The Issue Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida. At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS). At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes. Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years. During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average. Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983. On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS. During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year. By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications. As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing. As a result of the investigation and hearing, John V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file; Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year. By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High School. This letter also advised Respondent of his right to contest the Superintendent's decision. By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter. Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment. When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School. On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days. Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment. On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination. McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?" McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet." On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong. Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr. Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999. None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system. Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks. After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated. Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine. After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School. Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's remarks or behavior caused fear or disruption in the work environment within the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent. DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Harry A. Blair, Esquire 2180 West First Street, Suite 401 Fort Myers, Florida 33901
The Issue Whether the Respondent's teaching certificate should be revoked or disciplined on grounds that she is incompetent to teach or to perform her duties as an employee of the public school system and is unable to effectively meet her responsibili- ties as a classroom instructor, and that she intentionally ex- posed her students to unnecessary embarrassment or disparagement.
Findings Of Fact At all times material hereto the Respondent held Teaching Certificate Number 182937, issued by the Department of Education for the State of Florida. This certificate covers the areas of English and administrative supervision. The Respondent was first employed by the Dade County School Board in 1966. She taught elementary levels first through fourth grades at Shadowlawn and Allapattah Elementary Schools. In 1971, the Respondent transferred to Shenandoah Junior High School, where she taught seventh through ninth grade English until she transferred to Highland Oaks Junior High in 1982. (RE 1) Prior to the Respondent's transfer to Highland Oaks Junior High School she received observations and evaluations which rated her performance in the 3.6 to 4.5 range. The Respondent testified that she received excellent to superior ratings on her evaluation sheets. The school system however considers this to be the ratings of an acceptable or satisfactory teacher. Over 4.6 would be considered excellent or superior. (T538, 623) For the 1982-83 school year through the 1984-85 school year (with the exception of a maternity leave of absence), the Respondent has been employed with the Dade County School Board and assigned to Highland Oaks Junior High School as an English language arts teacher. (T536) The Respondent started the 1982-83 school year late due to a back injury. (T223) Within a week the school began receiving complaints from parents dissatisfied with the Respondent. Parents complained that their children who were Level III students (average - above average ability) were being taught at Level II (below average ability). One of the Respondent's Level III classes through no fault of the Respondent's had been mislabeled as a Level II class. This was corrected immediately. The parents from her other Level III classes which were not mislabeled also complained. The Respondent testified that the dissatisfaction and complaints of the parents all stemmed from the mislabeling of her one class. (T221-223, 548) On October 8, 1982, Assistant Principal Nelson had an informal conference with the Respondent following phone calls and complaints from parents. (T182-183) Mrs. Nelson recommended that the Respondent not eat in the classroom and not use the T.V. for watching soap operas. (SE24F) Mrs. Nelson discussed the need for more rigorous assignments for the Level III students. She asked another teacher, Mrs. Susan Ruskin, who was also the department chairman for language arts, to explain the difference between Level II and Level III students to the Respondent. Mrs. Nelson informed the Respondent that she needed to keep her lesson plans up-to-date. She also needed to specify different lesson objectives for the Level II students as opposed to the Level III students. Mrs. Nelson cautioned the Respondent to watch her language and word choice when speaking to her students. She encouraged the Respondent to call the students' parents when a problem arose. (SE24F) On October 12, 1982, Mrs. Ruskin met with the Respondent to assist her in differentiating between Level II and Level III students. She also discussed discipline, homework, and other curriculum problems with the Respondent. Mrs. Ruskin told the Respondent that she was available if the Respondent needed assistance. The Respondent never asked Mrs. Ruskin for help. (T362, 366-367, SE24) On October 13, 1982, the Respondent's seventh grade Level III English class was formally observed by Assistant Principal Nelson. Mrs. Nelson rated the Respondent unacceptable in the areas of preparation and planning and techniques of in- struction. Mrs. Nelson rated the Respondent unacceptable in preparation and planning because the Respondent did not list more rigorous lesson objectives for the Level III students. The Respondent's lesson objectives were too general and her homework assignments vague. (SE24-B) The Respondent was rated unacceptable in techniques of instruction because she did not adapt the materials to the interest and ability of each student. The Respondent's questioning of her students was not done in depth and lacked important follow-up questions. Her lesson lacked closure: there was no overview or conclusion at the end of the class period. The Respondent's homework assignments did not have any value and the Respondent failed to recognize students for having done or not done their homework. (T188-190) Although Mrs. Nelson rated the Respondent acceptable in the area of classroom management, she was concerned that the Respondent wasted twenty (20) minutes getting the class settled down and on task. Mrs. Nelson recommended that the Respondent establish and enforce classroom rules. (T195) On November 9, 1982, Dr. Mildred B. Augenstein, the principal of Highland Oaks Junior High School did a formal observation of the Respondent. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEI) The Respondent was rated unacceptable in knowledge of subject matter because she neither presented her lesson knowledgeably nor used the appropriate teaching methodology. When asked for the definition of science fiction the Respondent answered incorrectly that it was fiction about science. In giving a spelling test, the Respondent merely read the words off instead of following the accepted and simple procedure of pronouncing the word, using the word in context, and then repeating the word. (T20-23) Dr. Augenstein rated the Respondent unacceptable in classroom management because the class was not in control. Students spoke up at-will without raising their hands for acknowledgment. The class was late in beginning because the children would not settle down. The Respondent appeared unable to keep her students focused on the learning process. Children who were trying to learn were distracted by the unruly children. (T28-30) The Respondent was rated unacceptable in the category of techniques of instruction because the Respondent's instructions to the students were unclear. When the students asked questions for clarification, the Respondent could not adequately answer. Dr. Augenstein felt that the Respondent was deficient in the sequence of her lessons. There was no background, no purpose and no follow through. Instead of facilitating a learning experience the Respondent was merely assigning activities. (T3O-40) Dr. Augenstein used the Teacher Assessment Development System (TADS), the approved assessment instrument (jointly developed by the school system administration and the teachers union and approved by the school board and the state) to assess the Respondent. The TADS is meant to act as a support system to help teachers overcome their deficiencies. A part of the system is the TADS prescription manual. This is a large manual which contains various self- assessment activities and learning materials keyed to various problem areas. (T20-26) On November 24, 1982, Dr. Augenstein presented a prescription to the Respondent to address the deficiencies noted at the observations on October 13, 1982 and November 9, 1982. To remediate weaknesses observed by Mrs. Nelson in preparation and planning, Dr. Augenstein made specific recommendations. These included turning in lesson plans every Friday to Mrs. Nelson. They were to be done separately for the Level II and Level III classes. They were to include the days' objectives, activities, assessment procedures, homework assignments, and the materials and media to be utilized. Dr. Augenstein recommended Mrs. Ruski (she language arts department head) and Mrs. Earle (the librarian) as good source people. (SE1-B) To remediate weaknesses observed in the Respondent's knowledge of subject matter, Dr. Augenstein assigned specific pages and exercises in the TADS prescription manual to be completed by December 8, 1982. The Respondent was also instructed to contact the Teacher Education Center (TEC) and enroll in course offerings of language arts by December 15, 1982. Dr. Augenstein suggested that the Respondent visit other language arts classes prior to December 15, 1982. To remediate the Respondent's weakness in classroom management, Dr. Augenstein recommended that the Respondent establish class rules and enforce them. The Respondent was directed to investigate a course on assertive discipline or teacher effectiveness training and to enroll in a TEC course in classroom management by March of 1983. The Respondent was also directed to review the faculty handbook which contained the rules and regulations of the school. She was directed to work with Assistant Principal Fontana to set up her classroom rules. (SEI, T32-36) To remediate the Respondent's deficiencies in techniques of instruction Dr. Augenstein prescribed resources such as the TADS manual exercises on questioning students, verbal interaction, effective teaching strategies, and instruction sequence. These were to be completed by January 15, 1983. Dr. Augenstein felt the Respondent needed to learn how to ask questions which lead the students into more critical thinking. The Respondent was to demonstrate at least one new teaching approach by January 15, 1983. (SEI) On November 29, 1982, a group of nineteen (19) parents met with Dr. Augenstein to lodge complaints against the Respondent. The parents requested that their children be assigned to another teacher for language arts instruction. The parents complained that the Respondent was not adequately prepared to teach, that she did not address separately and adequately the needs of Level II and Level III students, that she used "atrocious" grammar and poor pronunciation, and that she taught at a level below her students' abilities. The parents were angry that at the end of November their children were still in Chapter I of their textbook. They complained that work assignments were without purpose and often meaningless. Furthermore, the parents complained that the Respondent used inappropriate language in the classroom. The Respondent had called a child "a stupid ignorant person, yelled "shut-up" and had referred to the mother of one of her students as a "whore." The Respondent asked one student (in response to a request for a bathroom pass) whether she was "going to smoke or take quaaludes." The parents were upset that their children were subject to the Respondent's verbal abuse. They also complained that the Respondent had retaliated against students whose parents had made complaints by threatening and ridiculing the students by lowering student conduct grades. (SE2, T50-55) The parents reported a change in their children's atti- tude toward learning and school. Their children hated school and did not want to attend. The parents reported that the Respondent would indiscriminately punish an entire class for the misbehavior of various individuals. The Respondent had handed out detentions to two whole classes and then did not show up herself to supervise the students when they reported for the detention. (SE2-A) The parents reported that the Respondent had watched the soap opera "The Young and the Restless" on the educational T.V. in her classroom. They complained that at an open house for parents the Respondent was late and then allowed her own child to disrupt the program. The Respondent did not abide by school procedures requiring notice to parents of their child's unsatisfactory progress before giving a students an "F" in conduct. One parent related that the Respondent initially would not provide homework assignments for a sick child and then finally, after repeated requests, provided an inadequate and incomplete assignment. (SE2-B) The Respondent's response to the parents' comments and concerns was that the parents and students had "fabricated stories" and told "terrible lies" about her. She testified that the disciplinary problems in her class were because the students conspired against her to prevent her from teaching. She said that the students continually disrupted class and prevented her from teaching. The Respondent stated that she was shocked by the profanity that the students used among themselves. The Respondent denied that she had ever "blasphemed" a child. (SE2-E, T550-553) On November 23, 1982, one parent wrote a letter to Dr. Augenstein complaining of the Respondent's unjust treatment of her daughter, one of the Respondent's students. The parent complained that the Respondent punished all the students for the misbehavior of a few, She also complained of the Respondent's word choice, quoting the Respondent as saying in class,, "I'm not taking any crap from you kids." Her daughter had been so upset by the Respondent's treatment that she became physically ill with stomach cramps. When she requested a bathroom pass the Respondent "gave her a very hard time in front of the whole class." After the student insisted that it was an emergency, the Respondent looked at her watch and told her that she had sixty (60) second to go to the bathroom and was being timed. The parent was very upset at the emotional distress her daughter was suffering at the hands of the Respondent. (T2-1) Two other parents wrote the School on November 23, 1982, complaining that the Respondent's treatment of their particular children, and the students as a whole, was abusive. One parent emphasized that he did not want his child "humiliated or mistreated" by the Respondent. Both parents requested that their children be moved out of the Respondent's classroom. (SE2-J, 2-K) After the November 23, 1982, meeting with parents, Dr. Augenstein continued to receive complaints from other parents. On December 7, 1982, several parents met with Mr. Marvin Weiner, Superintendent of the North Area of Dade County Schools, Mr. Roger Frese, Director, and Principal Augenstein, and presented a petition signed by parents of the Respondent's students. They also presented more letters of complaint against the Respondent. (SE3) On December 13, 1982, Dr. Augenstein wrote the Respon- dent a letter to notify her that she had failed to comply with the prescription of November 24, 1982. The Respondent had failed to turn in lesson Plans as directed and the one plan she did turn in did not differentiate between Level II and Level III students. (SE4) On December 16, 1982, another parent wrote to Dr. Augenstein complaining of her son's treatment in the Respondent's classroom. Her son had been involved in an altercation with another student which developed into a fist fight. The Respondent ignored the incident and refused to separate the two boys stating, "let them both hang themselves back there." The parent sent a note to the Respondent requesting a seat change for her child. The Respondent read the note and did not respond to the parent. The Respondent, after some sarcastic words with the boy, refused to change his seat. The parent then received a poor progress report on her son, which the parent felt was either unjustified or due to her son's seat in the back of a noisy and unruly classroom. The parent felt that her son was not physically safe and secure in the Respondent's classroom. (SES-C) On January 6, 1983, another parent wrote complaining of a distressing phone call with the Respondent. The Respondent had told her that her son never came to class on time, never did his homework, and never passed any tests. The parent did not believe the Respondent since the parent closely monitored her child's homework. The parent went on to relate that she had given her son a note for all of his teachers indicating that he would be absent on a Friday and requesting assignments. The Respondent was the only teacher who did not provide any assignments. The letter written to Dr. Augenstein asked why if her son was doing absolutely nothing had she not received any sort of home progress report. (SE6) Teachers are required by the School Board to send notice to the parents any time their child is doing below average work or exhibiting below average behavior efforts. (T59) On January 6, 1983, the Respondent was again formally observed by Dr. Augenstien. The Respondent was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, assessment techniques and teacher-student relationships. (SE7A, T60-67) Dr. Augenstein felt the Respondent's lesson plans were not being used as an important resource for the structure of her class. The plans were done but not followed. The Respondent also displayed an inadequate grasp of her subject matter language arts. She used the grammatically incorrect sentence, "what hour you went to bed last night." Furthermore, the Respondent provided unclear and inadequate instruction when giving a test on homonyms. Her lesson plans lacked cohesiveness and sequential meaning. There was little if any connection between lessons, leaving the students unable to grasp the overall meaning of what was being studied. (T6O-65) Although the January 6, 1983 observation was done near the end of the first semester, there was no evidence of a structured composition program. The county language arts directives require teachers to assign compositions, collect-the assignment, constructively critique it and then reassign it. This is done to benefit students in developing their writing skills. (T66-68) The atmosphere of the Respondent's classroom was uncomfortable and hostile. The teacher and student interchanges were very cold. (T67) No prescription was given following the January 6, 1983 observation due to the fact that the Respondent had not completed the November 24, 1982 prescription. The Respondent was instructed to continue with the old prescription. (T68) On January 11, 1983, Dr. Augenstein gave the Respondent a listing of courses offered by the Teacher Education Center (TEC) to remediate unacceptable areas noted on November 24, 1982 and January 6, 1983. (SE8) On January 19, 1983, another parent wrote Dr. Augenstein complaining that the Respondent had assigned a book report which was inappropriate for seventh graders. Dr. Augenstein agreed that the book report was too elementary for junior high school, particularly the Level III children. (T70) On February 8, 1983, Dr. Augenstein formally observed the Respondent. Since the January 6, 1983 observation, the Respondent had been reassigned lower performance students. This was done with the hopes that she would be able to handle her students more successfully. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEIO, T71) The Respondent mispronounced "architecture" and "denouncement" words that were critical to her lesson. The students were quiet and well behaved as long as Dr. Augenstein was in the room. When the Principal was in the adjoining room, the class became extremely loud. The teacher next door indicated that the Respondent's class was always very loud. The Respondent's lesson lacked closure; rather, it ended when the bell rang. Finally, the Respondent did not adequately answer her students' questions. (T70-73) Although the Respondent had been switched to all Level II students, she exhibited the same problems she had with her other classes. (T74) On February 17, 1983, Assistant Principal Nelson conducted a formal observation of the Respondent's seventh grade, Level II class. She rated the Respondent unacceptable in the areas of classroom management, techniques of instruction and teacher-student relationships. The Respondent's students were very noisy and the Respondent had great difficulty getting them settled. There was an undercurrent of noise throughout the whole class period. There was no focal point to the Respondent's lesson. The lesson should have been reinforced with supportive material such as writing on the chalkboard or an overhead projector to assist the students who were visual rather than auditory learners. Some of the Respondent's students were totally uninvolved with the lesson. A few students monopolized the discussion. The Respondent did not attempt to involve disinterested students. She gave no encouragement to the non- participants. The Respondent had assigned homework and only five students had done it and they received no reinforcement for their effort. The Respondent collected their work but did not grade it or place it in the students' folders. (SE39, T195-198) Assistant Principal Nelson did not assign a new prescription to the Respondent even though the time line on the November 24, 1982 prescription had run out. Instead, she reviewed the areas of the prescription that were incomplete and encouraged the Respondent to complete them, Mrs. Nelson felt that the November 24, 1982 prescription was a good one. (T200) On February 23, 1983, a conference with the Respondent, Dr. Augenstein, Assistant Principal Nelson, and Mrs. Yvonne Perez, a union representative, was held to discuss the status of remediation of observed performance deficiencies and to discuss reemployment of the Respondent. Principal Augenstein stated that she would recommend consideration of a return to annual contract status for the 1983-84 school year. (SE11) On March 2, 1983, the Respondent's seventh grade Level II class was again formally observed by Dr. Augenstein and Mr. Roger Frese, an outside administrator. The Respondent was rated unacceptable in the areas of knowledge of subject matter and techniques of instruction. The Respondent gave her students inadequate instruction. She asked them to read a short story and then write a paragraph describing a character in the story. There was no discussion or instruction on method of character development that could be used to develop the paragraph. Most of the children were unable to complete the assignment. When the children read their paragraphs, many of which were merely a synopsis of the story rather than the assignment, the Respon- dent did not differentiate between acceptable and unacceptable responses. (SE12, SE33A, T78) At the end of the class, the Respondent made a homework assignment but the bell rang before she could adequately discuss or explain the assignment. Again, she did not provide closure on the lesson for the day. (SE33) Throughout the class period the Respondent missed opportunities to clarify the assignment. She did not adequately respond to student's questions and did not ask questions herself. Observers were left in doubt as to whether she, herself, understood the topic and assignment. (T416) As a result of the March 2, 1983 observation, Dr. Augenstein instructed the Respondent to continue with the prescription of November 24, 1982. In addition, the Principal instructed the Respondent to enroll in classes during the summer of 1983 covering the subject matter of (a) critical study and analysis of literature, (b) advanced English grammar, and (c) English rhetoric. (T79, SE13) On May 24, 1983, the Respondent's seventh grade English class was formally observed by Assistant Principal Herman Mills. The Respondent was rated unacceptable in the area of knowledge of subject matter. The subject of the Respondent's lesson was analogy. The sequencing of information disbursed in the lesson was illogical and unclear. (SE26) The Respondent handed out an assignment with a series of words: greater, larger, more bigger, same. The children were to pick out the dissimilar word from the group. The Respondent failed to realize there is no such expression as "more bigger." She should have indicated that a comma between more and bigger was missing. In another series of words: accidental, design, intentional, on purpose, and planned the Respondent incorrectly chose "designed" as the dissimilar word. In other parts of the lesson, the Respondent told the class that Canada was a French speaking country and Korea was a city. (SE26, T258-259) Throughout the 1982-83 school year, administrators at Highland Oaks made it a point to drop into the Respondent's classroom so that their presence would help the Respondent get her class under control. (T267) The Respondent's 1982-83 annual evaluation indicated that Respondent had not remediated the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. It recommended that the Respondent lose her tenure status and be returned to annual contract. The recommendation was not implemented. (SE14, T81) In September 1983, Dr. Augenstein assigned Assistant Principal Mills the task of evaluating the Respondent's progress with the November 24, 1982 prescription. At his first meeting with the Respondent, Dr. Mills discovered that the Respondent had not completed any "required action" on the prescription. At their second meeting, Joan Kaspert of TEC verified that the Respondent had still not completed the "required action" on the prescription. She verified, however, that the Respondent had completed the course "Techniques of Instruction." On September 27, 1983, Dr. Mills instructed the Respondent to obtain "sign- off" on her prescription by September 30, 1983. On October 5, 1983, he determined that the only item signed-off on the pre- scription was the meeting with Assistant Principal Fontana on the subject of classroom management and the already noted course at the TEC. (SE27) On October 19, 1983, Dr. Augenstein again observed the Respondent's seventh grade, Level II English class. She rated the Respondent unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. (SE15) The Respondent was rated unacceptable in preparation and planning because her lesson was planned too sparsely. It did not fill the time allotted. Her homework assignment could not be done by the students because it required a spelling text, which was not a book sent home with the students. The Respondent scheduled a grammar exercise which the class could not do because a large number of the students did not bring the appropriate book to class. (5115) The Respondent was rated unacceptable in the area of subject matter because she could not adequately explain or demonstrate the subject matter of her lesson, the difference between homonyms, and homographs, and homophones. (5115) The Respondent was rated unacceptable in the area of techniques of instruction in that she did not use the chalkboard to reinforce the differences between the spellings, pronunciations, and uses of the words studied. Students were called upon for examples which only furthered the confusion. The Respondent was unable to clarify or rectify the situation. (5115) The Respondent was rated unacceptable in assessment techniques. Her grade book showed grades for only five spelling tests since the beginning of the year. There were no graded compositions or homework assignments in the students' folders. The Respondent did not call for the day's homework assignment. When the Principal asked the class for their homework only six students could produce any and those produced did not seem to be the planned assignment. (SE15) In order to remediate the Respondent's deficiencies observed on October 19, 1983, Dr. Augenstein instructed the Respondent to continue with the November 24, 1982 prescription. She instructed the Respondent to pay special attention to teaching the required content and skills for grade seven literature study, library skills, and composition lessons. She also told the Respondent to enroll in the TEC component "Preparation and Planning." Dr. Augenstein assigned Assistant Principal Mills to monitor the adequacy of the Respondent's weekly plans and the overall accomplishment of course objectives revealed in the plans. She then assigned Ms. Zelda Glazer, Supervisor of Language Arts, to prescribe activities to remediate the Respondent's inadequate knowledge of her subject matter. (SE15) On November 16, 1983, the Respondent's reading lab was observed by Assistant Principal Mills. The Respondent was rated unacceptable in the area of techniques of instruction because her methodology was inappropriate for the reading lab. The purpose of the reading lab is to allow the students an opportunity to work at their own particular reading level. The Respondent was teaching the same lesson to the whole group, entirely missing the point of the reading lab. (SE28) Dr. Mills suggested that the Respondent immediately divide the class into three levels according to diagnostic testing that had been done. He instructed her to provide the requisite materials so that the students could work at their own pace. He also instructed the Respondent to utilize progress sheets so that the progress of the various students could be charted. Dr. Mills assigned a portion of the prescriptive manual to the Respondent and requested that she do all the activities suggested by the manual. Dr. Mills recommended various resource people to the Respondent. He assigned Mrs. Hoffman, a teacher on special assignment, to assist the Respondent in setting up her reading lab. Dr. Mills also arranged for carrels to be placed in the Respondent's reading lab. (SE28) On November 30, 1983, a parental complaint was made against the Respondent for the use of profanity in her classroom. After the matter was investigated it turned out that in chastising a student for profanity, the Respondent had repeated the word several times herself. The Respondent was instructed that repeating the profanity was ill-advised and served no purpose. She was instructed, in the future, to handle such situations using the standard referral procedures. (SE35) A conference for the record was held on December 13, 1983, to discuss the Respondent's progress with her prescription. After reviewing the Respondent's deficiencies and prescription the Respondent was informed that failure to remediate and improve performance to an acceptable rating could have an adverse impact on her employment status. (SE16) On February 14, 1984, the Respondent's ninth grade reading class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of preparation and planning knowledge of subject matter, techniques of instruction and assessment techniques. There was no evidence that the Respondent had applied the readings from the TADS manual that had been prescribed. Dr. Augenstein pointed out to the Respondent' that she had not enrolled in the TEC component on preparation and planning as required by her prescription. The Respondent was rated unacceptable in knowledge of subject matter because she did not understand the difference between assessment activity and programmed instruction. Her students were working on the ninth' grade preparation for taking the state assessment test given in the tenth grade. The Respondent did not orient the students to their assignments. She failed to answer the students' questions and did not review the students' work. The students never knew whether they had answered correctly or not. (T92) The Respondent was rated unacceptable in techniques of instruction because her students spent an entire period doing an activity which was never introduced, explained, monitored or concluded. The Respondent had no follow-up activities planned for the students who finished the assignment early. (T92-94) The Respondent was rated unacceptable in assessment techniques because her grade book showed no grades for the four weeks preceding the observation. The minimum amount of grades expected would be two per week. There was no evidence of graded homework in the students' folders. If the Respondent had become ill it would have been impossible for a substitute teacher to grade her students. (T94-95) In remediation, the Respondent was referred to a memorandum written April 22, 1983, in which Dr. Augenstein had suggested the need for intensive study of subject matter. She was also instructed to refer to the TADS prescription manual as prescribed on November 24, 1982. The principal also referred the Respondent to the prescription given on October 19, 1983. (SE13, 17) On March 6, 1984, the Respondent's language arts class was formally observed by Ms. Zelda Glazer and Dr. Augenstein. The Respondent was rated unacceptable in the areas of knowledge of subject matter and assessment techniques. (SE18) The Respondent was rated unacceptable in knowledge of subject matter because the Respondent was teaching a lesson dealing with parts of speech and she accepted incorrect answers from her students. She identified words as adjectives that were in fact adverbs, verbs and a noun. Furthermore, the Respondent's lesson was improperly sequenced. No background information was provided to the children who consequently did not understand what the Respondent was asking of them. In remediation the Respondent was directed to review with the department chairperson or school administrator the sequencing of a lesson. She was told to prepare a properly sequenced lesson, one which contained the necessary components: review, a drill, and a follow-up application of the skills learned. (T305-310) The Respondent was rated unacceptable in the area of assessment techniques because her students' folders did not contain any compositions. At this time of the year the students should have done between fifteen to twenty (15 to 20) compositions. There was no evidence of any assignments which allowed the students to apply newly learned skills. In remediation the Respondent was instructed to develop a test on a present unit or topic being taught using writing production as one element of assessment. (SE18, T311-313) On March 6, 1984, another conference for the record was held to discuss the Respondent's remediation of performance deficiencies relative to future employment with Dade County Public Schools. After reviewing the Respondent's performance during the 1982-83 and 1983-84 school years, Dr. Augenstein recommended that action be taken toward dismissal for cause. (SE19) In March 1984, the Respondent went on maternity leave. (T97) The 1983-84 year-end evaluation indicated that the Respondent's performance in knowledge of subject matter, techniques of instruction, and assessment techniques was unacceptable. The Respondent was recommended for dismissal. (SE2O, T98-99) The Respondent returned from her maternity leave to Highland Oaks in April 1985. The Respondent received special attention to help acclimate her after almost a year's leave. The Respondent was allowed a full week without the responsibility of a classroom so that she could observe the status of the classes she was assuming and meet with the teacher to discuss the students' progress. Although Dr. Augenstein had never done this before with any other teacher, she wanted to make sure that the Respondent would be adequately prepared. Dr. Mills was also assigned to help the Respondent make the transition. (T99-100, 266-269) On May 2, 1985, the Respondent's eighth grade Level II English class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of subject matter and techniques of instruction. (SE21) The Respondent was rated unacceptable in the area of subject matter because she did not appear to grasp the difference between general and specific research sources. She was subsequently unable to clearly explain techniques of research and writing. The students were frustrated and unable to receive clarification from the Respondent. (SE21, T103) The Respondent was rated unacceptable in the area of techniques of instruction because the Respondent was not addressing the needs of her students. Her students were advanced academic learners with a need for inductive and critical thinking approaches. (SE21, T104) In remediation, Dr. Augenstein recommended that the Respondent observe other Level IV English classes and that she do a research project herself. Respondent was also directed to design lessons using strategies for inductive and critical thinking. Dr. Augenstein assigned Mr. Charles Houghton, the North Area project manager for secondary language arts to assist and critique her demonstration lessons. (5521, T013-105) Because the Respondent had recently returned from maternity leave, her assessment techniques were not evaluated. (5521) On May 15, 1985, Mr. Houghton came to Highland Oaks to assist the Respondent. He observed her class working on a large research project. He discovered that the Respondent did not have a clear understanding of the use of bibliography cards, note cards, and research skills. Mr. Houghton told the Respondent that he would gather materials together to help her and return on Friday, May 17, 1985. Mr. Houghton returned on May 17, but the Respondent was absent that day. He left the materials with a note explaining the materials and inviting the Respondent to call him if she needed further assistance. The Respondent never called him. (T242-248) On May 28, 1985, the Respondent's English class was formally observed by assistant Principal Mills. The Respondent was rated unacceptable in the areas of preparation and planning, classroom management, and techniques of instruction. (SE29) The Respondent was rated unacceptable in preparation and planning because although she had prepared lesson plans she did not follow them. There was no lesson presentation and no reference to the lesson objective a review of composition skills. (SE29) The Respondent was rated unacceptable in classroom management because the class never settled down so that a lesson could be presented. (SE29) The Respondent was rated unacceptable in techniques of instruction because, among other things, there was no systematic method demonstrated for monitoring the students' performance on the learning objectives. The Respondent still did not use media to assist her presentation. There was no lesson presented. (SE29) For remediation, Dr. Mills met with the Respondent and urged her to follow Dr. Augenstein's prescription. He gave her more prescriptive activities which were similar to those already assigned. (SE29, T266-268) On June 6, 1085, the Respondent was observed by Assistant Principal Nelson and Ms. Glazer. The Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. (5E25) Mrs. Nelson observed little improvement on the part of the Respondent. She did not seem to be benefiting from the prescription and TADS system. (T210) The Respondent was rated unacceptable in preparation and planning because she did not follow her lesson plan. The poem which had been assigned reading for that day was inappropriate for the lesson objective: metaphors and similes. The Respondent was rated unacceptable in the area of knowledge of subject matter because not only was she using a poem that did not contain metaphors and similes, but she could not even give an example of a metaphor, when asked by a student. The Respondent referred to the cockney dialect of the poem as a southern dialect. Consequently she interpreted the word again" as dialect for aging and completely misinterpreted a whole line of the poem. (5E25) The Respondent was rated unacceptable in classroom management in that it took her ten minutes to call the roll, after which there was still socializing among the students. Several students came in late and no questions were asked of them. (SE25) The Respondent was rated unacceptable in techniques of instruction because she accepted correct and incorrect responses without comments or suggestions. No background was given on Rudyard Kipling (the poet being studied) or on the form of the poem, the ballad. The Respondent ignored all the appropriate topics raised by the poem and, instead, interjected the terms "metaphor" and "simile "haphazardly. (5E25) The Respondent was rated unacceptable in teacher- student relationships because she ignored the students' responsibilities. She neither praised nor questioned them. Furthermore, she ignored the non-participating students. (SE25) In remediation, the Respondent was referred to the prescription of May 2, 1985 and May 28, 1985. She was also directed to carefully review her lessons so that she would he prepared for students' questions and be ready with appropriate examples. The Respondent was also directed to specific exercises in the TADS manual dealing with feedback, interaction with stu- dents, and recognizing correct and incorrect responses. (SE25, T328-330) The Respondent's 1984-85 annual evaluation rated her unacceptable in the areas of preparation and planning, knowl- edge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. Dr. Augenstein noted that the Respondent's unacceptable performance--documented in previous years--continued since her return from leave. She again recommended that the Respondent be dismissed for cause. (SE22) On May 30, 1985, a conference for the record was held to discuss the Respondent's end-of-the-year evaluation. The principal again recommended that dismissal for cause be initiat- ed. (SE23B) The Respondent's final exams distributed in June 1985, indicated that she still had no understanding of what constituted an objective type of exam. (T27, SE30-32) Dr. Augenstein informally observed the Respondent's classroom many times over the years, as she did with all the teachers. Her informal observations substantiated the general deficiencies noted ire formal observations. Problems were continually observed in lesson planning, subject matter, methods and materials. (T106-107) Dr. Augenstein testified that she did not think that the Respondent put out even a minimal effort to overcome her deficiencies. (T108) All the administrators and educators who observed the Respondent's classroom agreed that the Respondent did not adequately grasp her area of specialization, the English language arts. All agreed that she lacked the minimum skills in both content and methodology of English language arts. (T16, 255, 304, 424, 461) Over the three year period, the Respondent was given various prescriptions to encourage and help her in remediation. The Respondent followed and completed only a tenth of the prescriptions given to her. (T170) Dr. Patrick Gray, Assistant Superintendent for the Dade County School Board's Office of Professional Standards, testified that--based on his educational background; his personal evaluation of the Respondent's file, his review of the evidence offered at the Respondent's school board hearing in the Division of Administrative Hearings' Case No. 85-3223; his review of the exhibits introduced on behalf of the Petitioner; his knowledge of the required teaching behaviors for teachers, including the state of the art and research; and the Florida teaching competencies which are expected of every Florida teacher--the Respondent's performance consistently failed to meet the standards of performance of the State of Florida. Dr. Gray recommended that the State permanently revoke the Respondent's teaching license. On September 4, 1985, the Respondent was suspended from her employment with the Dade County School Board. The School Board instituted proceedings to dismiss the Respondent from employment. On June 4, 1986, the School Board of Dade County entered its Final Order upholding the dismissal of the Respondent. (PE77)
Recommendation Based on the foregoing, it is RECOMMENDED that the Respondent's Teaching Certificate Number 182937 be REVOKED. DONE and ORDERED this 30th day of September, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1144 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-100. Adopted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT 1-8. Approved. 9. Approved, as modified to reflect that Respondent did not attend any of the TDS training sessions conducted by Dr. Gray. 10-13. Approved. 14. Approved, as modified to reflect that she was given the correct textbooks soon after parents complained about her performance. 15-21. Approved. 22. Approved as modified to reflect that a secretary made a transposing error on the form so that those areas where Respondent performed satisfactorily were marked unsatisfactory, and vice versa. 23-34. Approved. 35. Approved, but modified to reflect that, nevertheless, Respondent continued to perform below minimal standards and her remediation efforts were not effective. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Laverne Elizabeth Reaves 1430 N.W. 90th Street Miami, Florida 33147
The Issue The issue in this case is whether just cause exists to terminate Respondent's employment with Petitioner based on alleged incompetence under section 1012.33, Florida Statutes (2011),1/ as defined by Florida Administrative Code Rule 6A-5.056; and/or whether termination of employment is warranted because Respondent failed to correct performance deficiencies under section 1012.34(3).
Findings Of Fact Based upon the evidence and testimony presented at final hearing, the following Findings of Fact are made: The Board is responsible for hiring, firing, and overseeing all employees at Bayside, Lockmar, and other schools in Brevard County. At all times relevant hereto, Respondent was an art teacher in the Brevard County school system. Respondent worked at several different schools in Brevard County, including Bayside, Lockmar, Sea Park Elementary, Endeavor Elementary, and Indialantic Elementary. He taught at Bayside from 2003 until 2010, and then was transferred to Lockmar for the 2010-2011 school year. Respondent was given an annual evaluation each year at the school where he was teaching. Annual evaluations are used for the purpose of reviewing and critiquing a teacher's performance in the classroom. An annual review determines whether the teacher is "effective," "needs improvement," or "unsatisfactory" for the school year at issue. While at Bayside, Respondent's annual evaluations were generally "effective," meaning he was teaching in a fashion deemed satisfactory by the administrators. Mr. Tuttle, the principal, considered him an effective teacher, but he did not personally perform Respondent's evaluations. The evaluation for school year 2007-2008 was somewhat restrained in nature, describing Respondent as "an effective art teacher who satisfies all teacher competencies" and that he "demonstrates an acceptable level of knowledge of the subject matter." In the 2008-2009 school year at Bayside, the new principal, Mr. Novelli, began to have doubts about Respondent's teaching abilities and also about his mental health. Several incidents were reported to Novelli concerning Respondent that made Novelli very concerned. As a result, Novelli began to keep an eye on Respondent and did more frequent "walk-throughs" of Respondent's classroom. Walk-throughs by administrators are an accepted means of gathering information about the teacher and his or her teaching practices. At the end of the 2008-2009 school year, Respondent was given an evaluation that deemed him "effective" as to his overall performance as a teacher. The evaluation describes Respondent in exactly the same words used in the prior year's evaluation form. The effective evaluation was issued despite an incident that occurred at the end of the school year, to wit: The parent of a student contacted Novelli and reported that Respondent had kept the student's art project, refusing to return it to the student. Respondent told Novelli that he kept the project because the student had failed to pay for a canvas; Novelli found that excuse to be inaccurate. The parent said Respondent had asked the female student to pose for him after school and had given the student his cell phone number. Novelli ordered Respondent to return the art project, which he did. Respondent then allegedly began asking other students if the art student was pregnant. When Novelli asked Respondent about the student, Respondent became "very hostile, very loud, very emotional, and [he] started yelling, 'I'm not a pedophile; I don't sleep with my students; I don't do drugs, you can call the American Fence Company and ask them. I've had a drug test with them.'" These unsolicited, random comments by Respondent caused Novelli even greater concern about Respondent's mental well-being. The next school year, 2009-2010, Novelli did an interim evaluation of Respondent. Interim evaluations are done when administration believes a teacher is struggling or having serious issues which impede his or her performance. The interim evaluation was done at the end of October 2009 and indicated several areas of unsatisfactory performance by Respondent, including: Planning; Instructional Organization and Development; Presentation of Subject Matter; Responsibilities; and Student Evaluation. Respondent refused to sign the evaluation form, even though a signature does not equate to acceptance of the evaluation, it simply acknowledges that the evaluation has been discussed with the teacher (which it had been). Principal Novelli observed Respondent's classroom on several occasions and found the activities going on to be inconsistent with the lesson plans for that day. Respondent explained that the words he had written on the white board (in one case, the words "Van Gogh") were his lesson plan for the day. That was not acceptable, because lesson plans should be sufficient for another teacher to utilize to teach the class in the regular teacher's absence. Some of the problems in the area of responsibilities noted in the interim evaluation were: failing to timely provide administration with a list of students who could be identified as advanced placement candidates; failing to provide acceptable contributions of his students' art work for a poster design contest; and failing to submit art work for a proposed field trip timely and appropriately. Respondent was found to have a difficult time communicating with school administrators, guidance personnel, and fellow teachers. It became abundantly clear at final hearing that Respondent would be as uncooperative and recalcitrant as possible when talking to people he did not like. His demeanor demonstrated a strong resentment of his principal and others from Bayside. In the area of student evaluations, Respondent was found to have failed to provide daily participation grades to his students, despite saying he would do so in his course outline. All of his students received an "A" grade for one nine-week period. Novelli found those grades to be inconsistent with the observations he had made in the classroom. As for instructional organization, Novelli observed no substantive instruction going on during his classroom visits. Respondent explained that students were free to stay busy working on projects discussed in prior classes, so it might appear to an outside observer that they were not being instructed. However, there was insufficient evidence produced to substantiate Respondent's position in that regard. A Professional Development Assistance Plan (PDAP) was created for each of the areas of concern set forth in the interim evaluation. PDAPs are tools used to assist struggling teachers to find a way to overcome their shortcomings and improve in the areas of concern. On January 7, 2010, Novelli met with Respondent to go over the PDAPs and discuss Respondent's progress. Respondent refused to sign the PDAP forms. Thereafter, although he was given additional time to comply with the PDAPs' requirements, Respondent failed to follow all of the recommendations set out in the plans. For example, one of the recommendations for assistance involved Respondent going to observe another art teacher in their classroom. Novelli wanted Respondent to observe an art teacher selected by the district resource teacher, but Respondent preferred to observe a teacher (Leah Andritz) with whom he already had a friendship. Novelli felt that Respondent's observing his friend teach would not be as helpful as watching someone Respondent did not know. Novelli offered Respondent paid time off to observe the school-chosen art teacher. Ultimately, Respondent went to observe Andritz on his own time, rather than accept Novelli's offer. Respondent's annual evaluation was completed on February 12, 2010. Three areas (also called "strands") were graded as unsatisfactory: Instructional Organization and Development; Presentation of Subject Matter; and Student Response. The evaluation also graded Respondent as Needs Improvement in the areas of Planning and Responsibilities. The overall evaluation was unsatisfactory. A meeting was set for February 18, 2010, to discuss the evaluation. Assistant Principal Capalbo, whom Respondent trusted, was sent to escort Respondent to Novelli's office for the meeting. On the way from Respondent's classroom to the principal's office--which took three or four times longer than usual, because Respondent was making phone calls along the way--Respondent called and spoke to his union representative. The representative then came to the meeting as well. Respondent made numerous derogatory remarks and complaints about Novelli on the way to the meeting. He said Novelli had tried to have him arrested, had vandalized his car, and had attempted to engage in sexual relations with a married teacher.3/ There is no credible evidence that any of the allegations were true, but they made Capalbo wonder if Respondent was having mental issues. At the meeting, Respondent accused Novelli of recording a prior meeting by way of a USB pen. Respondent angrily threatened to file a lawsuit against Novelli and report him to the superintendent of schools. Each of the attendees at the meeting who testified at final hearing said Respondent became very agitated and angry. The union representative (who did not testify at final hearing) was ultimately able to get Respondent under control and persuaded him to leave the meeting. No credible evidence was provided to prove the existence of a USB pen or that meetings had been recorded. Respondent again refused to sign the evaluation form. As a result of Respondent's conduct at the meeting, Novelli placed him on paid administrative leave pending a review of his mental health and fitness for duty. He was on leave for about one week and returned after undergoing a psychological evaluation. A significant dispute arose between Respondent and Novelli concerning an event known as National Portfolio Day. The event was a special opportunity for art students that allowed them to have their art reviewed and to speak with representatives from several colleges and art schools. Respondent had taken students to the event in prior years. In the 2009-2010 school year, Respondent requested permission to take a number of his students and students from other schools to the event. His request was preliminarily approved by administration, pending several details being worked out. However, the permission was ultimately withdrawn, and no students from Bayside were allowed to attend. Respondent claims that the event was a valuable tool for students and had allowed many students to obtain significant scholarships to colleges in prior years. Novelli found out that the students from other schools who were going to the event were Advanced Placement (AP) students. Bayside did not have an AP program or any AP students.4/ Novelli asked Respondent to put together portfolios for the students he wanted to attend, and Novelli would get the artwork examined by an expert to see if the students were viable candidates for the event, even if they were not technically AP students. Respondent was given a deadline to get the student art portfolios to Novelli so they could be taken to the district office by a date certain. Respondent missed the deadline. Instead, Respondent personally hand-delivered the portfolios to the district office on the day they were due. The artwork was reviewed by an art expert who deemed the work to be inadequate for inclusion in the National Portfolio Day event. She rated the art at the lowest level of a five-tiered rating system. As a result of the art expert's review, Respondent was advised that no students from Bayside would be going to the event. Notwithstanding that decision being communicated to Respondent, he continued to act as if Bayside students would still be attending. He continued making transportation arrangements and notifying students' parents of the impending event. There were several unexplained emails admitted in evidence that show some continuing dialogue about the portfolio trip. The emails addressing this issue create some confusion as to whether Bayside students would be able to attend, but ultimately none attended. At the end of the 2009-2010 school year, Respondent was transferred to Lockmar. Although he had requested a transfer from Bayside, Respondent was extremely upset about the transfer. According to Respondent, he wanted to go to another high school where his former principal, Tuttle, was now the principal. The director of Human Relations Services, however, was told by Respondent's union representative that Respondent wanted to go to an elementary school. Tuttle said that his school's position had already been filled anyway. The principal at Lockmar (Hostetler) did not know at the time of the transfer that Respondent had received an unsatisfactory performance evaluation for his last year at Bayside. When she found out, she issued a memorandum (dated August 5, 2010) informing Respondent that he was on probation for a period of 90 days. The probation status, also called performance review, is essentially the same thing as a procedure called NEAT, except that a performance review is supposed to be completed within 90 days. That is, the teacher has 90 days to show improvement in the delineated areas of concern. It is not uncommon for a teacher to be placed on performance review following an unsatisfactory annual evaluation. As part of the performance review process, Hostetler frequently went into Respondent's classroom to observe his teaching style. Her visits would last the majority of the class period. She would visit classes of different grade levels and students in order to see how Respondent handled various age groups. After approximately eight weeks of reviewing Respondent, Hostetler issued an interim evaluation. That evaluation rated Respondent unsatisfactory in four areas and needs improvement in another area. Once again, Respondent was deemed to have unsatisfactory lesson plans. His instructional organization and development was again deemed deficient, as well as his presentation of subject matter. Further, he was found to be unsatisfactory in the area of responsibilities under the professionalism strand. The overall evaluation for Respondent was unsatisfactory. The evaluation was reviewed with Respondent on October 1, 2010, but he refused to sign it. On that same date, a number of PDAPs were created to help Respondent address his deficiencies. Respondent was given until December 10, 2010, to take steps to improve in the various areas. Later, when it became clear that he would not be able to meet that deadline, the PDAPs were extended to February 18, 2011, then to March 18, 2011, and then extended again to March 23, 2011. At least one of the extensions was done because Respondent was preparing his classes for an upcoming art show. On March 23, 2011, Hostetler completed Respondent's annual evaluation. It included three unsatisfactory scores and two scores of needs improvement. The overall evaluation was unsatisfactory, his second unsatisfactory evaluation in two years. Once again, Respondent refused to sign the evaluation form. There was considerable testimony and evidence presented at the final hearing concerning Respondent's tenure at Indialantic Elementary School from 1998-2002, some ten years prior to the final hearing. In his last performance evaluation at Indialantic, Principal Strong had given Respondent an overall unsatisfactory ranking. Although Respondent's performance at a different school so many years prior to the instant allegations may not be dispositive of anything in this case, it is noted that Respondent's administrators at that time had many of the same concerns as those raised by Novelli and Hostetler years later. Besides the on-going issues with less than satisfactory performance ratings, Hostetler had other concerns about Respondent as well. One issue had to do with Respondent sending children outside the classroom and instructing them to "look for dinosaurs." His intention was to keep the children from disrupting the class by their bad behavior. The instruction to look for dinosaurs was just a way of making the student sit and contemplate their behavior. Respondent claims to have learned the technique during training he took through a program called Sun Coast Area Teacher Training. Respondent maintains that he kept visual surveillance of the children when they were outside; the teacher in the adjoining classroom said he could not really do that and maintain contact with his other students. Nonetheless, it does appear that the children were belittled by their peers when they were sent outside to look for dinosaurs. Lockmar had been asked to take part in a contest sponsored by the local police department. Students were to draw pictures within certain parameters that would allow the pictures, if chosen, to be converted to magnets or other items. Respondent was supposed to have the children draw pictures related to a theme of policemen as peace keepers, then select appropriate pictures to submit for consideration by the judges of the contest. Respondent did have his children make drawings, but almost all of them failed to meet the stated size and content parameters. He then asked personnel in the front office to voice their opinion as to which drawings he should submit. Feeling uncomfortable making a decision such as that, the staff handed the drawings over to Hostetler. She ultimately found only three or four worthy of submission for the contest. Hostetler received complaints from other teachers that their students were not ready to leave the art classroom in a timely fashion. They complained that Respondent did not have them ready to go when the art period ended. Hostetler issued a memorandum to Respondent about addressing that issue appropriately. During the period of time Respondent was under performance review and addressing the PDAPs, he was assigned a peer mentor teacher, John Hays, to assist him deal with deficiencies. Hays worked with Respondent from September 2010 through May 2011, including approximately 15 on-site visits to the classroom and one visit with Respondent to another school's art classroom. Respondent made a few improvements during the time Hays worked with him, including upgrading the kiln, putting student drawings in the front office, and becoming more cooperative with others. However, Hays found that the classroom, as managed by Respondent, was not conducive to learning. The lesson plans did not comport with what was going on in the classroom, even though Respondent usually had an explanation for that, e.g., a special project was coming up and students needed to pay more attention to it than to what the lesson plan described. Hays seemed to doubt whether Respondent's reasons or explanations were entirely truthful. All in all, Hays did not see significant improvement by Respondent in most of the problem areas that were being addressed.5/ When Respondent left Lockmar, he was given the opportunity to retrieve all his personal property. At the beginning of the next school year, the new teacher in the art room discovered several pictures belonging to Respondent in the pod (office area) adjacent to the classroom. Some of the pictures were somewhat disturbing to the new teacher, so she turned them over to her principal, who turned them over to the School Board security office. The pictures depicted a person who looked much like Respondent and contained words and images that were not appropriate for elementary school-aged children (and possibly not even high school-aged children). Respondent testified that some of his high school students had made the drawings, but he would not say that the pictures were supposed to depict him (despite one being labeled "The Mighty O." Respondent was often referred to by students and teachers as "O.") Respondent admitted that the drawings were not appropriate for viewing by young children. There is, however, no evidence that any elementary school children ever saw or had access to the pictures. Respondent made some extremely unusual allegations about his prior principals, Strong and Novelli. He said Strong was responsible for Respondent's girlfriend having a miscarriage, that Strong had intentionally caused that to happen, and that he was afraid Strong may do the same thing to someone else. He said Strong had tried to poison him by placing contaminated mulch around his portable classroom building. He said Novelli had caused him to be arrested by sabotaging Respondent's car so that he would be pulled over by police and illegally searched. He made the allegation about Novelli secretly recording meetings. He alleged that Novelli was involved in either killing or damaging the careers of teachers he did not like. Respondent requested leave to pursue a doctorate degree, but the leave was denied. Immediately thereafter, Respondent re-filed his leave request, citing medical issues. He said he used the leave to, in part, pursue his doctorate, but did not adequately explain the suspicious request for medical leave. The leave request was supported by a note from a chiropractor indicating Respondent had back problems. The note did not verify Respondent's allegation that Strong was poisoning him at Indialantic (a claim raised in Respondent's deposition and final hearing testimony). There was no credible evidence to support the various claims Respondent made against his administrators, leaving the impression that the allegations are baseless. However, there was no direct showing by the School Board as to how these incredible stories directly affected Respondent's capabilities as a teacher. Respondent showed that he could be evasive and obstinate concerning the admission of even the least significant facts. He seemed reluctant to engage in conversation that was not full of innuendo, suggestion, or intrigue. For example, when asked whether he really believed his principal would vandalize his car (as Respondent had alleged), Respondent answered, "Because other teachers in the district, you know the Greek mythology Cassandra, how Cassandra would foretell the future? Other teachers in the district, as the Greek mythologist Cassandra, would forewarn me of Mr. Novelli's prior actions." When asked repeatedly if he believed another principal was interfering with his purchase of a building, Respondent replied, "I was very cautious with the information." When asked what that meant, he said, "It was worth investigating and finding out more." When asked if Principal Strong was responsible for Respondent's girlfriend losing her baby, he responded, "My answer to that is it's an unfortunate situation" and "I have a child that I wish was born and because of the politics, it is not here." Other than Tuttle's restrained endorsement of Respondent, no fellow teachers or administrators were presented to prove or suggest that Respondent could work well with others. Hays said Respondent was cordial to him, but he was not a co-worker or administrator. Respondent seems to be very eager to assist his students as they prepare for life after grade school. He seems to enjoy teaching and wants to return to the classroom. At least two parents of his former high school students endorsed Respondent as an important reason for their child's success. Respondent said he had helped some students obtain scholarships to assist with their college education, although there was no substantive proof of that fact. In his written response to the 2009-2010 evaluation, Respondent stated he would "produce over $300,000 . . . in independent scholarships for [his] students." Although he testified several times about the scholarships he could generate for his students, there was no credible evidence to support his assertion. (The response to his evaluation was well written and rational. It was not comparable to Respondent's way of orally expressing himself, at least as evidenced by his testimony at the final hearing.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Brevard County School Board, terminating the employment of Respondent, Mark Ostermeier, for just cause. DONE AND ENTERED this 25th day of June, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 25th day of June, 2012.
The Issue Whether Petitioner has just cause to terminate Respondent's employment with Petitioner due to unsatisfactory performance in accordance with Subsection 1012.34(3) (d), Florida Statutes (2009) .*
Findings Of Fact 1. Petitioner is the duly-authorized entity responsible for providing public education in Manatee County, Florida. 2. Respondent is employed as a teacher by the Petitioner, pursuant to a professional services contract. At the beginning of the 2007-2008 school year, Respondent began working as a sixth-grade mathematics teacher at Buffalo Creek Middle School (Buffalo Creek). The principal of Buffalo Creek was Scott Cooper (Cooper). During the 2007-2008 school year, Janet Roland (Roland) was the assistant principal at Buffalo Creek. 3. In or around December 2007, Respondent met with Cooper to discuss a parent telephone call. Cooper received a complaint from a parent about the grade the parent’s child received in Respondent's class. During the meeting, Cooper asked Respondent to detail her grading system. Respondent informed Cooper that she used a point system and explained how the system was beneficial to the students in her class, most of whom were below grade level and did not test well. 4. During the meeting in December 2007, Cooper logged into Respondent’s Pinnacle account in her presence and changed the weighting of her grades in various ways to see how the change would affect the students’ grades. Respondent did not agree to weight her grades and continued to use a point system. 5. Later in December, Respondent noticed that some of her grades were changed. She did not tell anyone of the alterations, but merely changed the grades back to be accurate. However, Respondent noticed that her grades where changed a second time and contacted the Manatee County School District’s (District) grade book administrator, Don Taylor (Taylor), out of concern. Taylor looked into the matter and, eventually, referred it to the District’s Office of Professional Standards, which conducted an investigation. The result of the investigation, which concluded in or around July 2008, showed that Cooper logged into Respondent’s Pinnacle account, without her knowledge or consent, and altered many of her grades. 6. Cooper was responsible for counseling teachers regarding performance issues. He walked through Respondent’s class every two-to-four weeks, but did not discuss with Respondent any other alleged performance deficiencies during the 2007-2008 school year. 7. Cooper was found guilty of misconduct by the District and was given a letter of reprimand. Cooper was soon thereafter demoted to a teaching position. During the first week of school of the 2009-2010 school year, Cooper apologized to Respondent for altering her grades. 8. Prior to becoming employed at Buffalo Creek, Respondent taught language arts at Lincoln Middle School (Lincoln). During her tenure at Lincoln, Respondent received all positive evaluations and was not informed of any perceived deficiencies in her performance. 9. During the 2008-2009 school year, Petitioner adopted the Manatee Core Curriculum (MCC) as a standardized curriculum to be implemented in the District’s four core subjects: math, language arts, social studies, and science. The MCC aimed to promote a consistent curriculum among the schools within the District, many of whom serve a transient population. The MCC is composed of prescribed units of study intended to promote student achievement of specific educational benchmarks, which are established by the state and assessed through statewide FCAT testing. Each unit is prescribed a specific duration of study to ensure that all units are covered during the course of the academic calendar and to ensure that the students are provided an opportunity to learn the skills and information required for promotion to the next grade level. In addition to traditional assessments such as homework, quizzes, and tests, students are required to complete a Unit Performance Assessment (UPA) at the end of each unit to assess progress and understanding of the covered concepts. 10. Petitioner has also adopted a standardized grade book, called Pinnacle, which all teachers in the District are required to maintain. Pinnacle is a computerized grade book system, in which teachers are required to enter all grades, assignments, and assessments provided to the students during the school year. Pinnacle can be accessed by both parents and administrators and was adopted by Petitioner as a means of communicating students’ progress to parents by providing instant and up to date access to their students’ grading history throughout the various stages of the MCC. The main benefit of Pinnacle is that it provides both teachers and parents a tool for identifying, in a timely manner, those students who may be having difficulties achieving the benchmarks evaluated by the MCC. Teachers are required to enter all of the students’ assessments in a timely manner in order to maintain an accurate and up-to-date picture of the students’ progress. District policy does not require weighting, but does require that grades be input into Pinnacle. Petitioner’s expectation is that teachers enter grades within two weeks of a given assessment. Thus, Pinnacle became a source of communication between parents and teachers. 11. Unfortunately, very few of the parents of Petitioner’s teachers requested a username, and other identifiers, and, thus, did not have access to the tool. 12. During the 2008-2009 school year, Petitioner employed Respondent, under a professional services contract, as a sixth- grade mathematics teacher at Buffalo Creek. The principal of Buffalo Creek during the 2008-2009 school year continued to be Cooper, and the newly-appointed assistant principal was Sharon Scarbrough (Scarbrough). Scarbrough was assigned the responsibility of evaluating the performance of certain teachers, including Respondent. Respondent was included in Scarbrough’s responsibility in order to avoid the appearance of impropriety. 13. During the first quarter of the 2008-2009 school year, Scarbrough identified certain issues relating to Respondent's performance, including the inordinately high failure rate among students in Respondent’s class. Several parents requested the transfer of their students out of Respondent’s class due to concerns that the students were not learning. 14. In grading her students, Respondent assigned different point values to each type of student assessment. Tests and UPAs were worth 100 points each, quizzes were worth 50 points each, and homework was worth ten points. As a teacher, Respondent had discretion as to how many tests and quizzes to administer, as well as how much homework she assigned and what point value to assign each assessment. 15. UPAs are project-based assessments given at the end of each unit of the MCC. UPAs are required by the MCC. 16. Respondent generally assigned homework to her students two or three times a week. When the students returned to class, they would grade their own homework for accuracy, while Respondent went over the answers on an overhead (ELMO) projector. Respondent required that the students redo the problems that they got wrong on the homework while they were reviewing it. The students then passed the homework forward to Respondent, who would grade the homework for effort, and would eventually log the grades in Pinnacle. Only the students who completely failed to complete the assignment were given a zero. 17. In addition to Pinnacle, Respondent communicated with the parents of her students through an agenda (initialed daily by Respondent and parents), progress reports, grading their own homework, and grade reports sent home every couple of weeks for parents’ signature. 18. All teachers at Buffalo Creek are required to prepare and have available for inspection, on the Friday before the next week, weekly lesson plans. They are critical not only as an established agenda to assist the teacher in maintaining pace with the MCC, but also as a mechanism to assist the administration in identifying those teachers who are not maintaining the required pace. 19. Scarbrough noted that Respondent was not submitting lesson plans in a timely fashion. Scarbrough engaged Respondent in informal conversations concerning these issues on at least three occasions in the fall of 2008. Respondent admitted to turning in her lesson plans late on occasions, but explained that she was always prepared for class and that she kept more detailed plans in her own lesson plan book. 20. During this same time period, Petitioner’s mathematics curriculum specialist, Joseph McNaughton (McNaughton), noted that Respondent had fallen well behind the pace for instruction established by the MCC. The MCC prescribed ten units of curriculum to be covered in sixth-grade math classes at set times during the school year. By the end of the first quarter, Respondent had completed only one of the ten units and had fallen 25 to 30 days behind the instructional pace established by the MCC. Respondent explained that she was behind in the curriculum due to the fact that: (1) it was her second year teaching math, (2) it was the first year of the MCC, (3) the unit itself included many components, and (4) many of her students lacked the requisite basic skills to comprehend the lesson. 21. On October 28, 2008, Scarbrough held a formal conference with Respondent, identifying various concerns with Respondent’s performance and addressing her expectations for improvement. Scarbrough noted that Respondent submitted untimely lesson plans eight of the ten weeks and informed Respondent that she was expected to submit her lesson plans the Friday before the week’s lessons are taught. Scarbrough addressed the fact that Respondent only completed Unit 1 of the McC during the first quarter and that Respondent was well behind the required pace of instruction. McNaughton was asked to assist Respondent in getting caught up with the curriculum. Respondent expressed a concern to McNaughton that the students did not possess the requisite knowledge coming in from fifth grade to complete the unit. 22. Scarbrough noted various omissions and inconsistencies in Respondent’s Pinnacle grade book entries and informed Respondent of the expectation that her grade book be timely and accurately maintained. Respondent admitted to failing to input the grades of approximately 23 students who had recently transferred to her class. However, she explained that the failure to input the grades was due to the failure of the original teachers to give the grades to Respondent, despite her repeated requests for the information. 23. Scarbrough noted that 59 percent of Respondent’s students received a “D” or “F” for the first quarter, which Scarbrough characterized as “an excessively high number of students not being successful” in comparison with other sixth- grade classes. Many of the students receiving failing, or near failing, grades in Respondent’s class were successful in their other subjects. Respondent admitted that she occasionally failed to comply with the District’s policy requiring teachers to input grades within two weeks of the assessment, but she 10 generally adhered to the policy. Further, teachers often used an X or Z to represent grades not assigned a numeric value in their grade books. Respondent explained to Scarbrough that in certain reports, the X or Z did not print and appeared to be blank. 24. Scarbrough noted that Respondent had failed to enter a grade for Unit 1, which was a requirement of the MCC. Respondent administered the UPA Unit 1 during the last week of the first quarter and input the grades into Pinnacle. Scarbrough also informed Respondent that grading and record- keeping are essential to basic teacher skills. Respondent denied having 59 percent of her students receiving a “D” or “F” in her class. She explained that the grades were inaccurate, due, at least in part, to the lack of transfer grades from the other teachers. 25. As a result of these concerns, Scarbrough issued Respondent a formal notice of return to documentation, dated October 28, 2008. Documentation is a procedure utilized by Petitioner to allow administration to formally observe its professional service contract employees at a date and time determined by the employee and to draft performance evaluations. The purpose of observing Respondent was to identify the root cause of her performance issues, so that Scarbrough could assist Respondent to improve upon them. Respondent understood that she 11 was being placed on documentation due to the issues outlined in the letter, dated October 28, 2008, from Scarbrough. She began an attempt to remedy the perceived deficiencies immediately by working with two resource teachers. Respondent also amended her policy of not accepting late work from students in an effort to boost the students’ grades. She also put together a packet of work and sent it home with the students over winter break, conducted an academic “boot camp,” asked administration to meet with parents, and asked Scarbrough to send out an automated telephone message to parents to make them aware of the makeup work. In addition, Respondent input her grades into Pinnacle in a timely manner. 26. Petitioner also provided Respondent professional development coaching with Specialist Amy Booth (Booth), who was hired by Petitioner to assist instructional staff with various issues relating to grade book maintenance, organization, time management, and execution of daily lessons, and Peggy Wolfe (Wolfe), who was hired by the Manatee Education Association (MEA) for the same purpose. Upon Wolfe’s request, Scarbrough agreed to delay formal observation of Respondent, until March of 2009, to allow Booth and Wolfe additional time to assist Respondent in improving her performance issues before being formally observed. 12 27. Petitioner also provided Respondent the opportunity to work directly with McNaughton to develop strategies and techniques for maintaining the instructional pace required by the MCC. McNaughton assisted Respondent in making revisions to the MCC in an effort to cover all the instructional units before the end of the school year. 28. McNaughton intended to present a “model lesson” to Respondent's classes while Respondent observed. The model lesson would provide Respondent the opportunity to observe beneficial instructional techniques demonstrated by McNaughton, while providing McNaughton an opportunity to assess whether any nuances existed within the classroom, or among Respondent's students, that might reveal the cause of the issues related to the instructional pacing and lack of student achievement. 29. At the request of Respondent, however, the model lesson was cancelled. Instead, Respondent accompanied McNaughton to another middle school within the District to observe another teacher present a lesson. 30. In January or February of 2009, Scarbrough conducted her first formal observation of Respondent. Students are assigned “bell work” at the start of each class, which is “start up” work for students to complete while the teacher performs administrative tasks such as attendance. Bell work assignments should typically take five-to-ten minutes to complete. 13 Respondent spent nearly half of the class period assisting her students complete bell work, which left only half of the class period for the scheduled instruction. Respondent did not complete the scheduled instruction. 31. On February 24, 2009, Cooper and Scarbrough held a formal conference with Respondent to discuss continued concerns with her performance. Respondent's Pinnacle grade book entries indicated that 66 percent (69/104) of the students in Respondent's combined classes were receiving an “F” at the time of third-quarter progress reports. Respondent’s Pinnacle grade book entries also revealed that Respondent was not recording student assessments in a timely manner and that Respondent failed to enter grades of any type for the first half of the third quarter. Cooper and Scarbrough reiterated Petitioner's expectation that students’ grades be entered within two weeks of a given assignment and that frequent and ongoing assessment of students’ progress and timely feedback to students are essential components of effective teaching and vital for student learning. Cooper and Scarbrough also reiterated the expectation that lesson plans be submitted in a timely manner, as Respondent continued to fall short of this expectation. 32. On March 2, 2009, Scarbrough conducted another formal observation of Respondent. Scarbrough noted that Respondent was still well behind the required MCC pacing, despite McNaughton’s 14 assistance and revision of the curriculum. Respondent's Pinnacle grade book entries demonstrated a lack of variety in the type of assessments utilized by Respondent to monitor students’ progress and failure on the part of Respondent to record assessments in a timely manner. However, on the appraisal form, Scarbrough indicated that Respondent had successfully demonstrated each of the requisite areas, except Area 7, regarding using technology in instruction. Scarbrough marked they are “not yet demonstrated” due to a question as to how often Respondent entered her grades into Pinnacle. 33. On March 24, 2009, Scarbrough conducted a third formal observation of Respondent. Respondent took nearly the entire class period to review one problem and held the students after the end of class to assign homework. During their post- observation conference, Scarbrough emphasized the need for Respondent to utilize a lesson plan as a schedule of topics to cover to assist Respondent in maintaining pace with the MCC. 34. On March 25, 2009, Cooper issued Respondent a formal written reprimand for “failure to meet expectations for curriculum implementation, and for lack of adequate, timely and appropriate student assessment, and grade reporting.” Respondent remained three units behind the pacing required to successfully complete the MCC by the end of the school year, which placed her students at risk of not acquiring the math 15 skills needed to advance to the next grade level. Respondent failed to record expected UPA grades in her Pinnacle grade book. Cooper reiterated that completion of a UPA for every unit is a “non-negotiable requirement for implementation of the [MCC].” Respondent failed to adequately assess student progress through tests and quizzes and continued to record grades in an untimely manner. Cooper stated that the high failure rate among students in Respondent’s classes was directly related to these deficiencies and that further recurrence of the actions identified would result in further discipline. 35. On April 2, 2009, Scarbrough placed Respondent on a 90-day probation, due to unsatisfactory performance. Despite instruction and modification of the curriculum from McNaughton, Respondent failed to complete required UPAs and remained three units behind the pacing required by the MCC. Respondent demonstrated poor time management, lesson planning, and lesson execution, as evidenced by her observed inability to complete her daily lessons within the allotted class time and her failure to maintain pace with the MCC. Respondent performed little or no assessment of her students’ progress during the third quarter through homework, quizzes, and tests, as evidenced by her Pinnacle grade book entries. 36. Respondent’s students continued to receive an inordinate number of failing and nearly failing grades. In the 16 first quarter of the 2008-2009 school year, 59 percent of Respondent's students received a final grade of “D” or “F.” In the second quarter of the 2008-2009 school year, 62 percent of Respondent’s students received a final grade of “D” or ‘F.” In the third quarter of the 2008-2009 school year, 47 percent of Respondent’s students received a final grade of “D” or “F." The inordinate number of students failing to succeed was particularly troubling since Respondent's class load was the lowest on campus, and her class size average was the smallest in comparison to other core classes. Numerous parents indicated that Respondent was not keeping them adequately informed of students’ progress and requested that their students be transferred from Respondent’s class. Parents complained that Respondent failed to respond to telephone calls and e-mails ina timely manner. 37. Scarbrough provided Respondent written notice of these deficiencies and of the procedural requirements relating to the probationary period. Scarbrough also provided Respondent a Formal Improvement Notice, reiterating her performance deficiencies and expectations for improvement and identifying the assistance available to her, including continued coaching and instruction from Booth, Wolfe, and McNaughton. Scarbrough met with Respondent, Booth, and Wolfe to formulate strategies for Respondent’s continued evaluation. 17 38. On April 24, 2009, Scarbrough conducted a fourth formal observation of Respondent. Respondent again took nearly half of class to complete bell work and utilized only minimal time for actual instruction. Scarbrough noted in her post- observation conference that Respondent needed to reduce/eliminate this time management issue. Respondent also failed to maintain her Pinnacle grade book entries in a timely manner. 39. On May 20, 2009, Scarbrough conducted a fifth formal observation of Respondent. Respondent failed to continue to adequately assess students’ progress and to provide a variety of assessments, as evidenced by the fact that she had given only one quiz and completed only one UPA at the time of the observation. Respondent continued to enter assessments in her Pinnacle grade book in an untimely manner and failed to enter any grade for UPA Unit 7. Respondent continued to submit her lesson plans in an untimely manner. 40. Scarbrough observed Respondent on May 20, 2009, and made notations on the teacher appraisal form. After this observation, Scarbrough marked Respondent demonstrated all of the requisite areas aside from Areas 10 and 14, regarding demonstrating improvement in students’ performance through assessment and adhering to the Code of Ethics and Principles of Professional Conduct, respectively. Scarbrough felt Respondent 18 did not demonstrate Area 10, because Respondent had administered only one quiz and one UPA in a month, and the quiz grades were not entered into Pinnacle timely. Scarbrough marked Respondent deficient in Area 14, because she did not turn in all of her lesson plans in a timely manner. 41. On June 2, 2009, Scarbrough completed the Teacher Performance Appraisal Feedback Summary Form, summarizing Respondent’s performance during probation. Scarbrough found that Respondent demonstrated all areas with the exception of Areas 10 and 14. She noted that Respondent still has some areas to improve upon such as lesson planning, assessments, and grading. Scarbrough gave her opinion that Respondent had not improved upon her identified deficiencies and that her performance remained unsatisfactory. 42. However, on cross-examination, Scarbrough reluctantly agreed that Respondent did improve in many areas outlined in the probation notice, including proper use of daily agenda and bell work. The number of “D’s” and “F’s” in Respondent’s classes decreased. Scarbrough also admitted that Respondent completed the MCC by the end of the year, without skipping any units. She also admitted that after receiving only two complaints from teachers whose classrooms were located a far distance from Respondent, she spoke to Respondent about letting her students out on time, and the situation was remedied. Scarbrough 19 admitted that she did not compare the amount of assessments administered by other sixth-grade mathematic teachers when deciding that Respondent did not administer enough tests or quizzes. 43. Effective August 18, 2009, Respondent voluntarily transferred to Electa Lee Magnet Middle School (Electa Lee), upon the retirement of another teacher. Respondent received approval for transfer up the chain of command to the superintendant. 44. The law provides that a teacher who holds a professional services contract may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies. 45. In light of Respondent’s transfer, Scarbrough met with Scot Boice (Boice), principal of Electa Lee, and Darcy Hopko (Hopko), Petitioner’s director of Human Resources, to review Respondent’s performance issues, the process associated with the statutory probationary period, and the deadline for the end of probation. Teachers were required to report for the 2009-2010 school year on August 18, 2009. At the meeting, Scarbrough, Boice, and Hopko determined that Respondent’s probation expired on September 19, 2010. When Respondent transferred to Electa Lee, she had completed 58 of the 90 days’ probation. He also 20 reviewed only the letter placing Respondent on probation. He did not review her personnel file or other relevant documents. 46. Boice assigned Respondent a position as a sixth-grade math teacher at Electa Lee. On August 25, 2009, Boice and Electa Lee Assistant Principal Wally Hunter met with Respondent to discuss her continued formal observation and the remaining probationary process. 47. On September 3, 2009, Boice again met Respondent to schedule her formal observation. Respondent chose September 10, 2009, at 1:30 p.m., as the date and time for Boice to observe her. 48. Prior to the September 10, 2009, formal observation, Boice did a few walkthroughs of Respondent’s classroom, but never for more than five minutes. 49. On September 10, 2009, Boice conducted his formal observation of Respondent. Boice noted that Respondent took 26 minutes to complete administrative tasks and to assign bell work at the start of class. Respondent did not begin the scheduled lesson until the final ten minutes of class. Boice also observed Respondent releasing students from class late, because they were unable to complete the lesson during the allotted class time. 50. Boice was unable to sufficiently observe some of Respondent’s identified performance deficiencies due to the 21 limited time Respondent worked at Electa Lee prior to the end of her probation. For example, Boice was not able to sufficiently observe the manner, variety, and adequacy of the assessment tools used by Respondent to evaluate student progress, such as homework, quizzes, and tests. Respondent had not yet completed UPA Unit 1 at the time of the formal observation. Respondent provided Boice, as an example of her assessment of the students, a short, handwritten quiz composed of only four or five questions. Boice determined that the quiz was not adequate, but did not give her an opportunity to correct the problem. 51. Boice was also unable to sufficiently observe Respondent's performance in communication with parents, including her timely maintenance of the Pinnacle grade book. Boice informed Respondent that training on proper use of technology in assessment of students, including Pinnacle training, would be provided to all staff at Electa Lee during in-service on September 25, 2009, six days after the 90-day probationary period ended. 52. Despite her prior observed deficiencies, during her probation, in the area of Pinnacle, Respondent failed to attend the in-service training. However, Respondent also failed to schedule her absence in advance, but stated that she was on campus that day, but did not have access to a computer, so she did not attend the in-service. 22 53. On October 1, 2009, Scarbrough and Boice authored a letter to the superintendent of schools, detailing Respondent’s continued unsatisfactory performance. Based on their combined observations and assessments, Scarbrough and Boice concluded that Respondent was still not competent in planning, implementing, and presenting effective lessons and communicating effectively with parents. 54. On October 13, 2009, the superintendent recommended the termination of Respondent’s employment pursuant to Subsection 1012.34(3)(d), Florida Statutes. 55. In the letter to the superintendent, Boice and Scarbrough relied almost exclusively on Respondent’s past performance, in coming to the conclusion that Respondent had not satisfactorily corrected her performance deficiencies. The reasons cited in the letter were those identified in the initial April 2, 2009, probation letter, including lesson planning, students’ assessment, instruction/presentation of subject matter, and communication. The basis for purported deficiencies was Respondent's behavior at Buffalo Creek and, to a much lesser degree, the short observations while Respondent was at Electa Lee. 56. Boice conducted a single observation of Respondent, of less than one class period, on September 10, 2009. Boice took notes regarding the observation on a Teacher Performance 23 Appraisal Feedback Summary Form and provided a copy of that form to Respondent at a meeting the following day. Boice marked that Respondent had demonstrated four of the 14 areas and that she did not demonstrate three areas. Boice felt he did not have enough information in the short time he observed Respondent to form an opinion as to the other seven areas. 57. Boice marked that Respondent did not demonstrate Area 1 because the bell work her students completed took a long time to complete, due, in part, to the fact that Respondent walked up and down the aisles to initial the students’ agendas. Boice also marked Respondent deficient in Area 7, regarding using technology in instruction, because she only employed the use of an ELMO and Pinnacle. Finally, Boice marked Respondent as not having demonstrated knowledge and enthusiasm for the subject matter based upon his understanding that she tolda student that she did not know how to complete a problem. 58. At the meeting with Boice to discuss his notes regarding the observation, Respondent told Boice that she believes she promotes the students’ independent development and learning and that she is extremely enthusiastic about math. Respondent denied having told a student that she did not know how to complete a problem, but explained that she told the class she would calculate an answer and have it for them in the next class period. Respondent further explained that she used an 24 ELMO and Pinnacle during the class and that she did not have computers present in the classroom to use other types of technology. While working at Electa Lee, Respondent received only one parent concern. After a parent-teacher conference, the parent appeared satisfied. Respondent requested that Boice observe her for a second time, but Boice declined and indicated that they were on a timeline. 59. The administrators at Buffalo Creek and Electa Lee had never put any other teacher on performance probation other than Respondent. Cooper and Roland each testified that they did not believe Respondent was incompetent during the 2007-2008 school year. Cooper stated that during his walkthroughs during the 2008-2009 school year, he did not witness any behavior by Respondent that made him feel she was ineffective or having any problems. McNaughton also testified that he did not observe any behavior by Respondent that would lead him to believe she was incompetent or ineffective. 60. The District expected the FCAT math scores of sixth- grade students to be lower after implementation of the MCC. Students at Electa Lee in 2008-2009 followed that pattern, and their scores were lower than the previous years’ scores. The summaries provided by the District showed that the number of students ranked at a level one, who were in fifth grade in 2008, increased by 13 percent by the time they took the FCAT in 2009. 25 Also, the number of students in that same group who were ranked at level four decreased 11 percent during that same time. Further, the Student Dashboard reports showed that overall, Respondent’s students at Eletra Lee were improving their math FCAT scores from the previous year (comparing previous FCAT scores to first-quarter benchmark scores). 61. Many other teachers turned their lesson plans in late while working at Buffalo Creek. Further, Respondent did not teach any advanced classes during 2008-2009 or 2009-2010 school years. Of all of Respondent’s students during the 2008-2009 school year, she had two students who were ranked at a level four on a scale of one to five. The rest of the students were ranked at a three or lower. 62. Other mathematics teachers in the District fell behind during the first year of the MCC, including every mathematics teacher at Electa Lee. Pacing, although it was described as “suggestive,” was treated as mandatory to Respondent. 63. The purpose of performance probation is to allow a teacher an opportunity, through coaching and other assistance, to remedy any performance deficiencies. 64. At the hearing, under cross-examination, Boice testified that he had no problem with Respondent inputting grades or otherwise using the Pinnacle online grade book. Boice also testified that Respondent's grade distribution was 26 acceptable and that he did not have a problem with her not having her lesson plans complete in a timely manner. 65. Respondent weighted her grades while working at Electa Lee. The Grade History Verification report dated September 1, 2009, shows that ten of 80, or 12 percent, of Respondent’s students were earning a “D” or “F” at that point. 66. Boice testified that Respondent did not have any problems in her assessment of students and that Respondent was not having trouble keeping up with the MCC during her time at Electa Lee. In general, Boice found that Respondent’s grading and recordkeeping were acceptable. He also found that Respondent was working within the guidelines of the UPA Unit 1 and the MCC. 67. Boice did not consider extending the probationary period to allow Respondent an opportunity to establish that she had remedied all of the perceived deficiencies in her performance. Instead, he deferred to the information provided to him by Scarbrough for the prior year and related Respondent's present performance in August and September 2009 to her past performance at Buffalo Creek. This was clearly wrong. Respondent appeared to have made significant progress in remedying her performance deficiencies. Boice’s conduct short- circuited that progress and did not permit a thorough observation to be complete before recommending termination. 27
Conclusions For Petitioner: Brian Ussery, Esquire Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. Post Office Box 639 Tampa, Florida 33602 For Respondent: Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order that: (a) finds that Petitioner has not proven that Respondent has not satisfactorily corrected the performance deficiencies noted against her; that, (b) Respondent’s contract be reinstated; and that (c) Respondent be awarded back salary, plus benefits, to the extent these accrued during the suspension period. DONE AND ENTERED this 19th day of August, 2010, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of August, 2010. 39
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was employed as a classroom teacher by Petitioner under a continuing contract. Respondent has been a classroom teacher for nineteen (19) years, and has been employed by Petitioner for the last eighteen (18) years. Petitioner taught primarily at elementary school level but, at various times, she has also taught at the high school level. Respondent was awarded a continuing contract of employment by Petitioner in 1973. Respondent has never been, other than this proceeding, the subject of any formal disciplinary proceeding during the time she has been employed by the Petitioner. On September 25, 1957, Respondent brought three (3) students to Helen Ramsey, Assistant Principal, Port St. Joe High School, for discipline due to their alleged misbehavior in the Respondent's classroom. The more credible evidence shows that Respondent insisted that Ramsey discipline the students in her presence. The reason for Respondent's insistence was that students previously sent by Respondent for discipline had bragged to other students that no punishment had been administered and this created further disciplinary problems in her classroom. Ramsey requested that Respondent leave and let her "handle the situation." Due to Respondent's insistence, Ramsey discussed the matter with Respondent alone in Ramsey's office. After this discussion, Ramsey agreed to question the students. Two (2) students admitted misbehaving in the classroom and were paddled. The third student denied misbehaving in the classroom and Ramsey refused to proceed any further until she had questioned the student without Respondent being present. After further discussion, and with Ramsey refusing to proceed any further, Respondent left. There is insufficient evidence to show that Ramsey ever gave Respondent a direct order to leave her office or the reception area but only requested that Respondent leave and allow Ramsey "to handle the situation" which Respondent did, after a lengthy and heated discussion with Ramsey. Ramsey had not experienced a problem, such as this, with Respondent before and, although Ramsey saw no apparent reason for Respondent's "unusual" attitude, Ramsey did not question Respondent at any time concerning her attitude. The entire incident between Ramsey and Respondent lasted about thirty (30) minutes, including the five (5) to ten (10) minutes Respondent spent with Ramsey without the students in the beginning and the ten (10) to fifteen (15) minutes Respondent was in Ramsey's office while Ramsey discussed the matter with students and paddled two (2) of them. On September 25, 1986, Edwin Williams, (Williams) Principal, Port St. Joe High School, was away from school, and therefore Ramsey reported the incident to Superintendent Walter Wilder (Wilder). When Williams returned on September 26, 1987, Ramsey reported the incident to him. On September 26, 1987, when Williams, became aware of the incident, he sent an aide, Ellie Padgett (Padgett) to Respondent's room to ask Respondent to report to Williams' office and for Padgett to stay with Respondent's class. Upon receiving the message from Padgett, despondent advised Padgett that she would go to Williams' office the next period which was her free period. While Padgett was in Respondent's room, Juanita Powell (Powell), Williams' Secretary, paged Respondent on the intercom and there was credible evidence that Respondent informed Powell that she would come to Williams' office shortly. After Padgett returned to Williams' office, Powell went to Respondent's room to inform Respondent that Williams wanted to see her. Respondent told Powell that she had planned on giving treats to her students at the end of the period and would come when she finished. After Powell returned to Williams' office, Williams went to Respondent's room and told her he wanted to see her in his office. There was credible evidence that Williams was angry with Respondent and expressed his anger when he demanded that she come to his office right away. Respondent went to Williams' office in about five (5) minutes after he demanded that she come. This gave Williams time to return to his office and "cool-off." No one advised Respondent what Williams wanted to speak to her about or that the matter needed immediate attention. Upon arrival at William's office, Williams confronted Respondent with the report of the incident regarding the students given to him by Ramsey. A heated discussion ensued and Williams told Respondent to leave his office and the school, and then Williams proceeded to Wilder's office. After Williams left, Respondent went to her classroom to gather up her personal things. While gathering up her personal things, Respondent was advised by Mr. Osborne, a school employee, to report back to Williams' office. Respondent reported to William's office and shortly thereafter Williams and Wilder arrived. Wilder advised Respondent that they were dealing with "what was potentially a serious disciplinary problem." At this juncture, Wilder directed Respondent to respond to a series of questions concerning the Ramsey incident which Respondent declined to answer, but addressed her remarks to Williams concerning what Respondent felt was Williams' unfair treatment of her during this incident. Respondent continued to discuss the matter with Williams even after he again directed her to leave the school premises. However, Respondent did leave the school in about ten (10) to fifteen (15) minutes. Respondent was not offered an opportunity to have another teacher present to witness the conversation during this meeting with Williams and Wilder. Respondent did comply, although belatedly, with: (a) the request from Ramsey to leave her office; (b) Williams' request to leave his office and the school premises and, (c) Williams' request to report to his office. There was credible evidence that Respondent's failure to notify the school secretary of her absence from duty on September 12, 1983, was due to Respondent's belief that her husband, Clarence Monette, had advised the secretary of her absence. There was credible evidence to show that Respondent was dividing her time between Highland Elementary School and Port St. Joe High School on May 22, 1986, and that Respondent's reason for not reporting to Highlands on May 22, 1986, was due to her staying at the high school to attend an art festival with the children. There was credible evidence that on September 23, 1986, Respondent was absent but made arrangements to have her lesson plan delivered to the school secretary and for a substitute teacher; however, Respondent failed to notify school authorities that she had engaged a substitute teacher which resulted in the school engaging a substitute teacher also. Respondent has had an annual formal evaluation for each of the eighteen (18) years she has taught in the Gulf County School district and, during that entire time, no school administrator has ever indicated that she was guilty of insubordination or that she had willfully neglected her duties. There was insufficient evidence to show that Respondent intended to violate school policies or to disobey an order of her superiors. There was insufficient evidence to show that Respondent's material acts and omissions were willful.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, School Board of Gulf County, enter a Final Order dismissing all charges filed against the Respondent, Audrey Monette and that Respondent be restored to her position as a continuing contract employee of the Gulf County School Board, and that she receive back pay for the entire period she has been in a non-pay status because of these charges. Respectfully submitted and entered this 2nd day of July 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of July 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4471 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in substance in Findings of Fact 5, 6, 7, 8 and 9. First and second sentence adopted in substance in Findings of Fact 12 and 13 except for that part of second sentence regarding Respondent ignoring Williams' orders which is rejected as not supported by substantial competent evidence in the record. The balance of paragraph 3 adopted in substance in Findings of Fact 14 and 16 except for that part of the fifth sentence concerning Respondent calling Williams an "Uncle Tom" and that part of sixth sentence concerning Respondent charging Williams with believing Ramsey in preference to her which I reject as immaterial and irrelevant. Reject that portion of paragraph 4 concerning Respondent's refusal to leave Williams' office as not supported by substantial competent evidence in the record. The balance of paragraph 4 is adopted in substance in Finding of Fact 17. 5-6. Covered in background material. 7-8. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent 1-2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Findings of Fact 5, 6 and 7. Adopted in Finding of Fact 6. Not stated as a finding of fact but as recitation of testimony. However, it is covered in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Not stated as a finding of fact but as a recitation of testimony. However, it is covered in Finding of Fact 6. 10-11. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. 14-15. Adopted in Finding of Fact 11. 16-17. Adopted in Finding of Fact 12. 18-19. Adopted in Finding of Fact 13. 20-22. Adopted in Finding of Fact 14. Adopted in Findings of Fact 14 and 15. Adopted in Findings of Fact 14 and 19. Adopted in Finding of Fact 15. Adopted in Finding of Fact 2. 27. Adopted in Findings of Fact 16 and 17. Adopted in Finding of Fact 18. Not stated as a finding of fact but a recitation of testimony but covered in Finding of Fact 17. Adopted in substance in Finding of Fact 17. 31-32. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 24. Adopted in substance in Finding of Fact 25. COPIES FURNISHED: Cecil G. Costin, Jr., Esquire Post Office Box 98 Port St. Joe, Florida 32456 Philip J. Padovano Post Office Box 873 Tallahassee, Florida 32302 B. Walter Wilder, Superintendent Gulf County School Board Port St. Joe, Florida 32456 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact At all times material hereto, Respondent was an instructional employee of the School Board of Dade County. In that capacity, Respondent was employed on an annual contract basis at Rainbow Park Elementary School from the beginning of the 1974-1975 school year through the end of the 1976-1977 school year. During this period, Respondent was placed on continuing contract on the recommendation of Andel W. Mickens, Principal of Rainbow Park Elementary School. During the 1976-1977 school year, after he had been placed on continuing contract, Respondent, while employed as a physical education instructor at Rainbow Park Elementary School, was involved in an altercation with students from another school in which Respondent suffered some injury, the nature of which is unclear from the record. It is, however, clear that after this altercation, Respondent's effectiveness as an instructor at Rainbow Park Elementary School, suffered dramatically. After the incident, Respondent was unable to control or discipline students in his classes, and was, therefore, unable to adequately organize students for instructional work. In fact, the school principal or another member of the administrative staff was required to be present in Respondent's classes to insure that some instructional progress could occur. As a result, the principal of Rainbow Park Elementary School recommended at the conclusion of the 1976-1977 school year that Respondent be transferred to another school. Respondent was transferred to Crestview Elementary School for the 1977-1978 school year. However, problems which had initially surfaced while he was still at Rainbow Park Elementary School continued at the new location. Respondent was instructed by the principal of the Crestview Elementary School that uniforms were not to be utilized as part of that school's "after-school programs", and that "all-star" games against other schools in the area were not to take place. Respondent, in direct disregard of these instructions, collected monies from students at Crestview Elementary School for the purchase of uniforms, and scheduled "all-star" games between Crestview Elementary School and other area schools. In the scheduling of these games, Respondent did not obtain the prior permission of, nor in fact did he consult, the principal of Crestview Elementary School. One of the "all-star" games was cancelled by the principal when he learned, the day before the game was to be played, that it had been scheduled by Respondent. When it was discovered that Respondent had collected monies for the purchase of uniforms for use in the after-school program, he was directed to return these monies to the individual students. In addition, Respondent on several occasions left classes unsupervised during his tenure at Crestview Elementary School. One of these occasions occurred when Respondent was contacting students scheduled to participate in the aforementioned "all-star" game. Another of Respondent's problem areas while at Crestview Elementary School dealt with his inability to organize his classes. Students were observed climbing trees during times when they should have been participating in Respondent's physical education class. A representative from the Area Office of the Dade County School Board specializing in physical education was called in specifically to consult with Respondent concerning the organization of his classes. Few, if any, of the consultant's suggestions were implemented by Respondent, whose classes remained disorganized. Finally, notwithstanding direct instructions to the contrary, Respondent allowed one of his physical education classes to participate in "tackle" football. There was no equipment at Crestview Elementary School to insure that participation in this type of activity would not result in injury to elementary school children. In fact, one child was injured in the course of one of these games, and reported this fact to the principal, who then prevented Respondent from continuing these activities. Although Respondent started the 1977-1978 school year at Crestview Elementary School, he was returned at the request of the Crestview principal to Rainbow Park Elementary School on November 9, 1977. The principal of Rainbow Park Elementary School, who had earlier suggested that Respondent be given a continuing contract, testified that Respondent appeared to be a "totally different person" upon his return to Rainbow Park Elementary School. She testified that Respondent evidenced irrational and bizarre behavior, and, on one occasion after a teacher-principal conference, Respondent snatched written suggestions concerning conduct of his classes from her hand, ripped them up before her and stalked from the room. Respondent could not control discipline in his classes and would, on occasion, scream and curse at his students. On one occasion, Respondent used excessive physical force in removing a student from one of his classes to the principal's office. Respondent would often not be in place to receive his classes when they were brought to him by the classroom instructor, and, on occasion would bring his classes back from the physical education fields before their class time was completed. Respondent's classes were disorganized to the point that activities occurring in his classes bore no resemblance to lesson plans. The principal of Rainbow Park Elementary School attempted to assist Respondent in organizing his classes by making suggestions and calling in consultants from the Area Office, but Respondent refused to accept constructive criticism. As a result, the principal of Rainbow Park Elementary School again requested that Respondent be transferred, which, in fact, occurred on December 12, 1977, when Respondent was reassigned to Carol City Senior High School. Respondent was employed at Carol City Senior High School from December 12, 1977 through the end of the 1977-1978 school year. At this new location, Respondent again encountered problems with school administrative and instructional personnel. According to the principal of Carol City Senior High School, Respondent repeatedly arrived late for classes, and submitted only "sketchy" lesson plans for his classes. In addition, the principal of Carol City Senior High School requested that Respondent be transferred to another school when it came to his attention that Respondent had attempted to "recruit" athletes from another area high school in order for them to participate in athletic programs at Carol City Senior High School. Respondent continued to experience problems with controlling his classes, and with using profanity toward students and members of the school administration. On one occasion, Respondent, a physical education teacher, called the chairman of the Physical Education Department at Carol City Senior High School a "mother fucker" in the presence of other teachers and students, and told him "to sit [his] ass down." Respondent continued to react negatively to evaluations or critiques, and, on one occasion snatched an evaluation from the hands of an assistant principal at Carol City Senior High School, and used profanity in response to that negative evaluation. At the beginning of the 1978-1979 school year, Respondent was assigned to Carol City Elementary School. Although there is no reason clearly reflected in the record, Respondent was transferred from Carol City Elementary School to Parkway Junior High School on October 27, 1978. The principal at Parkway Junior High School was the assistant principal at Carol City Senior High School with whom Respondent had had earlier difficulties. Respondent continued to experience these same difficulties at Parkway Junior High School. The school's principal received a complaint shortly after Respondent's conduct of his classes. Specifically, the complaints concerned Respondent's lack of control of students in the classes, and his failure to remain in the area where his classes were meeting. The school principal contacted Respondent to attempt to arrange a conference with other instructional personnel to resolve these problems. However, when the principal spoke with Respondent, Respondent began to use abusive language toward him. The school principal advised Respondent not to report back to Parkway Junior High School, but instead to report directly to the Area Office. Respondent indicated that he would not report to the Area Office, whereupon the principal advised him that if he returned to Parkway Junior High School, he would be arrested. Respondent then advised the school principal that if he had him arrested " . . . I will kill your mother fucking ass." Thereafter, Respondent was suspended as an instructional employee, and these proceedings ensued. Both Petitioner and Respondent have submitted Proposed Findings of Fact in this proceeding. To the extent that proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue Whether Petitioner established “just cause” to discipline Respondent as a teacher.
Findings Of Fact Since 2004, Ms. Gardner has been employed by the Glades County School District as a teacher. During the 2009-2010 school year, she taught language arts to middle school students at West Glades School. During the relevant time period, Ms. Gardner worked under a professional service contract. A teacher's professional service contract automatically renews each year, and the contract can be terminated only by a showing of “just cause” or by performance deficiencies outlined in section 1012.34, Florida Statues. On April 16, 2010, Ms. Gardner was teaching language arts to seventh grade students. The students were supposed to be working on the language arts assignment. However, as Ms. Gardner walked around the class, she found some students working on their math homework. Frustrated by students doing math homework during her language arts class, Ms. Gardner confiscated the students' math work. In one instance, Ms. Gardner tore a student's math homework in half. One of the students whose math work Ms. Gardner confiscated was C.H. C.H. was generally described as a "good student." Ms. Gardner placed C.H.'s math workbook on a table near Gardner's desk at the front of the room, and redirected C.H. to the language arts assignment. At some point in the class, C.H. walked up to the front of the classroom and removed her math workbook from the table without Ms. Gardner's permission. As C.H. turned to walk back with her book, Ms. Gardner forcefully grabbed C.H.'s arm from behind. C.H. credibly testified that Ms. Gardner "grabbed my arm and turned me around and pushed me, and my books fell." C.H. started crying, and walked out of the classroom. As C.H. was leaving the classroom, Ms. Gardner told C.H. to return to her desk. C.H. stated that she was crying because she was "shocked." C.H. walked to the School's office, which is in the same hallway as Ms. Gardner's class. When she arrived at the office, C.H. was crying and visibly upset. The school guidance counselor took C.H. to speak with Principal Davis. Principal Davis found C.H. to be "distraught, crying, [and] shaking." Principal Davis spoke with C.H. to determine why the student was upset. C.H. informed Principal Davis that Ms. Gardner had become angry with C.H., and that Ms. Gardner had snatched C.H.'s books, grabbed her arm and pushed her. Based on the seriousness of the allegation, Principal Davis decided to immediately investigate C.H.'s claims by obtaining statements from C.H.'s classmates. After the language arts class, the next class for C.H. and her classmates was math taught by Ms. Wills. Before the math class began, Ms. Gardner came to Ms. Wills' class and gave her C.H.'s workbook and other students' papers. Ms. Gardner informed Ms. Wills that several of the students had been doing math homework when the students should have been doing their language arts work. Ms. Wills credibly testified that Ms. Gardner was "really upset" with students doing their math homework in her class, and appeared agitated. Shortly after Ms. Wills' class began, Principal Davis came to speak with the students. Principal Davis released Ms. Wills to take an early lunch, and then asked the students to write down anything "bothersome" that has happened in Ms. Gardner's class during the prior period. A majority of the students provided written statements that, in essence, corroborated C.H.'s story. After reviewing the students' statements, Principal Davis decided she needed to investigate further. Principal Davis met with Ms. Gardner and advised her about C.H.'s allegation that Ms. Gardner had inappropriately touched C.H. Because the investigation could result in discipline, Ms. Gardner decided to have a union representative present when she gave her statement. Further, Principal Davis informed Ms. Gardner that Ms. Gardner should go home until the investigation was completed. On April 21, 2010, Ms. Gardner gave her statement to Principal Davis. Ms. Gardner admitted to confiscating C.H.'s math notebook and calculator. Ms. Gardner indicated that later in the class C.H. walked across the room and retrieved her math notebook without permission. Ms. Gardner stated that she merely "touched" C.H.'s arm to redirect the student, and to put the math notebook back on the table. C.H. dropped the math notebook, and left the class. According to Ms. Gardner's interview, she did not forcefully grab C.H.'s arm. Ms. Gardner's testimony that she merely "touched" C.H.'s arm was consistent with the interview given to Principal Davis. The undersigned finds Ms. Gardner's characterization that she only "touched" C.H.'s arm without force not to be credible. Ms. Gardner's testimony concerning the events was often evasive on key points. For example, when asked if she recalled that C.H. was crying when leaving the classroom, Ms. Gardner indicated that she did not. Yet, in her deposition, taken just a week earlier, she testified that C.H. was crying when she left the classroom. Similarly, Ms. Gardner was evasive concerning questions about whether or not she acted in frustration or her understanding that the change in her contract status was the result of her touching C.H. As a result of Ms. Gardner's evasiveness, the undersigned found her credibility damaged. C.H. did not receive any physical injury from the incident on April 16, 2010. After completing her investigation on April 21, 2010, Principal Davis provided Wayne Aldrich, superintendent for Glades County School Board, with the following recommendation: As a result of a battery allegation by a student against Ms. Gardner, I have conducted a thorough investigation and found the allegation to be substantial. Ms. Gardner has been suspended with pay since the incident occurred on Friday, April 16. As a result, I have followed protocol required by the Florida Department of Education Office of Professional Practices and I am recommending the following action: Placement of a narrative of my investigation in her personnel file. Change of her contractual status to fourth year annual for 2010-2011 school year. Recommendation of termination if any further substantiated incidents of intentional physical contact with a student occur. I am requesting that she return to the classroom on Friday, April 23, 2010. Principal Davis testified that she considered the recommended change in Ms. Gardner's contract status from a professional service contract to a "fourth year annual contract" as less severe than termination or suspension. A "fourth year annual contract" would allow Ms. Gardner to return to professional service contract after being on an annual contract for one year. Principal Davis explained that Ms. Gardner had been evaluated as a high-performing teacher in the past, and it was hoped that she would return to that level after this discipline. At the end of the 2009-2010 school year, Principal Davis evaluated Ms. Gardner as "needs improvement." Under the comments section, Principal Davis noted "offer to wait for 2010 FCAT declined." There was no evidence tying this "needs improvement" evaluation to the incident that occurred on April 16, 2010. Superintendent Aldrich reviewed Principal Davis' investigation and recommendation. Based on his review, Superintendent Aldrich recommended that the School Board follow Principal Davis' recommendation, including the change in Ms. Gardner's contract status. Similar to Principal Davis, Superintendent Aldrich believed that the change in Ms. Gardner's contract status was less severe than a suspension. Superintendent Aldrich testified that a teacher should use physical force only "if the student was out of control and would be in a position to do physical harm to another student or themselves." However, no School Board Policy concerning the use of physical force was offered into evidence. The School Board, without notice to Ms. Gardner concerning her rights to an administrative hearing, adopted Principal Davis' recommendations. Ms. Gardner, subsequently, requested a formal administrative hearing and reconsideration of the School Board's decision. The School Board denied her request, finding that Ms. Gardner had waived her right to a hearing. Ms. Gardner filed an appeal. The Second District Court of Appeal found the following: It is undisputed that the Board did not give Ms. Gardner written notice of her right to seek administrative review and the time limits for requesting a hearing. Under these circumstances, the Board failed to provide Ms. Gardner with a point of entry into the administrative process before taking adverse action on her contract status. It follows that Ms. Gardner did not waive her right to request a formal hearing. Consequently, the appellate court reversed the School Board's decision, and remanded the case for further proceedings. Gardner v. Sch. Bd. of Glades Cnty., 73 So. 3d 314 (Fla. 2d DCA 2011). While Ms. Gardner's appeal was pending before the Second District Court of Appeal, Ms. Gardner worked under the fourth year annual contract for 2010-2011 school year. At the end of the 2010-2011 school year, Ms. Gardner's annual contract was not renewed. On remand, the School Board issued a May 16, 2012, letter, notifying Ms. Gardner of her rights to an administrative hearing. The School Board framed the issue as “to challenge the change in her contract status from a professional service contract for fourth year annual contract.” In the Joint Pre- Hearing Stipulation, the parties identified a factual issue for resolution as “[w]hether Gardner's physical contact with the student, C.H., constitutes “just cause” for discipline.” Further, the parties’ stipulation identified three disputed issues of law: 1) Whether the disciplinary options available to Petitioner included placement of Ms. Gardner on a fourth year annual contract status; 2) whether the placement of Ms. Gardner on fourth-year annual contract status was the appropriate discipline; and 3) whether the School Board's action in denying Ms. Gardner's request for a formal hearing in July 2010 renders the placement of Gardner on a fourth-year annual contract status for the 2010-2011 school year, and the non-renewal of her annual contract at the end of the 2010-2011 school year void ab initio. Before considering the legal issues identified by the parties, it is clear that the factual dispute of whether or not “just cause” exists must be addressed first. If “just cause” does not exist, then the issue of the penalty becomes moot. At the hearing, the parties presented testimony concerning the facts underlying the School Board's action here, and whether or not “just cause” existed to sanction Ms. Gardner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Glades County School Board enter a final order finding: The record contains insufficient evidence of "just cause" in order to discipline Ms. Gardner; and Pursuant to section 1012.33(6)(a), Florida Statutes (2010), immediately reinstate Ms. Gardner under her professional service contract and pay her back salary. DONE AND ENTERED this 11th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 11th day of February, 2013.
Findings Of Fact Respondent, Laverne Reaves, has been employed as a teacher by the Petitioner since the 1966-67 school year and has been a junior high English language arts teacher since the 1971- 72 school year. For the 1982-83 school year and the subsequent years, except for a period of maternity leave, Respondent was employed as an English language arts teacher at Highland Oaks Junior High School (Highland Oaks). Prior to Respondent's assignment to Highland Oaks, her yearly evaluations indicated acceptable performance. In Fall, 1982, the Dade County School Board initiated a pilot program known as the Teacher Assessment and Development System (TADS). Highland Oaks was one of the schools selected for the pilot program. During the time she was at Highland Oaks, beginning with the 1982-83 school year, Respondent failed to demonstrate acceptable teaching in every classroom observation and in every language arts assignment. After an absence due to a back injury, Respondent reported to Highland Oaks at the end of September or at the beginning of October, 1982, after the beginning of the school years. Respondent missed the teacher orientation session because of her injury. When Respondent arrived at Highland Oaks, Ms. Ruskin, the English language arts department head met with her, as with any new teacher, to orient her to the textbooks to be used at each level, course outlines, basic curriculum, and the teacher manuals. Parents of the students began registering complaints the second day Respondent taught at Highland Oaks, and continued to complain on a regular basis. One of the major complaints was that the children were being taught at a level beneath their ability. These were Level III students (average-above average ability) who were being taught as Level II students (below average ability). Due to a scheduling error, Respondent believed that one class of Level III student was Level II. The complaints came not only from the class in which the administrative scheduling error was made, but also from other classes. The error was soon corrected. The parents also complained about Respondent's preparation for the classes and her knowledge and ability to teach. In addition to not teaching on the level of the students; she was assigning them book reports that were at a very elementary level. She was using textbooks that were far below their level. Her language was not appropriate. She assigned work to the class but did not explain it. The parents also complained that Respondent's homework assignments were not meaningful and that when she gave homework, she did not collect it, grade it, return it, or use it as part of the instruction. She wasted a lot of class time going off on tangents. The parents also complained that Respondent lacked control of the classroom and that she did not maintain appropriate relations with the parents. They complained that she called the students names, such as "stupid" and "ignorant," and constantly told the children to "shut up." She was hostile and aggressive and sometimes embarrassed and ridiculed students. The parents stated that Respondent threatened the students if they complained to their parents. The parents wanted to have their children removed from Respondent's class. The children did not want to go to her class. The parents felt that the situation was potentially dangerous as Respondent ignored dangerous situations. Because of the parental complaints, Assistant Principal Sarah Nelson had a conference with Respondent on October 8, 1982. Ms. Ruskin met with Respondent on October 12, 1982, in an effort to assist Respondent in the problems she was having in discipline, assigning homework, and general curriculum problems. Ms. Ruskin provided additional materials to Respondent in an effort to help her. These included books, tests, balanced curriculum, classroom materials, semester course outlines, SAT outlines, and publications about writing, course objectives for advanced level students, and suggested activities for lower level students. Other teachers in the department offered help, as well. Although Ms. Ruskin indicated that she was available to help in any way, Respondent never came to her for assistance. Respondent was officially observed in her seventh grade English Level II class on October 13, 1982, by Ms. Nelson. Respondent was rated overall unacceptable, and specifically, unacceptable in preparation and planning and techniques of instruction. Respondent was rated unacceptable in preparation and planning because the classroom activities did not reflect evidence of effective instructional planning and Respondent had not turned in lesson plans on a regular basis, as required. The objectives were too general and the homework was not specific enough. The expectations for Level III students were not higher than for Level II students. Respondent was rated unacceptable in techniques of instruction because she failed to adapt materials and methods to the interests, needs and abilities of her students, e.g., Level II versus Level III students, and she did not use instructional strategies for teaching the subject matter to the different levels. Her level of questioning was not done in enough depth. Her lesson lacked closure, i.e., review, recap. She failed to explain words which needed explanation. Spelling and vocabulary were to be done on a weekly basis, and yet, Respondent had only given one spelling test since the beginning of school. The homework did not have any meaningful value and the students who did the homework were not rewarded by having it collected. Students who did not do the homework were not penalized in any way. Although classroom management was rated acceptable; Mrs. Nelson was concerned that it took Respondent 20 minutes out of a 50-minute period to have the class begin working. There was too much movement in the room, which distracted students who were trying to read. Mrs. Nelson recommended that Respondent establish and enforce classroom rules. Mrs. Nelson further recommended that Respondent clearly state her objectives in the next week's lesson plans and that those objectives be differentiated for the two levels taught. Mrs. Nelson discussed the deficiencies in Respondent's lesson plans with her approximately a dozen times. Mrs. Nelson also offered to make sure that Respondent had the proper books and materials and that if she needed any additional help, she would be happy to help her and indicated that Ms. Ruskin would also be able to assist. Respondent was next formally observed on November 9, 1982, by Dr. Mildred Augenstein, principal, in her seventh grade Level III class. Respondent was rated unacceptable in knowledge of subject matter, classroom management; and techniques of instruction. Based on the observation of October 13, 1982, and her own observation, Dr. Augenstein established a written prescription to help Respondent remedy her problems. Although Respondent was rated acceptable in preparation and planning at the November 5, 1982, observation, Dr. Augenstein made specific recommendations as to preparation and planning because of the unacceptable ratings on October 13, 1982. These included turning in lesson plans weekly to Mrs. Nelson. They were to be done in depth, separately for Level II and Level III classes. They were to contain specific components and were to reference the Balanced Curriculum, a School Board rule on course objectives. The requested actions were to be completed by December 3, 1982. Respondent was rated unacceptable in knowledge of subject matter because she made errors in subject matter, e.g., inaccurate definition of science fiction. She read off words for a spelling test without giving the students a sentence in which they could hear the words. This confused the children. Dr. Augenstein prescribed required actions for remediation and recommended resources to which Respondent could turn for help in upgrading her preparation in English language arts. These included specific exercises in the TADS prescription manual dealing with knowledge of the subject matter, to be completed by December 8, 1982. Respondent was also instructed to contact the Teacher Education Center (TEC) to identify any course offerings in the area of language arts by December 15, 1982. Respondent was to visit other language arts classrooms in order to observe the different levels of instruction prior to December 15, 1982. Respondent was rated unacceptable in classroom management because the students spoke at will without raising hands. There was a constant undercurrent of conversation, and Respondent kept "shushing" them as a whole group without dealing with the specific behavior of individuals and making corrections. Respondent did not begin the class promptly. Dr. Augenstein prescribed required actions for remediation and recommended resources to which Respondent could turn for help in classroom management. These included beginning classes promptly and establishing a set of simple class rules and following through on them by December 15, 1982. Respondent was directed to investigate a course on assertive discipline or teacher effectiveness training and to enroll in a TEC course in classroom management by March, 1983. Respondent was directed to review the faculty handbook which contained the rules and regulations of the school and was asked to work with the assistant principal, Mr. Fontana, to set up a set of classroom rules. Respondent was rated unsatisfactory in techniques of instruction because she failed to employ techniques which provided stimulating, varied and productive learning experiences for the students. Her lesson was not sequenced properly in that no background was given and there was no follow-through at the end as to what had been accomplished. When the students tried to ask questions for clarification, Respondent failed to answer them. The students were very confused. Respondent failed to anticipate the problems that the students would have in the lesson. Dr. Augenstein prescribed required actions for remediation and recommended resources to which Respondent could turn for help in improving her techniques of instruction. These included the TADS manual exercise on questioning skills, verbal interaction, effective teaching strategies, and instruction sequence; to be completed by January 15, 1983. Respondent needed to learn how to ask questions which led the students into more critical thinking and analytical skills, and not simply ask low level recall questions. Respondent was to demonstrate at least one new teaching approach by January 15, 1983. Parent complaints continued and culminated in a meeting on November 23, 1982, between a group of 19 parents and the principal. The principal held a meeting with Respondent on November 29, 1982, to discuss those complaints. Thereafter, the complaints continued and were far in excess of any that the principal had ever received about any other teacher. On December 13, 1982, the principal directed a memorandum to Respondent regarding her failure to comply with provisions of the previous prescription. Respondent had failed to turn in lesson plans as directed and her plans still did not differentiate between Level II and Level III. Children were given simple spelling words, e.g., leg, heat, without being given the purpose for their study. This confused the students as to why they were being made to learn easy words. The students were given a list of adverbs to use in a sentence and the words were not all adverbs. Parent complaints continued. One complaint concerned a disturbance in Respondent's classroom. Rather than dealing with it appropriately, Respondent stated that the two students who were involved should hang themselves. Parents tended to view Respondent as belligerent, abusive, and non-responsive to the academic and emotional needs of the students. On December 14, 1982, Respondent was released from classes to observe other language arts classrooms and to obtain direct assistance from the department head who was also released for the afternoon. Respondent was next formally observed in a seventh grade class on January 6, 1983, by Dr. Augenstein. Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent still had not completed her previous prescription. Respondent was rated unacceptable in preparation and planning because her lesson plans were not realistic or appropriate and were not followed through. Respondent was rated unacceptable in knowledge of subject matter because she used a sentence that lacked a verb, i.e., "what hour you went to bed last night?" She also gave a spelling test of homonyms, but in some of the sentences, she used two of the homonyms, and the students were confused as to which form they were supposed to spell, e.g., "I want to go there too." While Respondent was rated acceptable in classroom management, that category was minimally acceptable. There was still an undercurrent of whispering and very few students were raising their hands before speaking out. Respondent was rated unacceptable in techniques of instruction because she had difficulty in sequencing the material, explaining and clarifying it. There was no connection made to what the students had previously learned. Respondent was not able to make clear to the students what an inference was. She never went beyond the textbook definition. She did not relate the term to the students' lives. The homework assignment was given very hurriedly and was vague. The students were unsure of what they were supposed to do. Respondent was rated unacceptable in assessment techniques because there was no evidence that student compositions were being written, collected, evaluated, and redone. That is a requirement of the Balanced Curriculum. When Respondent returned some papers to the students to look at "for a minute," she did not give them time to assess their progress. Respondent was rated unsatisfactory in teacher-student relationships because when a student asked a question, Respondent made no response. The teacher-student interchanges were very cold and condensed, and there was much uneasiness. The teaching climate was hostile, punitive, or retaliatory. Since Respondent had not yet completed the previous prescription, she was directed to continue working on it. On or about January 11, 1983, Dr. Augenstein gave Respondent a list of TEC courses which would be helpful to Respondent in the areas in which she needed remediation. Parent complaints continued. On or about January 19, 1983, a parent complained that the work in her child's Level III class was too elementary. Upon review, Dr. Augenstein concurred. Respondent's class schedule was changed at the end of the first semester in order to give her an opportunity to perform acceptably with students of a lower level and to eliminate some of the parental pressure. It was thought that perhaps she was most familiar with that type of student from her pervious school and that would allow her more time to complete her prescriptive activities. Respondent was next formally observed in her seventh grade Level II class by Dr. Augenstein on February 8, 1983. She was rated unacceptable in knowledge of subject matter, classroom management, and techniques of instruction. Respondent was rated unacceptable in knowledge of subject matter because she mispronounced words, e.g., denouement, architecture. Although "denouement" had been previously pronounced correctly in a filmstrip, Respondent mispronounced it. "Architecture" was pronounced "arch-chi-tek-chur" (as in church) in a lesson dealing with "ch" being used as a "K" sound (as in chaos). This confused the students in the major point of the lesson. Classroom management was rated unacceptable because after the lunch break, the students did not quiet down until the principal came back into the classroom. Although Respondent was not formally observed during the next period, the principal informally noted the noise coming from Respondent's classroom while she was observing the teacher in the next room. That teacher indicated that Respondent's classes were always that noisy. Respondent was rated unacceptable in techniques of instruction because she did not clarify or answer student's questions to a degree that was correct or satisfying to the students. She did not encourage and structure student participation. The lesson did not come to an end other than by the ringing of the bell, i.e., no closure. In spite of the fact that Respondent was teaching an entirely different group of students, the problems were a continuation of those seen in the prior observations. Respondent was directed to continue the prescriptive activities from November, 1982. As of the date of this observation, Respondent had not fulfilled her previous prescription. She had not demonstrated the new teaching technique to either Mrs. Nelson or Dr. Augenstein. Respondent was next formally observed in her seventh grade Level II class by Mrs. Nelson on February 17, 1983. She was rated unacceptable in classroom management, techniques of instruction, and teacher-student relationships. Respondent was rated unacceptable in classroom management because the students were noisy and she had a great deal of difficulty getting them settled. There was an undercurrent of noise throughout the whole class period. One student who was blowing bubbles was never reprimanded. Another student continued to get up and down out of her seat. Respondent was rated unacceptable in techniques of instruction because there was no focal point to the lesson. Nothing was emphasized. The main points could have been reinforced on the chalkboard or by the use of some other media, e.g., overhead projector, supplementary materials, to better helped those students who are visual rather than auditory learners. Although Respondent was rated acceptable in assessment techniques, she still did not collect the homework after asking the students how many had it. Only five students had the homework and there was no reinforcement for them. Respondent was rated unsatisfactory in teacher-student relationships because some students monopolized the discussion while others never participated and were completely off task. No encouragement was given to those students who did not participate. However, due to a technical error in checking the boxes on the observation form, Respondent should have been given credit for satisfactory teacher-student relationships. This technical error would not remove Respondent from prescription. Rather than writing a new prescription for Respondent, Mrs. Nelson reviewed and discussed the prescription of November 24, 1982, with her. She did this because she felt as though that that prescription was a very good one and it had not been completed by Respondent. On February 23, 1983, a conference-for-the record was held with Respondent to discuss the problems that Respondent had been having, the help that had been given to her, the status of the remediation efforts, and to clarify decisions related to employment recommendations. Respondent was next formally observed in her seventh grade Level II class on March 2, 1983, by Dr. Augenstein and by an outside administrator, Roger Frese. Both administrators rated Respondent unacceptable in knowledge of subject matter and techniques of instruction. Respondent had difficulty in presenting the subject matter in a sequenced manner. While the lesson plan indicated that the students would study components of the short story, with the exception of merely mentioning the names of the components, the students jumped right into paragraph writing dealing with characterization without any development of the concept of characterization and without instruction on how to write. The written products of the students indicated confusion and misunderstanding. When the students asked questions, Respondent had an opportunity to clarify the misunderstanding: however, she failed to respond to their questions. When the students read their papers aloud, Respondent failed to indicate whether they were correct. Because Respondent did not ask questions and did not respond to the questions asked by the students; and because of the many wrong answers given and accepted by Respondent; there was no way to determine that Respondent did in fact have a grasp of the topic. There was no closure to the assignment. Respondent assigned a homework activity which was not an extension of the day's assignment. It was a new assignment given without prior instruction. In order to remediate Respondent's deficiencies, Dr. Augenstein directed her to continue the prescribed activities of the November 24, 1982 prescription. By memorandum dated April 22, 1983, Dr. Augenstein recommended course work to help remediate deficiencies in Respondent's knowledge of subject matter. Respondent was next formally observed in the classroom by assistant principal, Dr. Herman Mills, on May 24, 1983. Respondent was rated unacceptable in knowledge of subject matter. The sequencing of information was illogical and unclear. Dr. Mills found that Respondent had gaps in her education, as evidenced by her statements that Canada was a French-speaking country and Korea was a city. Respondent gave the students a handout with an error. "More bigger" was used on the handout, and Respondent failed to indicate to the class that a comma was missing. This confused the students in finding a dissimilar word in a given series. Respondent gave another wrong answer because she did not recognize the dissimilar word in a series of words. During the 1982-83 school year, administrators occasionally went to Respondent's classroom so that their presence would help Respondent get the class under control. Respondent's yearly evaluation indicated that she had not remediated deficiencies in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction, and Dr. Augenstein recommended a return to annual contract, i.e., loss of tenure. That recommendation, however, was not implemented. In September, 1983, Dr. Augenstein assigned Dr. Mills the task of determining the degree of Respondent's compliance with her previous prescription. At his first meeting with Respondent, Dr. Mills discovered that she had had none of the prescriptive activities signed off. At a second meeting with Respondent, Dr. Mills verified that Respondent completed a TEC course in techniques of instruction. On September 27, 1983, Dr. Mills directed Respondent to obtain sign-offs on her prescription by September 30, 1983. When he met with her on October 5, 1983, he discovered that the only item signed off was the activity of meeting with Mr. Fontana, assistant principal, on classroom management. Respondent was next formally observed in her seventh grade Level II class by Dr. Augenstein on October 19, 1983. Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated unacceptable in preparation and planning because the lesson stated in the plan was not feasible. Respondent had not anticipated how long the various tasks would take, and since this was the same teaching assignment as the previous year, she should have had an idea of the reasonable time for the assignment. She listed a homework assignment that could not be done because the set of books involved was a classroom set and were not books that were sent home with the students. A large number of students did not have their books in class; thus indicating to the observer that they had not been prepared for the work to be assigned. In order to address Respondent's deficiencies in preparation and planning, Dr. Augenstein referred her to the original prescription of November 24, 1982. Respondent was rated unsatisfactory in knowledge of subject matter because she had difficulty demonstrating the difference between homonyms, homographs, and homophones. She also assumed that the seventh grade students were knowledgeable of the parts of speech. This would not have been appropriate so early in the year for seventh grade students. In order to remediate Respondent's deficiencies in knowledge of subject matter, Dr. Augenstein referred her to the memorandum of April 22, 1983, recommending intensive study of subject matter. Respondent was rated unacceptable in techniques of instruction because she was still not emphasizing important points with the use of media, e.g., chalkboard. Student contributions ended in confusion rather than clarification since Respondent allowed the students to call out homonyms rather than using the homonyms in a correct sentence. To help remediate Respondent's deficiencies in techniques of instruction, Dr. Augenstein referred her to the original prescription of November 24, 1982. Respondent was rated unacceptable in assessment techniques because there were insufficient student papers in the students' folders and insufficient grades in the grade book to enable an administrator to make a judgment as to whether the students were making adequate progress. The criterion calls for a variety of assessment techniques, and yet, the only graded tests in Respondent's grade book were four spelling tests. The student folders contained no graded samples of homework or graded compositions. The day's homework was not called for. When Dr. Augenstein asked to see the homework, only six students turned in papers. In order to remediate Respondent's deficiencies in assessment techniques, Respondent was directed to enroll in a TEC course in assessment techniques. She was directed not to write in her lesson plans that the students should "go over the. ," but that she should be more specific on how she plans to assess the work. She was directed to provide a variety of assessments to include both written and oral work. Respondent was next formally observed in her reading lab by Dr. Mills on November 16, 1983. Respondent was rated unacceptable in techniques of instruction. Respondent was rated unacceptable in techniques of instruction because her methodology was inappropriate for a reading lab. The purpose of a reading lab is to give the students individualized work based upon their reading levels. The students should have been diagnostically placed into three groups based upon reading levels however, they were being taught as one group and had been so taught for four days. Respondent's instructions to the class were vague and unclear. Respondent did not indicate to the class what the correct responses were, but rather, she seemed to be striving for consensus among the students. The students had little idea of what a topic sentence was, and Respondent did not give them any background. In order to help Respondent remediate her deficiencies in techniques of instruction, Dr. Mills arranged for carrels to be placed in Respondent's classroom. He also had Mrs. Hoffman, a teacher on special assignment in reading, work with Respondent in setting up the reading lab. He further directed Respondent to immediately divide the 20 students into three reading groups according to the diagnostic testing and to provide the necessary materials for individualized work according to their reading levels. He assigned exercise in the TADS prescription manual. A parental complaint was lodged against Respondent for using profanity in the classroom on November 30, 1983. An investigation into the matter revealed that a student had used profanity and that Respondent, in chastising him, repeated the profanity a number of times. Respondent was advised against the use of profanity in the classroom and to use standard referral procedures in handling such matters. A conference-for-the-record was held on December 13, 1983, to discuss Respondent's performance to date. Respondent was informed that failure to remediate and improve her performance could have an adverse impact upon her employment status. On February 14, 1984, Respondent was formally observed in her ninth grade reading class by Dr. Augenstein. She was rated unacceptable in preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated unacceptable in preparation and planning because she continued to demonstrate the same kinds of problems she had previously demonstrated. There was no evidence that Respondent was applying the previous help from the TADS manual. No objective was given in the lesson plan. Although a homework assignment was listed in the previous day's lesson plan, none was collected. The homework assignment for this day, as listed in the plan, was never assigned. Respondent was still putting in her plan that students should "Go over today's lesson." The terminology "go over" was still being used despite an earlier prescription indicating that the term was vague. Respondent was confusing assessment activity with programmed instruction. She demonstrated a lack of understanding of programmed instruction. To remediate Respondent's deficiencies in preparation and planning, Dr. Augenstein directed Respondent to enroll in a TEC course in preparation and planning as prescribed on October 19, 1983. Respondent was rated unacceptable in knowledge of subject matter because Respondent gave no feedback to the students as to the correct answers. She did not orient the students to what they were doing. When they asked questions, she was very vague in answering. In order to help Respondent remediate her deficiencies in knowledge of subject matter, Dr. Augenstein referred her to the memorandum of April 22, 1983, which suggested the need for intensive study of the subject matter. Respondent was rated unacceptable in techniques of instruction because she presented no lesson and did not carry out a question-answer sequence as indicated in her lesson plans. The students spent the entire period doing an activity which was not introduced to them and was not monitored by the teacher. There was no follow-up and the students did not get feedback as to whether the work was correct. The students who finished early sat with nothing to do. Respondent spent the period grading papers and provided assistance to a few students who asked for it. To aid Respondent in remediating her deficiencies in techniques of instruction, Dr. Augenstein referred Respondent to the pages in the TADS prescription manual which had been prescribed on November 24, 1982. Respondent was rated unacceptable in assessment techniques because her grade book contained no grades for the last four weeks of the first semester. Minimally, a teacher should have two grades per week. There was no evidence of graded homework or formal writing instruction in the grade book or the student folders. Some of the students had no papers in their folders for several months. Most of the papers that were in the folders were simply ditto sheets, quick, objective, short answer papers. The "essay" portion of the ninth grade final examination for the first semester was a multiple choice test rather than an essay test, contrary to the guidelines for final examinations in the faculty handbook and School Board Rule. In order to aid Respondent in remediating her deficiencies in assessment techniques, Dr. Augenstein referred her to the prescription of October 19, 1983. Respondent was next formally observed in her seventh grade class on March 6, 1984, by Dr. Augenstein and Zelda Glazer, supervisor of language arts. Respondent was rated unacceptable in knowledge of subject matter, techniques of instruction; and assessment techniques. Respondent was rated unacceptable in knowledge of subject matter because in a lesson dealing with parts of speech,. she accepted incorrect answers from students and even put some of them on the board. She incorrectly identified a number of words as adjectives when they were actually adverbs; verbs, and nouns. When the students gave wrong answers, Respondent did not correct them. Respondent relied on rote definitions for the parts of speech. These were difficult for low level students to understand. In order to aid Respondent in remediating her deficiencies in knowledge of subject matter, she was directed to review with the language arts supervisor or the department chairperson the identifying signals for adjectives and nouns, so that rote definitions would not be the exclusive explanations made to the students. Respondent was rated unsatisfactory in techniques of instruction because there was no sequence for the lesson. Respondent's lesson lacked motivation and closure. No background was given, and no re-teaching was done of areas where the students lacked knowledge. Respondent did not recognize and anticipate difficulties in the lesson. She did not answer the student's questions and did not use students' wrong answers as a teaching experience. There was no attempt to explain why wrong answers were wrong, but rather, they were simply accepted, thus confirming the student's opinions that they had given correct responses. In order to aid Respondent in remediating her deficiencies in techniques of instruction, Respondent was directed to review with the department chairperson or a school administrator the sequencing of a lesson and to write a lesson which was carefully sequenced. The lesson should include the requisite components, i.e., review, participation in a drill or repetition, and application of the skills learned. Respondent was rated unacceptable in assessment techniques because the work in the students' folders did not reflect a variety of formats. The papers were merely simple drills or exercises. There were no compositions and no opportunities for applying the skills which were taught. By this time of year, Respondent should have had approximately 15 to 20 compositions in each student's folder. In order to help Respondent remediate her deficiencies in assessment techniques, Respondent was directed to develop a unit test using writing production as one element of the test. A conference-for-the-record was held on March 6, 1984. Respondent's assessments and prescriptions were reviewed. The help afforded to Respondent was also discussed. Dr. Augenstein indicated that she would be initiating the procedure for dismissal for cause. In March, 1984, shortly after the conference for the record, Respondent began approximately one year's maternity leave. Respondent's yearly evaluation for 1983-84 indicated that Respondent ended the year on prescription for deficiencies in knowledge of subject matter, techniques of instruction, and assessment techniques, and that Dr. Augenstein had recommended her for dismissal. The actual evaluation form (Petitioner's Exhibit 20) contains a typographical error in that the "X's" are reversed. The unacceptable categories are marked acceptable and vice versa. Respondent returned to Highland Oaks on April 15, 1985. She was given special help to acclimate her after her year's leave. Although Dr. Augenstein had never done so before; she purchased the services of the substitute teacher who had replaced Respondent during her leave in order that Respondent could have the minimum of one full week when she returned to prepare for her classes and so that the substitute could work with her on an as needed basis. Respondent was to observe the classes during that week, go over the student's progress, and plan in depth for the rest of the school year. Dr. Mills assisted in attempting to make a smooth transition between the substitute and Respondent. Respondent was next formally observed in the classroom on May 2, 1985, by Dr. Augenstein. Respondent was rated unacceptable in knowledge of subject matter and techniques of instruction. Since she had recently returned from leave, Dr. Augenstein did not rate her in assessment techniques. The class observed was an eighth grade Level IV class, the precursor to high school honors English. Respondent was rated unsatisfactory in knowledge of subject matter because she did not demonstrate that she had knowledge of research projects and library research skills. The students were completely confused and frustrated by Respondent's teaching. They were trying to get clarification from Respondent but were not able to do so. In order to help Respondent remediate her deficiencies in knowledge of subject matter, Dr. Augenstein recommended that she observe other Level IV English classes and that she do a research project herself so that she would learn enough about it in order to teach it. Respondent was rated unacceptable in techniques of instruction because she was not meeting the needs of advanced learners. She was not using inductive and critical thinking approaches. She frustrated them by putting off their questions and giving conflicting and misleading information when she tried to answer questions. In order to help Respondent overcome her deficiencies in techniques of instruction, Dr. Augenstein directed her to design and present a lesson using strategies for inductive and critical thinking. She was to include higher order questioning skills, pre-writing strategies, and techniques for promoting student involvement. Dr. Augenstein indicated that Charles Houghton, North Area project manager for secondary language arts, would assist and critique demonstration lessons. Mr. Houghton came to Highland Oaks to assist Respondent on Wednesday, May 15, 1985. He discovered that Respondent lacked an understanding of research. Mr. Houghton indicated that he would return on Friday, May 17, 1985, in order to give assistance to Respondent. He would gather materials for her, would go over them with her during her planning period, and would stay with her through the classroom period to see how she did. When he came back on the 17th, he discovered that Respondent was absent. He left the materials for her with an open ended invitation that if she needed further assistance, to let him know. Respondent did not request further help. Respondent was next observed in her English class by Dr. Mills on May 28, 1985. Respondent was rated unacceptable in preparation and planning; classroom management, and techniques of instruction. Respondent was rated unacceptable in preparation and planning and techniques of instruction because although lesson plans had been made, they were not being followed. Respondent was rated unacceptable in classroom management because there was no lesson being presented. Respondent shouted at the students, but they continued to remain off task. The student behavior was almost chaotic. In an effort to help Respondent remediate her deficiencies, Dr. Mills met with Respondent and indicated that it was imperative that she follow through on the prescription Dr. Augenstein had given her. She was given further prescriptive activities which were similar to those she had been given before. Respondent was next formally observed in her eighth grade class on June 6, 1985, by Mrs. Nelson and Mrs. Glazer. Respondent was rated unaccepted in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. Mrs. Nelson did not see much of an improvement over her prior observation done in 1982. Respondent was teaching a lesson in similes and metaphors in the poem, "Danny Deever" by Rudyard Kipling. "Danny Deever" is a ballad written in cockney dialect about the public hanging of a solider in the British army. The poem contains no similes or metaphors. Respondent was rated unsatisfactory in preparation and planning because the plan was not followed. The poem which had been indicated as a homework assignment was the one used for class discussion and was an inappropriate choice for simile and metaphor discussion. Respondent could not provide an example of a metaphor when asked by a student, thereby indicating that she did not have knowledge of what a metaphor was. In order to help Respondent remediate her deficiencies in preparation and planning, she was referred to the previous prescription of May 28, 1985. Respondent was rated unacceptable in knowledge of subject matter because she made many errors in the interpretation of "Danny Deever." She referred to the dialect of the poem as United States southern dialect and misinterpreted the meanings of dialectical words, resulting in completely misinterpreted lines. Respondent did not contemporize the poems to the children's lives in order to help them better understand the poem. In order to help Respondent overcome her deficiencies in knowledge of subject matter, she was referred back to the previous prescription of May 2, 1985. In addition, she was directed to review her lessons carefully in order to be prepared for student questions and to be able to provide appropriate examples. Respondent was rated unacceptable in classroom management because she took ten minutes to take the roll. Even after roll call, there was considerable socializing among the students. Quite a few students were late to class, but they were not questioned as to why they were late. With a seating chart, Respondent would have only needed two minutes to take attendance. The average teacher learns who her students are in less than a week, and Respondent had had the students since April 15, 1985. No attempts were made to prevent off task behavior. Inappropriate student behavior was mildly noted but was not effectively handled with firmness or suitable consequences. Respondent was absent. He left the materials for her with an open ended invitation that if she needed further assistance, to let him know. Respondent did not request further help. In order to help Respondent remediate her classroom management, she was referred to the previous prescription of May 28, 1985. Respondent was rated unsatisfactory in techniques of instruction because the sequence of the lesson was erratic or haphazard. The students were asked to read the poem aloud, and they had great difficulty with the dialect. Therefore, the poem was not a positive experience for them. Respondent provided no background information in order to set the tone for the study of "Danny Deever." She gave no background on the poet or on the form of the poem. Correct and incorrect responses were accepted in exactly the same fashion without comment or question. Respondent misinterpreted the meanings of the dialectical words, thereby resulting in irrelevant interpretation of the poem. The students never came to realize that the poem was about a hanging. All of the topics which should have appropriately been covered in the poem were ignored. Respondent failed to anticipate the confusion or misunderstanding in the class. Therefore, no attempt was made to clarify the lack of student understanding or appreciation. In order to help Respondent remediate her deficiencies in techniques of instruction, she was referred to the two previous prescriptions, since they had never been completed nor had her problems been remediated. Respondent was rated unsatisfactory in teacher-student relationships because student responses were ignored; neither praised nor questioned. Non-participants were not called upon or encouraged to participate. There was a quiet disrespect in the class. In order to help Respondent remediate her deficiencies in teacher-student relationships, she was referred to specific exercise in the TADS prescription manual dealing with feedback, interacting with students, and recognizing correct and incorrect responses. Petitioner's yearly evaluation for the 1984-85 school year indicated that Respondent remained deficient in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and that the principal recommended dismissal for cause. A conference-for-the-record was held on May 30, 1985, to discuss Respondent's end-of-the-year evaluation and the principal's recommendation for dismissal. Respondent's final examinations for June, 1985, indicate that Respondent still lacked an understanding of what constitutes an objective examination. In addition to the formal observations, Respondent was observed informally numerous times. These informal observations substantiated those deficiencies found on the formal observations. Her room was often noisy and Respondent could be heard yelling in an attempt to try to gain control of the class. The students were often out of their seats until an administrator walked in. Her class was noisy regardless of the time of the day or the portion of the period. Respondent was generally seated at her desk with students congregated around her. Rarely was instruction going on and rarely were students on task. When seen in the library, the class was fooling around and little was being accomplished. It is the consensus of opinion of those administrators who observed Respondent and/or those who reviewed her records, that Respondent repeatedly failed to communicate with and relate to the students in her class to such an extent that they were deprived of a minimum educational experience. These administrators also were of the opinion that Respondent lacks adequate command of her area of specialization, i.e., English language arts, in that she lacks the minimum skills and competencies in both content and methodology to teach English language arts. Dr. Mills believes that Respondent should only teach basic skills English classes, if she teaches at all. Unfortunately, the evidence compels the same conclusion. At least 90% of Respondent's prescription for remediation was not met. Given the time, effort, and assistance expended on Respondent's behalf, she did not make the minimum effort necessary to overcome her deficiencies. She lacked basic knowledge which could have been obtained by pursuing the course work that was prescribed. No matter who the observer was or what the specific teaching assignment was; Respondent failed to demonstrate an acceptable level of teaching. Respondent's certification should have enabled her to teach any of the related components within the field of English language arts, including different ability levels. Respondent demonstrated her lack of knowledge of the subject area during the hearing when she was unable to answer questions that a junior high school teacher should be able to answer, such as the signals which help identify a noun and the noun, verb, adverb and adjective forms of common words. Effective September 4; 1985; Respondent was suspended from her employment with Petitioner, and Petitioner instituted proceedings to dismiss Respondent from employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order sustaining the suspension of Respondent Laverne Reaves, and dismissing Respondent, Laverne Reaves, as a teacher in the Dade County Public Schools. DONE and ENTERED this 12th day of May, 1986; in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1986. COPIES FURNISHED: Madelyn P. Schere, Esquire Suite 301 1450 N. E. Second Avenue Miami, Florida 33132 Curtis L. Jones, Jr., Esquire P. O. Box 105182 Miami, Florida 33101 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Karen Barr Wilde Executive Director Department of Education The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2); Florida Statutes; on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Proposed findings of fact 1-3 and 5-151 are adopted in substance in Findings of Fact 1-3 and 5-151. Proposed finding of fact 4 is rejected as not supported by the evidence and argumentative. Ruling on Proposed Findings of Fact of Respondent Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed finding of fact 2 is adopted in substance as modified in Finding of Fact 2. Proposed finding of fact 7 is adopted in substance as modified in Finding of Fact 6. Proposed finding of fact 8 is adopted in substance as modified in Finding of Fact 4. Proposed finding of fact 9 is adopted in substance as modified in Finding of Fact 4. Proposed finding of fact 14 is adopted in substance as modified in Finding of Fact 6. Proposed finding of fact 15 is adopted in substance as modified in Finding of Fact 6. Proposed finding of fact 16 is adopted in substance as modified in Finding of Fact 8. Proposed finding of fact 20 is adopted in substance as modified in Finding of Fact 12. Proposed finding of fact 22 is adopted in substance as modified in Finding of Fact 24. Proposed finding of fact 26 is adopted in substance as modified in Finding of Fact 57. Proposed finding of fact 31 is adopted in substance as modified in Finding of Fact 112. Proposed finding of fact 32 is adopted in substance as modified in Finding of Facts 25 and 82. Proposed finding of fact 35 is adopted in substance as modified in Finding of Facts 102 and 105. Proposed finding of fact 44 is adopted in substance as modified in Finding of Facts 69 and 85. Proposed finding of fact 45 is adopted in substance as modified in Finding of Facts 69 and 85. Proposed finding of fact 46 is adopted in substance as modified in Finding of Fact 148. Proposed finding of fact 47 is adopted in substance as modified in Finding of Fact 111. Proposed finding of fact 52 is adopted in substance as modified in Finding of Fact 72. 20. Proposed findings of fact 3, 4, 5, 6, 10, 11, 12, 13, 19, 21, 41, 48, 49, 50, 53, and 57 are rejected as irrelevant. Proposed findings of fact 17, 18, 23; 25, 29, and 51 are rejected as not supported by the competent, substantial evidence. Proposed findings of fact 24, 27; and 54 are rejected as being unsupported by the competent, substantial evidence and as being argumentative. 23. Proposed findings of fact 28, 30, 33, 34, 36, 37, 39, 40, 43, 55, and 56 are rejected as unnecessary. Proposed finding of fact 38 is rejected as unnecessary and argumentative. Proposed finding of fact 42 is rejected as being misleading and incomplete and therefore not supported by the competent, substantial evidence.
The Issue The central issue in this case is whether the Respondent, Sean F. McKinney, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: During the 1986-87 academic year; Respondent attended Miami Carol City Senior High School in Dade County, Florida. During the 1985-86 school year, Respondent attended junior high school and received failing grades in all of his academic courses. Respondent's promotion to Miami Carol City Senior High was done in error. Respondent's grades for the 1986-87 school year, the first two grading periods, were as follows: COURSE ACADEMIC GRADE EFFORT CONDUCT Mathematics 1st F 3 D 2d F 3 F Physical 1st F 3 F Education 2d F 3 F Language 1st F 3 F Arts 2d F 3 F Communications Social 1st F 3 D Studies 2d F 3 D Language 1st F 3 C Arts Readings 2d F 3 C Industrial Arts 1st F 3 F Education 2d F 3 F Science 1st F 3 F 2d F 3 F SYMBOLS: GRADE "F" UNSATISFACTORY EFFORT "3" INSUFFICIENT CONDUCT "C" SATISFACTORY CONDUCT "D" IMPROVEMENT NEEDED CONDUCT "F" UNSATISFACTORY Respondent was administratively assigned to the opportunity school on March 23, 1987. Respondent did not enroll at the opportunity school and did not attend classes. Consequently, Respondent's academic record for the 1986-87 term ends with the second grading period. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Carol City Senior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms and are used for behavior problems. During the first two grading periods of the 1986-87 school year Respondent caused nine Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's misbehavior is attached and made a part hereof. Theresa Borges is a mathematics teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. While in Ms. Borges' class, Respondent was persistently disruptive. Respondent was habitually tardy and/or absent from Ms. Borges' class. When Respondent did attend class he was ill- prepared and refused to turn in assigned work. When Respondent did attempt to do an assignment it was unsatisfactorily completed. The Respondent refused to work and would put his head down as if sleeping in class. On one occasion Respondent grabbed a female student between the legs. Respondent's disruptive behavior was exhibited on a daily basis in Ms. Borges' class. Larry Williams is an English teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. Mr. Williams caught Respondent fighting with another student in class. Respondent failed to complete homework assignments for Mr. Williams and turned in only 3-5 percent of his work. Respondent was disruptive and would walk around the classroom talking to other students. Since Respondent was habitually tardy he would interrupt the class with his late arrival. William E. Henderson is the assistant principal at Miami Carol City Senior High School. Mr. Henderson received the Student Case Management Referral forms that were submitted for Respondent and counseled with him in an effort to improve Respondent's conduct. Additionally, Cora McKinney was contacted with regard to Respondent's discipline and academic needs. Respondent's behavior problems were discussed in-depth with Mrs. McKinney. Such conferences did not result in any changed behavior on Respondent's part. While Mrs. McKinney made a sincere and continuing effort to bring Respondent's grades and behavior into line, such efforts did not alter Respondent's lack of progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Douglas MacArthur Senior High School-North. DONE and ORDERED this 24th day of August, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1955 Rulings on Petitioner's Proposed Findings of Fact: Adopted in substance in FF #1. Adopted in substance in FF #3. Adopted in substance in FF #2. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #7. Adopted in substance in FF #7. Rejected as hearsay as to whether this student instigated the fight; otherwise adopted in substance in FF #7. Adopted in substance in FF #5 and attached Synopsis. Adopted in substance in FF #8. Adopted in substance in FF #8. Rejected as unnecessary. COPIES FURNISHED: Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Cora McKinney 3450 Northwest 194th Terrace Carol City, Florida 33054 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS SEAN F. MCKINNEY DATE INCIDENT DISCIPLINE September 26, 1986 excessive absences counseled October 16, 1986 excessive unexcused tardies and absences from class (period) Three days SCSI October 28, 1986 not attending classes conference with mother 3 days SCSI December 11, 1987 fighting excessive tardies 10 days suspension January 13, 1987 disruptive behavior, [grabbed girl between legs] five days SCSI February 5, 1987 defiant, refused to leave school property after hours 5 day suspension March 17, 1987 defiant, in halls unapproved time, left office without permission conference with parent, initiated opportunity school processing March 20, 1987 not attending school 10 day suspension
