 90.802, Florida Statutes, and is not substantiated by any competent substantial evidence in the record; accordingly, the undersigned cannot assign weight to this evidence.10 May Administrative Complaint The May Administrative Complaint charges Respondent with having engaged in conduct in the second semester of the 2018-2019 school year that is alleged to violate DOE rules and Petitioner's policies. The credible evidence establishes that Respondent continued to engage in conduct, directed toward his students, that was demeaning and racially insensitive. Specifically, several students submitted written statements that in February 2019, Respondent threatened to tape students' mouths shut because they were talking in class. Students Dorcas Alao, Breanna Henry, and Darius Gaskin credibly testified about this incident, confirming that Respondent had engaged in such conduct toward students in his class. Alao, who is of Nigerian heritage, testified, credibly, that Respondent remarked to her that if she couldn't understand something in English, he would "say it in Yoruba," or words to that effect. She also testified, credibly, that Respondent told her that she had "mental issues." She was offended by Respondent's comments and reported the incidents to Murray. The credible evidence also establishes that Respondent continued to deduct points from students' academic course grades for behavioral issues, such as talking in class. 10 § 120.57(1)(c), Fla. Stat. (hearsay evidence may be used for the purpose of supplementing or explaining other evidence but is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The burden of establishing that hearsay evidence falls within an exception to the hearsay rules in sections 90.803 and 90.804 is on the proponent of the hearsay. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)(evidentiary proponent has burden to establish predicate for exception to hearsay rule). To this point, Alao and Henry credibly testified that Respondent deducted points from their academic course grades for talking in class. Murray corroborated this testimony, credibly testifying that he examined Respondent's grade book and confirmed that Respondent had deducted points from their grades. As a result, Henry's class grade dropped a letter grade, from an "A" to a "B." Several students also testified, credibly and consistently, that Respondent did not timely grade their classwork or homework papers, so they were unable to determine what their grades were, even when they accessed the Pinnacle electronic gradebook. The 2018-2019 Faculty Handbook for MHS expressly requires that grades be posted within 48 hours of collecting the assignment/test. Respondent has repeatedly been directed to timely and accurately grade classwork and homework, and to record the grades in Pinnacle so that students and parents can be apprised of student progress in the course. The disciplinary and non-disciplinary corrective actions to which Respondent previously has been subject bear this out. Murray testified, credibly, that in the second semester of the 2018-2019 school year, Respondent still did not timely or accurately grade classwork, homework, or tests, as required by the Faculty Handbook, and as previously directed through disciplinary and non-disciplinary corrective actions, discussed above. The May Administrative Complaint also alleges that Respondent made claims that former assistant principal Cornelia Hoff had manipulated students, during the previous four years, to write false statements about him. Murray testified, credibly, that Respondent did, in fact, make such claims. There was no evidence presented to substantiate any of Respondent's claims against Hoff, and the competent substantial evidence establishes that Hoff had not been employed at MHS for over two years at the time Respondent made such claims. The May Administrative Complaint also charges Respondent with failing to contact parents, write disciplinary referrals, and create a discipline plan for student behavior issues in his classroom, as previously directed. However, Petitioner failed to present any competent substantial evidence to substantiate the allegation that Respondent engaged in this specific conduct during the second semester of the 2018-2019 school year, which is the period covered by the May Administrative Complaint.11 Thus, Petitioner did not demonstrate that Respondent engaged in this conduct during the timeframe covered by the May Administrative Complaint. Witness Credibility Respondent contends, on the basis of inconsistencies between student witness's testimony and written statements regarding various details of Respondent's alleged conduct and surrounding circumstances, that these witnesses were not credible, so that their testimony should not be afforded weight in these proceedings. The undersigned rejects this contention. Although the students' accounts of Respondent's conduct and surrounding circumstances were not uniformly consistent, the inconsistencies concerned minor or collateral details, which the undersigned ascribes to the fact that the students were testifying about incidents that occurred as much as two years earlier. The undersigned found the student witnesses to be credible and persuasive. Crucial to this credibility determination is that the students' testimony was remarkably consistent with respect to whether Respondent 11 The evidence presented regarding this charge concerned conduct that is alleged to have occurred in the first semester of the 2018-2019 school year, which is not addressed in the May Administrative Complaint. Notably, the February Administrative Complaint, which addressed conduct that is alleged to have occurred in the 2017-2018 school year and the first semester of the 2018-2019 school year, did not charge Respondent with having engaged in such conduct. See Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint violates the Administrative Procedure Act). engaged in, and the significant circumstances pertaining to, the conduct at issue in these proceedings. Findings of Ultimate Fact Under Florida law, whether conduct charged in a disciplinary proceeding constitutes a deviation from a standard of conduct established by statute, rule, or policy is a question of fact to be determined by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether conduct alleged in an administrative complaint violates the statutes, rules, and policies cited as the basis for the proposed disciplinary action is a factual, rather than legal, determination. February Administrative Complaint Here, Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the February Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules, School Board policies, and Florida Statutes. Rule 6A-5.056(2) – Misconduct in Office As found above, Respondent made racially insensitive comments and comments that demeaned and belittled students in his classes. The evidence also established that Respondent yelled at students. As a result, many of his students felt disrespected, embarrassed, and offended. One student, Tevin Fuller, even went so far as to avoid going to Respondent's class in order to avoid Respondent's harassment and disrespectful treatment of him. Respondent's behavior toward his students constituted misconduct in office under Florida Administrative Code Rule 6A-5.056(2), because it disrupted the students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office, pursuant to rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes a teacher's professional obligations to students. Specifically, in making demeaning, racially insensitive, and embarrassing comments to students in his classes, he failed to make reasonable effort to protect his students from conditions harmful to their learning and mental health, in violation of rule 6A-10.081(2)(a)1. He also intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5., and harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and disrespectful comments toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because they violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and in engaging in disrespectful conduct toward his students, Respondent failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed above, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Additionally, as found above, Respondent did not follow established exam protocol when he failed to collect students' book bags and place them at the front of the room during administration of the PSAT to his homeroom class on October 10, 2018, as specified in the PSAT/NMSQT administration manual and mandated pursuant to section 1008.24(1)(f), Florida Statutes. Thus, Respondent failed to perform duties prescribed by law, which constitutes incompetency due to inefficiency under rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language toward students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, Respondent received a meeting summary for making racially insensitive comments to a male African-American student. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive, demeaning, and disrespectful comments to his students during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non- disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination under rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional12 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive and demeaning comments, and engaging in disrespectful conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing 12 "Intentional" is defined as "done with intention" or "on purpose." Dictionary.com, https://dictionary.com (last visited Apr. 21, 2021). The evidence establishes that Respondent's actions in this regard were done with intention or on purpose; there was no evidence presented from which it reasonably can be inferred that Respondent's actions in this regard were accidental. students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. Section 1008.24 – Test Administration and Security Based on the facts found above, it is determined that Respondent did not follow testing protocol when he failed to collect students' book bags before administering the PSAT on October 10, 2018. However, in order to violate section 1008.24, the failure to follow test administration directions must be done both "knowingly and willfully." Neither "knowingly" nor "willfully" are defined in chapter 1008. Where the legislature has not defined the words used in a statute, the language should be given its plain and ordinary meaning.13 The term "knowingly" is defined as "having knowledge or information"14 or "deliberate, conscious."15 The term "willfully" is defined as "deliberate, voluntary, or intentional."16 The evidence fails to establish that Respondent made the deliberate decision not to collect the book bags, notwithstanding the test manual and exam directions. From the evidence in the record, it is equally reasonable to infer17 that he either did not realize that he needed to collect the book bags, 13 Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009). It is appropriate to refer to dictionary definitions when construing a statute in order to ascertain the plain and ordinary meaning of words used in the statute. Id.; Barco v. School Bd. of Pinellas Cty., 975 So. 2d 1116, 1122 (Fla. 2008); see also Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000)(when necessary, the plain and ordinary meaning can be ascertained by reference to a dictionary). 14 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). 15 Black's Law Dictionary, Deluxe 7th ed., at p. 876. 16 See id. at p. 1593, describing "willful" or "willfully" as meaning "only intentionally or purposely as distinguished from accidentally or negligently." 17 See Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985)(it is the presiding officer's function to, among other things, draw permissible inferences from the evidence). or that he simply forgot to do so. The latter inference is particularly plausible, given that he was running late in beginning administration of the test. Thus, it is found that Respondent did not violate section 1008.24, as charged in the February Administrative Complaint. School Board Policy 4008 - Responsibilities and Duties (Principals and Instructional Personnel) As discussed above, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 6314 – Testing – Assessing Student Achievement School Board Policy 6314, the text of which is set forth in the Conclusions of Law, below, establishes a District-wide policy regarding annual achievement testing. The plain language of the policy states, in pertinent part, "[a] program of achievement testing shall be conducted annually . . . ," and "[t]esting within the Broward County School District should be conducted to . . . [p]rovide parents/guardians with a yearly individual student test report and interpretation for those students who have been tested." Policy 6314, at preamble, ¶ 2 (emphasis added). From this language, it is clear that Policy 6314 is specifically directed toward annual achievement testing, rather than routine classroom tests and quizzes. Further to this point, nowhere in Policy 6314 is there any language establishing a prohibition on giving unannounced class quizzes, or deciding not to count quiz grades in a class. Additionally, although the February Administrative Complaint cites Policy 6314 as a basis for imposing discipline, the policy does not establish any specific standards of conduct to which instructional personnel must adhere, or which can constitute the basis of disciplinary action for lack of compliance. Petitioner's Proposed Recommended Order cites Policy 6314 as a basis for imposing discipline on Respondent for having given an unannounced quiz in his class on material that he allegedly had not yet taught his class, and then deciding not to grade the quiz "because he could 'read the F's on their foreheads.'" However, as discussed above, the language of Policy 6314 makes clear that it does not apply to routine class tests and quizzes. Additionally, the February Administrative Complaint does not specifically charge Respondent with having engaged in any of this conduct. As discussed herein, Respondent cannot be disciplined for conduct which was not specifically charged in the Administrative Complaint.18 Therefore, even though credible testimony and other evidence was provided showing that Respondent engaged in this conduct, that evidence is relevant only with respect to whether Respondent made demeaning comments to his students. That conduct was charged in the February Administrative Complaint, and, as discussed herein, has been considered in determining that Respondent engaged in conduct constituting misconduct in office, pursuant to rule 6A-5.056(2). School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be 18 Cottrill, 685 So. 2d at 1372 (Fla. 1st DCA 1996). See note 11, supra. violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct established in statutes, DOE rules, and School Board policies. In this case, Respondent has been charged with "Category B" offenses under Policy 4.9. Section III of Policy 4.9, titled "Other Considerations," sets forth a non-exhaustive list of circumstances that may be considered in determining the appropriate penalty for Category B offenses. The racially insensitive and demeaning comments that Respondent repeatedly made to his students, over a substantial period of time in his employment with Petitioner, constitute a severe offense. The evidence establishes that Respondent's comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher—to the point that one student avoided going to class in order to avoid Respondent's racially insensitive and disrespectful conduct toward him. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct, negative impacts on his students. Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He previously has received two verbal reprimands, two written reprimands, and a five-day suspension without pay. Additionally, he has received numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, he has received approximately 14 corrective actions, five of which were disciplinary, between July 2011 and November 2018. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the February Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined or issued non- disciplinary corrective actions. The competent, credible evidence shows that these corrective actions have had little, if any, deterrent effect on Respondent's conduct. Based on the foregoing Findings of Fact, it is determined that Respondent should receive a ten-day suspension without pay in Case No. 19-3380, for having engaged in conduct that was charged in the February Administrative Complaint and proved by a preponderance of the competent substantial evidence. May Administrative Complaint Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the May Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules and School Board policies. Rule 6A-5.056(2) – Misconduct in Office As found above, in the second semester of the 2018-1019 school year, Respondent continued to make racially insensitive and disparaging comments, and engage in demeaning and disrespectful conduct, directed toward his students. Specifically, he directed racially insensitive comments toward an African-American student, Dorcas Alao, regarding her language and ethnicity. As discussed above, Alao found Respondent's conduct offensive. Respondent's conduct in this regard constituted misconduct in office, pursuant to rule 6A-5.056(2). Specifically, it disrupted his students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office under rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes his professional obligations to students. Specifically, in making racially insensitive and demeaning comments, he failed to make reasonable effort to protect his students from conditions harmful to their learning and to their mental health, in violation of rule 6A- 10.081(2)(a)1.; he intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5.; and he harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and demeaning comments and disrespectful conduct toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because it violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Respondent's conduct in making unsubstantiated accusations against former assistant principal Hoff constituted misconduct in office because it violated rule 6A-10.081(2)(c)5., which establishes the professional standard that an educator shall not make malicious or intentionally false statements about a colleague. Although the evidence does not establish that Respondent's accusations about Hoff were malicious—i.e., characterized by, or showing malice, intentionally harmful, or spiteful19—it is reasonable to infer that they were intentionally false, given that Hoff had not been employed at MHS for over two years when Respondent made those accusations, and that Murray had succeeded Hoff as Respondent's supervisor. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and engaging in disrespectful conduct, toward his students, Respondent also failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency as a result of inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed herein, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the School Board’s professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, 19 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). Respondent received a meeting summary for making racially insensitive comments to a male African-American student. Additionally, as discussed herein, the undersigned recommends that Respondent be suspended without pay for ten days in Case No. 19-3380, for continuing to engage in such conduct during the timeframe covered by the February Administrative Complaint. This ten-day suspension constitutes yet another disciplinary corrective action against Respondent for continuing to engage in conduct about which he repeatedly has been admonished, and has been directed to cease. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive and demeaning comments and engage in disrespectful conduct toward his students during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional20 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive, demeaning, and disrespectful comments and conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. School Board Policy 4008 – Responsibilities and Duties (Principals and Instructional Personnel) As discussed herein, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As previously discussed and further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct. The racially insensitive and demeaning comments that Respondent made to his students, repeatedly, over a substantial period of his employment with Petitioner, constitute a severe offense. The evidence establishes that his comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct and negative impacts on his students. As discussed above, Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He has previously received two verbal reprimands, two written reprimands, and a 20 See note 12, supra. five-day suspension without pay. Additionally, in Case No. 19-3380, the undersigned has recommended that Respondent be suspended for ten days without pay for engaging in conduct charged in that case. Respondent also has been subjected to numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, counting the ten-day suspension that has been recommended in Case No. 19-3380, Respondent has received approximately 15 corrective actions, six of which were disciplinary in nature, between July 2011 and March 2019. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the May Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined and issued non- disciplinary corrective actions. The evidence shows that these corrective actions have had essentially no deterrent effect on Respondent's conduct. The competent, credible evidence establishes that Petitioner has given Respondent numerous chances, through its corrective action policy, including the progressive discipline process, to change his conduct which violated, and continues to violate, DOE rules and School Board policies. The competent, credible evidence establishes that nonetheless, Respondent has continued, during the timeframe covered by the May Administrative Complaint, to engage in much of the same conduct which violates DOE rules and School Board policies, and for which he previously has received numerous disciplinary and non-disciplinary corrective actions. Petitioner has closely adhered to the progressive discipline provisions in Policy 4.9, meting out multiple verbal and written reprimands, interspersed with non-disciplinary corrective actions to Respondent, before resorting to suspending him from employment—first, for five days, then for ten days—for his persistent conduct which violated DOE rules and School Board policies. The purpose of Policy 4.9 is "to improve and/or change employees' job performance [and] conduct."21 Despite giving Respondent numerous opportunities, through disciplinary and non-disciplinary corrective actions, to change his conduct, Respondent has not done so. Given that Petitioner has closely followed the progressive discipline provisions of Policy 4.9, and the fact that Respondent has received numerous corrective actions over his period of employment with Petitioner—which have not resulted in him changing his conduct such that he does not engage in behavior which violates DOE rules and School Board policies—it is determined that, pursuant to Policy 4.9, Respondent should be terminated from his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a Final Order in Case No. 19-3380 suspending Respondent for ten days without pay, and enter a Final Order in Case No. 19-3381 terminating Respondent's employment as a teacher. DONE AND ENTERED this 5th of May, 2021, in Tallahassee, Leon County, Florida. 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 5th day of May, 2021. COPIES FURNISHED: Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Elizabeth W. Neiberger, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert W. Runcie Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Respondent Shedeidra Edge should be suspended without pay and dismissed from her employment with Petitioner School Board of Palm Beach County, Florida, for the reasons set forth in the Petition filed in this cause.
Findings Of Fact Respondent Shedeidra Edge has been employed by Petitioner School Board of Palm Beach County, Florida, since 1999. Prior to August 2006 Respondent interviewed for an opening as a secretary in the student services office at Jupiter High School. During her interview she was advised that the busiest time of the day in that office was when the students arrived at 7:00 a.m. until the first class began at around 7:30. She was advised that there would be two secretaries in that office, each of whom would be responsible for certain of the duties required in that office. Since there were four assistant principals working in that office, each of the secretaries was informally assigned to two of them to prevent all four from assigning all of their work to only one secretary. She understood that one of the secretaries would begin work at 6:45 a.m. and the other at 7:00 a.m. Respondent was offered the 7:00 a.m. starting time since she would be the first of the two secretaries for that office to be hired. Respondent advised the principal and head secretary during the interview that she did not know if she could accept a job starting at 7:00 a.m. She subsequently telephoned the head secretary and advised her that she could accept the job and that she had worked out her transportation and daycare concerns. Respondent began working as a secretary at Jupiter High School in the student services office in August 2006. From the beginning she was late arriving at work almost daily. In an effort to assist Respondent and since Respondent was only a few minutes late, the principal adjusted Respondent's start time to 7:10 a.m. Respondent started arriving even later, and the principal, thinking that a slightly-later start time would solve the problem, adjusted Respondent's start time to 7:20 a.m., starting September 11, 2006. With that adjustment, Respondent began arriving even later most mornings. By January 2007 she was arriving an hour late regularly. Although Respondent sometimes called to say she would be late, sometimes she did not. She simply came in, carrying her breakfast which she had stopped to pick up on her way to work even though she was late. The impact of Respondent's regular tardiness on the operation of Jupiter High School was negative and significant. The before-school rush of business in the student services office could not be handled by one secretary. Accordingly, when Respondent was late, an employee from another office was taken away from that employee's duties to cover for Respondent. Those employees were unhappy about having to cover for Respondent, who appeared to them to be permitted to arrive at work whenever she felt like it with impunity. One of the responsibilities of the student services office involved retrieving textbooks from students withdrawing from school and accounting for lost or missing textbooks. Since Jupiter High School had to reimburse the school district for textbooks not returned, which would, in turn, impact the School's operating budget, Kent Heitman, one of the assistant principals to whom Respondent was informally assigned, was in charge of making sure that textbooks were returned to the school before approving a student's withdrawal and release of that student's records. It was Respondent's job, assigned to her by Assistant Principal Heitman, to make the initial contact with a student's parents when a student failed to return a textbook. She was to provide the parents with the information on the unreturned textbook, including the price for the parent to replace it. She was to record the information regarding her contact in a log set up for that purpose. She was responsible for keeping that log current, along with the student obligation list of students who owed money to the school for missing or lost textbooks, utilizing information obtained from teachers and the school's cashier. Heitman told Respondent that if she had a problem with any parent as a result of the initial contact she made, she was to turn that particular matter over to him, and he would handle it. Respondent refused to make the phone calls and refused to make the required entries on the log. She took the position that it was Heitman's job to do these things and not hers. Although Respondent was counseled regularly about the need to arrive at work on time, she failed to do so. Therefore, on November 10, 2006, Dr. Paula Nessmith, the Principal of Jupiter High School, issued to Respondent a Memorandum of Specific Incident regarding her continuing late arrivals at work. That Memorandum pointed out that from Friday, October 20, 2006, through Wednesday, November 8, 2006, Respondent had arrived at work on time only once. The Memorandum further advised Respondent that her failure to comply with the directives to arrive at work on time might result in further disciplinary action. On December 4, 2006, Principal Nessmith issued a Written Directive to Respondent, advising her that she had been late all but two days from November 13 through December 1, 2006. That Written Directive further advised Respondent that her continued late arrival would constitute insubordination and result in disciplinary action up to and including termination. On December 14, 2006, Assistant Principal Heitman again directed Respondent to call parents of withdrawing students to retrieve unreturned textbooks. He sent her three e- mail directives with the same instruction on December 15, 18, and 19, 2006. On December 22, 2006, Principal Nessmith gave Respondent a Written Directive as a result of Respondent's continued failure to call parents of withdrawing students who had not returned textbooks in accordance with Assistant Principal Heitman's directives of December 14, 15, 18, and 19 and Principal Nessmith's verbal directive of December 19. The Written Directive detailed the procedures that Respondent was to follow in performing that duty. It also advised Respondent that her continued refusal to comply would be considered insubordination and could result in disciplinary action up to and including termination. On January 16, 2007, Principal Nessmith gave Respondent a Verbal Reprimand with Written Notation for failing to follow the directives given Respondent on December 4 and 22, 2006. That Verbal Reprimand advised Respondent that her continued refusal to comply would result in further disciplinary action up to and including termination. On January 17, 2007, Principal Nessmith gave Respondent a Written Directive: Textbook and Student Obligation List Procedures and Responsibilities, detailing the procedure for Respondent to follow regarding textbooks and student obligations. The Written Directive again advised Respondent that her continued refusal to perform her job duties would be viewed as insubordination and would result in discipline up to and including termination. On January 25, 2007, Principal Nessmith gave Respondent a Written Reprimand for not complying with the January 17, 2007, Verbal Reprimand with Written Notation. The Written Reprimand noted that Respondent had arrived at work at least 40 minutes late every day since she had received the verbal reprimand and had failed to place and log telephone calls to the parents of withdrawing students who had not returned textbooks. It further advised Respondent that her continued refusal to comply with directives constituted gross insubordination and her continued failure would result in further disciplinary action up to and including termination. On February 2, 2007, Principal Nessmith issued to Respondent another Written Reprimand for not complying with the directives of January 17 and 25. The Written Reprimand noted that Respondent had arrived at work at least 40 minutes late every day since the January 25 Written Reprimand. It noted that Respondent still refused to follow the required procedures regarding unreturned textbooks as contained in the previous directives and reprimands. It noted that Respondent's continuing late arrivals and refusal to follow required procedures constituted gross insubordination, and that Respondent's failure to comply would subject her to further disciplinary action up to and including termination. Respondent continued to fail to comply. By correspondence dated March 7, 2007, Respondent was advised that a pre-disciplinary meeting to address her insubordination was scheduled. Respondent attended the meeting on March 12, 2007. At the conclusion of the meeting, the matter was referred to the Superintendent. By letter dated July 16, 2007, the Superintendent of Schools issued his Notice of Suspension and Recommendation for Termination from Employment advising Respondent that at the August 1, 2007, School Board meeting he would recommend that she be suspended without pay as of July 31, 2007, and terminated from employment as of August 15, 2007, for insubordination, subject to her timely request for an administrative hearing before the Division of Administrative Hearings. Upon the School Board's approval of the Superintendent's recommendation and upon Respondent's timely request for a hearing, this matter was referred to the Division of Administrative Hearings and the hearing was conducted as set forth above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered suspending Respondent without pay as of July 31, 2007, and terminating her employment as of August 15, 2007, for insubordination. DONE AND ENTERED this 7th day of January, 2008, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 7th day of January, 2008. COPIES FURNISHED: Arthur C. Johnson, Ph.D. Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Esquire Commissioner of Education Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Shedeidra Edge 1460 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
