The Issue Whether the Board refused to re-employ Ms. Smith as a teacher's aide for the 1985-1986 school year in retaliation for a Complaint that she filed with the Florida Commission on Human Relations in January, 1983?
Findings Of Fact Ms. Smith is a graduate of a high school in the Gadsden County School system. Ms. Smith successfully completed a business education course at Gadsden Vo-Tech after receiving her high school diploma. Ms. Smith was rated qualified to work as a teacher's aide in the Gadsden County School system by the Central Administration office in 1982 and in 1984. Ms. Smith was employed as a teacher's aide at Gretna Elementary School (hereinafter referred to as "Gretna") during the 1982-1983 school year. She began her employment at Gretna in October, 1982. Ms. Smith's immediate supervisor at Gretna during the first month of her employment was the Principal, Mr. Witt Campbell. Mr. Campbell left Gretna in November, 1982. For the remainder of the 1982-1983 school year, Ms. Smith's immediate supervisor was Rosa Barkley, who replaced Mr. Witt as Principal. Ms. Smith was pregnant during the 1982-1983 school year. On January 24, 1983, Ms. Smith became ill because of her pregnancy and had to go to the hospital. Ms. Smith did not return to Gretna during the remainder of the school year. On March 14, 1983, Ms. Barkley went to visit with Ms. Smith at her home. Ms. Smith told Ms. Barkley that she would return to work approximately two weeks after her baby was born. This meant that Ms. Smith would return after the start of the 1983-1984 school year. Ms. Barkley helped Ms. Smith request a leave of absence. This leave of absence was approved by the Board on March 29, 1983. In March, 1983, Ms. Barkley gave Ms. Smith a satisfactory rating on a Gadsden County Non-instructional Personnel Assessment form which was filed with the Board. Ms. Barkley gave Ms. Smith the benefit of the doubt in completing this form because Ms. Smith had been under Ms. Barkley's supervision only from November, 1982 to January, 1983. Ms. Barkley also recommended to the Superintendent that Ms. Smith be re-employed for the 1983-1984 school year. By letter dated June 17, 1983, Ms. Barkley asked the Superintendent to terminate Ms. Smith. Ms. Barkley made this request because she wanted to have an aide that would start the school year in August, 1983 and not in November, 1983, when Ms. Smith planned to return. Ms. Barkley indicated in the letter that Ms. Smith had been absent because of her pregnancy. The Superintendent, Mr. Bishop, decided to grant Ms. Barkley's request. The decision to terminate Ms. Smith was made by the Board and not by Ms. Barkley. Although the Superintendent generally relies heavily on the recommendation of a principal, the decision to terminate Ms. Smith was that of the Board. The Board, based upon the information it was provided, should have told Ms. Barkley, that a leave of absence, and not termination, was the proper remedy to Ms. Barkley's problem. By letter dated July 27, 1983, Ms. Smith was terminated by the Board. Ms. Smith filed a Complaint with the Florida Commission on Human Relations on January 19, 1984, alleging sex discrimination against Ms. Barkley. Upon the filing of the Complaint the Board investigated and decided that Ms. Smith should be rehired. The Board realized that it had caused the problem and not Ms. Barkley. Ms. Smith was offered the first teacher's aide position available. The position was at Chattahoochee Elementary School (hereinafter referred to as "Chattahoochee"). Ms. Smith accepted the position and began work at Chattahoochee in March, 1984. Ms. Smith worked with fourth grade Chapter 1 children (children who have been disadvantaged with regard to their educational opportunities). Ms. Martha Downs was her teacher. While at Chattahoochee, Ms. Smith had difficulty performing her duties as a teacher's aide. Her primary area of deficiency was in math. Mr. Corbin Scott, the Principal at Chattahoochee, attempted to help Ms. Smith by having Ms. Ella Ponder, a helping teacher, assist her. Although it was alleged that Ms. Smith was required to take a Criteria Reference Test normally taken by fourth graders, the evidence failed to support this allegation. Based upon Ms. Smith's poor performance, Mr. Corbin did not recommend that Ms. Smith be returned to Chattahoochee for the next school year. Although Ms. Smith admitted that she has some problems with math she failed to accept the fact that she was not adequately performing her duties as a teacher's aide. Instead, she believed that Mr. Corbin expected her to "teach" and that he was unfair when he did not recommend her continued employment at Chattahoochee for the next school year. Ms. Smith believed that the Complaint that she filed in January, 1984, affected the way that she was treated at Chattahoochee. This unfounded belief affected Ms. Smith's attitude while at Chattahoochee and later. The Board decided that the period of time that Ms. Smith was employed at Chattahoochee (March, 1984 to June, 1984) was too short. Therefore, in an effort to be fair with Ms. Smith and to settle the dispute with Ms. Smith, the Board decided to place Ms. Smith in another teacher's aide position for the 1984- 1985 school year. During the Summer of 1984, Ms. Smith and the Board settled the Complaint which Ms. Smith had filed in January, 1984. Pursuant to this settlement, Ms. Smith dismissed her Complaint for back-pay and her re-employment at Gretna. Ms. Smith was employed at Gretna during the 1984- 1985 school year as a teacher's aide pursuant to the settlement. Ms. Barkley, Ms. Smith's immediate supervisor at Gretna, was not consulted before the Board decided to return Ms. Smith to Gretna. Principals of schools are not consulted by the Board before employees are assigned to their schools. Although Ms. Smith agreed to return to Gretna as part of the settlement of her Complaint against the Board, she believed that Ms. Barkley would not treat her properly. This belief, which was unfounded, affected Ms. Smith's attitude toward Ms. Barkley and her job during the 1984-1985 school year. Ms. Smith was assigned to assist two teachers for most of the 1984- 1985 school year at Gretna: Ms. Corine D. Palmer and Ms. Charlotte Price. Neither Ms. Palmer nor Ms. Price talked to Ms. Smith about problems which they perceived in Ms. Smith's performance. Ms. Price's attitude was that she was there to teach students and, therefore, she did not want to be bothered with Ms. Smith. Ms. Palmer's attitude was to work around Ms. Smith; she gave up trying to use Ms. Smith effectively because of Ms. Smith's lack of effort. Both ladies essentially stuck their heads in the sand and ignored the problem since neither of them were responsible for evaluating Ms. Smith. Employees at Gretna were required to sign in and sign out on a sheet provided for them at the administrative office of the school. During the school year Ms. Smith was late arriving at school a total of fifteen times. Most of those times she was late more than a few minutes. She was late seven times during 1984 and eight times in 1985. At least three other teachers' aides (Inez Morris, Ida Miller and Mary Wright) were late to school more often than Ms. Smith. While Ms. Smith received an unsatisfactory rating for punctuality for the school year, the other three aides received a satisfactory rating. Many of the times that the other three aides were late, they were late only a few minutes. When they were late more than a few minutes, they notified Ms. Barkley or someone else at Gretna that they would be late, and indicated why. Ms. Smith, on the other hand, did not always notify Ms. Barkley or anyone else that she would be late, or indicate why she was late until she was asked. During the first week of the 1984-1985 school year (August 20-24, 1984), Ms. Smith was late three times. Ms. Smith rode to school with another employee who was late getting to school. On August 27, 1984, Ms. Barkley discussed Ms. Smith's lateness with her and gave her a letter indicating that she was expected to be at school at 8:05 a.m. Ms. Smith was late once during each of the next three weeks. She corrected the problem, however, by arranging to ride with someone else. After the week of September 10-14, 1984, Ms. Smith was late only one other time during 1984. During 1985, Ms. Smith was late at least once a week during seven of the eleven weeks ending March 15, 1985. In addition to being late reporting to school, Ms. Smith was late going to her assigned classroom after arriving at school and after lunch. Ms. Smith was required to be in her morning class no later than 8:15 a.m. Her lateness was reported by Ms. Palmer and Ms. Price and was also noted by Ms. Barkley. Ms. Smith was in the employee lounge on many occasions when she should have been in a class. On October 15, 1984, Ms. Barkley spoke with all of the aides about being in the lounge in the morning when they should be in their classes. Despite Ms. Barkley's comments, that afternoon Ms. Smith was in the lounge when she should not have been, and she continued to be late to her assigned classroom in the mornings. Ms. Palmer and Ms. Price told Ms. Barkley that Ms. Smith was late to class. Both of them tended to do without her and to avoid any effort to try to correct the problem. On February 15, 1985, Ms. Barkley gave Ms. Smith a letter that indicated that Ms. Smith was in the lounge when she was not supposed to be. A similar letter was given to Ida Miller and Dorothy Smith. Ms. Miller and Ms. Dorothy Smith corrected the problem. Ms. Smith did not. Ms. Barkley rated Ms. Smith's attendance as "unsatisfactory". This rating was not based upon the number of days that she was absent. It was based upon the number of times that Ms. Smith was not in her assigned classroom. Ms. Barkley kept a notebook in which she noted the dates of some events involving employees' actions. She has kept these notes since she became a principal. Most of the notes concerning Ms. Smith did not give the reason for absences or lateness. Ms. Smith did not, however, always report the reason for her lateness. Most of the observations involved lateness and absences. The notes concerning Ms. Smith were provided to the Board because she was requested to provide any documentation concerning Ms. Smith. She did not know where her other notes were. Ms. Barkley noted the conference she had with Ms. Smith on August 27, 1984. In this note, she referred to Ms. Smith as "Ms. Attitude." This notation and a later notation that Ms. Smith was in the lounge one day "chomping" show a lack of judgment by Ms. Barkley in the manner that Ms. Barkley referred to Ms. Smith. This lack of judgment is not sufficient, however, to prove that Ms. Barkley terminated Ms. Smith at the end of the 1984-1985 school year in retaliation for the Complaint filed by Ms. Smith in 1983. Ms. Barkley's explanation for these notations is rejected. Ms. Barkley talked to teachers and other aides about Ms. Smith. Ms. Barkley did not, however, limit her inquiries to Ms. Smith. Ms. Barkley was responsible for the supervision of all of the employees at Gretna. She was very active in managing her school. She observed her employees in the halls of the school, in the lounge and in the classroom. She did not single out Ms. Smith. Ms. Barkley asked teachers and other aides about all employees and she checked up on all her employees. Ms. Smith was observed in class by Ms. Barkley. Ms. Smith was seen giving wrong answers and performing sloppy work. When Ms. Barkley talked to Ms. Smith about some of her problems, Ms. Smith's attitude was defensive. She did not believe that she had any problems and believed that Ms. Barkley was being unfair to her. She therefore did not indicate that she agreed with Ms. Barkley or that she would make any efforts to correct her problems when Ms. Barkley spoke to her about her problems. Ms. Price indicated that Ms. Smith had evidenced a poor attitude about her performance with her also. On March 15, 1985, Ms. Barkley met with Ms. Smith and informed her that she would not be recommended for employment during the 1985-1986 school year. Ms. Barkley sent a letter to the Board dated March 15, 1985, recommending that Ms. Smith not be re-employed during the 1985-1986 school year. Ms. Barkley also rated Ms. Smith "unsatisfactory" on five characteristics listed on a Gadsden County Non-instructional Personnel Assessment form dated March 8, 1985. This form was signed by Ms. Smith on March 15, 1985. Ms. Smith was given an unsatisfactory rating for utilization of time, compliance with school and district policies, attendance, punctuality and leadership. This evaluation was similar to the evaluation given Ms. Smith by Mr. Corbin. Ms. Barkley, Ms. Price and Ms. Palmer were given a Personal Reference Form for Teacher Aide Applicants by Ms. Smith. Ms. Smith told Ms. Price and Ms. Palmer that the forms were going to be used by her to apply for a job outside of its school system. Although both teachers had misgivings about Ms. Smith's ability and did not want her back as a teacher's aide, they both liked her personally and wanted to help her find a job. They also wanted to avoid any conflict with Ms. Smith. Therefore, even though they should have known better, they completed the forms giving Ms. Smith affair rating and indicating that they would employ her as a teacher's aide. Ms. Barkley completed the form given to her by Ms. Smith on April 30, 1985. She gave her a poor rating and indicated that she would not employ her as a teacher's aide. Ms. Barkley had completed a Gadsden County Non-instructional Personnel Assessment form when Ms. Smith left Gretna in 1983. Ms. Barkley gave Ms. Smith a favorable evaluation. She did so, however, because Ms. Smith had only worked at Gretna during the 1982-1983 school year for approximately four months and Ms. Barkley had only been there during three of those months. Therefore, Ms. Barkley did not believe it would be fair to give Ms. Smith an unfavorable evaluation. The Board did not refuse to re-employ Ms. Smith for the 1985-1986 school year in retaliation for any dispute between Ms. Smith and Ms. Barkley or any other person. Ms. Smith was not re-employed because she lacked the necessary job skills to work as a teacher's aide and had failed to perform adequately. On or about July 15, 1985, Ms. Smith filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that the Board had discriminated against her on the basis of retaliation. The Executive Director of the Florida Commission on Human Relations issued a "Determination: No Cause" on May 12, 1987. Ms. Smith filed a Petition for Rehearing. On or about July 13, 1987, the Executive Director entered a "Redetermination: No Cause." Ms. Smith filed a Petition for Relief. The Florida Commission on Human Relations forwarded the Petition the Division of Administrative Hearings by order dated August 18, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Smith's Petition for Relief be DENIED. DONE and ENTERED this 9th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 1. 2 2. 3 Irrelevant. 4-5 3. 6-7 22. 8 4. 9 23. 10 5. 11 12. The date of termination was July 27, 1983. 12 10. 13-14 13. 15 20-22. 16 10. 17 8. 18 9. 19 22. 20 23. 21 11. The evidence failed to prove that the Board acted solely on the recommendation of Ms. Barkley. 22 25. 23 26. 24 Not supported by the weight of the evidence. 25-26 27. 27 28. 28 While Ms. Smith may have corrected the "ride problem" she continued to be late during the 1984-1985 school year. 29-31 27. 32-33 33. 34-36 Although these proposed findings of fact are correct they are irrelevant. 37 41. 38-39 Not supported by the weight of the evidence. 40 Irrelevant and not supported by the weight of the evidence. 41 35. Not supported by the weight of the evidence. Irrelevant. 44 35. 45-46 36. Not supported by the weight of the evidence. Although it is true that Ms. Smith did improve her punctuality arriving at Gretna during 1984 she failed to continue to arrive on time during the rest of the school year. See 28. Respondent's Proposed Findings of Fact 1 45. 2 21. 3 10 and 11. 4 14. 5 16. 6 Not supported by the weight of the evidence. See 16. 7 16-18. 8 20 and 22. 9-10 37. 11 41. 12 42. 13 28 and 33. 14 28-29 and 33. 15 45. COPIES FURNISHED TO: EDWARD J. GRUNEWALD, ESQUIRE LEGAL SERVICES OF NORTH FLORIDA, INC. 400 NORTH MADISON STREET QUINCY, FLORIDA 32351 CLAUDE B. ARRINGTON, ESQUIRE 211 EAST JEFFERSON STREET QUINCY, FLORIDA 32351 DONALD A. GRIFFIN EXECUTIVE DIRECTOR 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 DANA BAIRD GENERAL COUNSEL 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
The Issue The issue at the hearing was whether the Respondent, Linda Alexsuk, should be returned to annual contract by the Petitioner, School Board of Hernando County.
Findings Of Fact The Respondent, Linda Alexsuk, has been employed as a teacher by the Petitioner since the 1974-75 school year and has taught kindergarten in the Hernando County school district from the school year 1976-77 through the school year 1988-89. Linda Alexsuk was employed as a teacher by the Petitioner at the Moton School during the school year 1974-75 until the end of the school year 1988-89. Yvonne Brewer has been the principal at Moton School for 11 years during all of which Linda Alexsuk was a kindergarten teacher at Moton School. Linda Alexsuk received her first annual contract to teach at the Moton School from the Hernando County school district for the 1974-75 school year, and after four consecutive years of annual contracts, received a continuing contract of employment for the 1978-79 school year. Linda Alexsuk received annual evaluations that were conducted by the principal of the Moton School, Yvonne Brewer, beginning in 1980, and continuing up through the 1988-89 school year. In the annual evaluation for the 1980-81 school year, Yvonne Brewer evaluated Linda Alexsuk as Average or better in every area except Behavioral Management, where she was evaluated Below Average. Early in the school year 1981-82 the Hernando County School Board employed an independent consultant, Dr. Clint Van Nagel, to observe Linda Alexsuk's classroom, which observation took place during one of her teaching sessions. Following the observation Dr. Van Nagel provided to Linda Alexsuk by letter ten to twelve suggestions of methods which could be used by her to improve her behavior management. In the annual evaluation for the 1981-82 school year, using a different form than in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area except four (Planning, Techniques, Student and Classroom Management, and Student Response) in which Improvement Required was indicated. In the annual evaluation for the 1982-83 school year, using a similar form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area except three (Techniques, Student and Classroom Management, and Student Response) in which Improvement Required was indicated. In the annual evaluation for the 1983-84 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area except two (Student and Classroom Management and Student Response) in which Improvement Required was indicated. In the annual evaluation for the 1984-85 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response. In the annual evaluation for the 1985-86 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response. In the annual evaluation for the 1986-87 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response. The first disciplinary action ever instituted against Linda Alexsuk was a written reprimand attached to the annual evaluation for the 1987-88 school year, dated March 25, 1988. Yvonne Brewer sought legal advice on how to return Linda Alexsuk to annual contract status before she issued the written reprimand in March of 1988. Yvonne Brewer believed that return to annual contract was a prerequisite to transferring the Respondent to another school in the district. With that goal in mind, Yvonne Brewer conducted the annual observation and evaluation of Linda Alexsuk for the school year 1987-88 on March 25, 1988. The Respondent was informed that improvement was required in the areas of Techniques, Student and Classroom Management, and Student Response. In addition, the written reprimand from Yvonne Brewer to Linda Alexsuk was attached to the 1987-88 annual observation form, setting forth a chronological list of alleged written warnings which had previously been given to The Respondent concerning discipline. The reprimand set forth a period of time in which Yvonne Brewer expected to see improvement in Respondent's teaching performance. The time period by which marked improvement was required was until the last week of May 1988. The reprimand also stated that Linda Alexsuk would be closely observed and supervised during the 1988-89 school year and further disciplinary action (possible termination) would be considered at that time. At the time of the written reprimand, Yvonne Brewer scheduled a team observation of Linda Alexsuk. The team was to consist of Yvonne Brewer, Betty Durden and the Moton School primary specialist, during which observation Yvonne Brewer wished to see improvement in her performance. Subsequent to that date, the primary specialist, Karen Rice, was removed from the team, at her request, and Martin Yungmann was added to the team. A team consisting of Yvonne Brewer, Martin Yungmann and Betty Durden was then scheduled to observe Linda Alexsuk's class on May 4, 1988. At the time of the May 4, 1988, observation, Martin Yungmann was the district director of curriculum for the Hernando County school system. He holds a master's degree in education with 27 years of experience in the education profession. In addition, Martin Yungmann was certified to observe teachers' performance using the Florida Performance Measurement System (hereinafter referred to as F.P.M.S.). At the time of the May 4, 1988, observation, Betty Durden was the supervisor of elementary curriculum for the Hernando County school district, which position she had held for six years. Betty Durden holds a master's degree in curriculum and instruction and has 29 years of experience in the education profession. Betty Durden has also been certified as an observer using the F.P.M.S. Yvonne Brewer is certified to observe teachers using the F.P.M.S. and, in fact, because of her position as principal acts as an observer approximately 30-35 times per year. The F.P.M.S. is an objective system which is used by all school districts in the state of Florida, except the Dade County school district, for the purpose of conducting observations in the master teacher program. In addition, the system is used to observe teachers in the beginning teacher program in 50 school districts in the state of Florida. In total, the F.P.M.S. is used to observe approximately eight thousand teachers per year in Florida. The F.P.M.S. is not ordinarily used to evaluate an experienced teacher and it is not designed as a disciplinary evaluation. On May 4, 1988, Yvonne Brewer, Betty Durden and Martin Yungmann conducted an observation of Linda Alexsuk's class using the F.P.M.S. form. Following the observation, a conference was held between Linda Alexsuk, Martin Yungmann, Betty Durden and Yvonne Brewer to discuss the team's observation. On May 11, 1989, and May 25, 1989, Yvonne Brewer conducted additional observations of Linda Alexsuk's class using the F.P.M.S. form. Following those observations, Yvonne Brewer met with Respondent to discuss her observations. During those observations Yvonne Brewer observed the same recurring problems which had been identified in the May 4, 1988, observation. Following these observations some suggestions for improvement of her deficiencies were offered to Linda Alexsuk. Respondent followed up on some of those suggestions. She also consulted with other teachers and reviewed books and materials on her own. On June 2, 1988, Yvonne Brewer, Betty Durden and Martin Yungmann again observed Linda Alexsuk's class using the F.P.M.S. form. During that observation all three team members observed recurring problems which had been identified during the May 4, 1988, observation and saw only one attempt, that being the giving of more directions, to implement the suggestions that the team had made following the May 4, 1988, observation. Following the observation on June 2, 1988, a conference was held between Linda Alexsuk, Yvonne Brewer and Martin Yungmann, during which the team members discussed with Respondent the problems that they had observed. One of the suggestions made by the observation team following the June 2, 1988, observation was for Linda Alexsuk to seek assistance at the Teacher Education Center (hereinafter referred to as TEC). In response Linda Alexsuk checked the list of course titles that were available for the summer at TEC, but took no classes because she was unable to get some of the classes she thought might be useful based upon the course titles. Instead, Ms. Alexsuk went back over some books that she had at home. As part of the kindergarten curriculum, the kindergarten classes were to be taught a series of 20 words called the GINN words, which words are used in the first primer book at the first grade level. The kindergarten students were required to master a minimum of 80% of these words. During the May 4, 1988, observation, Yvonne Brewer moved around the room and quickly and informally tested ten children. None of the ten children could give her the words in the manner requested. After the observation Yvonne Brewer decided to have Linda Alexsuk's class tested in the GINN words by the Moton School primary specialist. Karen Rice is the primary specialist at Moton School. As primary specialist Karen Rice is responsible for the implementation of Florida's prep law in the school and for monitoring the education that is being received by the students to guarantee that each student is receiving the education he/she personally needs. The primary specialist is also responsible for testing children who are referred by teachers who believe the students may need special attention either because they are exceptional or have learning problems. On May 9, 1988, Karen Rice, at Yvonne Brewer's request, conducted a special achievement level test of the GINN words for children in Linda Alexsuk's class. At the time the test was given by Karen Rice, the majority of the students should have been at the 80% or better level. The results of the test Karen Rice conducted showed that of the 26 children in Linda Alexsuk's class, 22 did not know 80% of the words, 19 did not know 50% of the words, and 15 students knew 25% or less of the words. On November 17, 1988, Martin Yungmann observed Linda Alexsuk's class using the F.P.M.S. form, during which observation Yungmann once again saw no new instruction. In addition, he reviewed Respondent's lesson plan book, and the lesson plan did not indicate the activities that were actually taught or the instruction, goals or objectives that Ms. Alexsuk was attempting to get across to the students. Following the observation, Martin Yungmann discussed with Linda Alexsuk his observations and told Respondent that he had still not observed actual new skill instruction after three observations and that he had observed recurring problems from previous observations. During the conference Martin Yungmann indicated to Linda Alexsuk that he wanted to observe her class again primarily to observe the teaching of a new skill. On November 18, 1988, Linda Alexsuk, by note, notified Yvonne Brewer, who in turn notified Martin Yungmann, that Respondent would like to set Wednesday, November 30, 1988, as the date for Martin Yungmann to return to observe her class. When Martin Yungmann arrived on November 30, 1988, for the scheduled observation, Respondent's class was not in session in the room, so the observation had to be rescheduled. On December 5, 1988, Yvonne Brewer conducted her required annual observation of Linda Alexsuk's class, rating Respondent's overall performance as unacceptable. During the observation, Yvonne Brewer observed recurring problems from previous observations. Following the December 5, 1988, observation, Yvonne Brewer met with Linda Alexsuk and discussed her observation of Respondent's performance. On March 2, 1989, Betty Durden observed Linda Alexsuk's class, using the F.P.M.S. observation form. During the observation, Betty Durden observed recurring problems discussed with Respondent previously and, in fact, Betty Durden noted that the category of management of student conduct was worse that day than during previous observations. Following the observation, Betty Durden met with Linda Alexsuk to discuss the observation. On March 7, 1989, Martin Yungmann observed Linda Alexsuk's class. Prior to this observation, Yungmann had specifically instructed Respondent that he wanted to observe actual new skill instruction. Although Respondent presented new skill instruction, she had to practically read the instructions for the lesson to the students from note cards. Ms. Alexsuk did this in an attempt to satisfy Yungmann's purpose for the observation. During the March 7, 1988, observation, Martin Yungmann observed recurring problem areas which had been discussed with Respondent. Following the observation, Martin Yungmann discussed with Linda Alexsuk his observation and the recurring problems that he had observed. On March 9, 1989, Yvonne Brewer was scheduled to observe Linda Alexsuk's class. However, after approximately twenty minutes, Respondent approached Ms. Brewer and stated that she was not feeling well and requested permission to leave early to go to the doctors. During the shortened observation period, Ms. Brewer completed the Hernando County Classroom Observation form, the objective portion of which was taken from the F.P.M.S. form. This evaluation evidenced a recurring problem with student misconduct and student management. The comprehensive test of basic skills (hereinafter referred to as C.T.B.S.) is a standardized test which is given to all students in grades K through 9 in the seventh month of the school year. In addition, C.T.B.S. is an indicator that can be used to evaluate a teacher's performance in a class where children are randomly assigned, as they are in Hernando County. The C.T.B.S. is made up of two areas: math and reading. Ideally, since the test is given in the seventh month of the school year, kindergarten students should score at the K.7 level on the test. Following the 1988-89 school year, and in preparation for the formal hearing in this case, Betty Durden combined the figures for class performance on the C.T.B.S. for all 38 kindergarten teachers in Hernando County. She did this at Yvonne Brewer's request. The range of median class scores on the math portion of the C.T.B.S. for all 38 teachers was K.6 to 2.0. Linda Alexsuk's class median was K.6. There were three teachers at that lowest level of K.6. One teacher was not reappointed; one teacher had a class comprised of students repeating kindergarten. The third was Respondent's class. The range of median class scores on the total reading portion of the C.T.B.S. for all 38 teachers was K.S to 2.1. Linda Alexsuk's class median was 1.0. The total reading portion of the C.T.B.S. is made up of four subparts: visual recognition, source recognition, oral comprehension and vocabulary. In certain subparts of the total reading test, such as consonant recognition, Linda Alexsuk's class scored very low. Of eight consonants tested, Respondent's class had the lowest recognition scores in the district on three of the consonants. Although all classes in Hernando County are assigned to teachers in the same fashion (boy/girl/black/white), Linda Alexsuk was not as effective as most other teachers in maintaining classroom control. One of the major problems which observers of Linda Alexsuk's class noted was a recurring problem of student management/class control. Although Respondent received suggestions on methods of gaining control, including those from a special consultant hired to assist in her class, Ms. Alexsuk had difficulty keeping her students on task on a regular basis. Control is one of the major domains of an effective teacher. If a teacher lacks control, as was evidenced in Linda Alexsuk's class, there will be an effect on the learning environment in that room which will influence the ability of the average student to learn in that room. Linda Alexsuk sought the assistance of other peer teachers in preparing for her observations over the last two school years, and she practiced the lessons. In fact, she had one video taped. However, she received inadequate assistance from Yvonne Brewer and other administrators to effectively improve on her areas of weakness. Linda Alexsuk suffered from nervousness which also affected her performance during observations. This was particularly a problem after the written reprimand because Respondent believed that "she was under the gun" and that her job was in jeopardy. The F.P.M.S. forms from all of the observations were sent to the University of South Florida to be computer analyzed and compared to establish norms for the state of Florida. This was done after the recommendation to return Respondent to annual contract was made and was done solely in preparation for this hearing. The results of these analyses are not accepted or credited because they were not contemplated within the "good and sufficient reasons" alleged for the return of Ms. Alexsuk to annual contract. The analysis of the C.T.B.S. data performed by Betty Durden is likewise not credited as evidence of the alleged "good and sufficient reasons" because it was performed after the recommendation and solely for use as after- the-fact proof of the allegations. Linda Alexsuk received a bachelor's degree in elementary education from the University of South Florida in 1972 and a master's degree in educational administration in 1981. Ms. Alexsuk holds a teaching certificate from the Florida Department of Education authorizing her to teach students from the early childhood level through fifth grade. A teacher relies on the annual evaluation to gauge how she is performing and whether she is meeting the expectations of her superiors. Linda Alexsuk relied upon the satisfactory evaluations she received for three consecutive years to conclude that she was meeting the expectations of her principal, and she first became aware that Yvonne Brewer was unhappy with her classroom performance in March of 1988. Yvonne Brewer utilized the F.P.M.S. as an instrument of discipline to document the case for returning the Linda Alexsuk to annual contract commencing in March of 1988. Yvonne Brewer likewise approached the observations of Respondent and the other actions taken with the intention of justifying returning Ms. Alexsuk to annual contract. Inadequate offers of assistance were made to Linda Alexsuk to assist her in remediating her weak areas. The School Board did not establish good and sufficient reasons for returning Linda Alexsuk to annual contract.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the School Board of Hernando County enter a Final Order denying the recommendation to return Linda Alexsuk to annual contract. DONE and ENTERED this 20th day of November, 1989, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November , 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2520 The following constitutes my specific rulings pursuant to s. 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, School Board of Hernando County 1 Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed findings of fact: 1-3 (1-3); 7 (7); 14-19 (17-22) 22 (23); 32-34 (24-26); 36 (28); 37 (29); 39-59 (30-50); 62- 69 (51-58); and 72-74 (59-61). 2. Proposed findings of fact 4-6, 8-13, 20, 21, 35, 38, 60, 61, and 81-85 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 23-31, 71, and 75-80 are unnecessary or irrelevant. Proposed findings of fact 70 and 86-88 are unsupported by the competent substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Linda Alexsuk Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 (66); 2 (67); 3-5 (4-6); 6-12 (8-14); 13 (68); 14 (69); 15-16 (15); and 17 (70). Proposed findings of fact 22, 24, and 27 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 18-21, 23, 25, and 26 are irrelevant or unnecessary. COPIES FURNISHED: John Jaszczak Attorney at Law Hogg, Allen, Norton & Blue, P.A. Hyde Park Plaza-Suite 350 324 South Hyde Park Avenue Tampa, Florida 33606 David Brooks Kundin Attorney at Law Meyer, Brooks and Cooper 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Dr. Dan McIntyre, Superintendent Hernando County School Board 919 U.S. Highway 41 North Brooksville, Florida 34601 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether just cause exists to terminate Respondent from employment with the Brevard County School Board.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools in Brevard County, Florida. This includes the power to discipline employees, such as teachers. § 4, Article IX, Fla. Const.; §§ 1001.42(5), 1012.22(1)(f), and 1012.33, Fla. Stat.1 Respondent is a classroom teacher, and as such, the terms and conditions of her employment are governed by the collective agreement between the School Board and The Brevard Federation of Teachers, Local 2098. Respondent has a Bachelor’s degree in exceptional education. On or about November 9, 2006, Respondent, pursuant to an annual contract, was hired by the School Board to provide services as a classroom teacher. Beginning in the 2009-2010 school year, Respondent continued her employment with the School Board pursuant to a professional services contract. During all times relevant to this proceeding, Respondent taught at Hoover Middle School, which is under the jurisdiction of the School Board. At the commencement of the 2014-2015 school year, Respondent taught exceptional education (ESE) students in a self-contained, supported-level class. At approximately the midway point of the 2014-2015 school year, Respondent began teaching a resource math class which was comprised entirely of ESE students. Beginning in the 2017-2018 school year, and continuing through the 2018-2019 school year, Respondent taught one resource math class for a single class-period of the day, and she co-taught, or “pushed-in,” for the other five instructional class periods. In both settings, Respondent taught math to ESE students. By correspondence dated March 26, 2019, Superintendent Mullins advised Respondent of the following: Pursuant to Florida Statute 1012.34, you are being recommended for termination of your Professional Services Contract due to unsatisfactory 1 All subsequent references to Florida Statutes will be to the 2018 codification, unless otherwise indicated. Performance …. The actions leading to this recommendation are as follows: On October 29, 2018, you were provided a 90-day notice advising of performance-related concerns based upon three years of unsatisfactory annual evaluations. Several performance review meetings were held with you, your union representative, and your school Principal to discuss your progress. A review of your past evaluations indicates several attempts at corrective activities through the use of District Peer Mentors and Resource Teachers. After the completion of the 90-day plan, adequate progress was not obtained and is grounds to sever the Professional Services Contract. The School Board uses an “Instructional Personnel Performance Appraisal System” (IPPAS) as a guide when evaluating a teacher’s performance. According to the IPPAS manual, classroom teachers are evaluated on a rubric which consists of five dimensions. The first dimension focuses on “instructional design and lesson planning.” The second dimension focuses on the “learning environment” created and fostered by the teacher. The third dimension focuses on “instructional delivery and facilitation.” The fourth dimension focuses on “assessment,” and the fifth dimension focuses on a teacher’s “professional responsibility and ethical conduct.” IPPAS is approved annually by the Florida Department of Education (FLDOE), and the School Board meets regularly with The Brevard Federation of Teachers, Local 2098, to address any issues concerning the evaluation process. Teachers and evaluators receive yearly training, which covers the various components of the evaluation process. Pursuant to IPPAS, and related statutory provisions, classroom teachers are evaluated annually. The overall score given to a teacher on the annual evaluation is determined by how a teacher scores in the areas of “Professional Practices Based on Florida’s Educator Accomplished Practices (Professional Practices),” and “Individual Accountability for Student Academic Performance Based on Identified Assessments (Student Performance).” The Professional Practices category accounts for 67 percent, and Student Performance accounts for the remaining 33 percent of a teacher’s annual evaluation score. For purposes of quantifying a teacher’s annual evaluation, IPPAS identifies the Professional Practices category as “Part 1 of the Summative Evaluation,” and the Student Performance category as “Part 2 of the Summative Evaluation.” Part 1 of the Summative Evaluation is completed in the spring of each school year and consists of the supervising principal’s annual evaluation of the teacher, the teacher’s self-assessment, and the collaboration and mutual accountability score. The evaluative components of Part 1 of the Summative Evaluation are comprised of the previously referenced “five dimensions.” Part 2 of the Summative Evaluation is determined based on student academic performance data (VAM score) as calculated by the FLDOE. VAM scores are released by FLDOE in the fall, and these scores reflect student performance for the preceding school year. Consequently, a teacher will not receive an overall annual evaluation score for the immediate preceding school year until the fall semester during which VAM scores are available. As a practical matter, this explains, in part, why the recommendation for termination letter sent to Respondent by Superintendent Mullins was issued on March 26, 2019.2 2015-2016 SCHOOL YEAR Respondent, on or about April 25, 2016, received Part 1 of her Summative Evaluation for the 2015-2016 school year. Respondent received a score of 27.71 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the category of “Needs Improvement.” On or about November 2, 2016, Respondent received Part 2 of her Summative Evaluation for the 2015-2016 school year. Respondent received a VAM score of 56.71 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2016-2017 SCHOOL YEAR Respondent, on or about April 5, 2017, received Part 1 of her Summative Evaluation for the 2016-2017 school year. Respondent received a score of 20.42 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about November 13, 2017, Respondent received Part 2 of her Summative Evaluation for the 2016-2017 school year. Respondent received a VAM score of 50.42 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2 VAM scores for the 2017-2018 school year were released on or about October 19, 2018. As discussed elsewhere herein, Respondent was placed on 90 days probation following the release of her VAM score. The timing of the release of the VAM score, coupled with the 90-day probationary period and related matters, account for the March 2019 date of Superintendent Mullin’s letter to Respondent. 2017-2018 SCHOOL YEAR Respondent, on or about May 3, 2018, received Part 1 of her Summative Evaluation for the 2017-2018 school year. Respondent received a score of 34.58 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about October 19, 2018, Respondent received Part 2 of her Summative Evaluation for the 2017-18 school year. Respondent received a VAM score of 64.58 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” A PLAN FOR ADDRESSING PROFESSIONAL DEFICIENCIES The School Board, in order to address Respondent’s professional deficiencies as identified during the relevant evaluation periods, provided support to Respondent through the utilization of Professional Development Assistance Plans (PDAPs). PDAPs are designed to provide a teacher with opportunities for professional development, which includes access to online resources, training activities and courses, and opportunities to work with School Board resource and peer mentor teachers. The School Board, acting through Respondent’s supervising administrators, agreed in the PDAPs to support Respondent’s professional growth and development as follows: By providing access to the “District Peer Mentor Teacher for collaboration on dimension 3.” By conducting “informal observations documented in ProGOE with feedback for improvement.” By providing “resources on utilizing formative assessment to check for understanding.” By providing “resources regarding implementing differentiated instruction.” By providing “resources on the utilization of Webb’s Depth of Knowledge.” By providing “exemplary sample lesson plans as a model … to follow.” By providing “pacing guide if needed.” By meeting every two weeks to review weekly lesson plans. By providing Respondent with “an exemplary teacher to observe, as well as a substitute [teacher] for class coverage during observation.” By providing a list of Professional Development courses on classroom management, as well as a substitute teacher to cover Respondent’s class while she attends the course. By providing “assistance and specific feedback from school based coaches.” By completing “informal observations on a bi- monthly basis, and provid[ing] feedback.” The evidence establishes that the School Board honored its commitment to Respondent as outlined in the respective PDAPs. 90 DAYS OF PROBATION, AND RECOMMENDATION FOR TERMINATION By correspondence dated October 29, 2018, the School Board advised Respondent of the following: In accordance with section 1012.34(4), F.S., this shall serve as the District’s notification of unsatisfactory performance. Please be advised that your Professional Service Contract for the 2018-19 academic year is on a probationary status for ninety (90) days. Your contract is being placed on probation due to your receiving an overall “Needs Improvement” rating on your last three (3) consecutive annual performance evaluations. See also section 1012.22, F.S. During the next ninety (90) days, you will be evaluated periodically. You will be apprised of any progress achieved in writing. You will work with the administration of your school to assist you in obtaining opportunities to help correct any noted deficiencies. After February 25, 2019, the ninetieth (90th) day, administration has fourteen (14) days to assess your progress. If no improvement is shown, administration will notify the Superintendent if you do not rate an overall Effective on the Summative Part 1 of your evaluation. Sincerely, Burt Clark, Principal Hoover Middle School Respondent, during her 90-day probationary period, continued to receive professional development services from the School Board, which included working with a peer mentor teacher, participating in CHAMPs training, receiving assistance from a math content specialist, and observing an exemplary math teacher. Burt Clark was the principal at the school where Respondent worked when she was placed on probation. As the principal, Mr. Clark served as Respondent’s supervisor and was responsible for evaluating her performance. During Respondent’s probationary period, Mr. Clark regularly met with Respondent and her union representative to discuss Respondent’s progress and offer assistance. In addition to meeting with Respondent, Mr. Clark also conducted one interim evaluation, four informal observation, and two formal observations of Respondent’s performance. Mr. Clark also conducted a number of “walk-throughs,” which provided additional insight into the status of Respondent’s professional development. While it is true that Mr. Clark’s observations of Respondent mainly occurred in the classroom where Respondent was the teacher of record, as opposed to Respondent’s work as a “push-in” teacher, Mr. Clark credibly testified that he had sufficient data to assess Respondent’s performance. Mr. Clark, at the end of the probationary period, determined that Respondent’s professional deficiencies remained, and on March 6, 2019, he made the following recommendation to Superintendent Mullins: Ms. Lisa Lemieux had an overall unsatisfactory performance appraisal. We have worked with her to try to improve her instructional strategies; but, it has not been successful in changing the behavior to better serve the students assigned to her. As defined in [section] 1012.34(4), [Florida Statutes], February 25, 2019, was the 90th day since the notification of her 90-day probation for this contract year and after demonstrating no improvement on the Summative Part 1, I have assessed that the performance deficiencies have not been corrected. I would recommend the termination of her employment with Brevard Public Schools. Burt Clark, Principal Hoover Middle School After receiving Mr. Clark’s recommendation to terminate Respondent’s employment, Superintendent Mullins reviewed Respondent’s last three years of evaluations, considered the extensive support and training provided to Respondent by the School Board, and concluded that termination of Respondent’s employment was warranted and justified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Brevard County enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 16th day of March, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of March, 2020. COPIES FURNISHED: Amy D. Envall, General Counsel Brevard County Public Schools 2700 Judge Fran Jamieson Way Viera, Florida 32940 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Howard Michael Waldman Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Dr. Mark Mullins, Superintendent School Board of Brevard County 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Matthew Mears, General Counsel Department of Education Turlington Building 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent attends Thomas Jefferson Junior High School. With the exception of band class which he attends regularly and achieves high marks, his absentee rate (unexcused) is approaching 50 percent and he is receiving failing grades. He is frequently disruptive in class and disrespectful to his instructors. He regularly comes late to his classes or leaves before being excused. Petitioner has made frequent attempts to assist Respondent. All available counseling and disciplining techniques have been used without success. Respondent will be 16 years old in September and intends to withdraw from school at that time. Respondent and his mother seek his release from mandatory school attendance now so that he may begin vocational training. School officials agree that this is appropriate, but the application has not been completed due to communication problems between Mrs. Perez and Thomas Jefferson Junior High School.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Respondent to its opportunity school pending release from mandatory school attendance. DONE AND ENTERED this 19th day of June, 1984, 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 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Sylvia Perez 460 Northwest 125 Street Miami, Florida 33168 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact During 1978 and 1979, Petitioner was employed as a full-time teacher on an annual contract basis with the Leon County School Board. The principal at the Petitioner's school did not recommend him for reappointment for the 1979- 1980 school year. Petitioner, accordingly, was not reappointed. The Leon County School Board has adopted rules relating to the reappointment of teachers. School Board Rule 2.02(3)(a) provides: The building principal shall submit to the Superintendent for reappoint- ment, those members of his faculty recommended for reappointment. These reappointments, upon approval of the Superintendent, shall be recommended to the School Board at least six weeks prior to the close of the post school conference. In accordance with this rule, since Petitioner was not recommended for reappointment by his principal, he was not recommended by the superintendent and not reappointed by the School Board. Petitioner was not terminated from his position as a part of a School Board layoff. The Petitioner's job performance had been satisfactory. He was not recommended for reappointment because the school had three persons available to teach courses for which there were only two positions. The Petitioner was the least senior of the three persons and did not have tenure. Accordingly, he was not recommended for reappointment.
Findings Of Fact Mr. Johnny Collins is the Superintendent of the Holmes County School District and has been at all times pertinent hereto. In April of 1981 Superintendent Collins first nominated the Petitioner, Myron Hudson, to be placed in the principalship at Ponce de Leon High School. The School Board rejected the nomination on July 20, 1981. One of the reasons for rejection of the initial nomination for the 1981-82 school year was the Petitioner's lack of a Rank II certificate, as well as an obligation felt by the Board to give the position to another person. The Petitioner took no legal action then, but the Superintendent, Mr. Collins, requested a hearing regarding rejection of his recommendation by the School Board, the School Board denied the request and the cause went to the First District Court of Appeal. The Board's denial of the Superintendent's request for hearing was affirmed per curiam in Collins v. The Holmes County District School Board, Case No. AH-169 (July 1, 1982). A temporary restraining order was issued by the Circuit Court in and for Holmes County restraining Superintendent Collins from interfering with Mr. Gerald Commander's exercise of his duties as Principal of Ponce de Leon High School, Mr. Commander being the School Board's choice for the position after it rejected the initial 1981 recommendation of Mr. Hudson for the job. Along with the rejection of Mr. Hudson's initial recommendation for the principalship for the 1981-82 school year, two other School Board employees, Ms. Saunders and Ms. Carroll, were also rejected. Those matters ultimately came before the Division of Administrative Hearings for formal hearing and those petitioners obtained a favorable recommendation by the Hearing Officers presiding. The School Board adopted the Hearing Officers' recommendations that those two persons be hired in the positions for which Superintendent Collins had recommended them, this in spite of the presence of the restraining order related to all three cases. In any event, the Petitioner, Mr. Hudson, during the interim after his initial rejection, obtained a master's degree and a Rank III teaching certificate, which he possessed before the second recommendation which is the sole subject of thee instant proceeding. In April 1982 Superintendent Collins again recommended Mr. Hudson for the position of principalship of Ponce de Leon High School. By letter the Board rejected the recommendation on April 21, 1982, advising the Petitioner as the reason for that action that: "A. The Superintendent is under restraining order which prohibits him from interfering with Gerald Commander as Principal of Ponce de Leon High School. There is still pending litigation concerning the Superintendent's nomination of you and the Board's rejection of same for the 1981-82 school term. The board has a continuing contract with Gerald Commander as a principal, and as such the board is obligated to place Mr. Commander in a principal's position within the Holmes County School System." The Board, then acting upon its own motion, ordered the subject position filled by Mr. Gerald Commander, the former School Superintendent whom Mr. Collins had defeated in the election. The Petitioner, Myron Hudson, then requested a formal administrative hearing contending that the Board did not have "good cause" to reject Superintendent Collins' nomination. No question was raised concerning Mr. Hudson's qualifications to hold the position for which he was recommended. He is a ten-year classroom veteran who has held a continuing contract of employment as a teacher in the Holmes County School District since 1976. At 30 years of age, he is well above the minimum age required to hold a principalship and his academic qualifications meet or exceed the statutory requirements for a principal's position. Mr. Hudson earned an AA degree from the Chipola Junior College in 1970, a BSA degree from the University of Florida in 1973, and an MA degree from Troy State University in December of 1981. After obtaining his master's degree, the Petitioner applied for and was granted a Rank III teaching certificate by the Florida Board of Education. All these qualifications were earned prior to the principalship recommendation for the 1982-83 school year which has become the subject of this proceeding. There is no dispute that the Petitioner meets the statutory qualifications for the position. There has been no evidence to indicate that he is possessed of other than a favorable moral character, and he enjoys an excellent reputation as a teacher. No reasons other than those quoted above were given in the official communication by the School Board to the Petitioner as reasons for the rejection of his nomination, nor were any other reasons relied upon by the Board at the hearing. Recommendations for employment with the Holmes County District School Board are recommended to be filled, and are filled, on a year-to-year basis. The recommendations are made by the Superintendent in April of each year for the positions which must be filled in the fall of the school year. Unrefuted testimony by witnesses for the Petitioner and Respondent establishes that the restraining order, as well as the "litigation" referred to in the written reasons for the Petitioner's rejection, was related to the issue raised by Superintendent Collins' first nomination of Petitioner Hudson, which occurred in April 1981. The restraining order and court proceedings do not relate to the subject matter of the current dispute which is the sole subject of this proceeding, that is, the April 1982 recommendation of Petitioner Hudson for the principalship for the 1982-83 school year. There is no dispute that other cases involving Petitioners Saunders and Carroll (DOAH Cause Nos. 81-2013 and 81-2190) also were in4olved in and subject to the same restraining order entered by the Circuit Judge. Both of those cases have gone to recommended order by the Hearing Officers presiding, both petitioners received favorable recommendations, and the School Board adopted the recommended orders and hired the two petitioners without apparent concern for the restraining order. Both Petitioners Saunders and Carroll in those cases were named parties to the restraining order which the Board relied upon in part as "cause" in this proceeding. Mr. Gerald Commander was hired by the School Board for the principalship of Ponce de Leon High School. Mr. Commander holds a continuing contract dating back to 1962, which is specifically a continuing contract as a principal. Mr. Commander did not, however, work continuously as a principal under that contract. When he was defeated by Mr. Collins in the 1980 election for the position of School Superintendent, he drafted a memorandum after the election and while he was still filling his unexpired term, recommending himself for an administrative position in the County School Board office. The Board accepted his recommendation and hired Mr. Commander in an administrative position in the county office starting in January 1981 until the end of that school year. During that period of time, several principalships came open, but Mr. Commander did not express an interest in any of them. He did not seek a principalship position until July of 1981 when he sought the position at Ponce de Leon High School for which Petitioner Hudson had been recommended in April 1981. In July 1981 the Board rejected the recommendation for Petitioner Hudson. Although it has been the Board's position in this proceeding that if the recommendation of Superintendent Collins had been accepted, that there would be no position in which to place Mr. Commander, it has been established by the evidence that, indeed, the Board had a vacant principalship in the School District after the Petitioner was rejected for the principalship, which it filled, although it did not place Mr. Commander in that position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore, RECOMMENDED that the School Board of Holmes County accept the recommendation of the Superintendent of Schools of that county to place Myron Hudson in the position of Principal of Ponce de Leon High School. DONE AND ENTERED this 13th day of August, 1982, at Tallahassee, Florida. P. MICHAEL RUFF, 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 13th day of August, 1982.
Findings Of Fact An Administrative Complaint was served on the Respondent in April, 1983. Herb A. Sang, Superintendent of Duval County County Schools, was responsible for those charges. In the complaint, it is alleged that Respondent is guilty of professional incompetency in fulfilling his duties as a teacher in the Duval County School System in the years 1979-80 and 1980-81. Respondent is a tenured teacher in the Duval County School System and had held that tenure at all times relevant to this inquiry. Respondent opposed these allegations, leading to the formal Subsection 120.57(1), Florida Statutes hearing. Respondent, who has been employed in the school system since 1954, was transferred to Duncan U. Fletcher Senior High School in 1971. Lee remained at Fletcher High through the school year 1979-80. In that year, Lee taught 10th grade English. His performance in the classroom was observed by Dr. Andrew Knight, principal at Fletcher High School, and by other professionals in the school. These observations commenced in September 1979 and continued throughout the school year. By January 30, 1980, Dr. Knight had gained a sufficient impression of the performance of the Respondent to write and inform him of areas of deficiency. A copy of that letter of evaluation may be found as Petitioner's Exhibit No. 7, admitted into evidence. In addition to setting forth deficiencies, the letter suggests techniques that might be employed to correct the deficiencies. Relevant areas of concern involved classroom management, teaching effectiveness and classroom performance. Those observations as set out in the letter of evaluation and critique of the Respondent's performance are an accurate depiction of the performance. All these items set forth relate to teacher competency and this depiction of Respondent, coupled with similar observations which were testified to during the course of the hearing, demonstrate a lack of competency on the part of the Respondent in performing his teaching duties. The deficiencies set forth in the letter of evaluation were explained to the Respondent in person. Following the interim evaluation of January, 1980, the annual formal evaluation was made on March 12, 1980. A copy of that evaluation may be found as Petitioner's Exhibit No. 9, admitted into evidence. As depicted in this document, Respondent was still perceived in March, 1980, as giving a poor performance as a teacher. This characterization of his performance, as found in the evaluation of March 12, 1980, is accurate and those observations, together with the observations of his performance as testified to in the hearing, point to the fact that the Respondent continued to be less than competent in his teaching. Throughout that school year, classroom management was the most obvious deficiency. In particular, students were sleeping and talking to each other and not paying attention, a problem not satisfactorily addressed by Lee. As a result, the learning experience was diminished. Moreover, this circumstance was made worse by the fact that Lee's perception of how to plan for instruction and his efforts at carrying out these plans were not structured in a fashion to hold the attention of his classes and promote the goals announced in the Duval County School course Curriculum for Tenth Grade Language Arts. See Petitioner's Exhibit No. 33. Based upon his unsatisfactory evaluation for the school year 1979-80, and in keeping with the Duval County Teacher Tenure Act, Respondent was transferred to Edward White High School in the school year 1980-81. The principal at that school was John E. Thombleson. Thombleson was aware of the unsatisfactory rating that Lee had received and undertook, during the course of Respondent's stay at White High School, to observe and assist Lee in trying to improve Lee's teaching. That improvement was not forthcoming. Lee continued to have problems related to classroom management and teacher effectiveness and he was not responsive to beneficial ideas of improvement offered by Thombleson related to in-service assistance. Ideas for improvement which were posed to the Respondent include those set forth in Petitioner's Exhibit No. 11, admitted into evidence which is a memorandum concerning a conference held with Respondent by Principal Thombleson. Other exhibits admitted pertaining to observations by Thombleson and other administrators at White are found to be accurate depictions of the atmosphere in Lee's classroom related to management and teaching effectiveness. Through October, 1980, visits to Respondent's classes revealed a lack of attention on the part of students, a lack of preparedness by the Respondent, a failure to proceed in a sequence which would be commensurate with the curriculum goals set for the classes, tardiness on the part of the Respondent and students, failure to provide lesson plans to the administration observer, failure to conform to the scheduled lesson plan for the day, and failure to provide continuity between the lesson of the day and the following day's assignment. These were problems that had been observed during Lee's 1979- 80 year at Fletcher. Consequently, the required interim evaluation of October 30, 1980, was not favorable to Lee. A copy of that formal evaluation may be found as Petitioner's Exhibit No. 18, admitted into evidence and the observations set forth therein are found to be accurate. Lee was also provided with a memorandum on that date, a copy of which is Petitioner's Exhibit No. 19, admitted into evidence. This document suggested ways to improve classroom management, teaching effectiveness and classroom performance. Both the evaluation and memorandum of improvement were discussed with the Respondent and the matters of that conference are set forth in the memorandum of October 30, 1980, a copy of which is found as Petitioner's Exhibit No. 20, admitted into evidence. On November 6, 1980, Respondent's grade book was evaluated and found to be deficient, a finding which is accepted. The grade book was not properly documented, among other shortcomings. Respondent, by correspondence of November 18, 1980, a copy of which is admitted as Petitioner's Exhibit No. 24, requested Principal Thombleson to give concrete examples of expectations of the Respondent in fulfilling his teaching responsibilities. This correspondence was replied to by memorandum of December 5, 1980, a copy of which is admitted as Petitioner's Exhibit No. 25, and contains a continuing explanation of ideas of improvement which had been previously suggested by Principal Thombleson. Lee's performance did not improve after this exchange and the final evaluation at White of March 12, 1981, was not positive. A copy of that evaluation may be found as Petitioner's Exhibit No. 27, admitted into evidence and the evaluation's conclusions are accepted. Overall, in the year 1980-81, Respondent did not perform as a competent teacher while at Edward White. Respondent did not conclude the teaching year at Edward White in 1980- In the face of an attitude which Thombleson considered to be insubordinate and the Respondent's expressed desire to be transferred, Lee was reassigned to William Raines Senior High School in April, 1981. For the remainder of that academic year he served as a substitute teacher. It was not established in the course of the hearing what quality of performance Lee gave as a substitute teacher when assigned to Raines High School and it is therefore assumed that that performance was satisfactory. In the school year 1981-82, Respondent was assigned to Raines High School and acted primarily as a substitute teacher. He remained in the high school for that school year premised upon a settlement negotiation between the Respondent and the Duval County School Board pertaining to an Equal Employment Opportunity Commission complaint which he had filed pursuant to Title VII of the Civil Rights Act of 1964. For the school year 1981-82, the Duval County school administration decided that they would not afford a performance evaluation to the Respondent and none was given. There being no evidence to the contrary, it is assumed that Respondent fulfilled his role as substitute teacher adequately. In the school year 1982-83, Respondent was reassigned to Raines school and worked primarily in the media center program in a nonteaching capacity. Lee did a limited amount of substitute teaching in that year. Jimmie A. Johnson, Principal of Raines school found his work as a substitute teacher to be acceptable as set forth in the memorandum of March 23, 1983, a copy of which is admitted as Respondent's Exhibit B. No contrary position being offered on the question of the quality of performance in the limited role of substitute teacher during that school year, Respondent is found to have performed the role of substitute teacher in a satisfactory manner. Lee's performance as a substitute teacher in the years 1981-82 and 1982-83 while accepted as satisfactory does not overcome the established fact that in the school years 1979-80 and 1980-81, when performing the role of full- time tenured teacher in Duval County, he was not a competent teacher. This performance in the substitute role, while similar, is not sufficiently so to provide a quality of rehabilitation which would set aside the present perception that Respondent is not competent to fulfill the role as full-time classroom teacher in Duval County. This finding is supported by the observations of Dr. Jeffrey Weathers, a professional educator who specializes in teacher evaluations related to their classroom performance as to subject matter and general methodologies. Although some of the tasks which Weathers observed in the Respondent's classroom both at Fletcher and White did not pertain to active instruction, to the extent that other tasks observed called upon Respondent to teach, he was not doing so in an effective manner. As Dr. Weathers described, the vital link between activity and learning could not be found in Lee's classes. Weather's observations, together with those of other professionals at Fletcher and White, coupled with the Respondent's less than cooperative attitude, results in the finding that Respondent has not removed the stigma of his incompetence as a full-time classroom teacher through his teaching in the substitute role at Raines. Finally, while the quality of performance by those students at Fletcher and White who were taught by Lee and participated in the MLST minimum skills tests were similar to students of other teachers in the aggregate, this fact is not enough to set aside the impression of the Respondent's competence. As Dr. Curtis Randolph, who was assistant principal at Fletcher in 1979-80, correctly stated upon reflecting on Respondent's performance, Lee is not competent to teach in Duval County Schools.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Phillip James is certified by the Florida Department of Education to teach in the area of mental retardation, and is employed under continuing contract with the petitioner Pinellas County School Board. He has been teaching for approximately nine years. The Paul B. Stevens Exceptional Student Center has various grade levels for educably mentally handicapped students (those with an IQ level ranging between 55 and 68), trainable mentally handicapped students (IQ range between 25 and 55), and profoundly mentally handicapped students (IQ range between O and 25). During the 1981-82 school year, respondent taught in the grade level for students classified as educably mentally handicapped. For the 1982-83 school year, he was assigned to a class containing seven profoundly mentally handicapped students. Howie, one of the students in respondent's class, cannot speak intelligibly, read, write or go to the bathroom by himself. While it is difficult to get Howie to show any response to outside stimuli, he is not difficult to control and is not considered dangerous. On one occasion, respondent was working with Howie attempting to get him to put pegs in the holes of a pegboard. When Howie did not perform the task, respondent took ahold of Howie's hair on his head and yanked his head back by the hair. Howie responded by whimpering, or crying. On another occasion, respondent performed this same "technique" in front of another teacher to illustrate that he was able to get a response from Howie by pulling his hair. Respondent admitted that he did, in fact, pull Howie's hair on several occasions as an aversive therapy technique to elicit response from him. Respondent did not attempt to obtain approval from school authorities prior to initiating such a technique. Student Pam wears a diaper and is often difficult to change. On one occasion, the respondent's teacher's aides were having trouble holding Pam on the changing table, and asked respondent to help them. Respondent came over to the table and tapped Pam lightly on the mouth. Pam's mouth began to bleed. One teacher's aide testified that the tap to the mouth which she observed was not hard enough to cause bleeding, but that respondent told her that he had hit Pam in the mouth earlier. Respondent explained that while he was holding Pam's hands, she was trying to get away from him and pulled his hands toward her mouth in a forceful manner. Student Andrea is in a wheelchair, wears diapers and cannot speak, read or write. She has a self-abusive habit of placing her little finger into her eye socket behind her eyeball, causing her eyeball to bulge out. In order to discourage this behavior, respondent struck Andrea's arm while she was poking her eye so as to drive her finger deeper into her eye socket. It was anticipated by the respondent that this procedure would cause Andrea pain and that she would then voluntarily withdraw her finger from her eye. Respondent had not attempted to obtain prior permission from school officials to modify Andrea's behavior by this method. Student Della is confined to a wheelchair, cannot read, write or speak and wears diapers. She exhibits extreme sensitivity to tactile stimulation. On one occasion, when changing Della's diapers, respondent took the masking tape with which the diapers are secured and pressed it down on Della's leg, which was covered with long, fine hair. Respondent then ripped the tape off Della's leg, causing her to flinch. Respondent admitted that he did stick tape on Della's leg and then pulled it off, but explained that he did this to "desensitize" her. No prior authorization was requested or obtained for this procedure. Appropriate methods of managing student behavior at the Paul B. Stevens Exceptional Education Center were explained to teachers in staff meetings. While aversive therapy is permitted, the appropriate manner of implementation is to begin with the least restrictive method of placing the student in a "time out" room to reduce inappropriate behavior. This is the maximum amount of restraint authorized, absent a written behavior plan for the individual student. Such an individual behavior management plan must receive prior approval from either the school's Principal or Behavioral Specialist after observation of the student and input from various sources other than the teacher seeking to initiate the plan. Respondent was aware of this school policy.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Phi1lip James be found guilty of misconduct in office and gross insubordination and that he be dismissed, effective October 28, 1982, as a member of the instructional staff of the School Board of Pinellas County. Respectfully submitted and entered this 31st day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1983. COPIES FURNISHED: Usher L. Brown, Esquire Associate General counsel P. O. Box 4688 Clearwater, Florida 33518 Lawrence D. Black, Esquire 152 Eighth Avenue SW Largo, Florida 33540 Mr. Scott N. Rose Superintendent School Board of Pinellas County, Florida 1960 East Druid Road P. O. Box 4688 Clearwater, Florida 33518
