Findings Of Fact Until his suspension in August 1983, Respondent has been continuously employed by the School Board since August 1983, as a teacher, psychologist, and Assistant Principal. He holds Florida Teacher's Certificate Number 232311 and has been on continuing contract with the School Board. During Respondent's 15 years of employment with the School Board, he was evaluated as average and above average as a teacher, psychologist, and Assistant Principal. He was particularly effective as an assistant principal and in diagnosing learning and behavioral problems experienced by kindergarten and first-grade children. On August 9, 1983, Respondent entered a guilty plea and was therefore convicted in the United States District Court for the Southern District of Florida of one count of conspiracy to transfer firearms in violation of Title 18, United States Code Section 371 because the subject firearms were not registered with the Secretary of the Treasury as required by the applicable federal laws. Respondent was originally sentenced to be confined to a minimum security institution for a period of six months with a subsequent period of two years probation. This sentence was then modified to four months in a community treatment center (halfway house) with a subsequent period of three years probation. Respondent is presently serving his probation period. This conviction forms the sole factual basis for the charges herein by both the School Board and the Department. Because the Specific Notice of Charges and the Administrative Complaint are based upon allegations involving Respondent's immorality, moral turpitude and his effectiveness as a teacher, the circumstances surrounding Respondent's arrest, plea, and conviction are extremely pertinent. Respondent's first involvement with the circumstances leading to his conviction stems from conversations he had with his neighbor Jose Lopez regarding the sale of hand guns. At all times material hereto, Respondent was the holder of a Federal Firearms License. Although Lopez knew that Respondent was a licensed gun dealer, Respondent did not know that Lopez was a paid federal informant. Lopez asked Respondent if Respondent could put him in touch with anyone who would sell unregistered firearms. Respondent knew a gun dealer named Zarraga who had previously introduced Respondent to a man named Navarro who owned a gun shop. Respondent told Lopez about these men and introduced them to each other. Lopez contacted Donald R. Kimbler, a Special Agent for the Bureau of Alcohol Tobacco and Firearms of the United States Treasury Department. Lopez, acting with Kimbler's knowledge, then entered into a deal with Navarro and Zarraga wherein Lopez was to purchase seven Ingram submachine guns and eight silencers. Lopez, Navarro, and Zarraga arranged to deliver the guns and silencers to Respondent's home where they were to be picked up by Lopez. Respondent earned no money from the transaction. He was willing to help Lopez locate the guns because he was under the belief that they were to be sent to Nicaragua to aid in the fight against the Communists in that country. Respondent believed that to be a worthy cause based upon Respondent's personal flight as a young man with his family from Communist Cuba. Respondent believed that the persons offering the guns for sale (Navarro and Zarraga) were the ones who had the responsibility to register them with the federal government. The first time Respondent realized he was involved in a serious crime was when he was confronted by Agent Kimbler at Respondent's school. At that meeting, Respondent cooperated with Kimbler and gave a voluntary statement regarding the transaction under investigation. In a subsequent meeting with Kimbler, Respondent gave another statement which constituted a complete account of the events regarding the sale of guns by Navarro and Zarraga in which Respondent was involved. At the time Respondent gave his cooperation and first statement to Kimbler, he was not under arrest and no arrest of Respondent was contemplated by Kimbler. Respondent's attitude throughout the investigative proceedings was one of total and above excellent cooperation with the authorities. His cooperation was based upon his desire to be honest and do what was right rather than on a desire to "make a deal" with the government. Based upon Respondent's cooperation and subsequent testimony, the federal government was able to indict and convict Zarraga and Navarro. Contrary to Agent Kimbler's recommendation, Respondent was also indicted. Although it is common knowledge that machine guns are used to kill people and silencers are used to muffle the sounds of such a weapon, there was no direct evidence as to what use these guns and silencers were to be put. Petitioner's only witness to testify that Respondent's effectiveness as a teacher has been reduced was Patrick Gray, Jr., the Executive Director for the School Board's Division of Personnel Control. That witness further admitted that he did not recall ever having seen a newspaper article regarding Respondent's arrest or conviction. Two other employees of the School Board who are involved in the actual school setting did not believe Respondent has lost his effectiveless.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Final Orders be entered: In Case No. 83-3017 suspending Respondent from his employment by the School Hoard without pay for a period of three years from the effective date of his suspension, and In Case No. 83-3447 suspending Respondent's Florida Teacher's Certificate for a period of three years from the effective date of his suspension by the School Board. Done and Recommended this 30th day of November 1984, in Tallahassee, Florida. LINDA M. RIGOT 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 November 1984. COPIES FURNISHED: Thomas Robertson, Esquire 3050 Biscayne Boulevard Third Floor Miami, Florida 33137 Wilson Jerry Foster, Esquire Suite 616, Lewis State Bank Building Tallahassee, Florida 32302 Harold M. Braxton, Esquire 45 SW 36 Court Miami, Florida 33135 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner Department of Education The Capitol Tallahassee, Florid 32301 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner. CASE NO. 83-3017 IVAN DANGER, Respondent. /
The Issue Whether actions taken by the Hillsborough County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended. whether budgeting and establishing positions by the School Board is sufficient to meet the test of comparability.
Findings Of Fact The Respondent, through its compensatory education section, has the responsibility of administering the Title I program, as called for in the Elementary and Secondary Education Act of 1965, as amended, and for dispensing federal-funds to the various school districts throughout the state of Florida. Petitioner, Hillsborough County School Board, is a large urban school district of over 100,000 children. It has some 11,000 employees and 6,000 instructional employees. Employees are allocated on the formula of a per pupil basis, and numerous adjustments must be made after the fall opening of the schools because of major shifts of pupils over a summertime. Allocations, in order to comply with Title I, is a task which requires a great deal of attention, particularly in the fall of the school year. The following sequence of events are pertinent: The Hillsborough County Title I application for FY '75 was approved initially on the basis of the assurance which was signed by the District School Superintendent indicating that comparability existed in the Hillsborough County Title I schools and would continue to be maintained throughout the 1974-75 school year. A memorandum dated September 27, 1974, was signed by Halley B. Lewis, Jr., Administrator, Compensatory Education, and was circulated to all local school districts in Florida confirming that the U.S. Commissioner of Education was designating October 1, 1974, as the date for collecting data on which a comparability report for FY '75 would be based. On October 7 and 8, 1974, the Compensatory Education Section in the Florida Department of Education sponsored a statewide meeting of Title I, ESEA personnel in Orlando. One of the sessions was devoted to comparability. On November 7 and 8, 1974, the Compensatory Education Section of the Florida Department of Education called a meeting for District School Superintendents, Finance Officers, Federal Program Directors and ESEA, Title I Coordinators from the eleven (11) most populous counties in Florida at the request of one (1) or more District School Federal Program Directors. One- half of the program--which amounted to one-half day--was devoted to comparability as outlined in Section 116.26 of the regulations as promulgated in the Federal Register, Volume 38, Number 124, for Thursday, June 28, 1973. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT", the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." On November 27, 1974, a letter from the Hillsborough County School District, dated November 26, 1974, and an original comparability report were received by the Compensatory Education Section of the Florida Department of Education. On December 2, 1974, a letter from Hillsborough County School District dated November 27, 1974, and a revised comparability report were received by the Compensatory Education Section in the Florida Department of Education. A letter, dated December 5, 1974, was forwarded to the Hillsborough County School District by the Compensatory Education Section requesting the dates that the personnel authorized by the School Board on November 26, 1974, reported for work. The Hillsborough County School District, in a letter dated December 10, 1974, submitted to the Compensatory Education Section a partial report detailing the beginning employment dates of some of the personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements. On December 13, 1974, Ralph D. Turlington, Commissioner of Education, Florida Department of Education, received a telegram from Robert B. wheeler, Acting Deputy Commissioner for School Systems, U.S. Office of Education: "This is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal audit. Your continued cooperation is appreciated." The Hillsborough County School District, in a letter dated December 17, 1974, submitted a final report to the Compensatory Education Section detailing the actual beginning employment dates of personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements. The Director of the Elementary and Secondary Education Division in the Florida Department of Education notified the Hillsborough County School District that ESEA, Title I funds were being withheld from December 1 through December 16, 1974. A letter from the Compensatory Education Section was sent to the Hillsborough County School District on December 20, 1974, for the primary purpose of reaffirming the necessity to maintain comparability. The Compensatory Education Section of the Florida Department of Education, in a letter dated January 3, 1975, notified the Hillsborough County School District of accounting procedures to be followed for the period of suspension of ESEA, Title I funds from December 1, 1974 through December 16, 1974. The Hillsborough County School District sent a letter dated January 8, 1975, to Commissioner Ralph D. Turlington, Florida Department of Education, along with the documentation they used as a basis for requesting "a special hearing to appeal withholding ESEA, Title I funds for Hillsborough County schools from December 1, 1974 through December 16, 1974." On January 24, 1975, the Commissioner of the Florida Department of Education wrote the district school superintendent in Hillsborough County granting their request for a hearing to appeal the withholding of Title I, ESEA funds. Petitioner, Hillsborough County School Board, applied for and received Title I funds for the school year 1974-75. It became apparent from the memorandum marked "URGENT" from the Department of Education, dated November 20, 1974, that some reallocation was necessary. On November 26, 1974 the Hillsborough County School Board authorized additional positions budgeting funds for the positions and on November 22, 1974 filed its report choosing the option to hire additional people into the Title I schools rather than shifting personnel who were already working in the non-Title I schools. By letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 2 through December 16, 1974, for the reason that the additional personnel required were not hired and all did not report to work until December 16, 1974. Some $63,000 of additional local funds were required to hire the additional personnel. Funds withheld from Petitioner in excess of $153,000 are Involved in this hearing. Petitioner contends: That it acted in good faith. That the Board action on November 26, 1974, budgeting, approving and establishing the additional positions was compliance both with the federal statutes and regulations and with the requirements of the memorandum from Mr. W. J. Darden of the Department of Education dated November 20, 1974. Respondent contends: That comparability is a continuous state of being, that it not only must be achieved, but must be maintained throughout the year; That upon collection of the data on October 1, it is incumbent upon the school board not only to approve and establish the additional positions but also to see that the persons are hired and in place, on the job, on or before the filing of the report on December 1. The Respondent's position is that the last person necessary to achieve comparability was not in place on the job in Hillsborough County until December 16, 1974, and therefore it had no alternative but to withhold the funds during the period December 2, 1974 through and including December 16, 1974. The statute under consideration is 20 USCA Sec. 241(e): "(a) A local educational agency may receive grant under this subchapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish)--... (3) That ... (c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this subchapter: . . . Provided further, That each local educational agency receiving funds under this subchapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; ..." The regulation under consideration which was promulgated to implement the statute is 45 CFR 116.26, a part of which reads: "(a) A State educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payment of title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in schools serving attendance areas not designated as title I project areas. Such approval shall not be given unless the local educational agency also provided the assurances and the additional information required by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with 116.45." 116.26(c) "If any school serving a title I project areas is determined not to be comparable under this paragraph, no further payments of title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient addi- tional resources to title I project areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance..." The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
Findings Of Fact Prior to May 18, 1977, the Respondent was employed by the School Board as a driver education teacher and head football coach at Miami South Ridge High School. At approximately 3:00 A.M. on May 15, 1977, the Respondent left his home in Miami, Florida, and drove to the back of a business located at 7211 S. W. 40th Street in Miami, Florida. John F. Allen operates a boat, motor, and trailer sales, service, and repair business at that location. In the back of the building there is a work area that is surrounded by a chain link fence. Customers' boats and motors are stored in this area while work is done on them in the shop. The Respondent walked down an alleyway along the fenced area, and climbed over the fence. He removed an outboard motor from a boat, and pulled it away from the boat toward the fence. The Respondent did not work in the boat yard, and he was not authorized to be there after regular business hours. There was no direct evidence as to the Respondent's intentions. The circumstance of his being in the fenced in portion of the boat yard at between 3:00 A.M. and 4:00 A.M. and the circumstance of his removing an outboard motor from a boat, and carrying it toward the fence, lead inescapably to the conclusion that the Respondent was seeking to steal the engine. The Respondent did not remove the engine from the boat yard. For unknown reasons, he abandoned his effort to steal the engine and left the boat yard. The Respondent was not armed with any weapon, and no other person was in the boat yard while he was there. The outboard engine which the Respondent was attempting to steal was a 40 horsepower Johnson outboard engine. The weight of the engine is approximately 140 pounds. The engine has a wholesale value of approximately $250. Even if the engine were in the worst possible operating condition, it would still be worth approximately $150. While the Respondent was in the boat yard, two police officers employed by the Dade County Public Safety Department were undertaking a routine patrol of the area in an unmarked car. They observed the Respondent's automobile parked adjacent to the boat yard. One of the officers walked along the chain link fence in back of the boat yard and observed the Respondent inside the yard holding an engine. There was heavy vegetation along the fence, but the police officer was able to see through it at one point. The officer went back to his car, and told his partner what he had witnessed. Shortly thereafter the Respondent came out of the alley, got into his car, and drove away. The police officers turned on a flashing light in their car, pulled up behind the Respondent's car, and stopped him. The Respondent was placed under arrest. The police officer read the Respondent his rights from a "Miranda card". During interrogation after the arrest the Respondent pointed out the motor that he had removed from the boat, and told the officers were he had gotten it. The Respondent was then taken to a police station where he was fingerprinted, and later released on bail. A criminal action is now pending against the Respondent in the courts in Dade County. Tools of a sort which could have been used in perpetration of a burglary were found in the Respondent's pockets and on the floor of the Respondent's automobile by the police after they stopped him. There was no evidence presented that these tools were used by the Respondent in breaking into the boat yard or in removing the outboard engine from the boat. There was no evidence that the Respondent intended to use the tools for these purposes. There was evidence presented that the tools were put in the automobile by a friend of the Respondent's wife. There is insufficient evidence from which it could be concluded that the Respondent intended to use the tools to commit any trespass or burglary. The School Board acted promptly to suspend the Respondent from his position at South Ridge High School. The instant proceeding ensued.
The Issue Whether the Board refused to re-employ Ms. Smith as a teacher's aide for the 1985-1986 school year in retaliation for a Complaint that she filed with the Florida Commission on Human Relations in January, 1983?
Findings Of Fact Ms. Smith is a graduate of a high school in the Gadsden County School system. Ms. Smith successfully completed a business education course at Gadsden Vo-Tech after receiving her high school diploma. Ms. Smith was rated qualified to work as a teacher's aide in the Gadsden County School system by the Central Administration office in 1982 and in 1984. Ms. Smith was employed as a teacher's aide at Gretna Elementary School (hereinafter referred to as "Gretna") during the 1982-1983 school year. She began her employment at Gretna in October, 1982. Ms. Smith's immediate supervisor at Gretna during the first month of her employment was the Principal, Mr. Witt Campbell. Mr. Campbell left Gretna in November, 1982. For the remainder of the 1982-1983 school year, Ms. Smith's immediate supervisor was Rosa Barkley, who replaced Mr. Witt as Principal. Ms. Smith was pregnant during the 1982-1983 school year. On January 24, 1983, Ms. Smith became ill because of her pregnancy and had to go to the hospital. Ms. Smith did not return to Gretna during the remainder of the school year. On March 14, 1983, Ms. Barkley went to visit with Ms. Smith at her home. Ms. Smith told Ms. Barkley that she would return to work approximately two weeks after her baby was born. This meant that Ms. Smith would return after the start of the 1983-1984 school year. Ms. Barkley helped Ms. Smith request a leave of absence. This leave of absence was approved by the Board on March 29, 1983. In March, 1983, Ms. Barkley gave Ms. Smith a satisfactory rating on a Gadsden County Non-instructional Personnel Assessment form which was filed with the Board. Ms. Barkley gave Ms. Smith the benefit of the doubt in completing this form because Ms. Smith had been under Ms. Barkley's supervision only from November, 1982 to January, 1983. Ms. Barkley also recommended to the Superintendent that Ms. Smith be re-employed for the 1983-1984 school year. By letter dated June 17, 1983, Ms. Barkley asked the Superintendent to terminate Ms. Smith. Ms. Barkley made this request because she wanted to have an aide that would start the school year in August, 1983 and not in November, 1983, when Ms. Smith planned to return. Ms. Barkley indicated in the letter that Ms. Smith had been absent because of her pregnancy. The Superintendent, Mr. Bishop, decided to grant Ms. Barkley's request. The decision to terminate Ms. Smith was made by the Board and not by Ms. Barkley. Although the Superintendent generally relies heavily on the recommendation of a principal, the decision to terminate Ms. Smith was that of the Board. The Board, based upon the information it was provided, should have told Ms. Barkley, that a leave of absence, and not termination, was the proper remedy to Ms. Barkley's problem. By letter dated July 27, 1983, Ms. Smith was terminated by the Board. Ms. Smith filed a Complaint with the Florida Commission on Human Relations on January 19, 1984, alleging sex discrimination against Ms. Barkley. Upon the filing of the Complaint the Board investigated and decided that Ms. Smith should be rehired. The Board realized that it had caused the problem and not Ms. Barkley. Ms. Smith was offered the first teacher's aide position available. The position was at Chattahoochee Elementary School (hereinafter referred to as "Chattahoochee"). Ms. Smith accepted the position and began work at Chattahoochee in March, 1984. Ms. Smith worked with fourth grade Chapter 1 children (children who have been disadvantaged with regard to their educational opportunities). Ms. Martha Downs was her teacher. While at Chattahoochee, Ms. Smith had difficulty performing her duties as a teacher's aide. Her primary area of deficiency was in math. Mr. Corbin Scott, the Principal at Chattahoochee, attempted to help Ms. Smith by having Ms. Ella Ponder, a helping teacher, assist her. Although it was alleged that Ms. Smith was required to take a Criteria Reference Test normally taken by fourth graders, the evidence failed to support this allegation. Based upon Ms. Smith's poor performance, Mr. Corbin did not recommend that Ms. Smith be returned to Chattahoochee for the next school year. Although Ms. Smith admitted that she has some problems with math she failed to accept the fact that she was not adequately performing her duties as a teacher's aide. Instead, she believed that Mr. Corbin expected her to "teach" and that he was unfair when he did not recommend her continued employment at Chattahoochee for the next school year. Ms. Smith believed that the Complaint that she filed in January, 1984, affected the way that she was treated at Chattahoochee. This unfounded belief affected Ms. Smith's attitude while at Chattahoochee and later. The Board decided that the period of time that Ms. Smith was employed at Chattahoochee (March, 1984 to June, 1984) was too short. Therefore, in an effort to be fair with Ms. Smith and to settle the dispute with Ms. Smith, the Board decided to place Ms. Smith in another teacher's aide position for the 1984- 1985 school year. During the Summer of 1984, Ms. Smith and the Board settled the Complaint which Ms. Smith had filed in January, 1984. Pursuant to this settlement, Ms. Smith dismissed her Complaint for back-pay and her re-employment at Gretna. Ms. Smith was employed at Gretna during the 1984- 1985 school year as a teacher's aide pursuant to the settlement. Ms. Barkley, Ms. Smith's immediate supervisor at Gretna, was not consulted before the Board decided to return Ms. Smith to Gretna. Principals of schools are not consulted by the Board before employees are assigned to their schools. Although Ms. Smith agreed to return to Gretna as part of the settlement of her Complaint against the Board, she believed that Ms. Barkley would not treat her properly. This belief, which was unfounded, affected Ms. Smith's attitude toward Ms. Barkley and her job during the 1984-1985 school year. Ms. Smith was assigned to assist two teachers for most of the 1984- 1985 school year at Gretna: Ms. Corine D. Palmer and Ms. Charlotte Price. Neither Ms. Palmer nor Ms. Price talked to Ms. Smith about problems which they perceived in Ms. Smith's performance. Ms. Price's attitude was that she was there to teach students and, therefore, she did not want to be bothered with Ms. Smith. Ms. Palmer's attitude was to work around Ms. Smith; she gave up trying to use Ms. Smith effectively because of Ms. Smith's lack of effort. Both ladies essentially stuck their heads in the sand and ignored the problem since neither of them were responsible for evaluating Ms. Smith. Employees at Gretna were required to sign in and sign out on a sheet provided for them at the administrative office of the school. During the school year Ms. Smith was late arriving at school a total of fifteen times. Most of those times she was late more than a few minutes. She was late seven times during 1984 and eight times in 1985. At least three other teachers' aides (Inez Morris, Ida Miller and Mary Wright) were late to school more often than Ms. Smith. While Ms. Smith received an unsatisfactory rating for punctuality for the school year, the other three aides received a satisfactory rating. Many of the times that the other three aides were late, they were late only a few minutes. When they were late more than a few minutes, they notified Ms. Barkley or someone else at Gretna that they would be late, and indicated why. Ms. Smith, on the other hand, did not always notify Ms. Barkley or anyone else that she would be late, or indicate why she was late until she was asked. During the first week of the 1984-1985 school year (August 20-24, 1984), Ms. Smith was late three times. Ms. Smith rode to school with another employee who was late getting to school. On August 27, 1984, Ms. Barkley discussed Ms. Smith's lateness with her and gave her a letter indicating that she was expected to be at school at 8:05 a.m. Ms. Smith was late once during each of the next three weeks. She corrected the problem, however, by arranging to ride with someone else. After the week of September 10-14, 1984, Ms. Smith was late only one other time during 1984. During 1985, Ms. Smith was late at least once a week during seven of the eleven weeks ending March 15, 1985. In addition to being late reporting to school, Ms. Smith was late going to her assigned classroom after arriving at school and after lunch. Ms. Smith was required to be in her morning class no later than 8:15 a.m. Her lateness was reported by Ms. Palmer and Ms. Price and was also noted by Ms. Barkley. Ms. Smith was in the employee lounge on many occasions when she should have been in a class. On October 15, 1984, Ms. Barkley spoke with all of the aides about being in the lounge in the morning when they should be in their classes. Despite Ms. Barkley's comments, that afternoon Ms. Smith was in the lounge when she should not have been, and she continued to be late to her assigned classroom in the mornings. Ms. Palmer and Ms. Price told Ms. Barkley that Ms. Smith was late to class. Both of them tended to do without her and to avoid any effort to try to correct the problem. On February 15, 1985, Ms. Barkley gave Ms. Smith a letter that indicated that Ms. Smith was in the lounge when she was not supposed to be. A similar letter was given to Ida Miller and Dorothy Smith. Ms. Miller and Ms. Dorothy Smith corrected the problem. Ms. Smith did not. Ms. Barkley rated Ms. Smith's attendance as "unsatisfactory". This rating was not based upon the number of days that she was absent. It was based upon the number of times that Ms. Smith was not in her assigned classroom. Ms. Barkley kept a notebook in which she noted the dates of some events involving employees' actions. She has kept these notes since she became a principal. Most of the notes concerning Ms. Smith did not give the reason for absences or lateness. Ms. Smith did not, however, always report the reason for her lateness. Most of the observations involved lateness and absences. The notes concerning Ms. Smith were provided to the Board because she was requested to provide any documentation concerning Ms. Smith. She did not know where her other notes were. Ms. Barkley noted the conference she had with Ms. Smith on August 27, 1984. In this note, she referred to Ms. Smith as "Ms. Attitude." This notation and a later notation that Ms. Smith was in the lounge one day "chomping" show a lack of judgment by Ms. Barkley in the manner that Ms. Barkley referred to Ms. Smith. This lack of judgment is not sufficient, however, to prove that Ms. Barkley terminated Ms. Smith at the end of the 1984-1985 school year in retaliation for the Complaint filed by Ms. Smith in 1983. Ms. Barkley's explanation for these notations is rejected. Ms. Barkley talked to teachers and other aides about Ms. Smith. Ms. Barkley did not, however, limit her inquiries to Ms. Smith. Ms. Barkley was responsible for the supervision of all of the employees at Gretna. She was very active in managing her school. She observed her employees in the halls of the school, in the lounge and in the classroom. She did not single out Ms. Smith. Ms. Barkley asked teachers and other aides about all employees and she checked up on all her employees. Ms. Smith was observed in class by Ms. Barkley. Ms. Smith was seen giving wrong answers and performing sloppy work. When Ms. Barkley talked to Ms. Smith about some of her problems, Ms. Smith's attitude was defensive. She did not believe that she had any problems and believed that Ms. Barkley was being unfair to her. She therefore did not indicate that she agreed with Ms. Barkley or that she would make any efforts to correct her problems when Ms. Barkley spoke to her about her problems. Ms. Price indicated that Ms. Smith had evidenced a poor attitude about her performance with her also. On March 15, 1985, Ms. Barkley met with Ms. Smith and informed her that she would not be recommended for employment during the 1985-1986 school year. Ms. Barkley sent a letter to the Board dated March 15, 1985, recommending that Ms. Smith not be re-employed during the 1985-1986 school year. Ms. Barkley also rated Ms. Smith "unsatisfactory" on five characteristics listed on a Gadsden County Non-instructional Personnel Assessment form dated March 8, 1985. This form was signed by Ms. Smith on March 15, 1985. Ms. Smith was given an unsatisfactory rating for utilization of time, compliance with school and district policies, attendance, punctuality and leadership. This evaluation was similar to the evaluation given Ms. Smith by Mr. Corbin. Ms. Barkley, Ms. Price and Ms. Palmer were given a Personal Reference Form for Teacher Aide Applicants by Ms. Smith. Ms. Smith told Ms. Price and Ms. Palmer that the forms were going to be used by her to apply for a job outside of its school system. Although both teachers had misgivings about Ms. Smith's ability and did not want her back as a teacher's aide, they both liked her personally and wanted to help her find a job. They also wanted to avoid any conflict with Ms. Smith. Therefore, even though they should have known better, they completed the forms giving Ms. Smith affair rating and indicating that they would employ her as a teacher's aide. Ms. Barkley completed the form given to her by Ms. Smith on April 30, 1985. She gave her a poor rating and indicated that she would not employ her as a teacher's aide. Ms. Barkley had completed a Gadsden County Non-instructional Personnel Assessment form when Ms. Smith left Gretna in 1983. Ms. Barkley gave Ms. Smith a favorable evaluation. She did so, however, because Ms. Smith had only worked at Gretna during the 1982-1983 school year for approximately four months and Ms. Barkley had only been there during three of those months. Therefore, Ms. Barkley did not believe it would be fair to give Ms. Smith an unfavorable evaluation. The Board did not refuse to re-employ Ms. Smith for the 1985-1986 school year in retaliation for any dispute between Ms. Smith and Ms. Barkley or any other person. Ms. Smith was not re-employed because she lacked the necessary job skills to work as a teacher's aide and had failed to perform adequately. On or about July 15, 1985, Ms. Smith filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that the Board had discriminated against her on the basis of retaliation. The Executive Director of the Florida Commission on Human Relations issued a "Determination: No Cause" on May 12, 1987. Ms. Smith filed a Petition for Rehearing. On or about July 13, 1987, the Executive Director entered a "Redetermination: No Cause." Ms. Smith filed a Petition for Relief. The Florida Commission on Human Relations forwarded the Petition the Division of Administrative Hearings by order dated August 18, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Smith's Petition for Relief be DENIED. DONE and ENTERED this 9th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 9th day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 1. 2 2. 3 Irrelevant. 4-5 3. 6-7 22. 8 4. 9 23. 10 5. 11 12. The date of termination was July 27, 1983. 12 10. 13-14 13. 15 20-22. 16 10. 17 8. 18 9. 19 22. 20 23. 21 11. The evidence failed to prove that the Board acted solely on the recommendation of Ms. Barkley. 22 25. 23 26. 24 Not supported by the weight of the evidence. 25-26 27. 27 28. 28 While Ms. Smith may have corrected the "ride problem" she continued to be late during the 1984-1985 school year. 29-31 27. 32-33 33. 34-36 Although these proposed findings of fact are correct they are irrelevant. 37 41. 38-39 Not supported by the weight of the evidence. 40 Irrelevant and not supported by the weight of the evidence. 41 35. Not supported by the weight of the evidence. Irrelevant. 44 35. 45-46 36. Not supported by the weight of the evidence. Although it is true that Ms. Smith did improve her punctuality arriving at Gretna during 1984 she failed to continue to arrive on time during the rest of the school year. See 28. Respondent's Proposed Findings of Fact 1 45. 2 21. 3 10 and 11. 4 14. 5 16. 6 Not supported by the weight of the evidence. See 16. 7 16-18. 8 20 and 22. 9-10 37. 11 41. 12 42. 13 28 and 33. 14 28-29 and 33. 15 45. COPIES FURNISHED TO: EDWARD J. GRUNEWALD, ESQUIRE LEGAL SERVICES OF NORTH FLORIDA, INC. 400 NORTH MADISON STREET QUINCY, FLORIDA 32351 CLAUDE B. ARRINGTON, ESQUIRE 211 EAST JEFFERSON STREET QUINCY, FLORIDA 32351 DONALD A. GRIFFIN EXECUTIVE DIRECTOR 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 DANA BAIRD GENERAL COUNSEL 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
Findings Of Fact Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level. Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto). Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year. Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings. During the 1979-80 school year the normal work day at Palmetto was 7:20 a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day. Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class. On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness. Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto. Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport. Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto. Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress. Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking. Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting. On June 9, 1980, Respondent failed to report for work until 8:15 a.m., 45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness. On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication. Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980- School Year The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable. That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments. In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers. For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week. Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety. Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance. The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued. Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m. On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation. On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback. Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student confusion would be avoided, and a more stimulating and organized presentation achieved. On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982. On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so. Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness. Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself. The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying. In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature." On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency. Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment. Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive. Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office. Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence. Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed. Respondent had simply taken a copy of the placement test and written "French I Final" on it. Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught. Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes. Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized. Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books. On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student. On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas: Accuracy and completeness of required record keeping. Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m. Compliance with district, area, and school level directives and policies. Improved classroom management procedures to insure the following: Classroom organized and neat; Attendance and tardy procedures enforced. Seating charts available and up-to-date. Rules and procedures consistently applied. Teacher-student relationships resulting in mutual respect. Consistent classroom performance resulting in continuous acceptable ratings. Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement. The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years. The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons. Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose. Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons. Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language. Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year. At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist. Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual. Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders. By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them. By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management. Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools." Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year. The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself. Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance. While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years. It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion. Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy. At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That: Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years. DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida. WILLIAM J. KENDRICK 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 May, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire The Law Building Suite 204 315 Third Street West Palm Beach, Florida 33401 Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde, Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301
The Issue Whether Respondent should be placed in the school system's alternative education program at J. R. E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Evelyn R. Brown, Margaret Cullins, and Jacqelene Koptowsky, and had admitted into evidence four exhibits. There was no appearance on behalf of Respondent. No transcript was filed; no proposed findings of fact and conclusions of law were filed.
Findings Of Fact Respondent Gabriel Vieira, Student I.D. No. 7961148, was at all times material hereto, a student at Rockaway Junior High School in Dade County, Florida. During the 1985-1986 school year, Respondent was in the seventh grade. During the 1986-1987 school year, he was in both the seventh and eighth grades due to a mixed class schedule. On April 11, 1986, Margaret Cullins had Respondent in her seventh grade English class. On that date, she had to step between Respondent and another student who were about to fight and she sent Respondent to the principal's office. After his parents were contacted, Respondent was assigned three days of School Center Special Instruction (SCSI). This is the equivalent of an indoor suspension. On November 26, 1986, while he was assigned to her eighth grade English class, Ms. Cullins again referred Respondent for administrative management. The previous Friday, he had disrupted class. At that time, he also had no required materials, would not stay seated, and had not turned in any homework. That day Ms. Cullins had asked him for his telephone number; he gave her a false one. The request and false response were repeated Monday. It may be inferred that Respondent's false answers were intended by Respondent to prohibit Ms. Cullins from reaching Respondent's parents. On Tuesday, November 25, 1986, Ms. Cullins succeeded in contacting Respondent's parents on her own initiative, despite the false telephone numbers given her by Respondent. Respondent's misbehavior on November 26 apparently arose out of his anger at Ms. Cullins for having called his parents on November 25. That day he twice yelled at her, refusing to obey her instructions to work at assigned tasks and otherwise was loud, rude, belligerent, and surly to her in front of the other students, saying that he did not have to do anything she asked and would not do anything she asked. The disciplinary result of Ms. Cullins's November 26, 1986 referral is somewhat confused because Respondent was already on indoor suspension for someone else at the time. During the 1986-1987 school year, Evelyn Brown, mathematics teacher, had cause to refer Respondent to the office on five occasions. On September 23, 1986, she referred Respondent for not doing his homework, consistently disrupting class, walking around the classroom, failing to follow class work directions, and failing to follow previous instructions to bring necessary materials to class. The student management referral form on this incident reflects that either the teacher or the administrator made contact with Respondent's parents concerning the situation and that Respondent was assigned three days of SCSI. On November 13, 1986, Respondent was again referred by Ms. Brown for wasting time, failing to do any class work, failing to turn in any homework assignments, and for continued refusal to stay in his assigned seat. His behavior disrupted the class and disturbed other students' concentration. Although contact with Respondent's parents was attempted by the teacher and school administrators, it was not consummated on this occasion, and Respondent served detention for the teacher. On December 16, 1986, Ms. Brown told Respondent to change seats. He replied, " I will sit anywhere I want. You cannot tell me where to sit." This incident, together with other rude talk and walking around the room so as to disrupt the students who were trying to concentrate on the assigned work, resulted in the teacher contacting the Respondent's grandfather, since his parents were unavailable. Respondent was ultimately assigned four days of SCSI. On January 15, 1987 and February 10, 1987, Ms. Brown referred Respondent for the same type of inappropriate, disruptive, and nonproductive classroom behavior as she had reported on September 23, 1986. After each incident, Respondent's parents were contacted and on the last date, three days of SCSI were assigned. Jacqelne Koptowsky is assistant principal at Rockaway Junior High School. Her presentation of 20 pages of Student Case Management Referral Forms (P-3) reveal numerous incidents similar to those reported and testified to by Ms. Cull ins and Ms. Brown. Additionally, Respondent has been returned to the school by the security guard for truancy on one occasion. For this and other truancies, he has been referred by the school administration to the Department of Health and Rehabilitative Services and to the Dade County visiting teacher for correction of the truancy problem. Respondent also has failed to dress-out in physical education class thirteen times and has been reported to the administration on two occasions for use of provocative language in either Spanish or English to students or teachers. At various times; Respondent has been counseled reprimanded assigned teacher and administrative detentions, received two strokes of corporeal punishment, and been given indoor suspensions. It is a policy of the administration at Rockaway Junior High School not to assign an outdoor suspension to any individual with a truancy problem. In the 1986-1987 school year, Respondent was absent 13 times; several times were as a result of refusals to serve detentions and his attempts to transfer to other schools so as to avoid serving assigned detentions. In the 1985-1986 school year, Respondent failed four subjects and got D's in three others. At the conclusion of the first half of the 1986-1987 school year, Respondent had failing grades in all of his subjects. Respondent has met with the school guidance counselor at least 20 times, primarily with a view toward dropout prevention. Ms. Koptowsky has worked with a Metro-Dade Social Worker to rethink the benefits and drawbacks of assignment of Respondent to an opportunity school. Having determined from psychological and intelligent quotient (I.Q.) test scores, that Respondent is normal and therefore not eligible for any special programs for low I.Q., hyperactive, or learning disabled students, Ms. Koptowsky recommended his assignment to an alternative education program at J. R. E. Lee Opportunity School.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the School Board of Dade County enter a Final Order assigning, Respondent to the alternative education program at J. R. E. Lee Opportunity School, until a competent evaluation determines that it is appropriate for him to be returned to the regular school system. DONE and RECOMMENDED this 26th day of August, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 26th day of August, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis 0. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Mr. and Mrs. Gabriel Vieira 3649 Southwest 99th Avenue Apartment #6 Miami, Florida 33165
Findings Of Fact Respondent has a bachelor's degree in secondary education in English, which she received from Penn State University in 1973. After graduation, she took ballet lessons for six months in New York and then returned home to recuperate from pneumonia. She returned to Philadelphia and taught in a private school for a short time. She then attended a graduate program at Temple University and received her certification as a reading specialist in 1977, although she did not complete her master's degree. While she was in graduate school, she was a long-term substitute for one and one-half years in Philadelphia. She returned home to Miami Beach, Florida, because she was assigned to a school which she considered undesirable and because she had some dental problems. Respondent started teaching in the Dade County Public Schools in September of 1980 at Robert E. Lee Junior High School. During most of that school year, William R. Jones, who is currently the principal of Robert E. Lee Junior High School, was the assistant principal for curriculum at that school. As such, he received numerous complaints concerning Respondent and her classroom instruction from other teachers, from students, and from parents. Therefore, he observed Respondent teaching. Jones attempted to help Respondent with her teaching presentation, a fact which was acknowledged by Respondent at the formal hearing in this cause when she admitted that he had helped her a great deal in the field of teaching. However, during the 1980-1981 school year she responded to his assistance inappropriately. She told Jones that he had conditioned her to respond favorably to him sexually, and she told other teachers of her physical attraction to Jones. Respondent began to display bizarre behavior at school. On three occasions she was found lying on the front lawn of the school. The students thought that she was asleep, ill, or possibly dead, and this understandably caused commotion in the classrooms. After the first such occasion, Jones told her not to do it again. However, on two subsequent occasions she was found lying on the front lawn of the school. On another occasion, Respondent hysterically interrupted a conference Jones was having with another member of the school staff. He told Respondent that he was involved in a conference, but she refused to leave. She vacillated between laughing and crying. Finally, Jones advised Respondent that if she did not leave, he would call school security. She continued to refuse to leave, and he was compelled to terminate his conference so that he could talk to her. She then indicated that she had nothing to say to him. At the conclusion of the 1980-1981 school year, after Jones had become the principal of Robert E. Lee Junior High School, he was conducting a faculty meeting. Respondent got out of her seat and began to yell and scream. She ran about the cafeteria where the meeting was being held and made threats toward Jones. Due to this disruption, Jones had to end the faculty meeting and send Respondent home. After observing Respondent's classroom technique, Jones determined there was a need for her to obtain additional help or training in Preparation, planning and techniques of instruction. For example, Respondent changed her classroom activity six or seven times during the class period; she would start the class on an assignment and three or four minutes later, before the class had finished, would change the assignment to something else. Jones requested Respondent to attend the Teacher Education Center. She refused to attend. Jones had Respondent transferred from her regular class of approximately 30 to 35 students to a smaller classroom with 13 to 15 students in the hope that she would be able to cope with this reduced-size class. The attempt was unsuccessful. Both Jones and his new assistant principal, Mr. Bonilla, still found Respondent's performance to be unacceptable. In his final evaluation of the school year, Jones rated her as unacceptable. About halfway through the 1980-1981 school year, Jones advised the executive director for the Division of Personnel Control of the Dade County Public Schools, Dr. Patrick Gray, of Respondent's difficulties. After Jones's and Bonilla's annual evaluation of Respondent at the end of the 1980-1981 school year, Gray held a conference with Respondent and referred her to a psychiatrist, Dr. William Gustafson. As a result of his evaluation, Gustafson advised that Respondent was definitely emotionally disturbed and in need of psychiatric treatment. He further opined that Respondent was definitely not able to function as a teacher at the present. Thereafter, Respondent requested a medical leave of absence without pay for psychiatric reasons, and that leave was approved. About this same period of time, Dr. Gray's office received an undated letter from Respondent charging Jones with numerous acts of unprofessional conduct. Among other things, she alleged that Jones, a married man, was having an affair with a fellow educator and that that person had become pregnant. In fact, that faculty member had never been pregnant. During the 1981-1982 school year, Respondent was on a leave of absence from the Dade County Public Schools on medical leave for psychiatric reasons. It is the school system's policy to pay the premiums on hospitalization, vision and dental insurance during such a leave of absence, and this was done for Respondent. Midpoint in that school year, Respondent advised that she wished to return to work, and Dr. Gray arranged to obtain a medical evaluation by psychiatrist Charles B. Mutter. Dr. Mutter reported that Respondent's judgment was impaired, her insight was nil, and she had marked emotional difficulties warranting further psychiatric treatment. He found she had a schizoid predisposition and was in a borderline state with marked anxiety. As a result of Mutter's evaluation, Respondent did not return to work. On March 2, 1982, Dr. Gray received a report from Dr. Gustafson advising that Respondent had returned to treatment with him. Gustafson stated that she was still quite impaired by her condition, although she had improved in some respects. That same day, Gustafson telephoned Gray to advise that Respondent was no longer in treatment and that she considered Gustafson and Gray to be in a conspiracy against her. Gustafson further opined that Respondent had potential for desperate actions and needed continuing therapy. On June 16, 1982, Gray received a letter from Respondent requesting that her medical leave be extended for another year. However, on July 2, 1982, Gray received a report from Dr. Gustafson recommending only a two-month extension of Respondent's medical leave. On August 4, 1982, Gustafson wrote to Gray stating that Respondent had been successfully able to function as a teacher in a private school over the past summer. At that time, it was his opinion that she could handle the responsibilities of a classroom teacher once again. Gustafson's opinion at that time was based in part on Respondent's representation that she had been teaching a classroom of students during the preceding summer. He stated later that had he known that Respondent was only tutoring one student at a time during her summer employment, a fact which Respondent acknowledged at the hearing, he would have been more cautious about his recommendation that she was able to return to work. On the strength of Gustafson's recommendation, Respondent was returned to work in the Dade County Public Schools. She was assigned to Hialeah-Miami Lakes Senior High School, a school with a low incidence of student disruption and of high student test scores. Hialeah-Miami Lakes was in the top one-third of Dade County schools academically as well as in student activities and in the overall operation of the school. Respondent was assigned to teach English/Communications. Respondent's classes each lasted 55 minutes. During the first nine weeks of the school year, she typically assigned students a test which took approximately five to ten minutes to complete. For the rest of the class, she told them to read material of their own choosing. The students either read or slept. While the students were testing themselves and/or reading and/or sleeping, Respondent stared at the ceiling or else read a book. Sometimes she giggled to herself, even though there did not appear to be anything to laugh at occurring at the time. Some of the students felt that she screamed at students without good cause and "acted crazy." Some students requested to be transferred out of her class. The assistant principal in charge of curriculum at Hialeah-Miami Lakes Senior High School observed Respondent's class and found that there was no teaching being done. Further, although the Faculty Handbook at Hialeah-Miami Lakes requires that a minimum of two grades a week be placed in the teacher's grade book for each student, and although Respondent was advised of this requirement, she had no grades in her grade book by the end of the seventh week of school. Instead, she placed colored squares in her grade book. Although this coloring system may have held meaning for Respondent, a substitute or new teacher for the class would not be able to understand anything from this form of grading system. A conference was held with Respondent, the principal of the school, and the assistant principal for curriculum in the principal's office regarding Respondent's unacceptable performance. At that time, both the principal and assistant principal found Respondent's behavior to be bizarre. She grabbed her arms and started to giggle and laugh even though no one had said anything to precipitate any laughter. Although Respondent insists that her testing of the students was absolutely necessary, it normally takes other teachers one week at the most to accomplish the same testing of the students prior to commencing instruction. Respondent was still testing in the seventh week of school and had not yet begun to instruct or teach the students. Other teachers observed Respondent's behavior during the time she was at Hialeah-Miami Lakes and became concerned to the degree that five of them approached the principal regarding Respondent. Raymond Harrell, the language department head at Hialeah-Miami Lakes, described Respondent's behavior, including her inappropriate giggling. Harrell and another teacher, Gary Graziani, related an incident concerning a school- sponsored television program, which is run every other Friday for 15 minutes and is part of the school curriculum. Respondent was upset about the noise from the televisions and stated to them and others: "We have got to stop the noise, I cannot teach with that noise, it's pounding in my blood." It was suggested that she might take her class to the auditorium on the days that the newscast was run; however, she refused and insisted that the noise must be turned down. She stated: "It's like being behind a train. I just can't take it, I just can't take it." No other personnel at the school, including the teacher who had Respondent's classroom before her, had complained about the noise from the televisions. On another occasion, while Harrell was chairing a department meeting concerning curriculum, Respondent raised her hand and gave a 10- to 15-minute speech about the history of her high school curriculum and the way she did things in Pennsylvania. Her comments had nothing to do with the subject of the meeting, and she told the department head to be quiet and pay attention. Harrell, who has also observed Respondent staring at the ceiling and even talking to the ceiling, is of the opinion that she is absolutely incompetent to be a teacher. During the month of October 1982, the principal of Hialeah-Miami Lakes Senior High School requested Dr. Charles Sherwood, the regional supervisor for the Dade County schools, who has extensive background in reading and in English, to come to Hialeah-Miami Lakes to evaluate the reading program at that school. On October 15, 1982, Dr. Sherwood complied with that request, and, as part of his evaluation, he observed Respondent. Dr. Sherwood observed Respondent give a test to her students which required approximately five or six minutes to administer and take. She collected the test sheets and told the class to find something to read. Some students looked at magazines, others talked with each other, and Respondent sat down in a chair and looked at the ceiling. She was not teaching at all. Although Respondent's students were required to have writing instruction, she did not give them any. Dr. Sherwood questioned Respondent as to the materials and supplies she would be using, and she advised him that she would find some when she needed them. The materials that she did have and intended to use when she finished testing the students were not appropriate for her class. Dr. Sherwood does not believe that Respondent is competent to teach school. When the principal of Hialeah-Miami Lakes raised questions as to Respondent's fitness to teach, she was again referred to Dr. Patrick Gray. Gray again referred her for psychiatric evaluation, and, although Respondent resisted, eventually the evaluation did take place. On November 5, 1982, Respondent agreed to see Dr. Anastasia M. Castiello, a board certified psychiatrist. Dr. Castiello diagnosed her as schizophrenic. Dr. Castiello concluded his report on his November 5, 1982, evaluation of Respondent as follows: . . . Finally, in response to your specific question, i,+ is my opinion that Miss Ronburg's mental condition is such at the present time that she would be unable to properly function as a teacher and as a matter of act [sic], it is unlikely that she could function in whatever capacity in a job situation of any kind. After reviewing Dr. Castiello's evaluation, Dr. Gray concluded that the school system had exhausted its efforts to help Respondent and would not be able to be of further assistance to her. He did not feel that medical leave of absence would achieve any further positive results and therefore recommended the termination of Respondent's employment with the school system. On the basis of his educational background and his experience in the area of personnel control, Dr. Gray believes that Respondent clearly lacks the competence to perform the assigned functions of an instructional staff member in Dade County Public Schools. Effective November 18, 1982, Respondent was suspended from her employment with the Dade County Public Schools, and the school board instituted proceedings to dismiss her from employment. On February 7, 1983, Respondent's attorney took the deposition of Dr. William Gustafson who had first seen Respondent in the spring of 1981. Dr. Gustafson agrees that Respondent is suffering from schizophrenia, which he describes as an inability to differentiate what is real from what is unreal and a difficulty in arranging thoughts in an orderly, reasonable, and rational manner. When he first saw her, Gustafson believed that Respondent was delusional about her situation at Robert E. Lee Junior High School and her feelings about Mr. Jones. He noted her inappropriate laughter, from which it appeared that she was responding to things that were within herself. Although Gustafson believes that Respondent has improved somewhat, as of the date of his deposition, his diagnosis remains the same. Dr. Gustafson has been hampered in his treatment of Respondent by her refusal to come for treatment as often as the psychiatrists recommend to be desirable and necessary for treatment of her condition and by Respondent's refusal to take the medication prescribed for her. After her suspension from her employment, Respondent visited Gustafson, who became concerned that she had suicidal feelings, and he hospitalized her for this reason. She checked out of the hospital within three hours. Gustafson believes that if Respondent continues in treatment and accepts medication, she can recover. She has not, however, admitted that she is sick, and she continues to refuse medication and treatment. As of his deposition on February 7, 1983, Gustafson had not seen Respondent in his office for approximately one month. In fact, he had seen her only three or four times since he hospitalized her in November of 1982 and has no reason to believe that she will come in to see him any more often than she has in the past. He believes that in order to be of assistance to her, he should see her once or twice a week for hourly sessions. Since Respondent has only seen Dr. Gustafson approximately 12 times over the period of two years between her first referral to him and the date of the formal hearing in this cause, Dr. Gustafson cannot be considered as her treating physician, and his opinion is entitled to only the same weight as the opinions of the other two psychiatrists who have evaluated Respondent. The most recent psychiatric evaluation of Respondent was performed by Dr. Charles B. Mutter on March 23, 1983. Dr. Mutter is the same psychiatrist who evaluated her in January 1982. Dr. Mutter found that Respondent's judgment is impaired, and her insight is superficial. He further found that she needs more intensive psychotherapy than she is receiving and is in definite need of medication to help her remain more stabilized." Dr. Mutter concluded that Respondent's present mental state precludes her from teaching. He would only recommend that Respondent be permitted to return to the classroom with two stipulations: that she continue treatment with Dr. Gustafson on at least a twice-monthly basis, and that she take medications prescribed by Dr. Gustafson on a consistent basis. At the formal hearing in this cause, Respondent admitted that she would not take medication for her illness even though she has been advised to do so by the psychiatrists. She also testified that she does not feel that she requires psychiatric treatment in order to perform the role of a classroom teacher. Since all three psychiatrists agree that Respondent needs continuing regular therapy and medication in order to improve, and since Respondent refuses to undergo therapy and take medication, it is clear that until she chooses to follow medical advice she will not improve and cannot function as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the suspension of Respondent Donna Ronburg, dismissing her from her employment with the School Board of Dade County, Florida, and denying her claim for back pay. DONE and RECOMMENDED this 30th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1983. COPIES FURNISHED: Phyllis O. Douglas, Esquire School Board of Dade County Lindsey Hopkins Building, Room 200 1410 NE Second Avenue Miami, Florida 33132 William du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
The Issue Whether Respondent should be dismissed from her position as a Media Specialist or otherwise disciplined for alleged violation of Section 231.09, and 231.36(6), F.S., as set forth in the Petition dated June 13, 1983. This proceeding arises from a Petition filed by William T. McFatter, Superintendent of Schools for the Broward County School System, on June 13, 1983, that seeks to dismiss Respondent, Antionette Pauline, a media specialist in the public schools of Broward County, Florida. In five (5) Counts, the Petition alleges as follows: That on May 4, 1983, the Respondent grabbed Steven Richardson, a fifth grade student at Nob Hill Elementary School, by the arm and forcibly pushed said student against or into a classroom door approximately three (3) times, which action constitutes misconduct in office in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That on May 4, 1983, the Respondent took Steven Richardson's media center pass and pulled on the front of teacher Verda Farrow's blouse in the presence of said student and forcibly jammed the pass down the inside front of the teacher's blouse, which action constitutes misconduct in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That on February 16, 1983, the Respondent was directed to cease from verbally attacking teachers, and that she again verbally attacked Verda Farrow on May 4, 1983, which action constitutes gross insubordination and/or willful neglect of duty in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That during the 1981-1982 school year, the Respondent had several other encounters with faculty and students at Sunrise Middle School and that during the school year 1982-1983, the Respondent had several encounters with the faculty at Nob Hill Elementary School, the result of which would make it difficult, if not impossible, for Respondent to recover and be an effective librarian, which actions constitute misconduct in office and/or willful neglect of duty and/or incompetency, in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; and That the Respondent has violated the Code of Ethics by failing to practice her teaching profession with the highest ethical standards by failing to protect the student, Steven Richardson, from unnecessary embarrassment or disparagement, by failing to protect the student from conditions harmful to learning and/or safety, and/or by making false or malicious statements about her colleagues, which actions constitute misconduct in office in accordance with applicable Florida Statutes, State Board of Education Administrative Rules and School Board policies. Respondent denied the allegations in the Petition and requested an Administrative Hearing. Thereafter, eighteen (18) witnesses were called by the Petitioner, five (5) witnesses were called by Respondent, and forty (40) exhibits were offered into evidence. The deposition testimony of Ernest M. Roberts was accepted as a late-filed exhibit. Further, ruling on the admissibility of the polygraph examination conducted upon Respondent was deferred. The testimony of the polygraph examiner, his chart, and rebuttal testimony were offered by proffer, subject to a continuing objection as to its admissibility, without stipulation, in an Administrative Hearing. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at the final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
Findings Of Fact The Respondent, was employed by the Broward County School Board commencing with the school year 1960-61. She was originally employed as a librarian in an elementary school and, thereafter, held several positions, including Media Specialist (librarian) with the Broward County Migrant Program and the State Department of Education, Florida Migratory Section. She presently holds a Master's Degree in library science which she received in July of 1975. In 1977, the Respondent obtained a position at Dillard High School and was promoted to the position of Head Media Specialist. At the conclusion of the school year 1980-81, the Respondent was administratively transferred by the Area Superintendent to Sunrise Middle School, where she remained as a media specialist for that school year, when she was again administratively transferred by the Area Superintendent to Nob Hill Elementary School for the school year 1982-83. Following the incident which occurred on May 4, 1983, Respondent was transferred to the staff of the Director of Learning Resources of the Broward County School System for the remainder of school year 1982-83. Thereafter Respondent was suspended pending the results of this hearing. During her tenure at Dillard High School, the Respondent incurred several problems with the staff and the principal wherein complaints were received from teachers who were not utilizing the media center, and from students who felt they were being treated unfairly. The Respondent had a problem interacting and communicating with white people and as a result, became ineffective. When Amos Bonner, the principal at Dillard High School, concluded that Respondent's effectiveness had been impaired, he brought the matter to the attention of the Area Superintendent, William Dandy. Consequently, the Respondent was administratively transferred to Sunrise Middle School. During the school year 1981-82, while assigned to Sunrise Middle School, the Respondent incurred similar problems with the faculty and students at that school. Her principal, Nick Gancitano, found her to be defensive, negative, and communicated with the faculty, students and administration in a negative way. Students were not using the library, and there was a dramatic decrease in the number of books being circulated from the previous year. As the problem seemed to get progressively worse, throughout the year, her principal concluded that her overall effectiveness as a Media Specialist was impaired. Principal Gancitano, who was charged with the responsibility for evaluating the performance of the Respondent in accordance with her job description, concluded that the Respondent lacked the "ability to work with principals, teachers and other appropriate educational leaders in order to design learning experiences and to recommend educational media suited to specific instructional objectives, and to stimulate effective utilization of media" and, further, lacked the "ability to inspire and gain the respect of staff and students." Michael Galbreath and James Rupp, fellow teachers at Sunrise Middle School, related incidents where children were crying out of frustration and upset with the experiences that they encountered in the library. It reached the point that Mr. Galbreath would not take his classes to the library. Instead, he would sneak into the library or would purchase books from his own financial resources, for classroom use, so the children would not have to enter the library. Mr. Galbreath testified that the Respondent's attitude was belligerent and intimidating, and that other classroom teachers had also refused to take their children to the library. He concluded that the Respondent's effectiveness as a Media Specialist was impaired and that, as a direct result of her severe problems in dealing with people, the Respondent was incompetent. Mr. Rupp testified that the Respondent was "standoffish" and that she didn't really want to relate to everyone that was at the school. He was also aware that children were not utilizing the library facility towards the end of the year and he concluded that her effectiveness as a Media Specialist was "null and void." During the school year 1981-82, these complaints were brought to the attention of the Area Superintendent, William Dandy, who requested an investigation. He had received complaints from parents and from teachers concerning the Respondent. Because of her inability to discharge her required duties at Sunrise Middle School, at the conclusion of school year 1981-82, Respondent was again administratively transferred this time to Nob Hill Elementary School. While at Nob Hill Elementary School during school year 1982-83, Respondent again involved herself in altercations with other faculty members. Susan Reynolds, a fellow teacher at Nob Hill Elementary School, testified that Respondent threatened to "choke her" and that as a result of the comment, she was intimidated and afraid of the Respondent. She called this to the attention of Ernest Roberts, the Principal at Nob Hill. The Respondent also had a confrontation with Verda Farrow, which resulted in Mr. Roberts directing the Respondent to cease from verbally attacking and accusing teachers of "talking about you" and "spying on you." On May 4, 1983, Steven Richardson, then a fifth grade student of Verda Farrow's went to the library with a pass to check a bibliography. The Respondent was reading to a kindergarten class and for no justifiable reason she determined that Steven Richardson's attempt to gain her attention was disruptive. She took Steven Richardson to the office and discovered that Mr. Roberts was out of the building. Thereafter, she took the student to Verda Farrow's classroom to discuss the matter with her. During the conversation that ensued outside the classroom door, the Respondent grabbed Steven Richardson by the arm and attempted to push him into the door approximately three times. Respondent also grabbed Mrs. Farrow by the dress, pulled her dress loose, and stuffed the library pass down the front of Mrs. Farrow's dress. This incident was witnessed by Steven Richardson and several of the students in the classroom at the time, three of whom testified at the Hearing. Following the incident on May 4, 1983, a Police Report was filed, and school security conducted an investigation of the alleged incident. Faculty members, upon becoming aware of the incident, boycotted the library and several parents, who became aware of the incident, wrote unsolicited letters requesting that their children not be sent to the library. Arthur Rose, President of the Nob Hill Elementary School P.T.O. Advisory Committee, became aware of the situation and received phone calls at his office and his home from parents who were concerned regarding their children. Mr. Rose believes that he and the parents with whom he spoke had concluded that Respondent's effectiveness as a Media Specialist had been impaired. The parents were desirous of having the Respondent removed from the school and they feared for the safety of their children. Following the investigation by school security, the Respondent was transferred on a temporary basis to the staff of the Director of Learning Resources by Benjamin F. Stephenson, Associate Superintendent for Personnel. This was not an existing position. The Respondent denied ever touching Steven Richardson. The Respondent admits that the position of Media Specialist, or librarian, is in some respects more difficult than the position of a classroom teacher, in that a classroom teacher is only responsible for dealing or communicating with one class of students, while a Media Specialist must effectively communicate with three or four hundred children a day. The Respondent also agrees that a librarian must have good communication skills among faculty members. To corroborate the Respondent's contention that she did not grab Steven Richardson and push him into the door, the Respondent submitted to a private polygraph examination conducted by Robert Rios, who concluded that the Respondent did not attempt deception when asked whether she grabbed Steven Richardson by the arm and pushed him into the door on May 5, 1983. He concluded that the reliability of this polygraph examination should have at least equal weight to eyewitness testimony. In rebuttal to the proffered testimony of Mr. Rios, his polygraph examination chart and findings were reviewed by Carl Lloyd, investigator and polygraph examiner for the State Attorney's Office in Broward County, Florida, and the individual under whom Mr. Rios served an internship. Mr. Lord had previously supervised Mr. Rios in conducting twenty or thirty polygraph examinations, and has reviewed his charts in one hundred fifty to three hundred cases. Mr. Lord concluded, based upon the pre-test and test procedures utilized, that the validity of the test conducted upon Respondent was less than fifty (50%) percent. Mr. Lord further testified that in the State of Florida, polygraph examinations are only admissible in Court upon stipulation of both parties. The purpose of the stipulation is to ensure that the subject is testable, that there is a testable issue, and that the pre-test and test procedures utilized result in conclusive and reliable findings.
Recommendation It is recommended that the Respondent be dismissed from employment by the School Board of Broward County. DONE and ORDERED this 31st day of January, 1985 in Tallahassee, Leon County, Florida. SHARYN L. SMITH 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 31st day of January, 1985 COPIES FURNISHED: William S. Cross, Esquire 4540 North Federal Highway Fort Lauderdale, Florida 33308 Ronald W. Houchins, Esquire 3075 W. Oakland Park Boulevard Suite 103 Fort Lauderdale, Florida 33311 William T. McFatter Superintendent of Schools Broward County School System 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312
Findings Of Fact During the 1977-78 school year, the Respondent, Erma Frederick, was employed as a classroom teacher in the Dade County Public School System, assigned to Buena Vista Elementary School. On October 10, 1977, a conference was scheduled between the Respondent, United Teachers of Dade, Representative, Ms. Mattie Squire and Ms. Linda E. Stuart, Principal of Buena Vista Elementary School. During the conference, Respondent was advised that based on two years of unsatisfactory evaluations (1973-74 and 1974-75) deficiencies in her teaching performance existed which, if not corrected by December 1, 1977, would affect her status as an employee in the Dade County Public School System and which, if not corrected by December 1, a complaint of incompetency would be filed seeking Respondent's dismissal. The substance of this conference was reduced to writing by letter dated October 10, 1977, and cited the following deficiencies: Failure to maintain pupil control by establishing and maintaining discipline. Failure to file instructional plans. Failure to implement lesson plans and to present materials correctly. Failure to correctly grade student papers and maintain accurate grade books. Failure to properly maintain cumulative records and to maintain attendance and other data entries on report cards. Failure to accurately take attendance. Failure to follow class schedules. Failure to maintain supervision of pupils at all times. Based on the Respondent's failure to otherwise remedy the above cited deficiencies to Petitioner's satisfaction, Petitioner suspended Respondent from her position as an instructional teacher on March 9, 1978. Respondent, although properly noticed, failed to appear at the hearing to refute the cited deficiencies relied on by Petitioner in suspending her as an instructional employee at Buena Vista Elementary School. Based thereon, and in the absence of any evidence having been offered by Respondent to refute or otherwise negate the above-cited deficiencies, they must be, and are, considered meritorious.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Respondent's appeal of her suspension by Petitioner be DENIED. DONE and ENTERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
