The Issue Whether Respondent should be dismissed from employment in the Broward County School System for alleged violations of Section 231.36(6), Florida Statutes, as set forth in Petition for Dismissal, dated April 12, 1979. During the course of the hearing, Petitioner withdrew Paragraphs II B, E, and J of its Petition for Dismissal.
Findings Of Fact Respondent has been employed by Petitioner in the Broward County School System as an instructor in art at Plantation High School since 1970. He is currently on continuing contract status. The course which he has taught in the past include design, drawing, craft, sculpture, and ceramics. (Testimony of Respondent) During 1971, Respondent made a practice of having his students fill out a form questionnaire which contained personal information such as name, address, telephone, and date of birth. Additionally, the form included blocks concerning the student's grades, and prospective college attendance. It also asked if the student had any "hang ups" or police record, and if the student liked "rapp sessions" and why. School policy which was disseminated to teachers at faculty meetings required that any such forms had to be approved by the school principal, but Respondent had not sought such approval. When the matter came to the attention of the principal, he informed Respondent that he should discontinue use of the form and Respondent complied. (Testimony of Hanes, Saur, Petitioner's Exhibit 1) In the fall of 1971, Jill Saur, n'ee Alexander, was a student in Respondent's ceramic and pottery class during her senior year. In October and November, 1971, she complained to school officials that she had received several early morning telephone calls from Respondent concerning his desire to come to her house and have sexual intercourse with her. These calls involved Respondent's use of obscene terms and caused the student to become apprehensive and frightened. Although she had recognized Respondent's voice over the telephone, school officials were unable to identify the caller from tape recordings that she had made of the calls at their suggestion. She testified at the hearing that she was too frightened to prefer charges against Respondent. She confronted Respondent on one occasion at the high school, but he denied making the calls. Although the school conducted an investigation, no official action was taken except that the principal told Respondent to leave the students alone. (Testimony of Saur, Tankovich, Hanes) During the 1974-75 school year, Respondent asked a 13 year old ninth grade student, Darlene Wilcox, to stay after class and come into his office. He asked the student to sit down and then closed the door. He handed her an issue of the magazine "Psychology," opened it to an article which had the word "sex" in the title and asked her if she had ever read a magazine like that before. Although the student testified that Respondent locked the office door from within the room, the only way in which the door can be locked is by a key on the outside entrance to the room. There is a large inside window to the office from which persons in an adjoining classroom can observe activities within the office. After showing the article to the student, another student entered the adjoining classroom and Respondent left the office and told the girl that he would see her in class the next day. (Testimony of Wilcox, Van Vleet, Respondent's Exhibit 1) In the fall of 1977, Kathy Weber, a 17 year old 12th grade student, was at a local establishment called the "Crown Bar" with student friends one evening. Although she was not one of Respondent's students, he joined her group at the bar and commenced conversing with her. During the course of the conversation, Respondent took the girl's wrist, stated that he could read her mind, and proceeded to tell her her birth date. On one occasion thereafter, Respondent phoned Kathy at her home, but she declined to converse with him. Also, he later saw her at school and told her that if she went to the Crown Bar again he would meet her there. He also asked her to go "bumming" with him sometime which he explained meant that he would like to go shopping with her. In late November or early December, he entered a class taught by Linda Whealin during a class session which was attended by Kathy. He asked permission from Mrs. Whealin to excuse Kathy when she finished her work in order that she could help in the office. The teacher agreed, but Kathy did not go because she was afraid of Respondent and felt that he took a "too personal attitude" toward her. This incident came to the attention of the school principal who, together with the assistant principal, discussed the matter with Respondent in early December. During these discussions, Respondent stated that he could read minds, that he did call Kathy at her house because she wanted to talk to him, and that he had asked for her to be excused from Mrs. Whealin's class because he wanted her to help him inventory a large art order. The school officials warned Respondent concerning his conduct and advised him to restrict any student contact to classroom situations. The matter was summarized in a memorandum prepared by the assistant principal, dated December 5, 1977, and Respondent signed the document acknowledging that he had read it. He also submitted a rebuttal stating his version of the circumstances involving the student. (Testimony of Weber, Whealin, Hanes, Laughton, Respondent, Petitioner's Exhibit 3) Susan Clement was a student of Respondent during the, 1977-78 school year. On different occasions, Respondent grabbed her neck with his hands, pinched her buttocks, and pushed up against her buttocks with his body from behind while she was washing her hands at a sink in the classroom. Once he told her that there were rumors that she was going to bars and meeting male teachers there. After one of these incidents, she complained to the school principal about Respondent's actions. During her school attendance, she smoked marijuana approximately three times a week and sometimes was under the influence of marijuana while attending classes. She testified, however, that it did not affect her memory or ability to concentrate in art class. (Testimony of Clement) Sherry Larkin was a student of Respondent during the past two years. During her ninth grade, he complained to her mother that Sherry was wearing thin shirts to class which disrupted the other students. Her mother, another teacher at Plantation High School, told her not to wear "Indian" clothes or jeans to school in the future. The student had been observed by another art teacher wearing sheer blouses at school. (Testimony of Larkin, Van Vleet) During the past school year, Respondent, while talking in class to a student, Lori Evans, pinched her above the breast for no apparent reason. At other times he pinched her on the buttocks during class, and slapped her on the buttocks with a ruler without giving any reasons for his actions. Lori also saw him slap another student, Angela Lash, with a ruler in the same manner. (Testimony of Evans) During the past school year, Respondent asked to see a student, Theresa Jackson, after class because she had become upset with his comments concerning her art work. After class, he told her that he wanted to embarrass her because he didn't want other students to know that he favored her or gave her special attention. He told her she was the most beautiful student he had ever had and put his arm around her. He also inquired as to her job and family and told her that if she ever had any problems, he would be glad to talk to her and help her out if she was "up tight." In one instance during the school year, the student wore shorts to class and Respondent told her that he didn't care if she wore them, but that the boy sitting at her table might get excited. On another occasion, he told her she should not wear so much eye makeup because her eyes were pretty enough without it. The student dropped the art class at the end of the first semester because she feared going back to his class since he treated her "special." (Testimony of Jackson) Tammy DeCarlo was a senior at Plantation High School during the 1978- 79 school year, but not one of Respondent's students. In February, 1979, while Tammy was loudly conversing with another student in a school corridor, Respondent came up and joined the conversation. Tammy was the school yearbook editor and had been having problems in its publication. About a week later, she saw Respondent again at school and they discussed some of her problems with the yearbook. Several days later, another student told Tammy that Respondent wanted to see her. Tammy went to his room and he asked her to go to his office. On the way, he picked up a tissue paper flower and gave it to her. In the office, they discussed her yearbook deadline and he mentioned that he had "ESP." He gave her several examples of his ability in this regard. He told her not to tell anyone that he was talking to her in order that they would have a "better trust." Tammy later told her mother about her conversation and thereafter spoke to the assistant principal about Respondent. However, nothing materialized from this discussion. A few days later, Tammy received a note telling her that Respondent wanted to see her again. Again, he took her into his office. During their conversation, Respondent told her that she didn't trust him because she had been hurt by a boy friend. He told her to close her eyes and concentrate, and then told her that the boy just took her out so that she could make love with him and that he had tried to make her do something she didn't want to do. Tammy told him she didn't know what he was talking about and Respondent said "What is it, oral sex?" Respondent also asked her what kind of birth control she used and the student told him. He asked her to give him "something personal." Since she was afraid of him, she offered to let him have her necklace. He asked to take it off her neck and did so. A week or so later, she saw Respondent again and he asked her to come in to see him during her lunch hour but she declined. Later, she asked a friend to get her necklace back from Respondent. He returned it, together with a picture. During their initial conversation, Respondent referred to Tammy's journalism instructor as a "male chauvinist pig" when Tammy complained that the instructor was taking all the credit for publication of the yearbook. Tammy's parents made a written complaint to school authorities concerning Respondent's conduct. (Testimony of DeCarlo, Hanes) Several of Respondent's former students testified that they had never seen him act improperly in class or inquire into the personal lives of students. They considered him to be a warm, friendly teacher who occasionally would pat a student on the back or put his arm around a student's shoulders. Other students testified that he often placed his arm around the shoulders of various students. Respondent's ability as an art instructor has never been questioned and one of his colleagues considers him to be the best ceramics instructor in the county. During the period 1971-1979, Respondent's principal at Plantation High School warned him concerning various incidents involving female students approximately four or five times. (Testimony of Graff, Landers, Cirille, Wilcox, Larkin, Evans, Jackson, DeCarlo, Hanes, Van Vleet) Respondent testified as a witness and denied ever making improper phone calls to Jill Alexander Saur or showing a magazine article to Darlene Wilcox. He denied pinching Lori Evans above the breast or on the buttocks or slapping her on the buttocks with a ruler. He stated that she was a pour student and unreliable when given a student task. Another teacher corroborated his testimony as to the student's unreliability. Respondent denied pushing against Susan Clement at the classroom sink or pinching her buttocks, but conceded that he might have grabbed her neck when she did not "clean up her mess" in the classroom. Respondent testified that after he notified Sherry Larkin's mother about the thin blouses she was wearing, her personality changed and she became angry and frustrated at him frequently. Prior to that incident, she had confided in him concerning spending a weekend with her boyfriend and giving him personal information concerning the fact that her sister was living with her boyfriend and that he dealt in drugs. He admitted that he had told a student, Nancy Brown, that she should wear better bra support on one occasion when she was wearing a knit top that was "very revealing." Respondent stated that the reason he had visited the Crown Bar was to join students whom he was teaching at night at Broward Community College. On the occasion when he introduced himself to Kathy Weber there, he discerned from her conversation that she had a "problem" with her boyfriend and that he later asked her to go to a shopping center in order that they could talk about her problem without being accused of doing something improper. He believed that she was probably drinking because of her problem and that he wanted to gain her confidence and then try to counsel her not to drink. In regard to the allegations involving Tammy DeCarlo, Respondent testified she seemed upset when he first saw her in a school corridor and that he had recently been advised by the assistant principal that students and parents were complaining that he was not being "consoling enough to my students." Therefore, even though he had been warned at the end of the prior academic year not to become personally involved with the students, he decided to talk to Tammy and was able to calm her. He admitted giving her paper flowers in his office and testified that they talked about ESP because she had said that her mother had studied the subject. He admitted making the statements relating to birth control and oral sex to Tammy because it seemed that she was having trouble with one of her boy friends and that she had said her sexual relationship with the boy was "old hat." In that regard, he testified in part as follows: When we were talking about her boy friend and her intercourse with her boy friend, I believe I made the statement, "Do you play it safe?" She said, "Yes." She said that she used the foams and he used condoms. Here again, I stated, Well, this is your thing, or that is your life. I think that she made the statement that he wanted to try something different. I may have said, do you mean oral sex, you know, kind of in a shocking manner. She said, I believe at the time, she agreed at the time, that this is what he wanted to do. She said something about, she wasn't quite sure about it. I said well, that is your life, your decision. Respondent conceded that he had been counseled concerning his relationship with female students by the principal about four times. He is of the opinion that school guidance counselors have too much paper work and could not see students on a personal basis. Therefore, he felt that if anyone had a problem they could come and talk to him because he could "listen well." He stated that he had "straightened out" a number of students and they and their parents had complemented him in the past. He denied any ability to read minds or that he had told the assistant principal that he could do so. It is found that Respondent's testimony wherein he denied the incident involving student Wilcox, and denied the physical actions involving students Evans and Clement is not credible. His testimony denying the telephone conversations with Jill Saur is not considered credible, but her testimony was received in evidence solely for the purpose of showing a motive, intent, or design regarding Respondent's relationships with other students. (Testimony Of Respondent, P. Park)
Recommendation That Respondent be dismissed from his employment as a member of the instructional staff of the Broward County School System, pursuant to Section 231.36(6), Florida Statutes. DONE and ENTERED this 24th day of July, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. George Allen, Esquire 116 Southeast Sixth Court Ft. Lauderdale, Florida Richard H. Frank, Esquire 341 Plant Avenue Tampa, Florida 33606 Broward County School Board Attn: Edward J. Marko, Esquire Post Office Box 4369 Ft. Lauderdale, Florida 33338
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since August 21, 1998. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, is covered by the collective bargaining agreement between the School Board and TALC, and holds a professional service contract with the School Board At the time of his hiring, Respondent was assigned to the dropout prevention program at Academy High School, where he taught for one year. On August 17, 1999, Respondent began teaching at High Tech Central, a vocational/technical school. High Tech Central's student body includes both high school students and adults seeking to obtain job skills. A large percentage of the adults attending High Tech Central receive assistance from the Pell grant program, a need-based undergraduate financial aid program funded by the federal government. During the 1999-2000 and 2000-2001 school years, Respondent taught the second semester of the personal computer ("PC") support services class, sharing a large classroom with Beth Ames, the teacher who taught the first semester of the same class. During the 2001-2002 school year, Respondent taught a web design class. During the 2002-2003 school year, Respondent taught CET in a co-teaching arrangement with Jeff Ledger, who had taught the CET class for the previous six years. At the end of that school year, Mr. Ledger moved to Ohio. From the 2003-2004 school year until the time of his suspension, Respondent alone taught the CET class. Throughout his period of employment with the School Board, Respondent also taught computer, business, and accounting courses as an adjunct professor at Edison College in Fort Myers. Until the 2003-2004 school year, Respondent received nothing less than satisfactory performance assessments. For the 1998-1999 school year, his performance was graded as satisfactory in each of the twelve criteria listed on the performance assessment form.2 His assessor at Academy High School wrote in the comment section of the assessment that "Mr. Nevins is well versed in technology and vocational skills," and commented favorably on Respondent's flexibility and cooperativeness in meeting the needs of students. For the 1999-2000 school year, Respondent's performance in teaching the PC support services class at High Tech Central was graded as exceeding expectations in five of the twelve criteria listed in the performance assessment form and as meeting expectations in the remaining seven criteria. High Tech Central's assistant director Susan Cooley prepared the assessment and wrote that Respondent "has done an outstanding job with collaboration with teachers and staff here at [High Tech Central]. He is very creative and strives to produce projects and alternative techniques for student achievement." For the 2000-2001 school year, Respondent's performance was graded as exceeding expectations in five of the twelve criteria and as meeting expectations in the remaining seven criteria. Ronald Pentiuk, the director of High Tech Central, prepared the assessment and offered no written comments. For the 2001-2002 school year, when Respondent moved from PC support services to web design, Respondent's performance was graded as exceeding expectations in three of the twelve criteria, and as "meets expectations" in the remaining nine criteria. Mr. Pentiuk commented that "Mr. Nevins has performed in an outstanding manner-- really super job in preparing the new CET lab." For the 2002-2003 school year, when Respondent moved from web design to co-teaching the CET class with Mr. Ledger, Respondent's performance was graded as exceeding expectations in three of the twelve criteria and as meeting expectations in the remaining nine criteria. Mr. Pentiuk performed this assessment and offered no additional written comments. For the 2003-2004 school year, when Respondent began to teach the CET class alone, Respondent received a grade of meeting expectations in eight criteria. In the criteria titled "Planning for Student Achievement" and "Subject Matter," Respondent received a grade of "exceeds expectations." In the criteria titled "Assessment of Student Achievement" and "State, School & District Requirements," Respondent received a grade of "below expectations," meaning that his performance was unsatisfactory. Mr. Pentiuk performed this assessment and offered no additional written comments. The record established at the hearing shows that High Tech Central's administrators expressed concern about Respondent's teaching and record keeping practices as early as May 2002. Ms. Cooley testified that, at the conclusion of the 1999-2000 school year, Ms. Ames had approached her with a request that she be permitted to teach both sections of the PC support services class alone, rather than splitting the course with Respondent. Ms. Ames stated that she was doing all the work anyway and felt it would be better for the students if she handled the class without Respondent. Ms. Cooley left matters as they were for the 2000-2001 school year, but then moved Respondent into the web design class for the 2001-2002 school year. As the 2001-2002 school year progressed, Ms. Cooley became concerned that Respondent was not properly tracking the progress of his students. She recognized that this was the first time that High Tech Central had offered a web design course and there would be a "learning curve" for everyone involved, including the instructor. Thus, the school's administration gave Respondent time over the course of the school year to work out the problems. In particular, Ms. Cooley was concerned that Respondent was not using lesson plans or a "career map" in his class. Each technical program at High Tech Central consists of a progression of competencies. To complete the program, or to pass from one phase of the program to the next, a student must demonstrate mastery of a certain set of competencies. An "occupational completion point" ("OCP") is a cluster of related competencies that a student is able to demonstrate and perform. A career map is a written chart completed by the instructor and used by the student to track the student's progress through the OCPs of a given program. Ms. Cooley testified that during the spring of 2002, three or four students in Respondent's class came to her to complain that there were no lectures or structured class work in the web design class and that the students in the class were left to do whatever they wanted. In early May 2002, a substitute teacher in Respondent's class came to Ms. Cooley to complain that Respondent left no lesson plan, despite the fact that his absence had been scheduled. The substitute teacher told Ms Cooley that the web design students appeared to be doing as they pleased in the class, including playing games on their computers. On May 5, 2002, Ms. Cooley and Mr. McCormick had a meeting with Respondent to discuss the lack of structure, discipline, and record keeping in Respondent's class. Ms. Cooley stated that every time she talked with him, Respondent would say he was going to do things better. Her concern was that she never saw any evidence of Respondent's performance matching his words. When queried as to the positive performance assessment authored by Mr. Pentiuk for the 2001-2002 school year, Ms. Cooley testified that she and Mr. Pentiuk had "agreed to disagree" about Respondent. Mr. Pentiuk was a "very, very accommodating" and "very, very patient" administrator who believed that Respondent was trying to do things the right way.3 Ms. Cooley had many conversations with Mr. Pentiuk about Respondent, but Mr. Pentiuk's philosophy was to give Respondent time, talk to him, and let him try to turn things around. Mr. Pentiuk also believed that Respondent's contacts in the business community were an asset to his students. Mr. Pentiuk testified that, due to lack of enrollment in the web design class, Respondent was moved into the CET class with Mr. Ledger for the 2002-2003 school year. Ms. Cooley testified that the administration believed that Respondent and Mr. Ledger could share each other's expertise in the same class for one year, then the CET program could be expanded by splitting it into two classes. The Department of Education standards state that the purpose of the CET program is to prepare students for employment or advanced training in the computer electronics industry. The Department's curriculum framework set forth the program structure as follows: This program is a planned sequence of instruction consisting of five occupational completion points as follows: (1) End User Support Technician, Level I Support Technician, Help Desk Specialist; (2) PC Electronics Installer; (3) PC Technician, Field Technician, Level II Support Technician; (4) Computer Support Specialist, Level I LAN Technician, Field Service Technician; (5) PC/Network Technician (Digital Electronics Repairer, proposed name change for 2005). When the recommended sequence is followed, the structure will allow students to complete specified portions of the program for employment or to remain for advanced training. A student who completes the applicable competencies at any occupational completion point may either continue with the training or become an occupational completer. The courses [sic] content includes, but is not limited to, installation, programming, operation, maintenance and servicing of computer systems; and diagnosis and correction of operational problems in computers arising from mechanical, electrical or electronics, hardware, and software malfunctions. The course content includes, but is not limited to, communication, leadership skills, human relations, and employability skills; and safe, efficient work practices.4 Respondent testified that things went well with Mr. Ledger because their skills complemented each other. Mr. Pentiuk testified that Respondent told him that Mr. Ledger provided most of the computer training in the CET class, and Respondent mostly taught employability skills, such things as the ability to get and keep a job, communication skills, and getting along with co-workers. Respondent agreed that he taught these employability skills, but emphasized that he also taught operating systems, and other software, whereas Mr. Ledger was a "hardware guru." At the end of the 2002-2003 school year, Mr. Ledger resigned his position and moved to Ohio, leaving Respondent as the sole instructor in the CET program. Upon learning that he would be teaching the class alone, Respondent told Mr. Pentiuk that he would require a new co-teacher or at least an assistant for the class and that he would need help in "getting up to speed with the gap" in his teaching knowledge of computer hardware. Mr. Pentiuk testified that Respondent also expressed insecurity about the returning students. Respondent feared they would be loyal to Mr. Ledger and would not accept Respondent as their sole teacher. In light of Respondent's expressed uncertainty about teaching the CET class alone, Mr. Pentiuk had discussions with Respondent in June 2003 regarding Respondent's teaching alternatives for the upcoming 2003-2004 school year. Mr. Pentiuk was interested in starting a business management and supervision program and moving Respondent into a teaching position in that program. However, this placement would have required Respondent to obtain state certification in business education at his own expense, and Respondent told Mr. Pentiuk he could not afford it because he was paying for a daughter to attend an Ivy League college. Mr. Pentiuk sought the advice of Mr. McCormick regarding Respondent's situation. In an e-mail to Mr. Pentiuk dated July 8, 2003, Mr. McCormick wrote, in relevant part: The tone of what [Respondent] is saying here [in an e-mail exchange with Mr. Pentiuk] indicates to me that giving him the CET class would be a recipe for disaster, especially given its current size. He is apparently looking for a way to continue doing not much of anything. For whatever reason, he does not believe he can handle the class or the curriculum by himself, even though that is what his current certification is in. I'm not sure about hiring him an assistant . . . even though Darryl is a good guy and I am sure he would be great with the students, I don't believe he has the technical background in networking that would be required. Any assistant teamed with Barry is going to end up doing the lion's share of the work, and I think that would be wrong-- especially if the assistant is not certified and qualified in this highly technical field. I think the bottom line is that Barry only wants to teach the soft "business employability skills," and really has no interest in CET. If he wants to teach the business curriculums, he needs to get off the dime and get certified! That is his responsibility, not ours. The fact [that] he feels that "it is really not the right time" and that he "really can't afford it right now" is his concern, not ours. There has been, and continues to be plenty of opportunity for him to do this. It would seem to me that with his future employability in the balance, he would not be fighting us on this issue. I don't know what else we can do to accommodate this teacher. If he is "uncomfortable" with either of the two options you presented to him, then perhaps we should try to find a teacher elsewhere who can meet our needs. I know this sounds cold, but after all, the goal is to provide our students with the best possible instruction . . . not make sure that our teachers don't feel "uncomfortable." This guy needs to get real. We have gone way beyond what is fair in offering him these options. He needs to decide if he wants to work here or not. My suggestion would be to place him in the business class this year, with the understanding that in order to maintain his teaching position, he must get certified in business, or at least be well on the way to getting certified, by next summer. In the meantime, we could advertise for a CET instructor who would be willing to take on the entire curriculum, not just the "employability skills." [ellipses in original] Mr. Pentiuk replied to Mr. McCormick that he shared many of the same feelings. At the hearing, Mr. Pentiuk testified that his reply did not mean that he agreed Respondent was not "doing much of anything," but that he did have concerns about Respondent's ability to pick up the CET class and teach it alone. Mr. Pentiuk ultimately did not follow Mr. McCormick's suggestion that Respondent be placed in the business class for the 2003-2004 school year, in part because the business class had not been advertised and the CET program had an ongoing enrollment. Mr. Pentiuk placed Respondent in the CET class, hoping that the training he had obtained in working with Mr. Ledger, along with formal training at the Cisco Systems Networking Academy program in the fall of 2003, would enable Respondent to handle the program. The School Board paid for Respondent to obtain Cisco training in Tampa and arranged for substitute teachers to take over the CET class on those days Respondent was in Tampa for training. Respondent completed the Cisco Certified Network Associate 1 ("CCNA"), Networking Basics, course of the Cisco Networking Academy Program on October 31, 2003. Respondent completed the CCNA 2, Routers and Routing Basics, course on December 9, 2003. Two more courses were required to obtain CCNA certification. Respondent testified that School Board policy required an instructor to take the first two courses then teach that material for a year before taking the second two courses and that he was never given the opportunity to complete the CCNA program. Mr. Pentiuk testified that problems began in Respondent's class at the outset of the 2003-2004 school year. Several students approached Mr. Pentiuk with complaints about the quality of Respondent's teaching. One irate adult student told Mr. Pentiuk that he intended to leave the CET program because he was not getting his money's worth.5 Late in the fall of 2003, near the Christmas break, Mr. Pentiuk contacted Georgianna McDaniel, the School Board's director of personnel services, to express his concerns that Respondent was not turning in his attendance records in a timely fashion, that Respondent did not have control of the students in his class, and that Respondent was not following the school's standard practices in preparing grades and documentation of his students' progress in the CET program. Ms. McDaniel directed Mr. Pentiuk to follow up on these matters and to note them on Respondent's final performance assessment for the school year. Respondent conceded that during the 2003-2004 school year, he was getting up to speed on the technology that he was supposed to be teaching to the students and often had to write down their questions so that he could research them and come in with answers the next day. In early 2004, the High Tech Central administration began to conduct informal observations of Respondent's class and to meet with him about his procedures, particularly as to taking attendance. Tracking attendance was a critical matter at High Tech Central because of the high percentage of its students who received Pell grants. Pell grants are calculated based on how many hours a student is in class, not merely on the number of days the student is present. Thus, teachers at High Tech Central were required not only to take attendance at the beginning of their classes, but to have students sign in and out of the classrooms in order to track their activities throughout the day.6 On the morning of February 19, 2004, Ms. Cooley was working in the front office when Respondent phoned in to say that he was running late. Ms. Cooley said that she would open Respondent's classroom and substitute until Respondent arrived. In a statement dated November 30, 2004,7 Ms. Cooley described her experience in Respondent's class as follows, in relevant part: While I was subbing in Barry Nevins' class one morning last year, as he was late coming to school, I noticed students were not focused on any assignments. I felt there was very little productive work being accomplished. One student pulled up the Internet and was reading current events; another one was checking the weather. I circulated to every student and simply asked what they were working on. Most students would responded [sic] they were working on projects. I asked if I could see the project information sheet, assignment sheet, project criteria sheet or rubric for the projects. None of the students had any written project direction sheets. I could not find any lesson plans or grade book. Two students walked in after 8 a.m. I asked if they would go to the office for a tardy slip. They responded that Mr. Nevins gives them extra time to start class.[8] I noticed the lab was full of pop bottles, food wrappers, and trash. While circulating, I asked each student if they had a career map or competency sheet. Not one student had a career map, assignment sheet, list of assignments, or any other tracking system. Students were not aware the program was divided into occupational completion points. As I approached two high school students sitting in the back room, I asked what they were working on. I noticed a small book placed inside the large textbook. I asked to see the book, and it was a hackers handbook.[9] One student in particular stood up-- in my face-- and yelled at me. I felt threatened; I felt he was rude and disrespectful. I radioed for the Student Affairs Specialist to discipline the student. Soon after the Student Affairs Specialist and this high school student left the room, Mr. Nevins arrived. I was scheduled to give an Employability Seminar to another group of students across campus, so I was in a hurry to leave Mr. Nevins' room. I thought he would have called me later in the day to find out what happened. He never talked to me until days later. He stated the students were upset and wanted to come talk to me. I told him I would be happy to schedule appointments for each one. He said they wanted to come as a class. I responded I felt it would be better to have a conversation with each student-- one on one; but, I never heard from Mr. Nevins about the students. I never received a copy of the letter until Ms. Garlock allowed me to read it last week.[10] * * * After this visit, I became very concerned about the lack of educational focus in the classroom. I visited his classroom a couple of weeks later, and I saw the same types of things happening. This time I asked Mr. Nevins about my concerns, and his responses made me question classroom management skills, paperwork, curriculum, lesson plans, etc. Every instructor has a student tracking system they use to maintain the data on each student. Whether they use competency lists, career maps, list of class assignments, etc. Every teacher does it a little bit differently. I do become concerned when a teacher does not have a tracking system or it is not consistent for every student in the class . . . . In a memorandum to Respondent dated February 26, 2004, titled "Classroom Management/Record Keeping Concerns," Ms. Cooley wrote as follows, in relevant part: The purpose of this memorandum is to summarize our conference held at 3:00 p.m. on February 20th, 2004 concerning issues related to your classroom management and basic record keeping practices. As you recall, Mr. Ronald Pentiuk, Director, High Tech Central, and Mr. Bill McCormick, Assistant Director, Operation, High Tech Central, also attended this meeting. During the conference, the following conduct was discussed: Improper attendance documentation on student tardies and early releases. Lack of up-to-date and complete career map documentation on each student. Lack of complete and accurate lesson plans. Lack of on task work demonstrated by students. Non-enforcement of school policies evidenced by not beginning class on time and allowing students to arrive late without proper sign-in documentation. I have reviewed your conduct as it relates to the established expectations as provided by our school's faculty handbook, our standard operating policies, and The School District of Lee County student attendance policies. This information was provided to you during new teacher orientation and training, standard in-service session, and at the beginning of each academic year during the pre-school sessions. I informed you that your conduct negatively impacted your students and our school in as much as inaccurate or incomplete recordkeeping and attendance documentation jeopardizes our ability to maintain federal Pell financial aid. This conduct also exposes the school to many unforeseen liabilities when we are unable to produce accurate student attendance records. And finally, non-enforcement of school policies on your part undermines the maintaining of good order and discipline throughout our campus by breeding contempt and noncompliance with school rules. During the conference, I provided you with the following directive(s) and assistance to take effect on or before Monday, February 23rd, 2004 and to continue throughout the remainder of the school year. Use/set up a teacher hard-copy grade book using the materials given to you 3 weeks ago. Keep accurate track of all tardies and early dismissals by documenting exact arrival and departure times. Print out all daily lesson plans. Update and maintain daily career maps for all students. Monitor students for on task behavior and use of proper classroom materials. I also informed you that your failure to comply with any of the above directives will result in another formal counseling meeting and letter, as well as placement on intensive assistance. In March 2004, the school's attendance secretary complained to Mr. McCormick that Respondent was not following the school's prescribed attendance procedure. On March 26, 2004, Mr. McCormick sent Respondent an e-mail reminding him of the correct procedure and directing him to follow it. On March 30, 2004, the attendance secretary complained to Mr. McCormick that Respondent had not turned in his attendance sheets by 9:00 a.m., as required by school procedure. Mr. McCormick sent an e-mail to Respondent, who wrote back to apologize, stating that he "got busy teaching a lesson and dealing with some interesting problems" and forgot to turn in his attendance. On April 14, 2004, Mr. McCormick observed Respondent's class. The CET lab was a large L-shaped room, approximately 800 to 900 square feet. There was a central open area with computer tables and computers and four auxiliary rooms each sectioned off by a solid half-wall from the floor up to about waist-level and a chain link fence from the top of the half-wall to the ceiling. These auxiliary rooms were generally referred to as "cages." The CET class was conducted for five hours each weekday from 8:00 a.m. to 1:30 p.m., with a half-hour lunch break. The students were required to remain in the classroom at all times, except during the lunch recess. There were rest rooms and a water fountain inside the CET classroom, and the school's administration expected that any short breaks from class work should take place inside the classroom. After his observation, Mr. McCormick sent an e-mail to Respondent with the following "feedback": As I arrived at about 8:30, you were obviously involved in taking care of a student issue in your back cage. However, the majority of the remainder of the class did not appear to be actively engaged in much useful learning activity. A group of 5 students were huddled up to the front right of the class visiting with each other. 4 other students were on their computers. At least two of them did appear to be viewing the online Cisco curriculum, the other 2 seemed to be surfing the web. 2 other students were setting up one of the back cages that had been disturbed by the maintenance men who are fixing your counter tops. At about 8:35 you assembled a group of students to the white board and began a discussion presentation on the different types of business models such as sole proprietorships, partnerships, etc. . . . You tried to engage the students in a discussion of the advantages and disadvantages of each. It did not appear to me that the students had any prior background prep on this subject such as a reading assignment. Although it could be argued that some knowledge of this topic might be useful to your students, I question the immediate relevancy of it given the wealth of more concrete and practical technical material available in the CET curriculum. I do commend you on getting the most out of what appeared to me to be a group of disinterested and unengaged students. You did your best to try to keep their focus. While you engaged these students in your discussion, two other students continued to work independently on their computers. I assume on the online curriculum. You also gave instructions to two other students to continue setting up the back cage. The two students in the back cage did not continue to set up the cage as you had instructed, but instead sat down in the back corner by a computer. They positioned a CPU so that it hid the monitor from my view. It was obvious to me that they did not want me to see what they were doing, although mainly what they were doing was visiting. Shortly before I left, I walked back unexpectedly to them, and saw that the one on the keyboard was attempting to log into the computer as an "administrator" but apparently did not know the correct password. They said they were attempting to get the computer connected to a nearby switch or server. Was this correct? I concluded my observation of your class at about 9:15. A few suggestions: Prior to a discussion presentation, make sure to give a prior preparation assignment so that the students can participate more fully in the discussion. If you are going to give a presentation on such a broad-based general knowledge topic such as the different types of business models, involve everyone in your class, regardless of their current place in the curriculum. There is no reason why the four other students should have been excluded from your discussion, even if they were not in the curriculum group you had assembled. Do not allow students to reposition computer equipment so as to mask observation of the monitors. Even if they were not up to anything inappropriate, it sure looked like it. Give desk work requiring a written assignment when you are tied up with a student issue in your office-- or at any other time you want to refocus their attention. Something as simple as completing the questions at the back of chapter xxx in their textbook would at least keep them somewhat focused on something other than visiting with each other. Focus your discussion presentations on the concrete technical material more directly relevant to the CET curriculum. Although what you covered does have some use and interest as background information, your time with the students in actual presentation should be devoted to your core curriculum material. I know it is sometimes difficult and frustrating to have someone come into your class for 45 minutes and make a few critical comments and suggestions based on that brief visit. Please take them in the [spirit] they are intended... as observations and suggestions. Later that day, Respondent sent the following response to Mr. McCormick's e-mail: Thanks for the feedback. I appreciate the time and effort you put into this. The student issue was quite urgent and unexpected. I had the class together and ready to go when [J.] showed up and we had to have the talk right away. It threw us off considerably as did the fact that . . . we weren't sure whether the counter-top guys were coming back today or tomorrow. Obviously the equipment they usually have to work with wasn't available. I purposely had a non-technical topic picked because I didn't know if I would have access to hardware for demonstration or practice. Also, business ownership is part of our curriculum (16.06)[11] and a very important part. I like your idea of a reading assignment to go along with it. I'll have to find something at the right level. The two students in the back were setting up the Cisco equipment (yes-- that involves connecting to the switches and routers) and were having some password issues with the computers (nothing major-- just a bit confusing). They would have been administrators on those computers. By the way, the computers in the cages don't go to the network or the Internet so they are "relatively" low risk. I also purposely wanted those low powered computers for this because they also won't run any popular games. Not much harm they can do in there. Interesting note-- I always tell them that hiding monitors is the quickest way to get me to come over. They sort of have the idea it doesn't work. The five students "visiting" in front would probably have been working with equipment in the cages under normal circumstances but knowing those guys I'm 99% sure they were talking about computers anyway. Lastly, this topic was covered by last year's students so there was no need for them to go through it again. When I do the A+ materials,[12] everybody participates because the advanced students need the review. The Cisco stuff can't be done by the beginners because they aren't ready so I give them something to read, review, research, etc. Quite a juggling act. Thanks again. It's great to have constructive feedback. On May 6, 2004, the day before he signed Respondent's 2003-2004 performance assessment, Mr. Pentiuk wrote a letter to Ms. McDaniel requesting that Respondent be placed on "performance probation." The letter noted that Respondent would receive "below expectations" ratings in "Assessment of Student Achievement" and "State, School and District Requirements," then stated: During this school year, Mr. Nevins has meet [sic] with me, Sue Cooley, Assistant Director for Curriculum, or Bill McCormick, Assistant Director for Operations, on numerous occasions and discussed the concerns relating to the above mentioned Accomplished Practices. The dates of these meetings, as well as observations were, January 13, 2004, February 20, 2004, March 24 and 26, 2004, March 30, 2004, April 15, 2004, April 2, 2004, and May 5, 2004. Administration has offered a myriad of suggestions and support to assist Mr. Nevins in improving his classroom environment, teaching techniques, teacher duties, and student assessment responsibilities. Attached is correspondence that has been conducted to show a flow of conversations reaping no positive changes in performance. In fact, unfortunately, there have been excuses and rebuttals, but performance has not changed. Ms. Cooley testified that Mr. Pentiuk consulted with Mr. McCormick and her when considering the request for performance probation. Ms. Cooley further testified that she and Mr. McCormick concurred with Mr. Pentiuk that Respondent needed to be placed on probation because Respondent continued to get the same things wrong and his performance was not improving. After receiving his performance assessment, Respondent contacted Donna Mutzenard, the president of the Teachers Association of Lee County to act as his union representative in a meeting with Mr. Pentiuk and Ms. Cooley about the assessment. Shortly after this meeting, Respondent learned of Mr. Pentiuk's letter to Ms. McDaniel requesting performance probation, which would include the initiation of the School Board's "intensive assistance program." The intensive assistance program ("IAP") is designed to rehabilitate poorly performing teachers. When the principal of a school determines that a teacher is experiencing difficulty in some area of performance, the principal must inform the teacher of these performance problems and provide assistance in the area of deficiency. Frequent feedback, peer coaching, and opportunities for training and development, such as peer observation and outside training courses, are among the items of assistance the principal is expected to provide and document. If assistance at the school level does not solve the problem, then the superintendent of schools authorizes Ms. McDaniel to appoint an IAP team, which includes the teacher's immediate supervisor and other persons with knowledge of the curriculum and of the teacher's deficiencies. Ms. McDaniel testified that she also tries to appoint one person without personal knowledge of the teacher. The IAP team's first task is to meet with the teacher in order to review: the nature of the program; the teacher's job expectations and performance standards; past performance assessments and other documentation of performance concerns and assistance; and the teacher's experience, certifications, and current assignment. The team also schedules individual diagnostic performance observations and conferences with the teacher followed by meetings of the entire team. At the conclusion of the IAP team's eighth meeting,13 the team makes a recommendation for action to the superintendent of schools, who must decide whether the teacher has raised his performance to standards, requires continued assistance, should be reassigned to a more appropriate position, or be dismissed from employment with the School Board. Ms. Mutzenard discussed the matter with Ms. McDaniel, arguing that there was insufficient documentation to justify appointment of an IAP team for Respondent. Ms. Mutzenard felt that one final performance assessment with two grades of "below expectations" did not meet the criteria for the IAP. Ms. McDaniel consulted with the superintendent of schools, reviewed the record, and ultimately agreed with Ms. Mutzenard. By letter to Mr. Pentiuk dated June 10, 2004, Ms. McDaniel denied the request for performance probation. The letter stated, in relevant part: It is clear by the documentation you presented that there are performance issues regarding Mr. Nevins' deficiencies in Accomplished Practice Indicators 2 and 12 (Assessment of Student Achievement and State, School & District Requirements) as indicated by the Below Expectations ratings he received on this year's Final Performance Assessment. It is also noted that the school could receive audit findings in the accreditation process for the incomplete Career Maps and attendance records. As Mr. Nevins has been put on notice regarding his need for improvement in these areas, it is my recommendation that you give him every opportunity to correct these deficiencies for the first quarter of the 2004-05 school year. Please continue to monitor and document his performance on a regular basis. If there is not a complete turnaround in the fulfillment of professional obligations expected of Barry, he will be placed on performance probation in the second quarter. Despite his belief that Respondent needed the assistance of the IAP immediately, Mr. Pentiuk accepted Ms. McDaniel's decision and set out to help Respondent at the school level during the first semester of the 2004-2005 school year. Mr. Pentiuk discussed matters with Respondent, whom Mr. Pentiuk described as "always [having] an answer for everything," meaning glib excuses for poor performance and a refusal to accept fault in his performance. Mr. Pentiuk advised Respondent to "buckle down and do your job" during the upcoming semester. Mr. Pentiuk assigned Ms. Cooley and Mr. McCormick to advise, assist, and observe Respondent. All three administrators conducted observations of Respondent's class and met with him to share their observations. Ms. Cooley worked with Respondent on his career maps and his overall assessments of student performance. In his observations, Mr. Pentiuk was disturbed by the fact that Respondent's students, though they always appeared to be working on projects, never seemed to know where they were on their career maps. Some students were not even aware that they had career maps. Mr. Pentiuk also observed a student sleeping in Respondent's class. Respondent was not aware of the sleeping student until Mr. Pentiuk pointed him out. Mr. Pentiuk's overall impression was that "not a lot of structured instruction is taking place" in Respondent's class. These incidents and observations further convinced Mr. Pentiuk that Respondent required more help than could be provided at the school level. During the first semester of the 2004-2005 school year, Ms. Cooley continued to work with Respondent to assist his job performance. She lent Respondent an instructional videotape keyed to the Florida Performance Measurement System's "summative observation instrument," a chart used by classroom observers in the Lee County school system to chart instances of positive and negative teacher performance. The tape discussed the document step by step, showing examples of an effective teacher at work in the classroom. Ms. Cooley described it as a "wonderful, wonderful tape" to show a teacher the right way to run a class. Ms. Cooley told Respondent to watch the tape, then to sit down with her and talk about it. Five days later, Ms. Cooley needed the tape to show to a group of beginning teachers. She went to Respondent's classroom to retrieve the tape and asked him if he had watched it. Respondent told her that he "never got to it." On October 6, 2004, Ms. Cooley conducted an observation of Respondent's classroom. She entered the class at 12:15 p.m. and stayed for about 30 minutes. Ms. Cooley's notes of the observation read as follows, in relevant part: Upon entering, I noticed one student reading the "Life Styles" section of the newspaper. Mr. Nevins quickly got up from his lap top and told me he was helping the student find a job. Mr. Nevins stated he was preparing this student's resume. When I questioned why Mr. Nevins was writing the resume, Mr. Nevins stated the student needed a job as he had been in this program a short time. When I approached another student and asked what he was working on, he stated he was waiting until 1:30 p.m. I found out he was not a current student in class without the proper visitor's pass. When asked, none of the students saw their career maps. Some have been in the program for two semesters. Chips, muffins, gatoraide [sic] bottles were at the computer stations and throughout the lab. When I asked students what they were working on, all the responses were the same. They all responded by telling me they were working on projects. I asked Mr. Nevins about the various projects. I asked for a copy of the project assignment sheets, criteria sheets, or rubrics. Mr. Nevins replied that the students were developing their own projects. My observation was the students were doing whatever they wanted and were given no direction or instruction. Checkmarks in grade book were used for attendance, but no tardies or leave earlies were noted . . . I am concerned the students lack direction, instruction, and detailed curriculum assignments. In late October 2004, Ms. Cooley contacted Bob Gent, the CET program teacher at High Tech North, another Lee County school, and asked him to visit and observe Respondent's class. Ms. Cooley thought it would help Respondent to discuss his class with a successful teacher whose program mirrored his own. Arrangements were made for Mr. Gent to visit Respondent's class on November 3, 2004. On November 2, 2004, less than 24 hours before Mr. Gent's scheduled visit, Respondent e-mailed Ms. Cooley with the following message: "I've rethought the situation and I'd rather not go through with this tomorrow. I will let you know if I decide to reschedule." Ms. Cooley testified that Respondent never provided a real explanation for his sudden cancellation of Mr. Gent's visit. On November 3, 2004, Cathy Race, High Tech Central's information technology specialist, sent an informational e-mail to all personnel of the school regarding several computer- related issues. Ms. Race reminded the school's staff that they should not bring in personally owned computers for use on the school's network because of the risk of viruses, nor should they allow non-district computers belonging to contractors, vendors, auditors, or partnering agencies onto the network before Ms. Race verified that the computer has modern, updated anti- virus software and up-to-date patch levels. The next day, November 4, 2004, Respondent allowed a student to connect his personal computer to the district network, resulting in the importation of a virus into the network. Mr. McCormick sent an e-mail to Respondent about the incident that concluded: "This incident reflects poorly on our school and your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy. Please provide an explanation as to why you allowed this to occur and how you intend to prevent it in the future." Later on November 4, 2004, Respondent sent the following answer to Mr. McCormick: I have already talked to Cathy Race about how this has happened. A student brought in a computer of his own to work on and another student was helping him fix it. A part of this problem was that drivers had to be located. The student, against the policy, but with good intentions got online and located the drivers but apparently got more than he bargained for. I talked with Cathy Race about setting up a meeting with [district director of information technology support] Dwayne Alton about the difficulties the computer use policies are causing in running my program. My policy at the beginning of last year was to not allow students to bring in computers to work on. You changed it after a student came to see you and complained. I wouldn't have had this problem if we kept my original policy. "your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy?" Do you really think that every time there is a computer use problem that this is what it means? You were at a meeting last year where Dwayne Alton said that we were not considered a real problem for the district. Put a bunch of computer geeks together and some "challenges" are inevitable. Ask any computer teacher in the district. I find the whole statement-- but especially the "your inability to understand" line very insulting and disrespectful. Expect to be hearing more about that sort of usage and tone very soon. If we were so inclined there were two commands we could have used to release the IP address and you never would have found the computer in here. The students and I took immediate responsibility for what happened. I bring that up because I'm not so sure that taking responsibility for unfortunate events that take place under you is very popular around here. Mr. McCormick testified that he did not know what to make of Respondent's statement that he should expect to hear more about his usage and tone, and that it was not his intent to insult Respondent. Later on November 4, 2004, Mr. McCormick responded to Respondent as follows: Was the student aware of the policy at the time, and is he/her now? If the student was aware of the policy, but choose [sic] to ignore it, I would expect some sort of discipline action or referral. If the student was not aware of the policy, I would want to know why. I understand the unique challenges faced by your class, however I don't know how much clearer the district policy could be with regards to connecting "guest computers" to the network. The resulting manhours and resources needed to remedy these types of problems leave us no choice but to treat them serious [sic]. If you feel that you are unable to [adequately] monitor your students when they are working on their computers they have brought in, I certainy [sic] agree that we should revisit the policy of allowing them to do so. I'll let you make that call and will support you if you decide against it. Respondent did not directly respond to the questions raised by Mr. McCormick's second November 4, 2004, e-mail. However, on November 8, 2004, Respondent filed with the School Board an equity complaint, alleging that he had been discriminated against on the basis of his religion and his sex.14 In the narrative portion of the complaint, Respondent recited his work history at High Tech Central, including the allegation that except for the Cisco training, he had received "no support or encouragement from the administration" upon taking over the CET program after Mr. Ledger's departure. The following excerpt from the complaint set forth Respondent's essential allegations: The problems developed last year when [Ms. Cooley] had to watch my class for thirty minutes one morning and she did not do a very good job (see attachment).[15] I have been an express target of Administration's negative attention since then. They are often very confrontational and negative toward me and completely ignore points I make to show my efforts. My lessons and class work in [CET] fully correlate to the State Standards for my course. Administration has received lesson plans, unit planning documents, and assessment information to support this. My grading and progress reports are up to date. Furthermore, several of my students have been placed in industry related employment which is the ultimate goal and stated mission of the school. This information has not showed up in any documentation I have received from administration. Administration has gone to great lengths to reprimand me for not utilizing career maps (a particular tracking device) on a day to day basis in my class. I update them periodically based on unit completion but do not place a strong day to day focus on them because students are more interested and motivated by Industry Certification requirements which also very strongly relate to the career map's requirements. Students are made aware of the link. The case has been made by Administration that because I do not utilize and emphasize these career maps my teaching is unstructured and of low quality. A particular technique that has been used to evaluate my job performance is for an Administrator to come in to my classroom, seek out a student who may be having a bad day, may have just gotten reprimanded, may be somewhat overwhelmed by a particular section of material, etc. and badgering that student for negative information about me and the class. I don't think the proper way to judge our Administrators would be to go to a Faculty meeting and seek out the teachers who are rolling their eyes and snickering. I have been told that I am being judged on this "measure of satisfaction." Besides being a contract violation the selection and measurement technique used is highly subjective and arbitrary. Again, the case has been made, without logical connection, by Administration that because I do not meet these satisfaction standards my teaching is unstructured and of low quality. In my Department (Business Technology) the Department Chair and two other teachers who are National Board Certified (all three with twenty plus years of experience-- and all female) have not been required to work with the career maps. They have not been using them for at least the last several years and they have not received any type of reprimand. They use "competency sheets" which is quite similar to the system I use (and I also utilize the periodically updated career maps). In addition, these teachers are not subject to the same degree of scrutiny, evaluation, and criticism as has been shown in my case. Students are not encouraged to "snitch" and basically proper procedure is followed. The Administrators have little trouble in treating these other teachers with respect. Therefore I am asserting that Mrs. Cooley has selected me for "attention" based on my being male and Mr. Pentiuk and Mr. McCormick has [sic] been supportive of her. I do not rule out that my being Jewish, a New Yorker, and a Union Rep had an effect on their decision making. Administration has used this as the cornerstone of an overall effort to undermine and discredit my teaching efforts and abilities. The remainder of the complaint catalogued the negative effects "this situation" has had on Respondent, including stress and being treated as "a slacker and unprofessional." Respondent also discussed the "highly insulting and disrespectful" e-mail exchange of November 4, 2004, with Mr. McCormick. At the request of Becky Garlock, a School Board investigator, Mr. Pentiuk, Mr. McCormick, and Ms. Cooley prepared written statements in answer to Respondent's allegations.16 Mr. Pentiuk's statement was as follows, in full: This letter is in reference to the equity complaint filed by Barry Nevins. I regret that Mr. Nevins has these strong feelings about being picked on. The administration at High Tech Central is concerned about the structure of his program and his delivery relating to the competencies and Career Map for the [CET] program. We have recommended that Mr. Nevins be placed in the intensive assistance program and feel that he has the ability to become an effective teacher. We have also asked for a fellow [CET] instructor from High Tech North to come, and Mr. Nevins felt that it was not a good time. We are ready for Mr. Nevins to find the time to become a good teacher. I feel that these allegations are with no credibility and I wish that Mr. Nevins would exert the energy toward his program that he has toward this complaint. Mr. McCormick's statement discussed Respondent's problems in complying with attendance reporting policies, and further discussed the November 4, 2004, e-mail exchange regarding Respondent's student introducing a virus into the computer network. As to Respondent's main point, that his class was being unfairly singled out for administrative attention, Mr. McCormick wrote: As I recall, the administrative team began looking more closely at the CET program during the 2nd semester of the 03/04 school year when an adult student withdrew from the program and made some disturbing statements concerning the quality of the instruction and classroom management practices of the instructor. The student was being given a withdrawal interview by Ms. Soto, one of our guidance counselors. Because of the veracity of the comments made by the student, she referred the student to me. I interviewed the student and determined that he should make his comments known to Mr. Pentiuk, which he immediately did. Mr. Nevins was informed of the statements and given a chance to respond. He immediately dismissed the student as being unreliable and not trustworthy. His comment was "students will say anything." Nonetheless, the student appeared to be credible and this was our first real indication that the CET program may need some monitoring. Further discussions with the guidance department revealed other students had in recent months been dissatisfied in much the same way. On another front, Mr. King, the Student Affairs Specialist had also been indicating problems with attendance not being accurately recorded in CET. For example, he indicated that tardies and absences were not being recorded when necessary. This was confirmed with the attendance secretary. These indicators pointed to the fact that the quality of instruction and classroom management practices warranted some attention on the part of the administration. Upon some cursory reviewing of Mr. Nevins' academic and attendance records, it was apparent that he was in need of some assistance. Any inference that Mr. Nevins is being singled out for unwarranted attention by the administration of this school for any other reason but for legitimate concerns about classroom management practice and the quality of the instruction, is completely false. This administration wants Mr. Nevins to be successful, and we have demonstrated that through our actions. Most of Ms. Cooley's statement was devoted to explaining the events of February 19, 2004. Besides her version of those events, detailed at Finding of Fact 32 above, Ms. Cooley made the following general statements about Respondent and the school's administrators: Administration has supported Mr. Nevins in numerous ways. Thousands of dollars went into his lab for new desks and equipment. It was a state of the art lab. In fact, he even mentioned it was better than Edison College's computer lab. Administration sent Mr. Nevins to Cisco training (in Tampa, I think). This training took weeks and was very expensive. The school paid for his travel, food, lodging (if needed) and his class in order to help support him in his teaching efforts. Mr. Nevins even commented that some of the students would be upset with his teaching methods when the other teacher moved away. Mr. Pentiuk was extremely understanding, patient, and supportive of Mr. Nevins. * * * This is my 29th year in education. I have never had a teacher file a grievance. I feel my role is that of a support system for the instructors in my school. I share with the instructors when they are doing a good job and I remiss [sic] in my duty if I did not share my concerns. I believe Mr. Nevins is a very intelligent man. I believe he is very knowledgeable about computers. My objective is to help him be successful in the classroom, so he can help students be successful in the workforce. At the hearing, Respondent at least implied that the decision to recommend that he be placed in an IAP, and the ultimate decision to recommend his dismissal, was in retaliation for his filing an equity complaint against the three named High Tech Central administrators. The evidence does not support such a suggestion. Mr. Pentiuk, who in any event retired before the completion of the IAP process, had only a vague recollection of the complaint's allegations. Mr. McCormick never saw the equity complaint before he testified in this proceeding and knew none of its details, or even whether he was named in the complaint. His statement, described at Finding of Fact 64, was written at Ms. Garlock's request and was not based on Mr. MCormick's having read the complaint. Ms. Cooley was "shocked" by the equity complaint because she believed that her actions toward Respondent, while sometimes critical, had always been professional. Respondent's allegation of retaliatory intent on the part of anyone in the administration of High Tech Central is not credible. By letter to Ms. McDaniel dated November 15, 2004, Mr. Pentiuk renewed his request that Respondent be placed on performance probation. The letter reviewed the administration's efforts to assist Respondent during the first semester of the 2004-2005 school year, including Respondent's refusal to cooperate in Mr. Gent's visit to his class. By letter dated December 16, 2004, Superintendent James Browder informed Respondent that, pursuant to the recommendation of Mr. Pentiuk and Ms. McDaniel, Respondent would be placed on a plan of assistance. Mr. Browder wrote that he would appoint an assistance team to work with Respondent during the second semester of the 2004-2005 school year. Mr. Browder informed Respondent that the first meeting would take place in early January 2005, and that he could name a representative to attend the meetings on his behalf. On the same date, Ms. McDaniel hand-delivered the superintendent's letter to Respondent in Mr. Pentiuk's office. The superintendent delegated to Ms. McDaniel the task of choosing the members of the IAP team. She selected Mr. McCormick and Ms. Cooley, because they were Respondent's direct supervisors at High Tech Central and were aware of the curriculum and Respondent's deficiencies. Ms. McDaniel testified that she had appointed six IAP teams before this one and that her standard procedure was to appoint both assistant directors of the school. Ms. McDaniel also chose Suzanne Roshon, the School Board's coordinator for technical and career education, as an objective outsider without prior knowledge of Respondent, or his classroom setting. Ms. McDaniel acted as coordinator and facilitator for the IAP team meetings. Ms. Mutzenard was an observer at the IAP team meetings as Respondent's representative.17 The IAP team held its organizational meeting on January 13, 2005. Respondent and Ms. Mutzenard were present. In her role as coordinator, Ms. McDaniel chaired the meeting, explaining the steps in the IAP process. There would be seven weeks of observations in Respondent's class with three observations taking place each week. The observations would be unannounced. Not more than one observation could take place in a single day. The observers were not to talk to Respondent or the students during the observations, and Respondent was to act as though the observer were not present. The observers were not to discuss their observations with each other prior to the weekly team meetings. Respondent was directed to turn in his lesson plans each week so that the observers would know what to expect when they came into the classroom. Ms. McDaniel's role was to determine whether the observers had common concerns about Respondent's classroom methods, and to ensure those common concerns received emphasis at the team meetings. Ms. McDaniel testified that, at this initial meeting, it was clear that Respondent was not happy to be involved in the IAP process. He believed that he could document his program's success and that he should not be there.18 Ms. McDaniel emphasized the need to maintain a "positive attitude in a positive learning environment" because it was clear to her that Respondent did not have a positive attitude about the scrutiny he was receiving. Ms. Cooley conducted the first recorded observation, on January 21, 2005, at 12:30 p.m. As she entered the classroom, Ms. Cooley noted that two students were sitting at picnic tables outside the classroom and that Respondent walked to the door and told them to return to class. One student left the classroom carrying a length of cable then returned for a bowl of water and left again. A second student walked in and took another bowl of water out of the classroom. Ms. Cooley testified that the students had caught a stray dog on campus. They used the cable to tie the dog to a tree until school was out. Respondent knew what was going on with the dog and was not requiring the students to sign in and out of the class. Ten students were watching a video about the founder of Apple computers and events in the industry during the 1980s. Two students were working on a computer in the back of the room and another was working in one of the cages. Later, one of the two students in the back put his head down on the desk. After the video, Respondent asked the students what had changed over the years. Students shouted out answers, and Respondent corrected them for talking all at once. Respondent then asked another question. One student, Keith McNeil, dominated the discussion. One student received a call on his cell phone and walked out of the classroom. Another student was using his Palm Pilot and another was reading a book. Though the class would not be dismissed until 1:30 p.m., Respondent stopped teaching and ordered the students to clean up the classroom at 1:05 p.m. Ms. Cooley was surprised that Respondent had not prepared his class to be on its best behavior given that he knew there would be three observations that week. In her follow-up notations and recommendations to Respondent, Ms. Cooley observed that there were too many distractions in the classroom, that not all the students were focused on the video, that the video itself was too long and too old for meaningful use in the CET program, that a couple of questions were insufficient after spending over 30 minutes watching the video, and that 25 minutes was too much time for classroom clean-up. Ms. Cooley later testified that a computer class is a clean environment that should take only a few minutes to clean up at the end of the class session. Mr. McCormick conducted his first observation on January 24, 2005, at 8:00 a.m. He noted that only ten out of the fifteen students present had signed in on the attendance log. Respondent divided the class into three groups. While Respondent worked with one group, the students in the other two groups had no direction. One student took a phone call during classroom instructional time. While Respondent was reviewing material with one group, some students in that group were surfing the Internet.19 There were vending machines just outside Respondent's classroom door, and students from the class were going out to buy food and drink from the machines. Respondent had complained about the location of the machines, and they were later moved a bit farther away from the classroom door. Mr. McCormick conceded that the machines were too close to the classroom, that they were a temptation to Respondent's students and that they were a distraction to the class when anyone used them. However, Respondent was nonetheless remiss in allowing students to freely go in and out of the classroom except during the lunch break. Ms. Roshon made her first observation at noon on January 26, 2005. Ms. Roshon disclaimed any expertise in the CET program, but testified that she has observed the classes at both the High Tech Central and High Tech North campuses and was familiar with the CET performance standards. When she entered the classroom, Ms. Roshon saw no structured activities taking place. Several students were sitting around talking in the middle of the room and others were in two of the cages. Shortly thereafter, Respondent walked over to the group in the middle of the room and told them they were going to discuss Chapter 13, which caused some grumbling among the students. Respondent began his lecture with ten students, one of whom was reading a book and one of whom was writing. Ms. Roshon observed that no one was taking notes on Respondent's lecture. Respondent asked questions in an effort to engage the class, and there was some give and take among Respondent and two or three of the students. Several times during his lecture and PowerPoint presentation, Respondent told the class, "You won't need to know this" or "This isn't important." Ms. Roshon questioned why Respondent would teach material that was not important. One of the students asked a question. Respondent suggested that the student do some research on the topic. The student got up to go to a computer. Respondent asked him to do the research later, but the student ignored this instruction and went to the computer. He looked up and printed some information, then handed the printout to Respondent, who thanked him. Ms. Roshon observed one student sleeping during the lecture. Respondent made no effort to wake up the student. Several students were wearing hats, which is forbidden by School Board policy. Several students had sodas in the class. High Tech Central has a policy prohibiting food and drink (except for bottled water) in the classroom.20 Students seemed to come and go as they pleased during the lecture, without signing in or out of the classroom. The students in one of the cages were talking, laughing, and walking around throughout Ms. Roshon's observation, leading her to wonder if they were engaged in any sort of educational activity. One of the students in the cage laughed loudly after looking at someone else's computer screen. On February 1, 2005, at 8:30 a.m., Ms. Cooley conducted her next observation. There were fifteen students in the class, one of whom remained in one of the cages throughout the observation. As Ms. Cooley entered, she observed that Respondent was just starting a PowerPoint presentation on "Objectives, Attitude, Generic Troubleshooting," comprising issues such as not overlooking the obvious, performing research, checking simple things, and writing things down. Respondent read the PowerPoint slides to the students and asked questions such as, "Why would you need to write things down?" Respondent was still going through the PowerPoint presentation when Ms. Cooley left the classroom at 9:10 a.m. In her written report, Ms. Cooley noted that one student had his shoes off and another yawned very loudly during Respondent's presentation. Ms. Cooley recommended that Respondent reduce the time he spends on PowerPoint and get the students actively engaged in the class. She expressed a concern that everything she observed in the class was "generic, low level, basic material . . . I have not observed a lesson on A+, Cisco, or any specific networking material." She observed that the PowerPoint material was far below the level of the majority of the class who were returning students and that nothing she witnessed in the class corresponded to the lesson plan filed by Respondent. 85. On February 3, 2005, from 12:50 to 1:30 p.m., Ms. Roshon conducted her next observation. When she entered the classroom, Ms. Roshon noted that the students were sitting in groups talking, but not about anything related to their class work. Respondent was in one of the cages, but came out into the classroom when he saw Ms. Roshon. Respondent directed one group of five students to work on their class work, which they did. Respondent answered some of their questions. Ms. Roshon observed that students in the back cage became very loud. One student walked out of the classroom, bought a candy bar, then walked back in without asking Respondent's permission, or signing the attendance log. Students were eating and drinking at their computer stations. At 1:15 p.m., Respondent told the class to begin cleaning up. The clean-up was finished by 1:20, and the students spent the remaining ten minutes standing around talking about extraneous matters. Ms. Roshon observed that there was very little structure in the classroom, and students did not appear to know what they were supposed to be working on. She suggested that Respondent require the students to keep a daily journal of what they did in the class, and that Respondent should regularly check the journals and provide feedback to the students. Respondent did not implement this suggestion. 88. On February 4, 2005, from 9:20 to 10:00 a.m., Mr. McCormick conducted his next observation. Mr. McCormick initially criticized Respondent's weekly lesson plan as simply a list of topics with no detail as to how Respondent intended to teach those topics. Mr. McCormick noted that thirteen students were present, but that he could not determine whether they had signed in because Respondent had no sign-in sheet posted at the classroom door. For security purposes, High Tech Central required all staff, faculty, and students to wear photo identification badges around their necks or clipped to their clothing. During Mr. McCormick's observation, a school security guard entered the classroom to check the identification badges. Of the thirteen students present, five did not have their badges, leading Mr. McCormick to conclude that Respondent had not checked the students' identification at the beginning of class as required by school policy.21 Mr. McCormick noted that three students were working independently on computers in the main part of the lab, and that each student was on a different web site. One of the students was looking at telephones on Best Buy's web site, which Mr. McCormick believed could have been related to a class assignment. However, another of the students was looking at a "Twilight Zone" web site, clearly unrelated to the CET class. One of the three students left the classroom for ten minutes without signing out or obtaining a pass from Respondent. Another group of three students was working in the right-side cage. Two were on web sites and one was working on a curriculum test program. One of these students left class for twenty minutes without signing out or obtaining a pass. The remainder of the class was in the left-side cage, engaged in a group discussion. Mr. McCormick described it as follows: I was unable to determine the subject of discussion as it was unfocused and was not being led in any discernable or deliberate way. Students wandered in and out of the cage at random during the discussion. Overall impression of this activity was that it was unfocused and random. Students did not appear engaged in any meaningful way. At about 9:40 a.m., Respondent asked the group of students in the lab to "come up with some good scenarios and good stuff for the students in the cage." Mr. McCormick assumed that Respondent wanted to give some direction to the discussion going on in the cage and was relying on other students to supply the scenario. Mr. McCormick testified that he thought it showed poor preparation for Respondent to ask students to make up scenarios on the spot for a class discussion. Mr. McCormick noted that students were still making frequent trips outside to the vending machines and that Respondent allowed food and drink in the classroom. Mr. McCormick testified that the prohibition on food and drink is in the faculty handbook, and that the administration "harp[ed] on it" at every faculty meeting. Besides the potential for spilling food or drink on the computers, food and drink created a sanitation and pest control problem. In his written observation report, Mr. McCormick concluded that Respondent's classroom "presents a very unprofessional appearance." At the hearing, Mr. McCormick called the classroom "a mess." It was disorganized, strewn with snacks and drinks and littered with computer parts. On February 7, 2005, the IAP team met with Respondent, Ms. McDaniel and Ms. Mutzenard to review the observations made by the team members up to that point. The team members shared their observations with Respondent, including positive feedback and suggestions for improvement. Ms. McDaniel summarized the suggestions as follows: Lesson Plans need to be detailed so an observer or substitute can clearly determine who does what when. Classroom Rules need to be addressed and maintained including sign in/sign out, food and drink not allowed, students focused on time on task, cell phone use, students walking in and out of classroom for snacks, etc. in order to assist with classroom management strategies. Organizational tool to be created/maintained for student progress-- career map. Mrs. McDaniel will email Mr. Nevins a template of a lesson plan. Mr. Nevins can take advantage of other options; such options might include Mr. Nevins observing other instructors at other schools teaching similar programs or someone observing Mr. Nevins. At the hearing, Ms. McDaniel testified that Respondent was very defensive about the observations. He was argumentative and disagreed with what the observers said they saw in his classroom. Respondent refused to sign the summary minutes of the IAP team meeting. Rather, he requested an opportunity to respond to the minutes with additional information. Ms. McDaniel could not recall that Respondent ever followed up with any additional information. On February 9, 2005, at 12:55 p.m., Ms. Cooley conducted her next observation. As she entered the classroom, Ms. Cooley saw a student talking on a cell phone. Respondent called out to the students to be seated so that he could go over their test answers. Of the eleven students present, two remained in the back cage area. Respondent read out the first test question and several students called out answers. Respondent asked them not to shout out the answers. He read the next question, and several students called out answers. This time, Respondent did not correct the students, nor did he correct them when they shouted out answers to the next five questions. Finally, Respondent said, "Guys, one at a time." A student yelled out, "Clean up." Respondent continued talking, but students talked over him. Some students began standing around, waiting for class to end. In her comments, Ms. Cooley wrote that Respondent "needs to be consistent with his classroom policies and procedures." She noted that the seven minutes allotted for end-of-class cleanup was more appropriate for a computer class than the fifteen minutes she noted in an earlier observation. On February 10, 2005, from noon to 12:40 p.m., Ms. Roshon conducted her next observation. Respondent called the class to attention to hear a lecture by a fellow student, Keith McNeil, on the Linux operating system.22 Ms. Roshon acknowledged that the student appeared to be very knowledgeable, but she was uncomfortable with his "lording it over" the other students that he knew this material and they did not. She also wondered if all the students were required to give such lectures, or if this student was lecturing for some particular reason. Ms. Roshon noted that Respondent's questions made it apparent that he did not know the software or the material the student was presenting. She was concerned that this made it appear to the class that Respondent knew less about the class subject matter than did the student. She was more concerned that Respondent had not reviewed the software for appropriateness before he allowed the student to teach it to the class. Ms. Roshon noted that the student giving the lecture was drinking from a bottle of soda in front of the group. She commented that if Respondent was going to give students leadership opportunities, he should require them to act as role models. She also noted that students "still get up, move around, use the rest room, etc. at random. Seem to come and go as they please." In her written report of the observation, Ms. Roshon stated to Respondent: "You are very fortunate to have a student with so much knowledge and what appears to be a good rapport with your class. BUT, this student was doing EXACTLY what I have been waiting to see YOU do-- TEACH." Ms. Roshon saw Respondent go around the classroom and speak to individual students, but did not observe Respondent teaching the class as a whole. 104. On February 11, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. When Mr. McCormick arrived in the class, Respondent was grading tests that the students had just taken. Mr. McCormick noted that the students appeared "unengaged" in any activity related to the CET curriculum. One student was talking on the phone to a Staples store, with a sales brochure in front of him, and three other students were playing "Doom 2" on an old Macintosh computer. Respondent returned the tests to one group of students then commenced an oral review of the questions and answers. Mr. McCormick noted that Respondent conducted the review in distracting proximity to another group of students. Mr. McCormick also noted with disapproval that Respondent referred to the multiple choice test as "multiple guess." One student left the class early without signing out. Another student had a two-liter bottle of soda on his desk, which Respondent eventually asked the student to remove. Clean-up activity began at 1:16 p.m., fourteen minutes before the end of class. The clean-up consisted of about one minute of straightening chairs, after which the students were unengaged until 1:30 p.m. Earlier in the day, Mr. McCormick had received a report that someone in Respondent's class had visited a pornographic web site. Mr. McCormick decided to investigate the matter because the school district's firewall filter should have prevented such activity. After the class was dismissed, Mr. McCormick asked a student in Respondent's class to show him the web site. The student did so and arrived at a site displaying what Mr. McCormick described as pornographic photos. Mr. McCormick realized the site was available because the web address did not contain the key words that the district's firewall is set up to block. At the hearing, Mr. McCormick emphasized that he did not believe Respondent would knowingly allow his students to access pornographic web sites. Mr. McCormick's criticism was that Respondent did not know, which was emblematic of Respondent's inability to maintain control of and know what was going on inside his classroom. Mr. McCormick suggested that Respondent position the computer monitors in the class to give himself maximum observation ability from a central position. Mr. McCormick testified that many students would position themselves so that their monitors could not be seen unless an observer was standing directly behind them. On February 16, 2005, the IAP team met with Respondent, Ms. McDaniel, and Ms. Mutzenard. At the outset, Respondent stated that he would submit his written responses from the previous team meeting at the next team meeting on February 28, 2005. As Ms. McDaniel testified, no such written responses were ever supplied by Respondent. Ms. Roshon then gave a summary of her February 10, observation and also stated that she had observed the CET teacher at High Tech North. Based on these observations, she had the following suggestions for Respondent: require students to prepare a notebook based on the chapter notes and software the students use on a daily basis, which could be used as a trouble-shooting reference; require students to sign in and out for bathroom breaks; and require students to keep a daily log of their work, upon which Respondent could check and comment. Respondent defended himself regarding some aspects of Ms. Roshon's observation. Mr. McNeil, the student who gave the Linux lecture, was fighting a sore throat and had asked Respondent for permission to drink a soda during his talk. Respondent also stated that he trusted the student not to do anything inappropriate and, thus, felt no need to preview the software prior to the student's lecture. Mr. McCormick then described his observation of February 11, 2005. He agreed with Ms. Roshon that a daily log would be helpful for Respondent to keep track of his students' progress. Mr. McCormick also agreed with Ms. Roshon's suggestions that students be required to sign in and out for restroom breaks and that they be required to keep trouble-shooting notebooks. Respondent disagreed with requiring students to keep a notebook. Ms. Cooley described her observation of February 9, 2005, and made a particular point of her concern that Respondent was inconsistent on the matter of allowing students to shout out answers. Ms. McDaniel summarized the deficiencies in Respondent's performance as noted by the IAP team, including: lack of consistency with rules and procedures; lack of consistency with students signing in and out; removal of all games from classroom computers; and arranging the classroom computers for maximum viewing capability by Respondent. Mr. McCormick stated that there were students still in the CET program who had completed all their occupational completion points and a lengthy discussion ensued regarding Respondent's tracking of students' progress. Ms. Cooley stated that Respondent had not turned in revisions to a Council on Occupational Education program reports that were due during the previous school year.23 Respondent promised to turn in the revisions on February 22, 2005. Respondent also promised to bring to the next IAP team meeting his grade book and all the career maps, or other tracking devices for his CET class, neither of which the IAP team had seen at this point. He also committed to removing all games from the computers in his classroom. Ms. McDaniel testified that by the time of the February 14, 2005, meeting, she perceived that Respondent was angry about the IAP process. It appeared to Ms. McDaniel that Respondent did not believe that he or his students needed to follow the rules and procedures established by the School Board or High Tech Central. Mr. McCormick testified that by this time he was "astounded" that the IAP team's observations and comments were the same every week. Respondent was not correcting the items noted by the team and was very defensive in the team meetings. 117. On February 22, 2005, from 8:15 to 8:45 a.m., Ms. Cooley conducted her next observation of Respondent's classroom. Respondent was working on computer assembly with five students in one of the back cages. Three students were in the other back cage. One of these students was looking up computer parts prices on the Internet and told Ms. Cooley he was seeing where the market was going. Thirteen students were present in the class, but only eleven had signed in. Two of the eleven had not indicated the time they arrived. No students were wearing identification badges. Six students were in the main computer lab. Two of them were reading the novel Great Expectations for another class and continued reading throughout Ms. Cooley's observation. Ms. Cooley asked them about their career maps. They replied that they knew nothing about career maps. When Ms. Cooley asked them how they knew which competencies they were working on, they told her they went "chapter by chapter." Ms. Cooley tried to redirect the students who were doing outside work. Respondent was so focused on the group he was working with that he did not notice what the other students were doing. Ms. Cooley noted that, based on Respondent's lesson plans, she could not tell one group of students from another. Not one student was working on assignments identified in the lesson plan. She concluded that the students "are not on task, not on track." 121. On February 23, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation. A music video, bearing no apparent relationship to CET class work, played over and over again on a classroom projector throughout the observation period. Three students were on shopping web sites and one was on E-Bay. Respondent had assigned them to learn how to acquire computer parts and build the best computer possible for $1,500. Mr. McCormick noted that this was legitimate CET class work. Respondent was circulating through the room. Mr. McCormick observed that it was still difficult to see the computer monitors in the back cages from the main part of the classroom. One student was reading a booklet that was not related to the CET program. A two-liter bottle of soda was on the classroom floor and an open bottle of soda was on a student's desk. Once more, all work stopped at 1:15 p.m. for clean-up activity that took about one minute. In the follow-up remarks to his written observation report, Mr. McCormick noted the unprofessional appearance and distracting effect of playing music videos in the classroom. He again suggested that Respondent stop wasting the last fifteen minutes of class and plan activities to keep the students busy until the dismissal bell. Mr. McCormick again told Respondent that he must enforce the rules against food and drink in the classroom. 125. On March 2, 2005, from 10:10 to 10:50 a.m., Ms. Roshon conducted her next observation of Respondent's class. When she walked into the classroom, Ms. Roshon noted that Respondent was sitting and talking with a group of four students. The conversation was apparently not related to class work because Respondent jumped up when he saw Ms. Roshon. He told her that half the class was "missing," without explaining where the students were, and that two of his students had placed in the "Skills USA" competition.24 Respondent announced that it was time to go over the test. Some students asked, "What test?" It transpired that not all of the students present had taken the test. Respondent spent eight minutes looking for the test. The group who had been talking with Respondent when Ms. Roshon entered continued their conversation about the relative merits of "a small house" versus "a condo." Three other students were working in the back cage, and Ms. Roshon noted that she still could not see their monitors from the classroom. When she approached the students, one of them turned off his monitor. Ms. Roshon also noted that the sign-in sheet was still not being used. Respondent gathered two students to go over their tests. They discussed the questions and answers aloud although another group of students was still taking the test. Ms. Roshon noted that Respondent told a student who was withdrawing from the class to take the test "for old times sake." Respondent then had this student correct his own test and those of the other students. Ms. Roshon observed that the student made some critical remarks about his classmates' performance on the test. Ms. Roshon positively noted that, when one student was confused about an issue, Respondent had the students go on their computers to find the answer. However, she also noted that one student appeared to become bored with the test review, rolled his chair away from the group, and turned on his MP3 player with earphones. The student even played "air guitar" near the group reviewing the test, and Respondent said nothing. In her written comments to Respondent, Ms. Roshon wrote, in relevant part: One big concern I have with the structure of today's activity is that you have this huge classroom and yet all of your students were packed into one small area at the back of the room. It would have made more sense to me that you would have taken the students you were going over the test with to an area of the classroom that would have been quieter and would have caused less distraction to other students. It was also a VERY relaxed atmosphere and not as conducive to feedback and interaction from students as it could have been. * * * I did have trouble following your lesson plan . . . . Once again, I don't know how the students know what they are to be doing. I didn't see any evidence of log books or checklists. * * * My concerns still are: How do students know what to work on. Class activity seems to start AFTER I walk into the room. Students seem to wander around however they feel like. On March 3, 2005, at 8:15 a.m., Ms. Cooley performed her next observation of Respondent's class. When she arrived, a film on PC navigation and commands was being shown. One student was working on his laptop computer. One student was reading sports web pages on his computer, while another surfed web pages on computer parts. A group of students worked in the back cage. Respondent's lesson plan stated only "lab work," which was so vague that Ms. Cooley could not tell one group from another. Respondent showed the film throughout Ms. Cooley's observation, which prompted her to suggest that Respondent show films in shorter segments and get the class actively engaged sooner. Also on March 3, 2005, at 9:30 a.m., Ms. Cooley attended an "attendance hearing" for one of Respondent's adult students. High Tech Central policy regarding adult attendance provides that after four absences, the student is to be advised that his absences jeopardize his financial aid. After five absences, the teacher is to have a conference with the student. After eight absences, the teacher is to advise the student that two more absences will result in an administrative review and possible withdrawal until the start of the next semester. After ten absences, the teacher is to complete an attendance documentation form and give it to the school's student affairs specialist, who then schedules an administrative review, or "attendance hearing." An adult student with ten accumulated absences may be withdrawn and lose credit for that semester, depending on the outcome of the attendance hearing and the reasons established for the absences. Dan King, the student affairs specialist, convened the hearing with an adult CET student who had 16 absences since January. Respondent was not present at the hearing, but sent to Mr. King the student's career map and an adult attendance documentation form. Mr. King asked the student why he had missed so many days, noting that the student was on kidney dialysis. The student stated that he goes to dialysis before and after school and that Respondent never asked for notes regarding his absences or even asked why he was absent so frequently. Mr. King directed the student to go back and retrace his steps regarding the dates he had missed because many of those absences could have been excused because of illness. Ms. Cooley criticized Respondent for his failure to hold the required conferences with the student, or to make the required referral to Mr. King after the tenth absence. At the attendance hearing, the student told Mr. King that the CET class was completely different when an observer was in the classroom. Mr. King showed the student his career map. The student stated that he had seen the blank career map back in August when he started the CET program and that this was just the second time he had seen it. The student stated that Respondent had never reviewed it with him, although Respondent had checked off many competencies as completed. The student was surprised to see everything he had accomplished. Ms. Cooley noted that the career map is supposed to be a motivator for students to show their accomplishments and track their competency completions and that it was improper for Respondent not to review the career map with the student. 135. On March 4, 2005, from 12:50 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. He saw four students grouped together in the front of the class. One was working on a laptop computer, one was working on class-related questions, one was using a cell phone, and the fourth was playing with a portable CD player in his lap.25 Some students were working in the back cage on projects though it was still difficult to observe their monitors from the classroom. Respondent was circulating around the classroom. Mr. McCormick observed five cups and soda bottles throughout the classroom, including one on Respondent's desk. One student had an entire fast food meal of a sandwich, French fries, and a soft drink spread out at his computer workstation. The student ate and drank throughout Mr. McCormick's observation. Mr. McCormick observed one student get Respondent's attention by calling out, "Nevins!" After discovering they had mistakenly printed a document to another teacher's printer, two students left the CET classroom to "apologize" to the other teacher. These students did not sign out or inform Respondent that they were leaving. Work stopped and "clean up" commenced at 1:00 p.m., a full half-hour before the end of class. Mr. McCormick's written comments on this observation were as follows: Mr. Nevins must design teaching activities so that students are engaged in learning activities throughout the day. No visible order to the way the material is presented. Much too much wandering, visiting and playing has been observed in this classroom. Suggest planning activities that will keep students busy until dismissal bell. Clean- up in this class only takes about 1 minute (as it is now structured), so save this until a few minutes before 1:30. Mr. Nevins must enforce classroom rules about food and drink-- but apparently is unable or unwilling to do so. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. Mr. Nevins must never allow students to address him by his last name only. This shows a complete lack of respect for the status of the teacher in the classroom. At the hearing, Mr. McCormick testified that he was "incredulous" that the problems with food and drink were still going on. The problem was so easily corrected that he had to conclude Respondent could not, or would not enforce the rule. Mr. McCormick believed that such simple classroom management issues were the last thing that should be dominating discussion in the IAP team meetings, but that the IAP team could never get past enforcement of the most basic classroom rules and employment of the most basic classroom management skills in attempting to assist Respondent. The IAP team met on March 7, 2005, to review the team's observations since the last meeting and to offer recommendations to Respondent. Ms. McDaniel and Ms. Mutzenard were present. Mr. McCormick, Ms. Cooley, and Ms. Roshon each gave an oral report of the observations described above. After Mr. McCormick described the playing of music videos in the class, Respondent stated that the music was "something different" for the students in the afternoon and that it was not distracting. He cited "brain based research" to the effect that music helps set the tone for the class and assists in learning. Ms. McDaniel pointed out that there is a difference between music and music videos and that the latter are not to be played in the classroom. Respondent also stated that he felt he was being picked on about the question of sodas in the classroom. Mr. McCormick stated that it was simply a question of school policies that Respondent must enforce, and that Respondent's classroom was so relaxed and uncontrolled that Respondent had difficulty maintaining order and focus. Respondent acknowledged that bending the rules causes problems, but also contended that students sometimes learn more in his relaxed environment. Respondent was once again asked to bring his grade book and career maps, or other student tracking system to the next IAP team meeting. He had been asked to bring these items to the March 7, 2005, meeting but failed to do so. At the hearing, Ms. McDaniel testified that after the March 7, 2005, IAP team meeting, she continued to feel that Respondent did not have a positive outlook on the process. Of greater concern was her growing conviction that Respondent was deliberately not following the instructions and recommendations of the IAP team. She did not share this conviction with the IAP team because she did not wish to influence the objectivity of their observations. Mr. McCormick conducted his next observation on March 10, 2005, between 12:40 and 1:30 p.m. Twelve students were present in the classroom. Five students were working on computers in the main lab, three students were working on projects on the back cage, and two were working with Respondent in a side cage. Two students were asleep in the front of the classroom with their textbooks open and their heads down on their desks. Mr. McCormick testified that the students woke up at some point during his observation. When Respondent saw Mr. McCormick enter the classroom, he left the cage and came out into the main lab and began circulating among the students. Mr. McCormick noted that the monitors in the back cage were still positioned to make observation difficult from the main lab. He also noted that the "Doom 2" game was still loaded on the old Macintosh computer in the classroom. Student Keith McNeil approached Mr. McCormick and was "very forceful" in trying to determine why Respondent was being observed. Mr. McNeil explained at length that MP3 players were integral to the CET program and could be used as data storage devices. Mr. McCormick noted that every student he had observed using an MP3 player in Respondent's class was listening to music. Mr. McCormick also observed that Mr. McNeil was a very bright student and that Respondent seemed to employ him as an informal teacher's aide, helping Respondent to run the CET program. Mr. McCormick's written comments on this observation were as follows: No visible order to the way material is presented. Too much wandering, visiting, and playing going on in this classroom. Students don't seem to ever be on task at anything for more than a few moments. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. On March 11, 2005, at 9:30 a.m., Ms. Cooley attended an attendance hearing for another of Respondent's CET students. This student had 14 absences. Respondent did not attend the meeting, but provided the student's career map and certificates of completion to Mr. King before the meeting. As did the student at the previous attendance hearing, this student told Mr. King that he had not seen his career map since Respondent showed him a blank one at the beginning of the course. The student stated that Respondent never reviewed his progress with him. He had never received any certificates of completion, although the career map submitted by Respondent showed that the student had completed three occupational completion points meaning that he should have had three certificates. The student felt unmotivated. He believed he was wasting his time and not accomplishing anything in Respondent's class. He told Mr. King that he might have felt more motivation had he known his progress in the program. The student told Mr. King that he wanted to make up some of the time he had missed, but that he could never get Respondent to commit to a specific date and time. After a while, the student became discouraged and stopped asking Respondent about making up the time. Ms. Cooley testified that by now she had conducted five observations and attended two attendance hearings, and she was frustrate d because the same things cropped up at every observation: food and drink, name badges for students, the failure to keep career maps, or some other tracking device for student progress. Ms. Cooley performed her next observation of Respondent's class on March 22, 2005, at 8:45 a.m. She noted that while Respondent lectured on how to set up a parts table on Microsoft Access, one student was typing, one student was sleeping, two were looking at a computer board, and one was playing with his cell phone. Students were calling out numbers and items to place in the Access spreadsheet. Food wrappers were on the desks. Respondent was wearing an MP3 player around his neck. He told the students to get started on their assignment, but they walked to the back cages and did not work on the assignment. Mr. McCormick observed Respondent's class on March 23, 2005, between 9:15 and 10:00 a.m. Twelve students were present in the class. Three students were working on projects in the cages. The other nine students were clustered around six computers. Mr. McCormick noted that there were plenty of computers in the classroom and that each student should be assigned his own computer. He observed that when students gather around a few computers some are just watching rather than actively participating in the class activity. In this instance, only two of the nine students appeared to be on task. The others were talking and "wandering around." Mr. McCormick noted that students were leaving the CET classroom to attend other classes, but were not signing out on the classroom attendance log. He checked the log and found that it had not been used since March 14, 2005. Mr. McCormick noted that at 9:30 a.m., a student walked into the classroom with a bag of chips and began eating them while working with another student. Respondent did nothing, although he did later pick up a soda bottle from a workstation and dispose of it. Another student listened to an MP3 player during the entirety of the observation. Mr. McCormick did note that all the old Apple computers had been disconnected thus, disposing of the "Doom 2" game problem. In his written comments to this observation, Mr. McCormick yet again stated that Respondent must enforce School Board policies on food and drink in class, the use of portable music devices in class, and the use of the attendance log. The IAP team convened its next meeting on March 24, 2005.26 Also present were Ms. McDaniel and Ms. Mutzenard. As in the other meetings, the three IAP team members reviewed their observations and made comments and suggestions to Respondent for improving his performance. As in the other meetings, Respondent reacted defensively. When Mr. McCormick commented that there was too much "wandering, visiting, and playing" going on in the classroom, Respondent asked Mr. McCormick not to say that his students did not appear to be learning because there was no data to prove that assertion. The lack of structure in Respondent's classroom was a common criticism. Ms. McDaniel attempted to explain to Respondent the need to draft and use coherent, detailed lesson plans, if only for the eventuality that a substitute would need such a plan in Respondent's absence. Ms. McDaniel told Respondent that a substitute would be "clueless" if forced to use Respondent's lesson plans.27 Using Respondent's method of teaching Microsoft Access as a point of discussion, the team attempted to make Respondent understand the need for some tangible artifact to demonstrate that the students have mastered a given OCP. Respondent answered that the majority of students were pleased with his methods. At the conclusion of the meeting, Ms. McDaniel once again reminded Respondent to bring his grade book, career maps and tracking sheets to the next meeting. Ms. McDaniel testified that at every meeting, Respondent had an excuse for not bringing these materials. He would say that the files were at his home, or back in his classroom. On April 4, 2005, at 12:20 p.m., Ms. Roshon conducted her last observation of Respondent's class. She observed six students in the main lab, one of whom was sleeping. Respondent walked over to the sleeping student and woke him. Three students in the back cage were talking about "witnesses" and "getting caught." Respondent approached Ms. Roshon and explained what each group was doing. She noted several soda bottles, cups, and chips around the room. Ms. Roshon observed a student go to the back cage to get Mr. McNeil to come out and assist him. She thought this remarkable because Respondent was circulating through the classroom and would logically have been the person to approach. Ms. Roshon later concluded that Mr. McNeil's assistance was needed because the question had to do with the Linux system, about which he had lectured during Ms. Roshon's February 10, 2005, observation. Ms. Roshon observed a conversation among several students regarding the capacity of an iPod to download the music on the computer. She noted that a student had his iPod plugged into the computer leading her to conclude the student was downloading music during class. One student did not seem involved in the class. Respondent engaged this student by demonstrating how to share files between computers. Ms. Roshon was favorably impressed by Respondent's method in this instance. Some students knocked at the locked back door of the classroom and were let in by students inside. The students did not sign in, which led Ms. Roshon to wonder whether the attendance log was being used at all. She checked and saw that the sign-in sheet had not been used since March 14, 2005. Mr. McNeil approached Ms. Roshon and attempted to discuss a letter he had sent to the school district's administrators in defense of Respondent. Ms. Roshon told him that she was not at liberty to discuss the matter.28 Mr. McNeil then proceeded to complain about the "new rules and regulations" in the class, by which he meant the long-standing but seldom enforced prohibition on food and drink in the classroom. On April 5, 2005, Mr. McCormick conducted his last observation of Respondent's class. Mr. McNeil approached Mr. McCormick and attempted to question him about his situation with Mr. Wiseman, as described in footnote 28 above. Mr. McCormick told Mr. McNeil that he was there to observe the class and would speak to Mr. McNeil at another time. Though he still noted sodas and a bag of chips in the classroom, Mr. McCormick observed that the activity for the day seemed to be well planned and that the students appeared to be actively engaged and on task. One student was working on an assignment for another class that was related to his high school graduation requirement. Ms. Cooley conducted her last observation on April 6, 2005. She noted soda bottles and drinks in the class and saw one student drinking a soda. Mr. McNeil was teaching the class along with Respondent. On April 6, 2005, at 1:45 p.m., the last IAP team meeting was convened. Ms. McDaniel and Ms. Mutzenard were present. This meeting was held in the CET lab, so that Respondent would have no excuse for failing to produce his grade book and career maps. After the observations were reviewed with Respondent, Ms. McDaniel asked Respondent to show the team his career maps, grade book, and tracking sheets. One member of the team asked Respondent how often he went over the career maps, and he stated that he did so every two weeks. Ms. Cooley asked Respondent why neither student at the two attendance hearings had ever received or reviewed a career map in Respondent's class. Respondent stated that every student had the opportunity to ask him for a copy, but that he did not give them out to everyone. Ms. McDaniel expressed concern that the Council on Occupational Education would review the school in November and would have to be shown these career maps and this grade book. The school's accreditation and its Pell grants would be placed at risk if it could not document what is being taught in the classroom. Ms. McDaniel noted that all the career maps were written in the same color ink. She testified that the maps looked as though they had all been completed at the same time, rather than at different points during the semester as students completed their various OCPs. The minutes of the meeting indicate the concerns raised as the team reviewed Respondent's materials: Mrs. McDaniel made numerous attempts to see if the career map matched and aligned with the gradebook and tracking sheets. Mrs. Roshon and Mr. McCormick would check the gradebook while Mrs. McDaniel would check the career maps. OCP completions were not recorded in gradebook. Quarter grades were missing. No actual dates were written in the career maps. Dates did not aligned [sic] in gradebook with career maps. Yellow attendance sheets were not found.29 Some tests did not have a grade on them. Only chapter test grades were recorded in gradebook. No lab work grades were recorded. No rubrics were used to grade projects. There were numerous questions on the correlation of grades. Mrs. McDaniel stated the career maps should prove the competency completed; but these competencies recorded with a month and year did not align with the gradebook. Some career maps were missing. Mr. Nevins stated he might have left them at home. The gradebook did not reflect what was in the student folders and career maps. . . . Ms. McDaniel testified that it was not possible to look at Respondent's grade book and correlate the numbers therein with any OCP. There were test grades, but no indication of what test was given. The tests in the student folders did not align with anything in the grade book. Ms. McDaniel concluded the meeting and stated that the team would schedule a meeting to make a recommendation to the superintendent as to Respondent's status. In fact, the team met with Ms. McDaniel and the school's new director, Robert Durham, in the administrative offices of High Tech Central immediately after their meeting with Respondent and unanimously recommended that Respondent's employment be terminated. As to her recommendation, Ms. Roshon testified that she told Respondent "that if I were a teacher and I knew I was being observed and that I had an opportunity to make . . . some pretty simple changes to my classroom and what went on in it, that I would have made every effort possible to do that, and that I felt like Mr. Nevins hadn't done that." At the final meeting, Ms. McDaniel presented the option of extending the IAP process, but Ms. Roshon did not believe that more time would make any difference in Respondent's classroom. The IAP process had already lasted for eight weeks, and Ms. Roshon had seen no difference "in classroom management, in teaching style, in anything within the classroom." She believed that Respondent had been given a full and fair opportunity to make significant changes and either chose not to make those changes, or was unable to change. In any event, she believed that Respondent was not an effective teacher. Mr. McCormick testified that Respondent is a very intelligent man, understood the purpose of the IAP process, and further understood the criticisms and advice he was receiving from the observers. However, Respondent did not accept the legitimacy of the criticism, or the need to change his classroom methods. Mr. McCormick recommended termination because he believed that Respondent's classroom shortcomings were very serious, and he did not see any evidence of improvement during the IAP process nor any willingness to make changes in the classroom. Mr. McCormick agreed with Ms. Roshon that extending the IAP process would be extremely unlikely to make any difference in Respondent's job performance. Ms. Cooley recommended termination and testified that she "felt bad about it, because I felt that I honestly tried to help change the situation by the many attempts of telling him what I saw and what I observed." She believed that Respondent is a very intelligent man, but not a teacher. By letter dated April 11, 2005, Mr. Browder notified Respondent that he was being suspended with pay and benefits, effective immediately, pending the outcome of a School Board investigation.30 A predetermination conference was held on April 28, 2005, to give Respondent an opportunity to respond to the IAP team's concerns regarding his competency to teach. Present at the conference were: Respondent and his legal counsel, Robert Coleman; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment administrator; and Paul Carland, then the School Board's attorney. By letter dated May 3, 2005, Mr. Carland notified Mr. Coleman that the School Board had found probable cause to terminate Respondent's employment. In his defense, Respondent raised several issues, both substantive and procedural. Respondent alleged in his equity complaint that he had been "an express target" of negative attention since Ms. Cooley substituted in his class on February 19, 2004. At the hearing in the instant case, Charlotte Rae Nicely, the former financial aid administrator at High Tech Central, testified that Ms. Cooley was "very vengeful" and "had it in" for Respondent. However, Ms. Nicely had been reassigned to a teaching position following the federal audit of the school's Pell grant program and believed she had been made a scapegoat by the High Tech Central administration. Ms. Nicely did not believe that Ms. Cooley was a good administrator and alleged that she carried grudges against other teachers. Though she claimed she had "chosen to forgive" the High Tech Central administration for its treatment of her, Ms. Nicely was a less than credible witness, not only because of her personal feelings about Ms. Cooley, but because of her limited knowledge of Respondent's teaching practices. The evidence did not establish that any administrator at High Tech Central, or the School Board had any personal animus against Respondent for his union activities, his religion, his place of origin, or any other reason. The school's administrators were concerned about Respondent's performance well before Ms. Cooley's experience substituting in Respondent's class, and the evidence was persuasive that Respondent was in no way "singled out" for any reason other than his job performance.31 Respondent contended that the process did not give him adequate notice of the areas of his performance requiring improvement or correction that there were no "uniform scoring criteria" used by the IAP team to evaluate Respondent's performance. This contention is without merit. While the observers used different instruments to record their observations, and their observations varied in some particulars simply because the observers came into the class on different days, there was a remarkable overall consistency in the observations and recommendations. Respondent did not enforce classroom discipline regarding such matters as food and drink and MP3 players. He did not follow proper administrative procedures in monitoring attendance. He did not file proper lesson plans. If he did track his students' progress and performance, he did not do so in an intelligible, coherent fashion, and he did not keep his students aware of their progress in any consistent way. Too often, no teaching appeared to be taking place at all in Respondent's classroom. Students appeared to be doing as they pleased. Any claim that Respondent did not know what was required to improve his performance is disingenuous and cannot be credited.32 Respondent notes that Subsection 1012.34(3)(d), Florida Statutes,33 provides that a teacher holding a professional service contract who is charged with unsatisfactory performance must be notified he is being placed on performance probation for the following 90 calendar days during which he is expected to demonstrate corrective action. School holidays and school vacation periods are expressly excluded from the 90-day period. Throughout the 90-day period, the teacher must be evaluated periodically and apprised of the progress achieved, and provided assistance and in-service training opportunities to help correct the performance deficiencies. Respondent further notes that, at the initial IAP meeting, Ms. McDaniel stated that Respondent would be the subject of observations for seven weeks, that there would be three observations per week, and that the observations would be 30 to 45 minutes in length. She also told Respondent that the IAP team would meet weekly and he would receive a signed copy of the minutes of the meeting. Respondent states that the IAP process lasted only 84 calendar days, from January 13 to April 6, 2005, and that nine of those days were school holidays. The IAP team met only six times, on January 13, February 7, February 16, March 7, March 24, and April 6, 2005. The IAP team failed to conduct three observations each week and at least two of the observations exceeded 45 minutes in length. The IAP team did not meet with Respondent every week of the process, and Respondent did not receive signed minutes of the meetings every week. Respondent claims that the School Board's failure to comply with the legal requirements for termination of a teacher on a professional service contract were not followed and failure to follow its own IAP procedures necessitate dismissal of the Petition. In fact, Respondent was provided notice that he was being placed on performance probation via Dr. Browder's letter dated December 16, 2004. Thus, the period of evaluation lasted a period of 93 calendar days, from December 16, 2004 to April 6, 2005, excluding 18 days for winter break, Martin Luther King Day, Presidents' Day, and spring break. The School Board complied with the express requirements of Subsection 1012.34(3)(d), Florida Statutes. The School Board also substantially complied with the procedures described by Ms. McDaniel at the first IAP meeting and set forth in its written IAP materials. The IAP team members conducted a total of 20 observations (not counting Ms. Cooley's attendance at two student attendance hearings), rather than the 21 observations promised by Ms. McDaniel. This was due to the fact that Ms. Roshon broke her arm and missed one week's observation. The IAP team met only six times because Respondent called in sick on March 16, 2005, forcing the cancellation and rescheduling of one meeting. Neither of these minor deviations from the schedule of events had a substantial impact on the IAP process. Neither Respondent nor his representative, Ms. Mutzenard, lodged a contemporaneous protest regarding these alleged procedural failings. In fact, they agreed to combine two weeks of observations into one IAP meeting in order to make up for the cancelled meeting. Ms. Mutzenard, who has represented union members in at least ten IAPs, testified that, although seven weeks of observations with three observations per week is the officially stated practice, this practice "has not always worked. Because of scheduling conflicts with the teacher and with other members of the team and myself and with meetings and conferences and all of that type of thing, there is [sic] some weeks we just can't schedule something." The process is sometimes extended to accommodate schedules. Ms. Mutzenard testified that the 45-minute limit on observations is simply a time management issue: if one person conducts a two-hour observation, another observer could be hampered from coming into the classroom. Ms. Mutzenard was positive about the flexibility of the process. She testified that scheduling was freely discussed at the meetings and that neither she nor Respondent objected to the dates of the meetings or the number of observations. Ms. Mutzenard testified that the IAP process is usually successful so long as the teacher follows the IAP team's suggestions. She has been involved in other IAPs that resulted in transfers and terminations, but stated that in the case of termination recommendations, the teacher usually resigns. Ms. Mutzenard believed that the IAP process would be extended for another eight weeks after April 6, 2005, to give Respondent more time to work on "a few minor things" such as the food and drink problem and to correct his record keeping. Her view was that, aside from being disorganized as to paperwork, Respondent presented no insurmountable problems and should have been given more time in the IAP process.34 Ms. Mutzenard stated that record keeping is unrelated to a teacher's competence and that Respondent's students were doing well in obtaining jobs. However, she conceded that she had seen no objective data regarding the employment rate of Respondent's students and that Respondent himself was her source of information.35 Ms. Mutzenard also conceded that Respondent did not really believe he should have to stop his students from bringing food and drink into the classroom. She discussed the issue with Respondent and he agreed that he should follow the school policy though the testimony from the IAP team members makes it clear that Respondent never seriously enforced the prohibition on food and drink.36 Respondent presented the testimony of several witnesses besides Ms. Mutzenard and Ms. Nicely. Richard Kennedy, now retired, was a School Board employee for 29 years and ran a special needs exploratory after school program at High Tech Central. This program brought students identified as high drop-out risks to High Tech Central to explore the option of vocational education. The population in the program consisted mostly of middle school special education students ranging from educable mentally handicapped to intellectually above average. Respondent was a paid volunteer in the program for about five years, teaching a web design class. Mr. Kennedy conducted no formal observations of the class, but did drop in on the class frequently. Mr. Kennedy testified that Respondent was a good teacher and was popular with the students. However, Mr. Kennedy conceded that his special needs program was very different from the regular day programs such as CET and that he had very little knowledge of why Respondent was suspended or of the IAP process in which Respondent was involved. Dennette Foy is the district coordinator for business and technology programs at Edison College and is responsible for hiring adjunct instructors such as Respondent. She is Respondent's immediate supervisor at Edison College, in charge of assessing his performance and offering him contracts for successive semesters. She opined that Respondent is a "very adequate teacher." Greg Meisel is a technology teacher for the School Board and runs a computer lab supporting the instructors at Edison College. Mr. Meisel was Respondent's lab assistant at Edison College. Mr. Meisel believed that Respondent was a competent, effective teacher. Respondent's delivery was good and he respected and cared about his students. Mr. Meisel's only knowledge of Respondent was in a college setting. He was not aware of Respondent's classroom management skills at High Tech Central, how Respondent tracked attendance in his classes, or whether Respondent enforced School Board policies in his classroom at High Tech Central. Ms. Foy's and Mr. Meisel's testimony is of limited use because of the differences between teaching at the college and high school level, particularly in a vocational education program such as the CET class. Ms. Cooley pointed out that many of the students at High Tech Central could never meet the academic requirements to be admitted to college, and have in fact been unsuccessful in a traditional high school setting. Students in a college classroom are self-selecting, highly motivated, independent thinkers, whereas students at High Tech Central tend to require greater supervision, discipline, and one-on-one assistance. The same teacher may be highly successful at the college level and be unfit to teach vocational educational classes. Richard Oglesby was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, he worked in the television department at CompUSA and credited Respondent with telling him about the job opening and for giving him the skills necessary to obtain the job. While a student in the CET class, Mr. Oglesby competed in the Skills USA competition and made it past the regional to the state level. He testified that he considered Respondent a friend and had recently attended a movie with Respondent. Mr. Oglesby called Respondent a very good instructor, who followed the textbook, gave tests, kept the students apprised of their academic progress, and managed the class well. Mr. Oglesby testified that Respondent made some attempts to forbid students from listening to MP3 players, or having food or drink in the class. However, he also admitted that students in fact brought MP3 players and food and drink into the class with virtual impunity, and that he never saw Respondent discipline a student for these violations. Mr. Oglesby stated that he always signed in and out of class, but could not say whether other students did. He could not remember seeing anyone sleeping in the class. Keith McNeil, as noted above, was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, Mr. McNeil was the head of the software and video game department at CompUSA. Respondent helped Mr. McNeil obtain his job. Mr. McNeil's loyalty to Respondent was evidenced by the fact that three days after Respondent was suspended, Mr. McNeil received a two-day out-of-school suspension for spinning a glass table 180 degrees and chipping it after Respondent's replacement asked Mr. McNeil to stop sitting on the side of his desk. Mr. McNeil attributed this outburst to the tension and frustration he and the rest of the class felt after Respondent left. During the 2005-2006 school year, Mr. McNeil was officially disciplined twice for insubordinate, disrespectful behavior toward Respondent's successor. Mr. McNeil testified that Respondent was the best teacher he ever had. He described Respondent's technique as nontraditional and "rather lenient." Respondent told the students not to bring food and drink into the class, but the students ignored this admonition and brought the food and drink into the class anyway. Respondent would "chastise" the students, but did not otherwise discipline them. Similarly, Respondent told students not to use cell phones in the class, but students would take calls and walk out of the room to speak. Mr. McNeil testified that students would work on material for other classes in Respondent's class. Some people listened to MP3 players. Students would play computer games during class. Respondent would not discipline these students beyond turning off their computers. Mr. McNeil testified that Respondent "made a big point" of having students sign in and out of the class, which directly contradicts the observations and testimony of every member of the IAP team. Mr. McNeil denied that he ever took on the role of teacher in the class, or that Respondent allowed him to take over the class. People "flocked" to him to ask questions because of his greater knowledge: And so a lot of times I would come up with something, I would realize something; and in the time when, you know, if somebody was done with their work and Barry wasn't giving any form of instruction or anything, then I would say, "Oh, hey, check this out or check this out," and then sometimes like two or three other guys would comment and listen and we'd talk and stuff. * * * It wasn't that frequent. It was just, you know, sometimes like-- sometimes like, you know, we'd finish up and then we'd have like an hour or so or sometimes we might only have a couple minutes or something like that. It wasn't like I would be able to give keynote speeches. (emphasis added) While Mr. McNeil was conducting these sessions, Respondent would be doing "paperwork or something off to himself," or perhaps circulating among the students. In summary, Respondent would forego "an hour or so" of teaching time to allow the students to do as they pleased. This testimony confirms the observations of the IAP team regarding the rudderless appearance of Respondent's classroom. Both Mr. Oglesby and Mr. McNeil appeared to be highly motivated students who succeeded in spite of Respondent's lack of effort in the classroom. They liked the very aspects of the class that the IAP team found most problematic such as the lack of discipline and structure. While such a free-form atmosphere might not prove detrimental to bright, self-motivated students such as Mr. Oglesby and Mr. McNeil, the evidence established that the majority of students in the CET program required a structured classroom that Respondent was unable or unwilling to provide. Respondent testified on his own behalf, recounting his educational experience, employment history, and his certifications. He reviewed his evaluations and described the CET class. However, Respondent was silent as to the IAP process, leaving unrefuted the testimony of Ms. McDaniel, Mr. Pentiuk, Ms. Cooley, Mr. McCormick, and Ms. Roshon. In summary, the School Board established that Respondent was unable or unwilling, when charged with running a classroom unassisted, to maintain student discipline, enforce well-established School Board and High Tech Central rules, teach in a coherent, organized fashion, or perform the administrative duties required of faculty at High Tech Central.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order upholding the suspension of Respondent and terminating Respondent from his position as a teacher with the Lee County School District. DONE AND ENTERED this 31th day of August, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of August, 2006.
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
The Issue The issue to be determined is whether Respondent violated School Board Policies, and, if so, what penalty should be imposed.
Findings Of Fact At all relevant times to this matter, Respondent was employed as a science teacher in the Pinellas County School District and currently holds a professional service contract. She was hired as a teacher in September 1995, and worked at Lakewood High School for one school year. During the bulk of her career with the school district--August 1996 through December 2012--she worked at Largo Middle School teaching science. At the semester break, she was transferred to Countryside High School to finish out the 2012-2013 school year. She was assigned to teach anatomy and biology at Largo High School for the 2013-2014 school year and then transferred to Bay Point Middle School beginning with the 2014-2015 school year until she was placed on paid administrative leave on April 25, 2016. From at least 2011 forward, administrators, parents, and colleagues at three different schools, voiced repeated concerns regarding Respondent’s effectiveness as a teacher, including her failure to appropriately plan and deliver instruction; the lack of rigorous academic assignments; poorly organized lessons; failure to align learning targets and goals with activities and tasks; failure to differentiate instruction; failure to explain content; and failure to engage students. Complaints persisted regarding her failure or refusal to regularly grade student work and enter the grades into the student information system known as FOCUS; administer assessments; and otherwise properly manage the students in her classroom. Specific examples of her performance deficiencies, as well as repeated efforts to remediate her deficiencies through mentoring opportunities and professional development, were described in great detail at the two-day hearing and are summarized herein. Performance Issues While Teaching at Largo Middle School During the latter part of her time at Largo Middle School, administrators met with Snow to address performance concerns that existed regarding her instructional delivery, grading policies, and classroom management. Specifically, she met with administrators on October 25 and 31, 2011, to revise a “success plan,” and to discuss concerns from parents that grades were not being entered in a timely manner, mid-term progress reports not being sent home, failure to allow make-up assignments, and the issue of not enough grades being entered each marking period. They discussed developing a positive relationship with students and discontinuing the use of sarcasm during class, use of the Gradual Release Model for instructional delivery, the development of rubrics for grading student projects, and developing clear criteria for how grades would be earned. These concerns and expectations were memorialized in a disciplinary memorandum dated November 7, 2011, known as a “conference summary.” Another meeting was scheduled at Largo Middle School on April 6, 2012, to discuss “on-going issues that occurred last year and continue to occur in the 2011-2012 school year.” This meeting resulted in a letter of reprimand dated April 10, 2012, for insubordination because Respondent ignored directives to send home progress reports for students with a D or F grade; to enter student grades bi-weekly; and to allow students to make up assignments. The letter stated, in part: [D]ue to your act of insubordination in disregarding an administrative directive you are receiving this letter of reprimand. Also, by this letter of reprimand I am directing you to enter grades into the computer weekly or bi-weekly, send out progress reports at least three weeks before the end of a six week grading period and make every reasonable effort to support all students to achieve educational success. Failure to follow this directive will result in further disciplinary action. The Same Performance Standards Continue at Largo High School Following the disciplinary conferences noted above, Respondent spent a few more months at Largo Middle School, then served one semester at Countryside High School with no noted issues. Some of the same issues that plagued her at Largo Middle School, however, continued at her new school--Largo High School. For example, just four weeks into the 2013-2014 school year, Respondent was told by her supervising assistant principal, John Marina, that he was “getting feedback from parents that they don’t know what’s going on in [her] class.” He explained that parents need to see the grades so they can appropriately address their children at home. Another assistant principle notified her by e-mail that her seventh-period class had no grades entered, and two of her other classes only had two grades entered. The assistant principle reminded her of the expectation “that grades are posted weekly in FOCUS to assist students with tracking their progress, as well as parents being able to track what their students are doing.” A few days later, a parent’s complaint to the principal came to Marina’s attention. The parent advocated for her daughter’s “rights to be educated by a teacher that knows how to TEACH. . . . She is a junior, and the last two years are the most important. She deserves no less than a teacher that can provide her with the knowledge she seeks.” At the hearing, Marina recalled the meeting between the parent and Respondent. He testified that the student aspired to attend medical school and was frustrated that there was no rigor in Respondent’s anatomy class. He described the relationship between the student and Snow as “contentious” after the student said, “Hey, when are you going to teach, Mrs. Snow.” Ultimately, the parent obtained a doctor’s note authorizing the student to be removed from Respondent’s class. Even her colleagues complained to administrators. One teacher stated that Respondent “is either a really good actress, or she is inept completely.” The teacher described Respondent struggling to attach a copy of an exam to an e-mail so the teacher could print it for Snow. She said that Respondent had originally planned to have the anatomy students simply answer questions at the back of the book, but was urged by her colleague to create an exam. This caused Respondent to skip her assigned cafeteria duties to perform the task. Her colleague complained to the school administrators, stating, “I have observed that she has extremely poor planning and forethought and I believe she exists on campus for the purpose of seeking out possible excuses for her inability to perform her job duties. The more I interact with her, the more appalled that I am.” Marina developed a detailed success plan and both he and the principal met with Respondent to discuss their expectations regarding improved classroom management, use of formative assessments to differentiate instruction for students at various levels, use of standards-based benchmarks to drive instruction and measure student understanding of the curriculum, and entering grades into FOCUS. Basically, the success plan addressed the same deficiencies that were identified at Largo Middle School. Snow was offered support from experienced educators and took advantage of coaching provided by an instructional staff developer to help her with classroom management processes. According to Marina, Snow never accepted that her performance required improvement. Rather, “there was always an excuse,” and she routinely maintained that she was “an exceptional science teacher.” On April 30, 2014, Marina completed an annual appraisal of Respondent’s performance. The appraisal instrument for the 2013-2014 school year was described by Louis Cerreta (“Cerreta”), the district’s Director of Professional Development, as a “hybrid model,” because it consisted of behavior indicators from the Charlotte Danielson evaluation system and the Dr. Robert Marzano evaluation system, as well as a few indicators recommended by an appraisal advisory committee consisting of principals, assistant principals, union representatives, district administrators, and classroom teachers. The appraisal system was approved by the Pinellas County School Board, submitted to and approved by FLDOE for use as the instructional appraisal instrument, and Marina was appropriately trained to conduct the appraisal. The evaluation instrument consists of three components: the administrative review or “instructional practice” component; the deliberate practice, also called the “professional development” piece; and the student achievement component. Marina completed the Summative Evaluation (consisting of the first two components, but excluding student achievement data) on April 30, 2014, which resulted in a scaled score of 1 out of 4 available points on the administrative review and zero points for professional development. The student achievement score was based on the scores of students taking the biology EOC (student achievement) and resulted in Respondent receiving a score of 3 on a 4-point scale. Snow’s final evaluation resulted in a score of 1.685 or “needs improvement” under the statutory rating system. The administrative review incorporated and summarized observations made by Marina during visits to Snow’s classroom from January through April 2014. During these visits, Marina completed a “science implementation rubric” for each of the seven observations. He explained that each of the indicators on the rubric correlated to an indicator on the evaluation instrument, and he would either mark the indicator as “evident” or “not evident” depending on what he observed in the classroom. The Administrative Review reflected many of the same concerns addressed in Respondent’s success plans at Largo High School, as well as from her former school, Largo Middle School. For example, she received “unsatisfactory” ratings on each of the five indicators under “ability to assess instructional needs.” Marina commented: “This has been an ongoing issue this entire year. I mediated several parent meetings over the concern of accurate and up to date grades.” Under the section entitled “Plans and Delivers Instruction,” she received less than effective ratings on seven of the nine indicators. Here, Marina commented that her “lesson plans are more of a to-do list,” and while she had opportunities to “go into higher order thinking and increase the rigor of her classes,” she failed to do so. He also noted that she failed to abide by the directive to send tests and quizzes to the administration for review. Under the category entitled “Maintains a Student Centered Learning Environment,” Respondent scored less than effective on ten of the 11 indicators. Marina noted: “rules and procedures tend to fall into chaos on a daily basis, as administrators are frequently called to your room. Many times it is loud and there is a back and forth between teacher and student(s).” Marina testified that he gave Respondent a zero on the professional development section of the evaluation because she submitted the same form that she had submitted when she worked at Largo Middle School indicating that she taught comprehensive science to seventh graders when in fact her professional development goals should have accurately reflected the courses she taught at Largo High School. Marina stated: “not only was it the wrong [professional development form], but it was [delivered] in March” when they are due at the beginning of the school year. Professional Performance Deficiencies Continue at Bay Point Middle School Respondent was involuntarily transferred out of Largo High School at the conclusion of the 2013-2014 school year and resumed teaching middle school for the start of the 2014-2015 school year. The principal at Bay Point Middle School (“Bay Point”), Dr. Jason Shedrick (“Shedrick”), learned during the summer of 2014 that Respondent would be his new sixth-grade science teacher. He immediately reached out several times on the telephone to introduce himself. She proved to be unreceptive to his overtures and combative at every turn. When she did not return his calls, he contacted her former school, Largo High School, to gain some insights into her background and discovered she was on a success plan. He sent Respondent an e-mail to schedule a formal meeting to discuss his expectations, as well as the climate at Bay Point so that she could become successful at her new school. At an impromptu meeting, she told him she was not happy with her schedule because she only wanted to teach biology and advanced classes. He reminded her that middle schools do not have biology classes. She insisted she was a high school teacher and that any further meetings would have to include her union representative. They met again on August 15, 2014, and developed a sixteen-paragraph detailed success plan that addressed classroom management, instructional planning and delivery, grading and tracking student progress, notification to parents through contact logs and progress reports, and attendance and professional development. Shedrick testified that there was no ambiguity as to what he expected from Respondent. He said they spent three full hours working on the success plan because they hammered out each and every issue: We went through every single item on this plan. Ms. Snow went through every item on this plan. Her Union representative went through every item on this plan. We changed it several times to accommodate Ms. Snow for Professional Development, her doctors’ appointments before school, after school, whatever it entailed. Everything was laid out so there would be no misunderstanding about the plan. For the next two years, until she was placed on paid administrative leave on April 25, 2016, Respondent proved to be both unwilling and incapable of following directions and performing the most basic duties of a classroom teacher and fulfilling the expectations of her success plan. 2014-2015 Bay Point Lesson Plans Appropriately completing lesson plans and submitting them timely was a recurring problem for Respondent at Bay Point as it had been for her while assigned to previous schools. She had been provided the Bay Point template for lesson plans in her “first day packet” and the expectation for their submission had been reviewed as part of their marathon meeting on August 15, 2014, in connection with the success plan. Nevertheless, Respondent returned her first submission on handwritten notebook paper claiming that she was unable to save an attachment on her computer. Shortly thereafter, Respondent met with Dr. Elizabeth Tisdale (now “Chiles”), the sixth-grade assistant principal responsible for supervising Snow during the 2014-2015 school year. Chiles scheduled the meeting to review school-wide rules and processes with Respondent because she had missed a couple of days during pre-school when administrators typically review these expectations. Her lesson plans were late, so Chiles specifically reviewed this expectation again. Respondent’s excuse for not submitting them varied but included: no internet at home, computer malfunction, wrong lesson plan template, and an uncertainty as to required content. Throughout Respondent’s two-year tenure at Bay Point, Shedrick had to regularly remind her to correct her lesson plans and to submit them timely. Parent Contact and Progress Reports Respondent was expected to contact parents anytime a student was in jeopardy of receiving a grade less than a C. This was another expectation in her success plan, as was the expectation that parents receive a progress report in such cases. She fell short on this expectation and, in fact, expressed early on that she had no intention of calling parents, as required. Specifically, Chiles met with her on September 2, 2014, to discuss, among other matters, a parent’s concern that her straight-A student was receiving an F in Snow’s class. Chiles reminded Respondent that parents need to be contacted if their child has an F. Respondent outright refused, stating that “she would not call every parent.” On September 15, 2014, Shedrick asked Respondent to produce the progress reports that she had sent home for students receiving a D or F in her class. In response, Snow sent him copies of the computer gradebook that she had sent home to parents requesting that they sign and return. Shedrick was incensed that she had no concept of confidentiality and would send each parent a printout describing the grades of every other student in the class. Moreover, the gradebook printouts were not the progress reports he had requested. He explained: I didn’t receive the progress reports the way that I wanted. . . . I want to know what students were doing, what the assignment was, what the point value was, when it was due, when it was turned in. I wanted to see it before it went home because, then again, I have to answer to these parents at this time why was there not enough grades in the computer, why did my kid have an F, why did my kid have a D. So what I received from Ms. Snow wasn’t what I asked for. Several months later on February 12, 2015, Shedrick notified Respondent by e-mail that he wanted to see the progress reports for all students with a D or F in her class by February 18, 2015. On that date, Chiles spoke with Snow and followed up with a an e-mail requesting that she submit the progress reports no later than 4:00 p.m., that afternoon. At 4:19 p.m., Snow sent Shedrick an e-mail telling him that the progress reports would not be completed by 4:00 p.m. The excuses given included her usual claim that there was a computer problem, this time the internet was slow, but also that students were absent and, therefore, were still taking the test. Failure to Provide Weekly Academic Assessments and Assignments Respondent was expected to grade at least two academic- based assignments each week and record the grades in FOCUS so parents and students could monitor their progress. She blatantly refused to do so and claimed that she was not contractually required. According to Snow, she was only required to record one grade weekly. During a conversation in early September, Chiles reiterated that the expectation was two graded assignments, not one, but even if only one assignment were required, Snow missed the mark because it was the third week of school and she only had two grades recorded. By September 15, 2014, several weeks into the first grading period, Snow had recorded only four grades and one was for a review of the student code of conduct, not an academic- based grade. The walk-through feedback forms completed by Chiles noted this deficiency. On January 13, 2015, Chiles noted “currently zero (0) grades posted-starting new quarter (should have at least 2-4)”; on January 20, 2015, she noted again that zero grades had been posted and on February 23, 2015, she noted that four grades were posted and there should have been 18. Shedrick testified that it was “unacceptable” that by March 23, 2015, eight weeks into a nine-week grading period, after which students were supposed to receive their report cards, Snow had posted only four grades. Respondent also was expected, and repeatedly directed, to give the students a test which would enable her to measure the students’ progress and tailor her instruction accordingly. She gave her first and only test in February 2015, and that was only after several people in administration coaxed, prodded, and essentially wrote the assessment for her. Lack of Classroom Structure, Organization, and Management Several people noted that Respondent’s students were not engaged during class and that she needed help with classroom management. For example, during walk-throughs on September 8 and 15, 2014, Chiles told her she needed more engaging lessons and to circulate the classroom rather than sitting at her desk. Again, on January 13, 2015, Chiles noted lack of engagement, students not paying attention, “no flow of the lesson-transition nonexistent, unorganized structure,” and students not understanding the lesson. On January 20, 2015, Chiles and Michele Stewart (“Stewart”), an instructional staff developer, observed her classroom together and again noted lack of engagement, rigor, and understanding by the students. Chiles had a meeting with Snow on January 21, 2015, to review these issues. Snow did not respond to her suggestions for improvement, except to say that her planning period should not be interrupted and that the students do not understand the class “because of their levels.” Excessive referrals, sending students out of class into the hallway without assistance, and not addressing student needs were regular issues for Snow. In one instance, she assigned a student to the back of the room in a time-out chair and did not excuse him to use the restroom. The student wet himself causing him to be embarrassed and ridiculed by his peers. Snow told Chiles that she saw the boy’s hand slightly raised, but thought he was playing with the blinds. Shedrick testified that the boy’s parent called and came to the school to take the student home and that he “had to explain [to the parent] why the student sat in the back of the classroom and the teacher would not let him go to the bathroom.” Another time, Respondent left campus in the middle of the day without telling anyone. Her class of 22 students was left alone, unsupervised. Shedrick said he arrived in her room, and she was not there. Another teacher had to cover her class. He said he called her on the phone and was informed that she was sick or had a doctor’s appointment. As a result of this incident, coupled with the other recurring performance deficiencies, the superintendent suspended Snow for three days. Support, Training, and Professional Development at Bay Point Snow had multiple opportunities to correct her performance and improve her deficiencies through a variety of training opportunities and support provided to her. On most occasions, she refused to attend or otherwise participate. Many examples were given by the witnesses testifying on behalf of the school district. At the very beginning of the 2014-2015 school year, Respondent was expected to attend District Wide Training (“DWT”) for middle school science teachers. The DWT is the “big kick- off” for the upcoming school year, and the sessions consist of practices and initiatives that the science department expects to be implemented in the schools. Despite being specifically told that she needed to attend the middle school sessions to learn about revisions to the middle school curriculum, she instead chose to attend the high school science sessions. When asked why she did not attend these (which would have been relevant to her assignment as a middle school teacher), she told the principal that in her mind she was a high school science teacher. As is the case with all teachers new to the school, Respondent had a mentor assigned. Lara McElveen (“McElveen”) was the lead mentor at Bay Point and testified that she was a resource and was always available to help teachers navigate issues ranging from curriculum questions to technology. She held regular monthly meetings to discuss what was working for the teachers and what was not. While most teachers came to her when they needed help with the type of problems Snow experienced (lesson planning, progress reports, assignments, test preparation, FOCUS, etc.), Snow only sought her help occasionally and only for minor issues such as printing or copying assignments. McElveen testified that she tried to set up meetings to help with more substantive matters, but Snow complained that she had “too many meetings and that it was outside her contractual hours.” Four specific trainings were identified in the Success Plan negotiated between the principal, Respondent, and her union representative during their three-hour meeting on August 15, 2014. Specifically, she agreed to attend the following training sessions: Just in Time Unpacking & 5E Collaborative Planning on September 2, 2014; Content Enhancement Part 1 Unit Organizer on September 23, 2014; Data Driven Instruction & Analysis Gap Check In in January 2015; and Just in Time Boot Camp on February 3, 2015. Shedrick went out of his way to remove any barrier to her attendance. He made sure she was paid to attend the trainings by giving her a “TDE” (Temporary Duty Elsewhere). He personally coordinated the timing of the trainings with other appointments on her calendar, including her doctor’s appointments, and also sought out convenient locations for the different trainings so that she did not have to travel far. He set the first training scheduled for September 2, 2014, at a school located only five minutes away. She did not attend this training. Given the efforts that he went through to personally set up the trainings and personally reach out to the people conducting them, Shedrick testified that he was beyond disappointed and annoyed that she did not bother to attend. As a result, he wrote her a reprimand dated September 5, 2014, and directed her to follow the expectations in the success plan-- including attendance at the other trainings--in order to avoid future discipline. Despite her agreement as part of the success plan and the directive in the reprimand, she did not attend any of the four trainings. She never offered the principal an explanation for not attending, but simply told him that she did not attend. In early October 2014, administrators visiting Respondent’s classroom noted that she was two-to-three weeks behind in the pacing calendar establishing the dates by which certain subjects should be covered in her classroom. Shedrick worked with the middle school science specialist, Tom Doughty, to provide Snow assistance and get her back on pace. They assigned Stewart the task of working with Respondent. Stewart observed her class on October 8, 2014; met with her briefly to discuss a remediation plan; and scheduled another meeting the following week to follow through. At the scheduled meeting, Stewart brought the additional materials Snow had requested, but was unable to work personally with her because there was a collaborative planning session scheduled with all teachers. Stewart attended this training with Respondent. Afterward, she asked Snow to meet with her individually as planned, but Snow told her no, she was not contractually required to meet. Over the next couple of weeks, Stewart was at the school for five more days conducting trainings and available to assist the science teachers. Respondent appeared for one group-training on November 12, 2014, but no more. On one of the days (October 20, 2014), all of the science teachers came to meet with Stewart, except Snow. On another day (November 20, 2014), administrators asked Snow to meet with Stewart, but she never showed up and on the other two days, she called in sick. In addition to Snow falling behind in pacing, Doughty and others observed during classroom visits that Snow had “instructional pedagogy issues.” Shedrick again asked Doughty and his team to come in and provide direct support to Snow. Doughty observed her classroom on four occasions between January 13 and January 16, 2015, to see “what instructional strategies were used or lack thereof, what could have been used and were not employed or were not employed correctly.” The plan was to work in tandem with Stewart to provide professional development geared toward the specific areas where Snow struggled. Following the observations, he met with Snow, Shedrick, and Chiles to “debrief,” but Snow was openly resistant to his observations and suggestions. He said he tried to point out areas where her classroom management and practices needed to be refined, but she “cut me off at various points to argue with my observations.” For example, he suggested that a classic and fun activity for kids to learn the concept of balanced and unbalanced forces was a simple game of tug-of-war where they can experience what happens with forces on either side of a rope. Snow’s method for teaching this concept was to refer the kids to a picture of a satellite in their textbooks. Doughty told her that pointing the kids to a picture in a textbook “is not helping a student put an abstract concept to a concrete example.” In response, Snow “defensively interrupted [him] saying that she would never do that with her students and would stick with the picture of a satellite in a book.” He concluded that overall “Snow was very defensive and seemed not willing to accept feedback in order to improve her practice.” Snow was told repeatedly that assessments are necessary to measure a student’s understanding of the content taught. Also, Shedrick wanted to see any test she planned to give the kids. Despite these directives, Snow had not tested her students nor had she tried to create a test. Finally, on January 20, 2015, Snow sent Shedrick two documents for his approval which she presumably believed to be appropriate for testing her students. Noting that they appeared to be three-year-old worksheets, Shedrick forwarded the proposed assessments to Doughty for his review. Doughty first questioned why Snow would be testing certain subjects in late January--homeostasis and cells--when the pacing calendar called for the topic to be covered in the first week of October. He also noted that the sheet was straight out of the textbook. He observed that the second document was apparently pulled by Snow from a bank of questions designed several years earlier and was not appropriate to be given as a test to students. He also reminded Shedrick that Snow would benefit from attending a session at an upcoming DWT focused on proper classroom assessment design. As already noted, she did not attend the trainings which could have helped her do her job and, in particular, a training specifically designed to help her create a test. Next, Shedrick notified Snow that she was not to give the test she had proposed. In desperation, he asked Doughty and his science team to again work with Snow on creating a test. He testified that he had to ask for their help because Snow had not tested her students all year: I had to because we’re in December, January and the students haven’t been assessed. So how do you know what deficiencies they have? How do you know what standards to remediate? How do you know what they’re lacking? How do you know where to fill in the gaps? How do you know what to do as a teacher if you haven’t given a five-question quiz? How do you know what to do? When Shedrick informed Snow that the county science department would be setting up individualized training at Bay Point because she missed the professional development planned for all teachers (a DWT), she responded that “she did not have time for training because [she] was so busy.” He asked if it would be possible to set them up in the morning before school, during her planning period or after school, and she repeated that she was too busy and would never attend a training during her planning period. Finally, Snow agreed to attend a side-by•side training with Stewart so that Stewart could teach Snow, a veteran teacher with upwards of 23 years’ experience, how to write a test. Stewart and the district’s test bank did the bulk of the work, and eventually a test was created. Snow’s students were administered their first and only test on February 10, 2015. 2014-2015 Annual Evaluation at Bay Point On April 17, 2015, Chiles completed an annual appraisal of Snow’s performance. The appraisal instrument for this year was the “hybrid model” incorporating indicators from the Charlotte Danielson evaluation system and the Dr. Robert Marzano evaluation. Chiles completed a two-day training on the evaluation system. She passed a test on its use prior to evaluating teachers. The instructional practice portion of the evaluation, completed by Chiles, comprised 40 percent of the total score. Snow scored 1.364 points achieving an “unsatisfactory” rating. Snow did not score “effective” on any of the indicators. Chiles noted in the formal observation that: Ms. Snow demonstrates deficiencies in the area of delivery of instruction . . . she also struggles with time management in delivering instruction which causes students to be unclear on instruction and assignments. Many students are unable to articulate the learning goal or relate the learning goal to the lesson. Furthermore, many parts of the Gradual Release Model are not applied or observed. With regard to the assessment of instructional needs, Chiles noted that “little progress has been made.” “Tracking and monitoring data has not been exhibited, as well as using multiple assessments to assess the instructional needs of all students.” The student achievement portion of the evaluation counted for 50 percent of the overall score. Snow achieved 3.0 points for this portion. The remaining ten percent was based on professional development and Snow was given three out of ten available points. Respondent received only three points because she submitted a plan that did not match her duties. Again, she submitted an old form from the previous year when she worked at a high school. The form stated she was a biology teacher at Largo High School rather than a sixth-grade science teacher at Bay Point. Three points on a ten-point score was converted to a 1.2 on a four-point scale. Overall, Snow’s evaluation reflected a “needs improvement” rating with a final score of 2.166. 2015-2016 School Year at Bay Point Despite Snow’s poor performance, lack of cooperation and outright defiance the preceding year, Shedrick was optimistic that the 2015-2016 school year would be different. He testified that he was excited that Snow may have “turned a corner.” He testified that he was hopeful because over the summer Snow had shown some initiative and “went to a training without me asking her to.” Moreover, she actually approached him and shared the information, which was rare. He then scheduled a meeting with Snow to scale down her success plan and work on what was necessary to make her a successful science teacher. Shedrick’s optimism was misplaced and quickly faded. Snow was contentious and not receptive to the scaled-down success plan which contained many of the same expectations as the earlier one, i.e., two grades per week in FOCUS; at least one approved assessment each grading period; follow pacing guides; provide progress reports to students with D’s and F’s; contact parents; submit lesson plans; and attend classroom management training. She immediately objected to the expectation that she attend classroom management training stating that she already went to a training in July: “I’ve already been to that training and I am not going to any more training.” He tried to explain to her that the trainings are not all the same at which point it occurred to him that the only reason she attended training in the summer was probably to get a “trade day,” which amounted to a paid day off during the school year. He said, “I hope she didn’t go to that training just for the trade day. I hope she went to that training for students. Conclusion, trade day, because she would not go anymore [to additional trainings].” Not only did her performance and attitude fail to improve, it went downhill quickly from that point forward. Throughout the first semester of 2015, Shedrick and other administrators conducted numerous visits to Snow’s classroom and repeatedly notified her that she was behind the curriculum; her instruction was very low-level textbook work; she had not given the students a single assessment or even a quiz; she was not entering academic grades into FOCUS; she was not engaging the students or managing her classroom; and she had no plan to remediate the students who were falling behind. Shedrick testified that by December 2015, he was “at wits end.” He tried to schedule a conference with her prior to her formal observation but she would not meet with him. He tried repeatedly to re-schedule a meeting. Snow responded with a variety of excuses and objections and once marched into his office at the scheduled time simply stating, “I’m not meeting for your pre-conference,” and walked out. She did not complete the required pre•observation form, so Shedrick asked someone from the professional development department to go into the iObservation database and prepare the form for her. She never completed the form and never appeared for a pre-conference before the formal evaluation. Shedrick experienced the same difficulty with Snow in scheduling a formal observation. She objected that he did not give her enough notice; she did not have enough time; she had to test ESE and ESOL students; and other teachers do not have a formal observation mid-year. At one point he went to her classroom to discuss the observation (because she did not respond to his e-mails) and discovered that the kids were working on crossword puzzles. He said that if she was going to ignore his e-mails, “at least let me walk into [her] class and see [her] students highly engaged in some specification [sic] of some science labs, some dissection, and some hands-on lab learning for science. Imagine my dismay to walk in and see students working on crossword puzzles.” He conducted the formal observation on December 16, 2015, and for 55 minutes of the class period, the students worked on defining terms. He said this was typical of Snow’s lessons. “Bell work was defining terms. Classwork was defining terms . . . students would sit there and actually copy word for word verbatim or she would have them in the science consumer workbooks underline or she would regurgitate to them as to what to write next to whatever they underlined right next to it.” On the formal observation, Shedrick notes under “Establishing Classroom Routines”: [A]s I walked into the classroom you were moving around students from seat to seat and one student asked what are we doing and you replied “just wait.” You instructed the class to sharpen their pencil one by one and seven students ran to the pencil sharpener. Now students are sitting and waiting for you to begin the lesson. Two students are passing out books. Four minutes are gone and students are still waiting. Two students in the front row are passing out sheets of paper, now you have several students up doing various things at this time. Female students in the back are talking about the movies from the weekend. Ten minutes has gone before you address the class. You are trying to inform students of the Scale you created. Under the category entitled “Identifying Critical Content,” he wrote: Teacher reading terms that she asked students to define (define three terms) and students ask you to repeat and what page? No collaboration for this assignment . . . students are just defining terms out of the book and writing on paper . . . . At the beginning of the second semester, Shedrick’s frustration with Snow was palpable. He requested help from OPS, as well as the area superintendent, Robert Path, asking: How much longer must we continue with Snow? Anytime I request a meeting, she does not respond and doesn’t attend. This is defiant and disrespectful to start. How will I continue to run my campus as teachers hear she doesn’t attend my requested meetings, why should they. All this with no action which allows her to continue her behavior. On January 15, 2016, Shedrick sent Snow a letter telling her that she was on very thin ice but he was going to try once again to remediate her numerous deficiencies. After summarizing all of his efforts to meet with her to conduct a formal observation, as well as her responses, he stated: I have grave concerns over whether the very marginal instructional improvement that you made last year is sustained. You have never assessed your students so I have no information on that score, refused to show me the work that your students are performing so I do not have that information to review, refused to meet with me to finish a formal observation and have called in sick for several days avoiding this discussion. For that reason, I asked Mr. Doughty, the Middle School Science Specialist to observe your classroom, on Thursday, January 14th and this morning. I am very concerned about numerous things including the lack of science instruction taking place in your classroom, your classroom management and your conduct and attitude every time that I try to discuss these issues with you. Your continued refusal to do what I ask has seriously impeded the education of our students and they deserve better. I remain willing to work with you and sincerely hope that you choose to work with me toward preparing our students to meet the goals set for 6th grade science. I plan to meet with you to discuss all of these issues. Doughty again observed Snow’s class on January 14 and 15, 2016, and used his observations as a basis to develop yet another remediation plan. He observed that the activities were “low rigor-no connection made to learning target”; the pace of the lesson was not appropriate; there was “minimal student engagement” with students “off task” and “compliant” [sic, the context supports “non-compliant”]; and classroom management and discipline was not evident. Doughty helped design yet another remediation plan that was presented to Snow on January 20, 2016. He said: [W]e wanted to provide as much support and help to try to help her be the best teacher we could make her to be. So one of the things I suggested to Dr. Shedrick was, for example, Letter G [of the remediation plan] was stop using movies as a time filler, having appropriate topics and rigorous assignments that tied to it. Aware that much of what he had observed in the past was “textbook, textbook, textbook, writing in the textbook and . . . not a lot of hands-on engaging things,” he suggested Letter H of the plan, “performing labs that tied into the unit to bring on hands-on activities to give students ownership into their learning.” Doughty and Stewart spent several sessions with Snow during January and February 2016. On February 19, 2016, following an observation of her class, Doughty wrote to Snow commenting that the students were generally confused because the learning goal or the content she intended to teach, did not align to the task: The strategies used weren’t implemented correctly and did not achieve the desired effect. . . . Through my last two visits I have not seen effective implementation of the professional development Michele has provided on an individual basis. It is apparent we will need to revisit the topics from the previous 2 PO [personal observation] sessions. . . . At this point, Doughty felt his team’s efforts could be better utilized elsewhere, rather than continuing to work with Snow who was not cooperating. He contacted a number of people to tell them that “we’re not getting anywhere.” In an e-mail dated February 23, 2016, Doughty noted that “overall it is not going well” and “Michelle is very frustrated that her efforts are not yielding any results.” Insubordination, Incompetence, Performance Deficiencies, Willful Neglect of Duty Respondent is either incapable of performing the duties of a classroom teacher or simply unwilling to do so. Based upon the record, it is both. At times it seems that she is not willing to try because she does not have the skills necessary to perform her duties and, at other times, she is outright defiant claiming that she is not required to do what is asked of her. For two years at Bay Point, she has been directed to enter at least two academic standards-based grades per week in FOCUS and administer an assessment to the students. The assignments that she gave to students in no way could be construed as academic- based. The workbooks produced at hearing from students T.J. and M.T. contain pages with a few definitions, questions and answers copied out of the textbook, and “reflections” consisting of one to two sentences of what the student learned. One assignment is a “foldable” that the student cut out and pasted in the book, with definitions of cell parts written under the flap. In another assignment, the student cut out pictures of body parts and pasted them in the book partially labelling them. With all of the emphasis placed by the educators and administrators on STEM (science, technology, engineering, and math) and rigorous science instruction, Shedrick was appalled that Snow was teaching and assigning her students what he described as “baby work.” From the record and Snow’s testimony, there is little explanation as to when or how she graded these assignments. The students testified that they did not know the purpose of the assignments or how they were graded. Their parents did not know how she arrived at the grades and, when asked, she was not able to explain the grades to them. In addition to the low-level nature of the assignments in FOCUS, Shedrick objected to Snow giving a grade for a parent’s signature, bell work, notebook checks, reflections, and review of the code of student conduct. These were not academic grades, in his opinion. Parents also complained that they never knew where their child stood in the class because of the irregularity of Snow’s grading. Shedrick testified that parent complaints came in “fast and furious” because of Snow’s habit of “dumping” grades at the end of the marking period. John Frank (“Frank”), the OPS administrator, conducted an audit trail in FOCUS which enabled him to determine the dates that grades were entered and found that grades due earlier in the grading period were added a day or two before the end of the marking period, often drastically affecting a student’s grade with no warning or opportunity for the student to improve. For example, on March 14, 2016, FOCUS indicated Snow had entered six grades. Three days later she had entered four more grades for assignments that should have been added weeks prior. It is nearly inconceivable that entering two grades weekly could have been so difficult, especially for an experienced science teacher. For Snow, however, it was a constant uphill climb. When she met with Shedrick and, at times, with Valencia Walker, and later Frank, each told her “just put in two grades a week.” She said she did not have to. At the hearing, she claimed that she was “confused” when she was told the school district wanted two grades. She “preferred” to enter only one grade and reasoned that her assignments were so “intense” that one grade for her was really the equivalent of two grades for another teacher. Her lessons and assignments could in no way be deemed “intense.” At one point, she said she tried to put in two grades, but did not have time. Later, she said “my goal was to put in two grades a week. The reason why I wasn’t able to put in two grades a week at the end was because of the testing schedule and the pacing guide.” This explanation is almost nonsensical. As evident from her belief that her assignments were “intense,” Snow appears to have no insight into the lack of academic rigor in her classroom. At the hearing, she tried to explain the complexity involved for students to answer two questions in their textbooks on cells. She defended her extensive use of the textbook and instructional strategy of having the students read aloud from it on the basis that she had a lot of “special learners” who needed to learn to read. The record does not support her contention that her students needed “special” treatment due to learning disabilities or other special needs. Snow blames many of her deficiencies on the students’ misbehavior in her class. Testimony confirms that at times the class was loud and the students sometimes disrespectful. This is not uncommon when teaching middle school students. A parent called by Snow to testify characterized her observation as a class “out of control.” Snow, however, fails to recognize that her inability to deliver meaningful instruction caused, or at least substantially contributed to, the student behavioral issues. If the students were more engaged and assigned to more meaningful tasks, classroom decorum would have improved. Doughty summarized the correlation well when he testified, “The more low- rigor, the more textbook work . . . the more misbehavior I see happening. The more I see classrooms that engage students in fun, interactive . . . cool science, engaging science, the less misbehavior I see.” Snow attributes the misbehavior to the students, not her teaching methods or poor classroom management skills. She claimed that she was assigned “more than three fourths of the 6th grade SE/ESOL and 504 population . . . in addition, I have the majority of the lower level 6th graders.” Shedrick and the sixth-grade assistant principle, Jason Helbling, testified that the population of students in Snow’s class was no different than any other sixth-grade class. In fact, Helbling pulled the grades of the students Snow complained were nonperforming and found they received A’s, B’s, and C’s in their other classes. Snow’s testimony on this point is not credited. Helbling testified that he was called to Snow’s room much more frequently than any other teacher’s classroom in the school; in his words, as much as ten times more frequently. She had no interventions set up to redirect the students, but would instead call administrators to have those misbehaving or rowdy removed from class. She complained to Helbling that the students were terrible and not teachable. He counseled her to call home to the parent and “try to do other things than throw the student out of class and having them miss content.” Snow claimed she contacted parents but when Helbling called them himself, he learned that there had been no follow-up by Snow in the form of telephone calls. Helbling found that the students characterized by Snow as “rough,” “terrible,” and “not teachable” did not have the same problems in other teachers’ classes. He visited other classrooms to observe these students’ interaction with the teachers. The difference was that the other teachers had classroom management strategies and reached out to the students. Inexplicably, Snow did not even know the names of her students, something Helbling found inexcusable after several months of school. He testified, “If [by end of January] we don’t even know the names of our students, we have a problem, and a lot of that is linked to classroom management. How can you manage a classroom if you don’t know who your students are?” During a classroom visit on January 29, 2016, Helbling walked into a classroom in disarray. A chair was sitting on top of a desk; most of the students were talking; bell work took 21 minutes with no student actually working on bell work (“bell work” are brief assignments given at the start of class to warm up the students, settle them down, and prepare them for the day’s substantive lessons); five kids were lined up at the pencil sharpener; and Snow “sat at her desk the entire time that the observation took place.” Annual Evaluation at Bay Point for 2015-2016 School Year When the time came for the annual evaluation for the 2015-2016 school year, the district had fully integrated the Marzano appraisal system for use in all schools, which as noted above, is designed to grow a teacher’s practice. The comprehensive instrument is comprised of three components: the instructional practice, the deliberate practice, and the student growth score. The Instructional Practice portion counts for 56.67 percent of the evaluation and consists of four domains. Domain 1 is “Classroom Strategies and Behaviors” consisting of 41 instructional categories that happen in the classroom. Administrators conducted seven informal and two formal observations (mid-point and final) for completion of Domain 1. Domain 2 is “Planning and Preparing.” Domain 3 is “Reflecting on Teaching” and Domain 4 is “Collegiality and Professionalism.” Administrators also conducted nine walk-throughs which contributed to Domains 2-4. In each of the four domains, a teacher is rated based on a scale with the lowest being “not using” and the highest being “innovating.” The scores are tallied in the iObservation database. Snow received a score of 1 which is an “unsatisfactory” rating for the instructional practice portion. Her weaknesses in classroom management, instructional delivery and planning, and failure to cooperate were noted in many instances by her evaluator. The Deliberate Practice portion of the instrument counts for ten percent of the overall score. The rubric dictates that a teacher may receive a score of 1, 3, or 10. Teachers receive points, either 1, 3, or 10, depending on whether they submitted a professional development plan and then whether they implemented it. Snow received three out of ten points because she submitted a deliberate practice plan, but did not attend the required professional development. On a four-point scale, this translated into a score of 1.2. The Student Growth score is worth 33.3 percent of the overall score. Snow received a score of 3.0 on this section resulting in a final score on her evaluation of 1.69 or “needs improvement.” Cerreta testified that Snow is the only teacher in the district, out of more than seven thousand teachers, ever to have received three consecutive ratings of “needs improvement.” Cerreta confirmed that each of the evaluators for the 2013-2014 through 2015-2016 school years received training and were certified by the district to conduct an evaluation using the respective evaluation instruments. The administrators properly administered each of the evaluation instruments and Snow never challenged, through a grievance, the process followed by the administrators in conducting the evaluation. Cerreta’s office is responsible for submitting the appraisal systems to FLDOE for approval each year and confirmed that each of the respective systems described for the three-year period were submitted and approved by FLDOE. It bears noting and a brief discussion as to the integrity and character of Principal Shedrick and the other administrators who patiently worked with Respondent throughout her tenure with the Pinellas County School District and, especially, at Bay Point. It is rare to see a principal and district administrators who not only give a teacher the benefit of the doubt when it comes to her shortcomings, but go well above the call of duty to counsel; offer guidance at many levels; and utilize so many already overworked district personnel in an attempt to make one teacher not only a better educator, but successful in every way relating to her classroom and her students. Shedrick, his fellow administrators, and other teachers at Bay Point spent an inordinate amount of time working with one teacher, Snow, who not only rebuffed their efforts to make her successful, but seemed to resent their attempts to make her a more effective teacher. Only after constant failures by Snow in the classroom, and her apparent inability or lack of desire to improve or learn from all the advice and instruction given, did Shedrick reach his breaking point and move forward with the steps leading to Snow’s proposed termination. Less dedicated individuals would have pulled the plug far sooner, and Shedrick, along with all the administrators involved, should be commended for their patience and desire to make an experienced science teacher, a valuable commodity in the district, successful to the point where she could better further her students’ education in such a vital academic subject in today’s world. Based upon the extensive evidence and testimony, all these efforts were unappreciated and, ultimately, made in vain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 24th day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2017. COPIES FURNISHED: Laurie A. Dart, Esquire Office of General Counsel Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Dr. Michael A. Grego, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue presented for determination is whether the proposed high school attendance zone plan, Z2, is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: This rule challenge to a proposed rule is a result of proposed changes to school attendance zones in Seminole County, Florida, which would result in students attending different schools than they presently attend. Hagerty High School (Hagerty) is a newly constructed Seminole County school. The opening of this new high school in August 2005 was the catalyst for the county-wide rezoning. Incidental to rezoning to accomplish populating the new high school, adjustments in student populations were made in an attempt to create appropriately balanced racial and ethnic student populations and to alleviate school over-crowding. Since 1970, schools in Seminole County have been subject to the jurisdiction of the Federal government regarding desegregation of the public schools. This continuing jurisdiction is the subject of "Consent Decrees" between the United States of America and Respondent in Case No. 70-152, ORL CIV (M.D. Fla. August 19, 1975). In particular, adjustments in school attendance zones have been the subject of the scrutiny of the Federal government. Several members of the current School Board were on the School Board when a rezoning plan was rejected by the Federal government. Since early in the 1990's, the School Board and school administration have aggressively pursued the goal of a "unitary" school system, i.e., a system that has accomplished a myriad of goals which equate to a system wherein any student, regardless of race and ethnicity, has an equal opportunity for a quality education. Once the status of a "unitary school district" is accomplished, direct Federal supervision will cease. In 2002, preparing for the day when "unitary" status would be achieved, the School Board developed an extensive post-unitary status policy. The Parties Petitioner, Jennifer Finch, is the mother of Christopher Brady; she and Christopher reside in Seminole County, in the residential community known as Sable Point. Christopher is currently in the sixth grade. The Finch residence is in Cell 27A; a "cell" is a geographic area created by the Core Committee when it divided the county into numerically identified “cells” for purposes of considering rezoning alternatives. The Finch residence is currently zoned for Lake Brantley High School. As a result of the proposed rezoning, children (with the exception of "grandfathered in" children) residing in Cell 27A will be zoned to attend Lyman High School. Lake Brantley High School is "over-crowded." The facility is designed to accommodate 3,000 students; it has a current student population of approximately 3,650. Because of Lake Brantley High School's over-crowding, its principal regularly audits the student population, using unique and creative methods, in an effort to assure that each of the students attending Lake Brantley High School is zoned to attend Lake Brantley High School. Petitioner, SC. Read, Inc., is a Florida corporation. Members of SC. Read, Inc., live in Cell 27A, and several of its members have children who are currently enrolled in the public schools of Seminole County. Intervenor, Tuscawilla Home Owners’ Association, Inc., is a Florida corporation. Part of Cell 10, and all of Cell 11, are within the area of subdivisions represented by Intervenor. Intervenor has 2,109 member households; 734 member households are in Cells 10 and 11. The homes in Cells 10 and 11 are single-family residences with many children who attend Seminole County public schools. The proposed rezoning contemplates students living in Cells 10 and 11, who are not specifically "grandfathered in," attending Oviedo High School instead of Winter Springs High School where they are currently zoned. One of the specific functions of Intervenor is to engage in efforts to secure educational opportunities and a stable educational environment for its members. It has historically worked with the schools to provide increased educational and extracurricular activities for its constituent members. The School Board is the governmental entity responsible for the operation, supervision, and control of public schools in Seminole County, Florida, including establishing attendance zones, determining the educational capacity of schools and assigning students to schools. The Rezoning Process Rezoning is a thankless responsibility; whenever the lives of children are disrupted, parents are unhappy. Moving a student from one school to another, places unanticipated demands on both parents and students. In January 2000, the School Board adopted a policy entitled “Revision of School Attendance Zones” (hereinafter referred to as “Policy J”). Section III of Policy J, entitled Process for Revision, at Step One provides, in relevant part: The Board establishes a Core Committee including, but not limited to district representatives . . . , affected school administrators, a representative from the affected School Advisory Councils, and a PTA representative from the affected schools to solicit public input, develop and evaluate alternative plans, and keep the local community informed of the progress . . . . The role of the Core Committee in the rezoning process is advisory. Its responsibilities, as enumerated in Policy J, are to serve as a conduit for public communication, receive demographic data, create "cells" to be considered in attendance zone shifts, consider public input, and create rezoning plans to be considered by the School Board. Policy J provides definitions of certain "words of art" used in the rezoning process, for example, "Over- enrolled/under-enrolled": an over-enrolled school has an enrollment that exceeds its permanent design capacity, and an under-enrolled school has an enrollment less than its design capacity -- both are identified on an annual basis, and "Design capacity": the permanent capacity of a school as calculated by the Department of Education. Portables are not included in the design capacity of a school. The calculation variables include class size, classroom program types, and scheduling. Based on appropriate definitions and criteria, Lake Brantley High School is "over-enrolled" and Lyman High School is "under-enrolled." In addition, Policy J specifies specific parameters that "current and proposed attendance zone plans will be measured against." The parameter having the highest priority according to this policy is: "[T]he plan is consistent with the district Consent Decrees as long as the decrees remain in effect." In April 2004, in anticipation of the August 2005 opening of Hagerty, the rezoning process was initiated. Because rezoning was county-wide and affected numerous schools, the Core Committee consisted of 54 people. The following schedule was established: Organizational Meeting June 15 Core Committee will identify "cells" Core Committee (CC) August 19 CC will use cell data to develop plan options Core Committee Sept. 2 CC will choose plans for public input Public Input Sept. 20 Lyman High 7:00 PM Public Input Sept. 23 Winter Springs High 7:00 PM Core Committee Sept. 30 CC uses public input to develop final drafts School Board Public Input Oct. 26 Educational Support Center 6:00 PM Final Adoption Nov. 9 This schedule outlined in paragraph 17, supra, was essentially followed. However, one meeting was cancelled and one shortened because of hurricanes. The Core Committee meetings, while they took place in public facilities, did not lend themselves to ongoing public input due to the nature of the work that was to be accomplished by the committee members. As would be expected, the committee members relied heavily on school administrators, Deputy Superintendent of Operations Dianne L. Kramer, in particular, who was the facilitator and contact between the committee and school administration, for information necessary for their consideration of student demographics, school populations, and other pertinent data for high schools and middle schools. Geographic enrollment numbers (all potential students living in a geographic area) were used, which is appropriate for rezoning planning. In addition to the information provided directly and electronically to the Core Committee members, which was more than adequate and conforming to Policy J requirements, the School Board made this information available to the interested public directly and electronically. Nothing in this record indicates that any Core Committee member was denied any needed information. Policy J charges the Core Committee with the responsibility "to solicit public input, develop and evaluate alternative plans, and keep the local community informed of the progress." This was accomplished. Because the Core Committee is composed of members of the Parent-Teacher Associations and School Advisory Councils from each affected school, parents were involved and made aware of the Core Committee activities. The Core Committee and the School Board meetings were advertised as required. There was a great deal of public awareness of the rezoning process. For example, it was estimated that 1,600 people attended the two scheduled "public input" sessions, and the School Board meeting and workshop where the plans were presented took more than seven hours. At the conclusion of the Core Committee's consideration of many alternatives, some of which were submitted by the public, three rezoning plans were advanced by the committee. These plans were identified as W, Z, and Z1. Plan Z1 was a plan modified by Deputy Superintendent Kramer at the direction of the committee. These plans were then published on the School Board web-site and made available to the School Board members. Policy J and the Core Committee's stated involvement and participation in the "process for revision," was substantially complied with and any deviation from Policy J or the Core Committee's purpose was insignificant and did not negatively affect the rezoning process. On October 19, 2005, the School Board members took an informational bus trip during which they traveled proposed bus routes for the rezoning plan alternatives. The School Board members are generally familiar with routes to and from the various schools in Seminole County. Seminole County, like most of Central Florida, has experienced dynamic growth in the past decades. This growth has burdened the infrastructure of all communities. As a result, not only are new schools needed, but roads must be constructed and improved. Traffic congestion, whether occasioned by too many vehicles, new construction or for whatever reason, is a daily challenge to central Floridians. Regardless of the particular school a student attends, buses transporting students will be a part of the traffic with which all motorists, including the bus drivers, must contend. Student transportation is a consideration in rezoning, but is not significant or controlling. The School Board has a safety advisory committee whose membership includes police officials and traffic safety personnel from the various governmental entities in Seminole County. As safety or traffic issues arise, this committee provides recommendations regarding those issues. As the need arises, bus routes can be adjusted to accommodate optimum travel time and safety. Subsequent to the publication of the Core Committee Plans W, Z, and Z1, several of the School Board members approached Superintendent Bill Vogel and indicated that they did not feel that any of the Core Committee plans would be acceptable to the Federal government. The School Board members are regularly informed of student demographics, school populations, over/under-crowding, and myriad other statistics which help them make informed judgments in their roles as School Board members. On each school day, every Seminole County school electronically provides the School Board administration with data, including attendance information, to assist in school governance. During the rezoning process, each School Board member was provided timely updates on the Core Committee's activities and had numerous contacts with the general public regarding concerns associated with rezoning. Perhaps, the School Board members who had previously seen a rezoning plan rejected by the Federal government were overly concerned; perhaps, in order to achieve "unitary" status, they wanted to see racial and ethnic ratios adjusted to meet county averages; or perhaps, they were concerned about under/over-crowding. For whatever reason, the School Board members directed Superintendent Vogel to create additional rezoning plans which would address over-crowding at Lake Brantley High School and student enrollment at Lyman High School that included disproportionately high percentages of students qualifying for free or reduced-price lunches. As a result, Superintendent Vogel directed Deputy Superintendent Kramer to prepare modified plans addressing the deficiencies in Plans W, Z, and Z1: that enrollment at Lake Brantley High School had not been reduced in the plans presented by the Core Committee to the extent that it needed to be and that the percentage of students receiving free and reduced-price lunches at Lyman High School was too high in each of the plans presented by the Core Committee. In addition, Superintendent Vogel believed a greater number of the district's high schools could be closer in enrollment percentages to the county-wide averages for black students, Hispanic students, and students receiving free and reduced-price lunches. This planning direction is one of the fundamental considerations of Policy J. Using essentially the same data and cells identified by the Core Committee, Deputy Superintendent Kramer developed Plans Z2 and Z3 in response to the Superintendent's directive. Plan Z2 incorporates the essential components of the plans advanced by the Core Committee with modification of the attendance zones for specific cells. The primary modification in Plan Z2 is moving Cell 27A from the Lake Brantley High School attendance zone to the Lyman High School attendance zone. Cells 10 and 11, which are included in the Intervenor's area of interest, were recommended for transfer from Winter Springs High School in Plan Z as well as Plans Z1 and Z2. Plans Z1 and Z2 were forwarded to the School Board and the Core Committee members electronically upon development. On October 26, 2004, after being appropriately advertised, all five rezoning plan alternatives were presented at an eight-hour public meeting of the School Board held at the School Board's administration building, at which time the public addressed the School Board on the subject rezoning plans. At the close of the public input, Superintendent Vogel recommended Plan Z2 to the School Board. During the presentation in which Plan Z2 was recommended, Superintendent Vogel presented an assessment of each of the five rezoning plan alternatives and how each impacted each Seminole County high school, including the new high school, Hagerty. This assessment included the current student enrollment, with black students, Hispanic students, and students receiving free or reduced-price lunches noted by percentage, current numeric enrollment, and target numeric enrollment. The assessment specifically addressed the effect of each rezoning plan alternative on these critical areas and demonstrated how each plan alternative measured against each critical area. Superintendent Vogel's recommendation reflects consideration of the criteria and process outlined in Policy J, as well as considerations fundamental to the basic objectives articulated by the School Board's commitment to becoming a "unified" school district. Members of the School Board were not bound by Superintendent Vogel's assessment; each had a worksheet by which each individual School Board member could render his or her own assessment. In addition, several of the School Board members had over 14 years of Board experience being first elected in 1990. These experienced members had participated in previous rezonings and had a wealth of experience and knowledge of critical information needed to make informed decisions with or without Superintendent Vogel's assessment of the various plans. The totality of the evidence presented revealed that each of the School Board members was well-informed on all significant data needed to make an informed decision. At the close of the October 26, 2004, meeting, the School Board unanimously voted to accept Superintendent Vogel's recommendation of Plan Z2 with certain modifications.
Findings Of Fact Respondent holds Florida teaching certificate 310395 covering the areas of biology and science. During the 1985-1986 school year, he taught ecology and science courses at Winter Park High School in the Orange County School District until he was relieved from duty on March 13, 1986, as a result of an investigation into the incidents and behavior described below. During the school day, Respondent repeatedly harassed the female students with sexual remarks, attempts at sexual humor, and requests for sexual favors and intimacies. The sexual harassment so permeated the classroom that Respondent was completely unable to discharge his professional teaching responsibilities. Faye Zentner was a senior at Winter Park High School during the 1985- 1986 school year. Notwithstanding the fact that Respondent knew that she was a student, he repeatedly asked her to go with him on a date, followed by dinner and bed. Unsolicited, he gave her his home telephone number and told her to call him. He frequently remarked on her clothing, advising her that she should not wear such nice clothes. He often communicated by notes that he would show her and then tear up. Ruth Evans was a senior at Winter Park High School during the 1985-1986 school year. She was in Respondent's science class. Respondent repeatedly complimented her on her dress. He would intentionally drop a pencil and watch her while she picked it up. At different times, Respondent told her that he "wanted her body" and thought that she had a "nice ass." He also told her that he wanted to "get between her legs." He asked her to go out with him and then to his place. One afternoon when Ms. Evans asked to leave class 10 minutes early for a school-sponsored softball game, Respondent's response was, "If you're not going to do anything for me, why should I do anything for you?" Kristen Fischer was a senior at Winter Park High school during the 1985-1986 school year. She was in Respondent's ecology class. Looking at her breasts and body while speaking, Respondent would frequently tell Ms. Fischer that he liked what he saw, including her tight jeans. As with the other female students, Respondent asked Ms. Fischer to go out with him and have a drink. The testimony of the remaining female students reiterated the above testimony and established a pattern of sexual harassment on the part of Respondent. Respondent summoned Juliana Gomes from the classroom and, in the hall, commented on her appearance and asked her out on dates. Ms. Gomes finally began reporting to school late in order to avoid her first-period class with Respondent. Respondent told jokes involving female body parts, such as the vagina, to Laurie Kreitner, another student. When she would not listen to these jokes privately at his desk, Respondent would tell them publicly to the entire class. Respondent regularly asked Sheila Buchanan, another of his students, what she was doing on that Friday night and where she would be. At spring break, he found out where she and her girlfriends would be staying at the beach and gave them his hotel room and telephone numbers with an invitation to call him. During the entire term in ecology, Respondent administered only one test and a couple of quizzes. Otherwise, the students and Respondent sat around and talked about movies and matters unrelated to the subject of the class. On more than one occasion, Respondent admitted that his grades were a reflection of whom he liked and whom he did not like. Respondent even allowed Ms. Buchanan to grade half of the finals, and she gave good grades to her friends.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent's teaching certificate be permanently revoked. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Martin Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 J. David Holder, Esquire Rigsby & Holder Suite 200 1408 North Piedmont Way Tallahassee, Florida 32312 Reginald Crooms 617 South Delaney Avenue, No. 19 Orlando, Florida 32801
The Issue The issue presented herein concerns the appeal filed by Respondent of the school board's assignment of Respondent to J.R.E. Lee Junior High School, an alternative school placement.
Findings Of Fact Based on the entire record compiled herein, including the testimony of Peter Hoffman, Assistant Principal at Centennial Junior High School, I hereby make the following relevant findings of fact. On approximately August 26, 1983, Respondent, Tracy Jean Hidalgo, was assigned to attend Centennial Junior High School. Upon arriving for enrollment at Centennial, within six days of her enrollment, four fires were set in the bathrooms at Centennial Junior High School. Respondent admitted setting the fires when questioned by Assistant Principal Hoffman. Once the fires were set at Centennial Junior High, the regular school program was suspended and the students evacuated the building until the fires were brought under control. As stated hereinabove, Respondent or a representative on her behalf did not appear at the hearing to offer any testimony respecting the charges which prompted Respondent's administrative assignment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's appeal of the school board's assignment of her to the school system's opportunity school program at J. R. E. Lee Junior High School be DENIED. RECOMMENDED this 10th day of February, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, 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 10th day of February, 1984.
The Issue The issue is whether Petitioner may terminate Respondent's employment as an educational paraprofessional, based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the facts stipulated by the parties, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. The School Board is located at 2055 Central Avenue, Fort Myers, Florida 33901. The School Board's Florida Administrative Code identification code is 6GX-36. The School Board has the authority to terminate and/or suspend educational support personnel without pay and benefits pursuant to Subsections 1012.22(1)(f) and 1012.40(2)(c), Florida Statutes (2005).1 Respondent has been employed by the School Board since August 27, 1998, with the exception of a break in service during the period from February 24, 1999, through September 27, 2000. Currently, Respondent is employed as an educational paraprofessional at Alternative Learning Center ("ALC") High School. He was previously employed as a bus attendant. Respondent has always received satisfactory performance assessments and has never before been the subject of discipline by the School Board. Respondent's current home address is 3971 Wheaton Court, Fort Myers, Florida 33905. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes, and is a member of the support personnel bargaining unit ("SPALC") that is covered by a collective bargaining agreement between SPALC and the School Board. The standard for discipline of support personnel is "just cause" pursuant to Article 7 of the SPALC Agreement. On or about August 12, 2005, David LaRosa, the principal of ALC High School, contacted Gregory Adkins, executive director of Human Resources and Employee Relations, to report two recent conversations regarding Respondent. Both conversations concerned alleged inappropriate interaction by Respondent with two female students. On the basis of the information reported to Mr. LaRosa, an investigation into the matter was conducted. During the course of the investigation, the District became aware that Respondent had fathered a child and that the child's mother was a senior at Cypress Lake High School at the time the child was conceived. The child was born on December 10, 2002. Respondent denied knowing that the mother was a student when they met at a Dr. Martin Luther King celebration in January 2002, or when they met again on February 14, 2002. The mother of the child turned 18 on February 14, 2002. Respondent was 23 years old at the time.2 On September 7, 2005, the School Board determined that probable cause existed to impose disciplinary action against Respondent for engaging in a sexual relationship with a student. Also, on September 7, 2005, a certified letter was sent to Respondent, advising him of the probable cause determination and that a recommendation would be made to the superintendent that Respondent be terminated. The School Board did not, during the time in question, have a policy or regulation specifically prohibiting a sexual relationship between an employee and a student. The School Board provided no notice to employees that a sexual relationship with a student could result in disciplinary action. No evidence was presented that Respondent's alleged misconduct had any adverse impact on the School Board or on Respondent's work performance. Respondent continued to work for the School Board for more than two and a half years after his child's birth without incident and with satisfactory performance evaluations. Respondent's child was born ten months after the mother's eighteenth birthday, meaning there is no evidence that Respondent engaged in sexual relations with the mother when she was a minor. No evidence was presented to contradict Respondent's claim that he was unaware that the woman was a high school student at the time they had sexual relations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, issue a final order dismissing the Petition, reinstating the employment of Respondent, and awarding him back pay and benefits. DONE AND ENTERED this 30th day of May, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2006.
The Issue The issue is whether just cause exists for Petitioner to suspend Respondent from her teaching position for five days, without pay, based upon Respondent's interactions with students in a photography class she taught during the 2018-2019 school year.
Findings Of Fact The Broward County School Board ("School Board" or the "district"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this matter, Respondent Brenda Joyce Fischer ("Fischer"), was employed as an art teacher at Western High School, where she had been assigned since 2009. Fischer first became an employee of the district in 1992. During the 2018-2019 school year, Fischer taught a photography class, which met during first period several days per week. The events at issue occurred in this first-period class in the early months of 2019. The main incident took place on March 1, 2019, and involved a tenth-grade student named M.G., who——as she frequently did——arrived late that day to the 90-minute class, which started at 7:40 a.m. On this particular morning, M.G. walked in no earlier than 8:00 a.m. (her recollection) or as late as 8:20 a.m. (according to Fischer). Whether M.G. was 20 minutes or 40 minutes late, however, is immaterial. The important (and undisputed) fact is that M.G. was quite noticeably tardy, again. Within minutes after her untimely arrival, M.G. showed Fischer a pass, which authorized M.G. to leave class early to attend a school-sponsored function. The student asked the teacher for permission to go. Fischer denied M.G.'s request because M.G. had not completed the day's assignment. At some point, Fischer made the comment that gave rise to this proceeding, namely, that M.G. was operating on "Latin time" despite living in the United States (or words to this effect).1/ Fischer's exact words have been lost to time, but the phrase "Latin time" was among them, and the gist of the remark was to suggest that M.G. was prone to running late, as Latin people are known to do (so the statement would have it). M.G. claims that this remark offended her. After Fischer denied M.G.'s request to leave class for the special function, M.G. protested to Fischer about the perceived slight.2/ The undersigned credits Fischer's testimony that she did not intend to cause offense and, indeed, did not at the time regard the "Latin time" remark as a to-be-taken-seriously commentary on the unpunctuality (as the remark implies) of Latinos and Latinas. Rather, she thought it was a bon mot, something more light hearted or humorous than cutting or disparaging. Of course, as Fischer should have known, remarks of this nature, once commonplace, had by 2019 fallen into disfavor, and a culture of victimhood had arisen, which encouraged people to seek redress even for unintentional, de minimis offenses. Fischer should have known better than to utter a comment that was practically guaranteed to be called out as culturally insensitive, as indeed it is, to some degree. There is no dispute that, despite her lack of bad intent, Fischer was in the wrong. As it happened, though, M.G. was apparently less offended by the implied stereotype of Latin people as being chronically unpunctual, than by the application of the stereotype to a non-Latina such as herself. As M.G. informed Fischer when she complained about the remark, M.G.'s familial roots are in Spain, not Latin America, and thus, she identifies as European (Spanish), not Latin. This can be taken as an objection by M.G., not to the term "Latin time" per se, but to being lumped together with other Spanish speaking peoples, whose shared language, she maintains, should not be assumed to indicate similarities in other respects.3/ The irony is that M.G.'s comment, therefore, was itself offensive, because her statement can reasonably be understood as an assertion that Spaniards, in general, are more punctual than Latinos. The undersigned points this out, not to criticize or discredit M.G., but to illustrate that it is easy for a person innocently to make a statement which can be interpreted by another as offensive, particularly if the listener is primed to take offense. M.G. did not intend to insult Latinos by distinguishing herself from them, but her remark is, actually, somewhat insensitive in its implication, if taken at face value. It is interesting to note, as an aside, that none of the other students took offense at M.G.'s comment. This might, in part, reflect the higher status conferred by victimhood at the hands of a teacher versus those of a student. But more likely, the indifference to M.G.'s seeming acceptance of the cultural stereotype suggests that no one present actually took the "Latin time" remark seriously as a true statement of Fischer's opinion about people of Latin descent. What the students recognized was that Fischer's ill-advised attempt at humor, which was doomed to failure because that joke isn't funny anymore (if it ever was), gave M.G. an opening, and that as soon as M.G. pounced, she had won the victim's unassailable virtue. Fischer responded to M.G.'s objection appropriately, if predictably: she apologized, twice to M.G., and again to other students within earshot of her "Latin time" remark. M.G. rather ungraciously refused to accept Fischer's repeated apologies, accusing Fischer of being insincere about not having meant the remark to be interpreted "that way," i.e., as a mean spirited slur.4/ Not content to let Fischer off the hook, M.G. appealed for help to the school administration, which did not hesitate to oblige. When she turned Fischer in for making the "Latin time" remark, M.G. also reported an unrelated incident involving another student, C.C., whom M.G. felt Fischer had mistreated; his story is told below. The district's disciplinary machine, its fuel having been ignited by the spark of these accusations of prejudice, went to work, leading eventually to this hearing. As regards C.C., the charges against Fischer are founded on allegations that she "yelled" at the student "aggressively" and "inappropriately." By way of background, at the time of his enrollment in Fischer's photography class, C.C. was attending school in the U.S. for the first time, having just recently emigrated from Venezuela. C.C. could not speak English when he arrived in this country. C.C. used his cell phone in class as a translation tool, which everyone agrees is permissible. He also, however, frequently used his phone to communicate with others via text messages, which is generally not allowed, for obvious reasons. In fact, Fischer often observed C.C. surreptitiously texting during class when he should have been paying attention to the lesson or working on an assignment. One morning, Fischer noticed that C.C. was texting instead of editing a photograph, which he was supposed to be doing. She walked up behind C.C. and, at close range in a loud voice, ordered him to get off the phone. Now, clearly, a teacher should not be subject to discipline for telling a student to stop goofing off in class. So what could Fischer have done wrong here? The district alleges that Fischer "yelled" at C.C. and contends that "yelling" constitutes a disciplinable offense. In other words, it is not what Fischer said, but how she said it, which forms the basis of the alleged offense. The fatal flaw in the district's theory is that there is no evidence of an objective standard by which to measure the relative ferocity of Fischer's vocalization. Instead, several students testified that Fischer "yelled," in their respective opinions, on this and other occasions. Fischer, for her part, acknowledged that she has a loud voice, but denied having yelled at C.C. Maybe each witness told the truth in this regard, as he or she sees it. One person's tolerance for loud sounds may differ from another's. If there is an objective standard for distinguishing "appropriate" from "inappropriate" volume levels for purposes of suspending or terminating a teacher for "yelling," however, it is certainly not established by the opinions of a few of the teacher's students.5/ To be clear, there is no evidence suggesting that when Fischer "yelled" (as these students saw it), she was enraged, ranting, gesticulating wildly, or otherwise behaving in a manner that might indicate a potentially dangerous inability to control her emotions or actions. When Fischer ordered C.C. to get off his phone, she startled him, causing the student to leave the classroom. C.C. immediately proceeded to the guidance counselor's office, to report that Fischer's reprimanding him for unauthorized cell phone use had made him anxious and upset. The district makes much of C.C.'s emotional reaction, but it is hardly remarkable for a student to feel upset over being reprimanded. What's important here is that C.C. had not been unjustly reprimanded. His feelings, while understandable, are not persuasive proof of wrongdoing by Fischer. The district also believes it is somehow relevant that C.C. was the subject of a Response to Intervention ("RTI") process due to his having been diagnosed with autism and ADHD in Venezuela. As a threshold matter, because Fischer taught an elective class and, hence, was not one of C.C.'s "core" teachers, it is unclear whether she knew much, if anything, about this RTI. In any event, there is no evidence that Fischer was provided any written instructions concerning accommodations that she was supposed to provide, which she thereafter failed to offer. If such documentation exists, it was not produced at hearing. The few students who testified against Fischer accused her broadly of having given C.C. a hard time in class, insinuating (if not outright stating) that she did not care for C.C., specifically, because he struggled to keep up academically, nor for Spanish speaking students, in general. The evidence in this regard is nonspecific, undetailed, lacking in context, and, in a word, thin. The proof is insufficient to support any findings of material fact. Determinations of Ultimate Fact The district has failed to prove, by a preponderance of the evidence, the charges brought against Fischer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order exonerating Brenda Joyce Fischer of all charges brought against her in this proceeding and awarding Fischer back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 29th day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2020.
The Issue The issue posed for decision herein is whether or not the Respondent's teaching certificate should be revoked based upon conduct which will be set forth hereinafter in detail, as contained in the Petition for Revocation filed by Petitioner on or about May 11, 1979. During the course of the hearing, Petitioner withdrew allegations B, E and J, which are set forth in the Petition. Pursuant to the Stipulation, the parties waived the thirty-day period prescribed in Subsection 120.56(3), Florida Statutes, requiring the undersigned to file a Recommended Order within the prescribed thirty-day period.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the legal memoranda submitted by counsel for the parties and the entire record compiled herein, the following relevant facts are found. Respondent, Michael S. Park, has been employed by the Broward County School System as an instructor in art at Plantation High School since 1970. He was continuously employed until his suspension on April 19, 1979. Respondent holds Florida Teacher's Certificate No. 274996, Post Graduate, Rank III, valid through June 30, 1985, covering the areas of art and junior college. Respondent currently enjoys continuing contract status. While employed by the Broward County School System, Respondent taught several courses, including design, drawing, craft, sculpture and ceramics. Pursuant to a probable cause determination made by the Commissioner of Education on May 11, 1979, the Petitioner, pursuant to authority contained in Chapter 6A-4.37, Florida Administrative Code, filed a Petition seeking revocation of Respondent's teaching certificate based upon the following allegations: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom office, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. During the school year 1977-78, MICHAEL PARK asked a female student to go 'bumming' with him and to meet him at the night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from Plantation was calling. During the school year 1977-78, MICHAEL PARK stated to a female art student that he knew for a fact that the she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. During the month of February, 1979, MICHAEL S. PARK asked a female student who was not under his supervision as a teacher to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked this student whether or not she participated in or agreed with the practice of oral sex. During the spring of 1978, MICHAEL S. PARK hugged one or more female students, grabbed one female student from behind and pushed himself up against her buttocks. During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. Based thereon, it is alleged that the Respondent violated Sections 231.09 and 231.28, Florida Statutes, and rules 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code. As such, the Petition concludes that the Respondent's alleged conduct seriously reduced his effectiveness as a school board employee. It is alleged in paragraph 1, subparagraph A. of the Petition that: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. The Respondent denied the allegation. Darlene Wilcox is the female student referred to in the allegation (TR 96-98). The thrust of student Wilcox's testimony is that Respondent invited her to stay after class one day and when her classmates left, he handed her a psychology magazine opened to an article on sex and asked her if she had ever read a magazine like that before (TR 97). Student Wilcox, who was a ninth-grade student of Respondent, testified that Respondent sat down across from her in a chair and asked her questions about how she was that day. They were interrupted by another student, whereupon Respondent immediately got up, opened the door, and told her he would see her in class the following day (TR 98). Respecting this allegation, the evidence reveals that it was impossible for Respondent to secure the lock on his classroom door from the inside, as alleged (TR 243-244 and 359). The evidence reveals that student Wilcox could have left the room by turning the doorknob. Student Wilcox told her parents about her encounter with Respondent, whereupon her parents replied that she should keep clear of Respondent and not be over-friendly with him. Paragraph C of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK asked a female student to go 'bumming' with him and to meet him at a night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from the Plantation was calling. The female student referred to in the above-described allegation is Cathy Weber. The evidence respecting the above allegation reveals that during the fall of 1977, while a twelfth-grade student, Cathy Weber, was at a local establishment called the "Crown" bar with other students one evening. Student Weber was not a student of Respondent, although Respondent joined Weber and a group of her friends and started conversing with her at the "Crown" bar. During the conversation, Respondent took student Weber's wrists, stated that he could read her mind and proceeded to tell her birth date. On another occasion, Respondent telephoned student Weber at her home although she declined to talk to him. Additionally, during late November or early December, Respondent entered Linda Whealin's class and asked permission from instructor Whealin to excuse Cathy Weber when she finished her work in order that she could help in the office. Ms. Whealin agreed, but Cathy testified that she was afraid of Respondent and, therefore, took as much time as she could to complete her work because of the "too personal attitude" the Respondent evidenced toward her. The matter was brought to the attention of the Principal and Assistant Principal, which resulted in a counselling of Respondent by the Principal. During these counselling sessions, Respondent admitted that he told student Weber that he could read minds; that he called student Weber at her home because she wanted to talk to him and that he had asked for her to help him inventory an art order. Respondent was warned of his conduct by school officials and advised to restrict his student contact to classroom situations. A summary of the warning is embodied in a memorandum dated December 5, 1977, which Respondent signed acknowledging that he had read the warning contained therein. Respondent also submitted a rebuttal reciting his version of circumstances involving the student (Petitioner's Exhibit 3 and the testimony of Respondent and witnesses Lawton, Weber, Whealin and Hanes). The Respondent acknowledged talking to student Weber at the Crown bar; however, he testified that he was merely attempting to joke with the student, rather than, as contended by Petitioner, to advance a sexual topic to achieve a lustful objective. Paragraph D of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK stated to a female student that he knew for a fact that she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. The student referred to in the above paragraph is Susan Clement. During the 1977-78 school year, student Susan Clement was a student of Respondent. Student Clement testified that during the school year, she smoked marijuana approximately three times a week and was sometimes under the influence of marijuana while attending classes. However, she testified that her ability or memory was not impaired and that she was able to concentrate in her art classes. She testified that on several occasions, Respondent grabbed her neck with his hand, pinched her buttocks, and pushed up against her buttocks with his body from behind while she was washing her hands at a sink in the classroom. Student Clement testified that Respondent told her that there were rumors going around that she was going to bars and meeting male teachers there. Following one of these incidents, student Clement complained to the school's Principal about Respondent's conduct. The Respondent denied making such statements to student Clement and testified further that Clement confided in him without any prompting on his part with respect to her relationship with males. Additionally, the Respondent urges that student Clement generally spoke to others about her personal life in an unguarded manner (testimony of Dan Van Fleet)(TR 134 and 236). Paragraph F of the Petition alleges that: During the month of February, 1979, MICHAEL S. PARK asked a female student, who was not under his supervision as a teacher, to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked the student whether or not she participated in or agreed with the practice of oral sex. The student with whom the Respondent allegedly addressed the above remarks is Tammy DeCarlo. In this regard, the evidence reveals that the Respondent had four conversations with student DeCarlo. Respondent acknowledged that he initiated the first conversation with DeCarlo. Evidence reveals that the above-referenced conversations occurred during February of 1979 while student DeCarlo was a senior at Plantation High School. DeCarlo was not a student of Respondent. While DeCarlo was conversing loudly with another student in a school corridor, Respondent joined the conversation based on DeCarlo's "frantic behavior" and the fact that she was shouting that "I'm going to kill him", referring to Mr. Kinder, the yearbook advisor, in a tone which was loud enough for Respondent and others to overhear the conversation (TR 76, 77 and 376). DeCarlo was the school yearbook editor and had been having problems with its publication. The thrust of the problem appeared to be that DeCarlo was of the opinion that although she was exerting all the effort towards the publication of the yearbook, advisor Kinder was receiving or attempting to receive all credit for her work. While the Respondent initially injected himself into the conversation with DeCarlo and another student concerning differences that DeCarlo was having with the yearbook advisor, Kinder, she later conversed with Respondent about various problems that she was having with the yearbook in the following weeks. During the third of approximately four conversations with Respondent, the evidence reveals that the Respondent told another student (Chris Sarko) that he wanted to speak with DeCarlo, whereupon Sarko summoned student DeCarlo to go to his office where he later joined her, bringing a paper flower with him to give her. In Respondent's office, they discussed the yearbook deadline and Respondent mentioned that he had "ESP". Respondent gave student DeCarlo several examples in that regard. Respondent requested DeCarlo to keep their conversations between the two of them, although DeCarlo later mentioned the conversations to her parents. DeCarlo's parents later spoke with the Assistant Principal about Respondent. Within a few days, DeCarlo received a note telling her that Respondent wanted to see her and again Respondent took her into his office. During this conversation, Respondent told DeCarlo that she did not trust him because she had been hurt by her boyfriend. Respondent later told her to close her eyes and concentrate and told her that the boy just took her out so that she could make love with him and that he had tried to make her do something she did not want to. DeCarlo replied that she did not know what he was talking about, and Respondent inquired "What is it, oral sex?". According to DeCarlo, Respondent asked her to give him something personal, whereupon she took her necklace off and gave it to him. Respondent also inquired of her the type birth control pill she used and DeCarlo told him. Approximately one week later, student DeCarlo saw Respondent again. He asked her to come to see him during her lunch hour, but she declined. DeCarlo later asked a friend (Sarko) to get her necklace from Respondent, which was returned by the student, together with Respondent's picture. DeCarlo's parents made a written complaint to school authorities concerning Respondent's conduct. Respondent testified that he was regarded as a confidant among the students and that they frequently conversed with him about personal matters. He testified that the DeCarlo relationship, which was initiated by him, was motivated by a normal concern for a student who was visibly upset, and he felt that he could offer some assistance to student DeCarlo in resolving a crisis. Paragraph G of the Petition alleges that: During the spring of 1978, MICHAEL S. PARK hugged one or more female students from behind and pushed himself up against their buttocks. The primary incident in which Respondent is alleged to have gone beyond a mere touching of the shoulder is when he grabbed student Clement from behind and touched his lower torso against his buttocks. As stated earlier, Respondent denied this allegation. In this regard, several of Respondent's former students testified that they had never seen him act improperly in class or inquire into the personal lives of students. These students considered Respondent to be a warm, friendly teacher who occasionally would pat a student on the back or put his arm around a student's shoulders. In this regard, Van Fleet testified that the Respondent was a "touching, feeling type of friendly" person (TR 254). Other students testified that the Respondent often placed his arms around the shoulders of various students. During the period 1971 through 1979, Respondent's Principal warned him approximately four or five times concerning his involvement with female students (testimony of witnesses Graff, Wilcox, Landers, Cirillo, Larkin, DeCarlo, Evans, Jackson, Hanes and Van Fleet). Paragraph H of the Petition alleges that: During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. The two students involved in this allegation are Susan Clement and Lori Evans. The Respondent testified and denied that he pinched students Evans and Clement on the buttocks; however, he conceded that he might have grabbed Clement's neck when she did not "clean up her mess" in the classroom. Student Clement was not sure of the time when the Respondent allegedly pinched her or of the number of times when such acts were allegedly committed by Respondent. Instructors Dan Van Fleet and Gail Altman testified that students Clement and Evans both complained and were upset that the Respondent gave them failing grades. Noteworthy, also, was the fact that student Evans testified that there were students present at the time that the Respondent pinched her, although no corroborating student witnesses were called upon to verify said acts. Paragraph I of the Petition alleges that: During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. During the hearing, the only student who claimed to have been pinched by Respondent was Lori Evans. Again, the Respondent denied that any such conduct occurred on his part. Although Evans testified that there were student witnesses to the incident, no witnesses were called upon to testify during the hearing. RESPONDENT'S DEFENSE Respondent, for the most part, denied that he engaged in any conduct which could be considered grossly immoral or inconsistent with good morals and the public conscience or conduct which would not be a proper example for students. He further denied that such conduct was sufficiently notorious to bring him and the educational profession into public disgrace and respect, or that it otherwise reduced his effectiveness as a School Board employee. He testified that students confided in him and that he was an instructor who was overly concerned about the plight and well-being of students. In that regard, he testified that he interjected himself into conversations in situations wherein students appeared to have needed his counsel and guidance. Respondent denied pinching Lori Evans above the breast or on the buttocks or slapping her on the buttocks with a ruler. He testified that Evans' motive for giving testimony supportive of the charges is that she was a problem student who was unreliable when assigned a task. Additionally, Respondent denied pushing against student Susan Clement at the classroom sink or pinching her buttocks; however, he conceded that he might have grabbed her neck inadvertently as stated earlier, when she failed to "clean up her mess". Respondent's stated reason for visiting the "Crown" bar to join students with whom he taught was merely an effort to socialize with students and that respecting the Cathy Weber allegation, he was merely trying to assist her to resolve the problem that she was having with her boyfriend. He testified that the fact that he asked her to go shopping in a public shopping center indicates that he had no ulterior motive in making such request. Respondent voiced his opinion that student Weber was probably drinking due to that problem and that he wanted to inspire confidence in her to prevent her from drinking to resolve problems. Respondent's version of the incident surrounding the Tammy DeCarlo incident is much the same as his involvement with student Weber. That is, that he was simply trying to console her, which was prompted, in part, by counselling from the Assistant Principal to the effect that students and parents complained that he was not consoling enough to students. However, Respondent's testimony and inquiries, admittedly, as they related to his giving of flowers to student DeCarlo and inquiring into her sexual activity, missed the mark of a proper teacher-student relationship. Respondent's denial of the incidents involving student Wilcox, Evans and Clement as they related to his alleged physical contact is denied based upon the entire record, including other admissions by Respondent, including his inquiries into students' personal/social lives. In this regard, Respondent's inquiries relative to students' birth control pills, talks about oral sex, the giving of paper flowers to students and the embracing of students are considered immoral in a student-teacher setting and certainly does not inspire or set a proper example for students, as required in Chapter 6B-1, Florida Administrative Code.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's teaching certificate, No. 274996, be suspended for a period of three (3) years. DONE and ENTERED this 18th day of January, 1980, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
