Findings Of Fact At all times relevant hereto, Respondent has been employed by Petitioner as a classroom teacher serving pursuant to a continuing contract. At the time of the final hearing in this cause, she was 49 years old and had worked continuously as a teacher for the School Board of Dade County, Florida, from 1962 until her suspension on August 23, 1989, except for five maternity leaves. Respondent attended college in Greenville, North Carolina, on a "State Department" scholarship between 1958 and 1962. In 1962, she received a B.A. degree in French and English and passed the National Teachers' Examination. In 1962, she accepted a teaching position with the Dade County Public Schools, teaching a two-course basic education program in her earliest years. Thereafter and until the 1986-87 school year, she taught English. During the 1962-63 academic year Respondent experienced many changes in her life: she began her first teaching job, she married, and she experienced her first pregnancy. These events, taken as a whole, made the 1962-63 academic year an extremely difficult one for the Respondent. Respondent's teaching performance was evaluated during the 1962-63 academic year using the Petitioners evaluation instrument then in use. Under that evaluation instrument, the teacher's performance was evaluated and assigned an averaged score. An averaged rating of 3.5 indicated satisfactory performance. During that academic year, Respondent's annual evaluation averaged score was 3.3. For every year thereafter continuing through the 1985-86 academic year Respondent's annual evaluation rated her performance as a classroom teacher as being acceptable. Throughout that time, Petitioner used three different evaluation systems for rating classroom teachers, including the TADS evaluation system currently in effect. In 1984, the School Board encouraged its teachers to become computer literate. Because Respondent needed additional coursework to renew her State teaching certificate, she enrolled in a computer class and then in a word processing class. She was "intrigued" by computers. She continued taking computer courses at Barry University, eventually entering the master's program at Barry University, majoring in computer education. By June of 1988 she had completed 39 credits with an overall grade point average of 3.846. In 1986, Respondent decided to look for a position teaching computer classes. She learned of a vacancy for a computer teacher at Brownsville Middle School, a Chapter I school in Dade County. She sought a transfer from her then current school where she taught English to Brownsville. She was interviewed by both the outgoing principal and the incoming principal Patricia Grimsley. Grimsley hired her to teach computer courses and to develop and equip the computer lab. Grimsley admitted that the computer lab had "deficiencies" which she expected Respondent to overcome. Respondent began teaching computer courses at Brownsville Middle School during the 1986-87 school year. During the three academic years Respondent taught at Brownsville Middle School, her general ability to perform her duties was seriously impaired by the "deficiencies" in the computer lab and the lack of assistance from her supervisors regarding her problems with adapting the administration of computer classes to traditional requirements. When she began teaching at Brownsville during the 1986-87 school year the computer lab itself was not ready to be occupied. Instead, Respondent was required to use a converted teachers' work room as a classroom. This room contained an inner office which was used by the school security personnel. The passage through her classroom of school security personnel and other law enforcement officers frequently accompanied by disruptive students caused a serious and continuing class distraction. The computers installed at the school were Tandy machines, Style TRS 80, Model 3, commonly known to people who were computer literate as "trash 80 machines." These computers had a non-functioning network which prohibited saving in or retrieving data from the computer memory. Accordingly, a student working on a project would begin each day's class by programming into the computer everything that student had already programmed into the computer on the previous day before the student could move forward. There was not a functioning printer in the classroom so that no hard copies off anything could be printed. The few textbooks available were textbooks commonly used in college, not in a Chapter I junior high school. These were the conditions under which Respondent taught during the 1986-87 school year. By the 1987-88 school year Respondent and her students had moved into the new computer lab. State-of-the-art computers had arrived for use in the computer lab, but there was still no software or books. During the summer of 1988, the software-and books arrived. Respondent had requested permission to be able to use the software to teach it to herself during the summer when She was only teaching half days, but the administrative personnel stored the software instead. During the 1988-89 school year, Respondent and her students began learning the software and the books together. In the interim period, before all of the materials and equipment necessary to daily teaching were supplied, Respondent borrowed software from her friends, and began creating daily projects, lessons, and activity sheets to keep her students busy and learning. These efforts to generate daily classroom activity created a "lot of work" for this teacher. She did not have a bank of lessons and activities from which to draw as would any experienced teacher or even a beginning teacher teaching in an area where others had lessons and activities previously given to draw upon. She was also considered a "vital resource" at Brownsville during those three years, assisting other teachers and other school employees in setting up their computers and learning the programs they needed to use. She even set up the computer in Principal Grimsley's office and assisted Grimsley in learning the program. School year 1986-87, Respondent's first year as a computer teacher and first year at Brownsville, was also Principal Grimsley's first year as a principal and first year at Brownsville. It was also Assistant Principal Senita's first year as an assistant principal. During each of Respondent's three years at Brownsville, she experienced difficulty with Principal Grimsley whom she found to be "unreceptive" and "unsupportive." Grimsley's "mind would wander" during Respondent's discussions with her of the problems that Respondent was having. On October 10, 1986, near the beginning of Respondent's first year at Brownsville, she was formally observed in the classroom by Principal Grimsley and was rated acceptable in all categories. On November 26, 1986, Grimsley held a conference- for-the-record with Respondent. A conference-for-the-record is a formal meeting with the employee to put the employee on notice of problems. The subject matter of this conference-for-the-record was Respondent's failure to continuously submit lesson plans on a weekly basis as required by Grimsley's administrative directives. Respondent had been submitting her lesson plans on some occasions but not on a weekly basis. She was directed to submit her lesson plans on a weekly basis and was put on notice that if she did not do so, further disciplinary action would occur. Respondent wished to discuss at the conference-for- the-record the lack of materials and equipment for the computer lab and the unusual demands on her time occasioned by those deficiencies. However, Respondent had been given prior notice of the purpose of the conference, and the labor contract between the United Teachers of Dade and the School Board does not permit the person holding the conference to go outside the stated subject matter of the notice. Grimsley did not initiate any subsequent discussions with Respondent regarding Respondent's problems during the three years that Respondent taught at Brownsville. On March 9, 1987, Grimsley held another conference for-the-record with Respondent to discuss Respondent's failure to submit weekly lesson plans each week and the fact that Respondent had not called the school until 8:55 a.m. to say she would be late when she was due to begin work at 8:45 a.m. Respondent was again directed to submit her lesson plans every week, and was directed to call the school in a more timely manner to indicate her tardiness or absences. Grimsley further explained that if the problems were not remediated, Respondent would be rated unsatisfactory in Category VII, Professional Responsibilities, and would be put on prescription. A prescription is a formal plan given to the teacher to address deficiencies in the teacher's performance. It is a plan formulated to assist a teacher for whom a deficiency has been documented. However, once a prescription is established, it is obligatory upon the teacher to fulfill it. At the March 9 conference-for-the-record, Respondent explained to Grimsley that she could not keep up with all the demands on her time and requested a transfer to a different teaching assignment. Grimsley explained that she had no other computer teachers at Brownsville and no current vacancy in a different teaching area. Therefore, Respondent could not be transferred to a different teaching assignment. On April 22, 1987, Grimsley held another conference- for-the-record with Respondent to discuss Respondent's unsatisfactory performance in Category VII, Professional Responsibilities. Respondent had been absent on the day that grades were required to be turned in and for several days before that. She had made no provision for bringing her grades to school to turn them in on the days that she was out sick. Respondent was placed on prescription. She was directed to submit her grades within the school's guidelines, and Grimsley had her write a report on proper grading procedures. Respondent completed the prescription and indicated that she understood the directives as to submitting grade sheets. Respondent remediated her deficiencies and received an acceptable yearly evaluation for the 1986-87 school year in all categories. The 1987-88 school year commenced with the Respondent and her students located in the new computer lab using the new state-of-the-art computers and printers. Respondent, however, still did not have software and books for her students to use. On February 8, 1988, Grimsley held a conference-for- the-record with Respondent. The issues discussed were Respondent's leaving work early and not signing out, not completing grade sheets, and not submitting grade sheets by the end of the teacher workday on January 29, 1988. A teacher workday is a professional day when there are no students in school and the teachers generally complete grade sheets for the end of the grading period Respondent had been given the teachers' workday agenda prior to the workday, outlining the schedule of deadlines and the meetings that Grimsley had also scheduled for teachers to attend that day. In fact, Respondent had not left work early that day but had been late returning from lunch because she and other teachers from Brownsville had gone during the lunch period to another school to attend a celebration at that school. Further, teachers are not required to sign out for lunch on a teacher workday. Nevertheless, Respondent had failed to submit her grades at the end of that teacher workday. Under the procedures established in that school, Respondent's failure to submit her grades by the end of the day delayed the report cards for the entire school. Respondent was again placed on prescription for Category VII, Professional Responsibilities. She was directed to submit her grade sheets on time for the next two grading periods. She was also docked a half-day's pay for returning from lunch late on January 29., She was told that if her grades were turned in on time and completed, the prescription would be satisfied On March 7, 1988, Respondent was formally observed in the classroom by Assistant Principal Gail Senita. Respondent was rated unacceptable in preparation and planning and in assessment techniques. She was rated unsatisfactory in preparation and planning because she had no lesson plans. For her prescription, she was directed to develop weekly lesson plans and to include in them objectives, activities, a method of evaluation, add a provision for homework, as required by the labor contract. She was rated unsatisfactory in assessment techniques because there were no graded papers in student folders, and there were no grades in Respondent's gradebook. As a prescription, she was directed to maintain student folders with examples of graded student papers. School Board policy requires teachers to keep folders with samples of student works Respondent explained to Senita that she kept an electronic gradebook on the computer. However, she did not show that electronic gradebook to Senita. Respondent was next formally observed in the classroom by Senita on June 1, 1988. She was rated in assessment techniques because there were still no student folders with graded work and no gradebook with student grades. While Respondent did have computer spreadsheets with students' names, they contained no grades for the students. As a prescription, Respondent was directed to prepare folders for the students and to file samples of the students' classwork, quizzes, homework, and tests in those folders. She was directed that the folders should contain at least one paper per week and should show a progression of difficulty. Respondent explained to Senita that the students' work was on computer disks. Senita suggested that Respondent print out hard copies of the students' work to file in the students' folders On June 14, 1988, Grimsley gave Respondent her 1987- 88 annual evaluation. That evaluation rated Respondent as acceptable in all categories, meaning that Respondent had remediated all deficiencies during that school year. Respondent signed that annual evaluation as having been received by her on June 14, 1988. Three days later, Grimsley came to Respondent's classroom and told her to sign another annual evaluation form. Respondent did so. That second annual evaluation form indicated that Respondent was acceptable in all categories except for Category VI, Assessment Techniques. Respondent was rated unacceptable in that category and was given an overall rating of unacceptable. However, she was recommended for employment That second evaluation contained an end-of-the-year prescription directing Respondent to record at least one formal grade for each student in the gradebook each week, and, if she used a grade sheet, to show a hard copy to the assistant principal on a weekly basis, and to place graded samples of student work, including homework and tests, in the student folders. Grimsley did not tell anyone that she had determined that Respondent had remediated her deficiencies and achieved an acceptable 1987-88 annual evaluation in all categories. Rather, she turned in the second evaluation form to be made part of Respondent's personnel file. At hearing, Grimsley verified that the signature on the evaluation finding Respondent acceptable in all categories was her signature, but failed to tell the truth about the incident, saying only "that's strange." The second evaluation form cannot be declared to be the "official" evaluation form. Grimsley did not offer any explanation for why, or if, she had changed her mind. It, therefore, cannot be found that Respondent received an unacceptable evaluation for the 1987-88 school year. Respondent taught during the summer of 1988, keeping a computerized rollbook which she turned in to the administrators. No criticisms were given to her of her computerized gradebook. During that summer, the software and books for the students arrived although Respondent did not have access to them until the beginning of the 1988-89 school year. That school year began, and Respondent was next formally observed in the classroom by Senita on September 22, 1988. She was rated unacceptable in preparation and planning and in assessment techniques. She was rated unsatisfactory in preparation and planning because she had no lesson plan. Without a lesson plan, an administrator cannot monitor compliance with the School Board's curriculum. As a prescription, she was directed to prepare lesson plans and submit them weekly to the department chairperson. She was directed that these plans were to include objectives, activities, a way of monitoring pupil progress, and an indication of homework. She was further directed to review the school Board's curriculum for computer education and to indicate in her plans which standards and skills were being taught. She was rated unsatisfactory in assessment techniques because she did not have student folders with student work. There was no evidence of quizzes, classwork, homework, or a variety of test formats. As a prescription, she: was directed to develop a folder for each student and to file at least one graded paper per week in the files. The files were to include samples of homework, classwork, and tests. She was directed to submit her gradebook for review every Friday. Respondent was next formally observed in the classroom by Grimsley on November 16, 1988. She was rated unsatisfactory in assessment techniques because there was no evidence in her gradebook or in the student folders that she was administering tests or quizzes. As a prescription, she was directed to construct a sample test and to show it to the principal for discussion. She was directed to administer tests biweekly and to submit copies to the principal prior to administering them. She was directed to construct tests which reflected a variety of test formats and to read certain pages in the TADS Prescription Manual which deals with the construction of tests. She was directed to place grades in a traditional gradebook. Respondent began keeping two sets of gradebooks -- one computerized set which she used, and a traditional rollbook to satisfy Grimsley. A conference-for-the-record was held with Respondent on December 12, 1988. The purpose of the conference was to put Respondent on notice that if her deficiencies were not corrected, there was a possibility that she would be recommended for separation from the school system. Some lesson plans had been submitted by Respondent, but not every week as prescribed, and a traditional gradebook had not been submitted to the administrators. During the conference, Respondent asked permission again to use electronic spreadsheets rather than the standard gradebook, but Respondent was directed to keep a standard gradebook with attendance and grades. Grimsley did indicate that she would determine if an electronic spreadsheet was an substitute. Test formatting and homework were also discussed. Grimsley explained that the School Board requires teachers to give homework that relates to classroom activities and to note same in the gradebook. There was no indication that Respondent was giving homework. Respondent was put on notice that she needed three consecutive acceptable classroom observations in order to be continued in her employment. She was further advised that an external review would take place. An external review is an observation done by a non-school site administrator and a school site administrator simultaneously. Each one prepares an observation report, and these are combined by mathematical formula. Respondent was next formally observed in the classroom on February 2, 1989, by Assistant Principal Orlando Milligan and was rated unacceptable in assessment techniques. Although the School Board requires that students' work be retained throughout the school year and the school year was more than half over, Respondent still failed to maintain student folders with student work. There was no evidence of assessments such as quizzes, classwork, and homework so that administrators could assess whether pupil progress reflected the objectives in the curriculum. As a prescription, Milligan directed Respondent to maintain samples of student work in student folders and to maintain a decipherable traditional gradebook. She was given until March 3, 1989, to complete this prescription. A conference-for-the-record was held with Respondent on April 24, 1989, for not having complied with her prescriptive directives or showing the administration a computerized gradebook or a traditional gradebook. She was advised that an external review was scheduled for April 27, 1989, to be conducted by Milligan and Dr. Mildred Berry, a non-school site science supervisor. Respondent was also told that the external review would occur during her second period class. She was told that even if the first external review were satisfactory, another would be required in order to meet the requirement for two successful summatives. A summative is a combination of two observations. Therefore, it takes at least three acceptable observations to result in two acceptable summatives. Respondent was also advised that her future employment with the school system was in jeopardy At the conference, Respondent was still discussing a computerized method of keeping grades and attendance. She was again directed to maintain a standard gradebook and to keep sampled of students' work. The first external review took place as scheduled on April 27, 1989, by Milligan and Berry. Milligan looked at the folders for the class he was observing and found samples of student work in the folders. He did have difficulty correlating the work in the folders with the gradebook and found the gradebook difficult to understand. He was about to rate Respondent unsatisfactory in assessment techniques but Berry explained to him that the keeping of student folders does not relate to assessment techniques Because of her insistence, the two of them reviewed the TADS Manual and Milligan found that Berry was correct. The concerns that he saw did not come under Category VI, Assessment Techniques, but rather came under Category VII, Professional Responsibilities. Category VII is not reflected on the classroom observation reports and is not part, therefore, of the formal classroom observation Milligan and Berry individually each rated Respondent acceptable in all categories. Berry's observation report contained the remark that "all students were actively involved in class activities." In spite of finding out that he had misunderstood the TADS evaluation system, Milligan did not go back and correct his February 2, 1989, observation report on Respondent where he had erroneously marked Respondent unacceptable in the area of assessment techniques based upon her failure to have student folders. If Milligan had gone back and corrected his February 2, 1989, observation of Respondent once he correctly understood the TADS evaluation system, then Milligan's formal observation of Respondent on February 2, 1989, would have resulted in her being marked acceptable in all categories. A second external review was conducted by Grimsley and Nelson Diaz, Area Director, on May 24, 1989. Respondent was rated unsatisfactory in all categories except teacher-student relationships. She was rated unsatisfactory in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Grimsley and Diaz observed students walk into the classroom, walk over to their computers, load their computers, and begin working on their projects. Respondent sent a few of the students to the library to do some research and spent the remainder of the class period walking around the room stopping to talk individually and work individually with each student. At times, some of the students were observed making comments to each other or writing notes, getting out of their seats, or laughing. Neither Grimsley nor Diaz attempted to ascertain if the comments or notes were related to students working with each other on their programs or if the students left their seats simply to go to the printer to retrieve a hard copy of their work. They did observe Respondent work individually with each student throughout the class period. Diaz became confused. The TADS observation form requires that certain teaching behaviors be observed during the lesson in order that the form can be completed. Because of the type of class conducted by Respondent, the observers could not observe the required teaching behaviors in order to complete their forms. Since Diaz believes that teachers usually try to do their very best when they know there will be a outside observer, he became concerned that perhaps Respondent was ill. Diaz requested that a post observation conference be held immediately so that he could determine whether there were extenuating circumstances for what he had observed. Respondent was requested to bring her gradebook to the conference because Diaz was not able to correlate the grades in the gradebook with the work in the folders. When the gradebook was discussed at the conference, Respondent told Diaz that she kept a traditional gradebook to satisfy Grimsley. When asked why she did not give the students tests, Respondent told him that her students could not read. Respondent had previously determined that when she gave students tests, the grades they received from the written materials did not reflect their understanding or progress as was observed by her when they did their actual "hands-on" computer programming and activities. Diaz noted that the students were reading their computer screens and were reading a sheet that they were following. He did not, however, note whether the computer screens; and the sheets the students were following contained words or pictures. Although Respondent had a lesson plan for that day, Diaz and Grimsley determined that she did not follow the plan. They concluded that she gave no instruction to her class on that day. They further concluded that the lesson plan used by Respondent, although a form lesson plan picked up by teachers in curriculum offices at schools, did not comply with the labor contract provisions in that it did not list homework. Further, an administrator could not look at the lesson plan and know what the teacher would be doing in the classroom because the lesson plan contained a listing of potential activities but did not note which specific ones would occur. At the conference with Diaz and Grimsley, the suggestion was made to Respondent, for the first time in the three years that she had been teaching at Brownsville, that she consult with a computer teacher at another school in order to ascertain how other computer teachers had made provision for tests, homework, student folders, and gradebooks. Eights days later, on June 1, 1989, Grimsley finalized Respondent's annual evaluation for the 1988-89 school year by rating Respondent as acceptable in the areas of teacher- student relationships and professional responsibility. She rated Respondent as unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. The overall summary ratings of acceptable and unacceptable were left blank; however, she checked the box marked "not recommended for employment." A conference-for-the-record was held by Grimsley on June 5, 1989, to discuss Respondent's performance to date, her unacceptable annual evaluations, and her future employment status with the Dade County Public Schools. Grimsley noted that at that time Respondent had still not remediated her deficiencies and was still on prescription. Prior to Respondent's suspension from her employment in August, 1989, there was no state teacher certification in computer education. There were also no other computer teachers at Brownsville to assist Respondent in the problems she was having. Although it was clear to Grimsley for three years that Respondent was having difficulties in conforming her computer class with a traditional academic class, Grimsley never suggested to Respondent that Respondent obtain assistance from other computer teachers to see how they had overcome such difficulties. That suggestion, withheld for three years, came during the conference among Grimsley, Diaz, and Respondent, just eight days before Grimsley recommended that Respondent's employment be terminated. Respondent maintained student grades and attendance on computerized spreadsheets. Further, Respondent maintained samples of student work on their computer disks. On at least one occasion Respondent showed copies of her grading and attendance spreadsheets to Grimsley, but Grimsley rudely brushed her hand across them and stated that she could not read them. Thereafter, Respondent did not show them to Grimsley. Cecelia Dunn, who served as Respondent's department head, saw Respondent's student records consisting of a file box with students' names, grades and attendance marked on cards and also Respondent's computer printouts with grades and attendance on them. She found Respondent'S records to be acceptable and thorough but suggested to Respondent that she also transfer this information to a traditional gradebook. There is no question that Respondent kept students' grades and attendance records; she did not keep them in a traditional gradebook. It is also clear that Respondent kept samples of students' work on computer disks. However, she did not consistently reproduce a hard copy of that work to maintain in the students' folders. Respondent does not know how to adapt the record keeping that is used in a traditional academic class to a computer class. In a traditional class all students work on the same assignments on the same day. In a computer class, students work on projects at their own speed over extended periods of time. She does not know how to give daily grades to a student working on a project over an extended period. Respondent does not know how to give homework in a computer class to students who do not have computers at home. Although Senita once suggested to her that she require her students to read newspaper articles about computers, Respondent's students do not receive newspapers at home and therefore cannot comply with such a requirement. Respondent agrees that Grimsley gave her a number of suggestions on a number of occasions as to how she could correct her deficiencies. However, the suggestions given by Grimsley, a former English teacher herself, would work in an English class but would not work in a computer class. No suggestion given by Grimsley during the three years that Respondent taught at Brownsville was tailored to a computer class. No suggestion was made during the first year as to how Respondent could comply with traditional requirements in a classroom with non-functioning equipment and textbooks written for college students. Similarly, Grimsley's conclusion on her last formal evaluation of Respondent that Respondent did not teach fails to take into consideration the fact that Grimsley observed Respondent giving individual instruction, the kind of instruction which is appropriate for a computer class. Grimsley never suggested to Respondent how Respondent could give lectures during her classes. The only computer teacher to testify in this proceeding also keeps his records of students grades by using electronic spreadsheets. However, he prints out those spreadsheets and places the sheets inside a traditional gradebook and prints out hard copies of the students' work for folders simply because his class does not always meet in the computer room but must meet on frequent occasions in a regular classroom. That teacher is a teacher on special assignment who runs the MAGNET program wherein students use computers for everything. He testified that it takes a lot more time to teach computers than other courses Respondent's colleagues hold her in high esteem as a very knowledgeable, excellent teacher. Her students always appear to be actively involved in their classroom work. They are always "on task." With their adherence to the formal evaluation instrument and traditional classroom techniques, Grimsley and Senita were not able to determine whether Respondent was following the School Board's computer curriculum or whether Respondent was providing her students with the minimal educational experience required by State Board rule. They admitted at final hearing that they could not say that she was not following the curriculum or that she was not providing her students with the minimum educational experience. There is no allegation that Respondent did not in fact assess her students or grade them appropriately although Respondent did not always keep records of those assessments in a traditional format. Similarly, it cannot be said that Respondent failed to prepare, keep, and submit all records and reports required by School Board rules. It can be said that she did not prepare, keep, and submit all records and reports required by administrative directives issued by Grimsley to her. On the other hand, it cannot be said that she knew how to do what Grlmsley instructed her to do, and it is clear that Grimsley referred her to no resources in the computer education field to assist her in learning how to do what Grimsley wanted her to do. It can only be said that Grimsley repeated the same prescriptions; it cannot be said that those things were helpful to Respondent in remediating her deficiencies. It is not suggested that Grimsley, Senita, or Dunn refused to assist Respondent in overcoming her record keeping deficiencies or in solving her problems with giving quizzes and homework assignments. There is no evidence that any of those persons knew how to assist Respondent in adapting a "hands-on" computer course to the standard record keeping requirements or all of the traditional assessment techniques. Respondent neither intentionally nor willfully disobeyed instructions given to her by her administrators. She was, however, unable to consistently comply with their directives due to the demands of day-to-day teaching, in a technical non- traditional subject area, without adequate resources and materials.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating the Respondent Patsy Moore to a teaching position in English education or computer education on a one-year probationary contract basis and providing that Respondent shall receive no back pay for the period of her suspension. DONE and ENTERED this 10th day of May, 1990, at Tallahassee, Florida. LINDA M. RIGOT 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 10th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4857 Petitioner's proposed findings of fact numbered 1-6, 8-15, 17-25, 27-40, 42- 46, 48, 51, 53, and 55 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues involved in this proceeding. Petitioner's ,proposed findings of fact numbered 16, 26, 47, 49, 50, 52, 56, and 57 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 41 has been rejected as being unnecessary for the determination of the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 54 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed findings of fact numbered 1-18 and 20-22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 19 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Madelyn P. Schere, Esquire Patricia Bass, Esquire School Board of Dade County Board Administration Building Suite 301 1450 Northeast Second Avenue Miami, Florida 33132 Lorraine C. Hoffman, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Paul W. Bell, Superintendent Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent's employment should be terminated by Petitioner.
Findings Of Fact At all times material, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Lake County, Florida. Respondent, Robert Jenner, began working as a technology education teacher for the School District in August 2004, and has held a professional services contract since 2007. Technology education is the current-day version of shop class or industrial arts. At all times material to this proceeding, Respondent taught at Carver Middle School (Carver). Linda Shepherd is the principal and Greg Smallridge is the assistant principal of Carver. While not a member of the local teachers’ union, Mr. Jenner is an instructional employee and, therefore, a member of the collective bargaining unit between the School Board and the Lake County Education Association. Respondent is also subject to all School Board policies regarding instructional personnel. All classrooms at Carver have a traditional classroom with a lab connected to it. Respondent’s lab area contained several technology workstations for the students, and contained specialized equipment, e.g., a lathe and a robotic arm. Typically, class would begin in the traditional classroom area, and then the class and Respondent would go into the lab area. Because of the configuration of the classroom and the lab, as well as the nature of the course, there were instances when Respondent could not see every student every minute of class. During October and November 2009, three incidents occurred in Respondent’s classroom involving a female student. These incidents involved inappropriate behavior, including behavior of a sexual nature with a male student. The female student received discipline for two of the three incidents ranging from an in-school suspension to an out-of-school suspension. Two of the incidents were observed not by Respondent, but by a teacher who was teaching in an adjacent classroom. These incidents raised the issue of whether Respondent was adequately supervising his classroom. Mr. Smallridge became aware of these issues and on November 23, 2009, he, Ms. Shepherd, and Respondent met and visited Respondent’s classroom to discuss steps to correct the problems concerning supervision of students. On November 30, 2009, a meeting took place which included Mr. Smallridge, Respondent, Dr. Maggie Teachout, and Dr. Teachout’s assistant. The purpose of the meeting was for Dr. Teachout to visit Respondent’s lab to make suggestions and recommendations as to ways in which supervision of the students could be improved in light of the configuration of the classroom and lab.1/ At some point, Mr. Smallridge determined that completing an Appraisal II for Respondent was the appropriate course of action. An Appraisal II takes place due to problems or concerns regarding a teacher that have arisen outside of an actual classroom observation. An Appraisal II is part of the Instructional Personnel Performance Appraisal System (IPPAS) for teachers, which is a policy adopted by the School Board. An Appraisal II notes deficiencies, places the teacher on notice about these deficiencies, and gives direction to the teacher as to what steps should be taken to correct the deficiency. On December 2, 2009, Ms. Shepherd, Mr. Smallridge, and Respondent met in Ms. Shepherd’s office during Respondent’s planning period for the purpose of completing the Appraisal II. During such a meeting, it is standard practice to complete the form during the course of the meeting. Mr. Smallridge had a blank Appraisal II form and intended to complete the form during the course of the meeting. However, during the meeting and before the Appraisal II form had been completed, Respondent stated that he would not sign the form. Mr. Smallridge informed Respondent that if he did not sign the form, it would be considered insubordination. Blank signature lines appear at the bottom of the Appraisal II form for the signatures of the teacher and the person assessing the teacher. Underneath the blank for the teacher’s signature appears the following: “Indicates receipt of appraisal and not necessarily agreement with the contents.” Mr. Smallridge read this to Respondent, but Respondent still refused to sign the form and stated that he was going to quit. Further, paragraph V (5) of the Appraisal II form provides a space for the teacher’s response with the notation “Attach additional sheets if desired.” Ms. Shepherd and Mr. Smallridge asked Respondent to reconsider his announcement that he would quit. However, Respondent went back to his classroom, and collected his personal items. He returned to Ms. Shepherd’s office, placed his keys on Ms. Shepherd’s desk and left school. This was the last time Respondent worked at Carver. While Respondent returned to Ms. Shepherd’s office to turn in his keys, Ms. Shepherd spoke to Respondent again and saids “Please, please don’t do this.” Despite this, Respondent left school during the school day. Ms. Shepherd instructed her secretary to call for a substitute. Ms. Shepherd stayed with Respondent’s class until the substitute arrived so that the class would not be unattended. At no time did Ms. Shepherd or Mr. Smallridge tell Respondent that he was terminated. Respondent did not request leave prior to leaving school, or at any time thereafter. Ms. Shepherd next saw Respondent on December 15, 2009, when he came to school on payday. She again asked him to reconsider his decision. He responded that he would let her know his decision that Thursday, but did not do so. On December 16, 2009, Ms. Shepherd wrote a memorandum to Respondent which states as follows: This letter is written to put you on notice that I am requesting the Superintendent to take your termination to the Board based on your absence without leave since December 2, 2009. This violates School Board Policy 6.511, Absence without Approved Leave. I base this letter on the facts that on Wednesday, December 2, 2009 at 10:20am, we (Mr. Smallridge, you and I) were prepared to write an Appraisal II for the lack of supervision that occurred in your classroom on Wednesday, November 18, 2009. At that time, you stated that you were not going to sign the Appraisal II document and if we (Mr. Smallridge and I) were going to write you up for the incident that occurred in your classroom, you were handing in your keys. I asked you to sign a resignation and you stated that people walk off the job everyday without signing a resignation. You handed in your keys and left campus approximately 12:15pm. You have not reported to work since that date. On December 17, 2009, Superintendent Moxley sent a letter to Respondent informing him that he was considered absent without approved leave in violation of School Board Policy 6.511. The letter informed Respondent that she would be recommending his termination of employment to the School Board and gave him notice of his right to a hearing regarding his dismissal. Respondent sent a letter to Dr. Moxley requesting a hearing on his termination, which gave rise to this proceeding. At hearing, Respondent explained his reasons for not signing the Appraisal II: he refused to sign the Appraisal II because he did not want his name “besmirched”; he believes that the school administration has not adequately dealt with the female student’s discipline regarding her inappropriate behavior in his class and felt he was somehow being made a scapegoat; he was concerned that there would be some type of criminal implications regarding the female student’s behavior and, “if I signed that document, I would have been brought into it.” Prior to the events that transpired in November and December 2009, Respondent had received satisfactory evaluations in the area of classroom supervision.
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. DONE AND ENTERED this 30th day of April, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 30th day of April, 2010.
The Issue Whether there is just cause to terminate Respondents' employment with the Monroe County School Board.
Findings Of Fact The Events Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Monroe County, Florida. At all times material to this proceeding, Respondents David Gootee and Marisa Gootee (hereinafter "Mr. Gootee," "Mrs. Gootee, or "the Gootees") served as cosmetology teachers at Key West High School ("KWHS"). Pursuant to the terms of their professional service contracts, Mr. and Mrs. Gootee were obligated to perform, respectively, 4.8 and 7.5 hours of work each school day; in exchange, the Gootees each received salaries.1/ As established during the final hearing, the School Board offers cosmetology instruction to two distinct populations: "traditional" high school students, who are taught during regular school hours; and individuals enrolled in the School Board's adult education program. From what can be gleaned from the record, it appears that, prior to the 2001-2002 school year, adults who received cosmetology instruction did so separately, and at different times (presumably, in the late afternoon or evening), from traditional high school students. Consequently, the work hours for which the Gootees received salaries, which coincided with KWHS's regular bell schedule, were dedicated exclusively to the instruction of traditional students. In or around 2001, however, John Andola, the School Board's director of adult education, asked the Gootees if they would be willing to furnish instruction to the adult students during normal school hours——i.e., at the same time as the traditional cosmetology students. By all accounts, the presence of the adult students would, and ultimately did, impose additional responsibilities upon the Gootees. For instance, the adult students, who were segregated from the traditional students for part of the day (thereby requiring the Gootees to traverse between the two populations), were tested and issued grades.2/ In exchange for their assumption of these extra burdens, Mr. Andola proposed that, in addition to their existing salaries, the Gootees would each receive three hours of compensation——at a rate of approximately $20 per hour——for every workday, notwithstanding the fact that the Gootees would be spending more than three hours daily with the adult students. (In other words, the hourly pay would be "capped" at three hours per workday.) Of the genuine and reasonable belief that Mr. Andola's proposal was legitimate,3/ the Gootees accepted the offer. Before proceeding further, it is important to make two observations concerning the foregoing compensation arrangement. First, and as confirmed by the final hearing testimony of the School Board's witnesses, it was not unheard of in Monroe County for salaried teachers to receive additional, hourly pay for providing instruction to adult education students.4/ Moreover, the disbursement of hourly pay to the Gootees, a practice that would continue unabated from 2001 through September 2009, was no secret; indeed, the authorization of hourly pay on an "as needed basis" is documented throughout the Gootees' personnel forms, which bear the initials or signatures of various School Board officials, including that of the deputy superintendent.5/ In or around 2007, Monique Acevedo replaced Mr. Andola as the School Board's director of adult education. As Mr. Andola's former secretary, Ms. Acevedo was aware that the Gootees were receiving hourly pay, and there is no dispute that the arrangement continued with her approval. At or about the time of Ms. Acevedo's promotion, the adult education department instituted a requirement that its instructors submit written, weekly timesheets. The timesheets, which indicated that the total hours worked per week for the adult program, were signed by the instructor and delivered to the secretary of the department, who, in turn, forwarded the document to Ms. Acevedo for approval. Thereafter, an office manager entered the hours into a computer system, which could then be viewed by the payroll department.6/ Notably, the adult education timesheets related only to the hourly work performed in connection with that particular program; that is, the forms were not intended to document the time spent by salaried instructors in connection with their contractual work responsibilities. Consistent with these procedures, and over the next several years, the Gootees submitted written timesheets to the adult education department. In accordance with the three-hour cap (put in place by Mr. Andola, and continued by Ms. Acevedo), the Gootees billed three hours per day, for a total of 15 hours weekly, on their timesheets. For informational and non-billing purposes only, the Gootees also indicated on the timesheets the span of time in which they were on campus and in the presence of adult students. Specifically, Ms. Gootee typically recorded times of 8:15 a.m. through 3:45 p.m., while Mr. Gootee, who worked a shorter day, generally notated 8:15 a.m. or 8:30 a.m. through 1:00 p.m. However, it must be emphasized, once again, that these ranges, which were recorded solely on the adult timesheets, were not intended to reflect the amount of time the Gootees spent in connection with their salaried, contractual work. (For those duties, KWHS teachers, including the Gootees, were required to sign in and out of the workplace in a separate, daily log.)7/ Subsequently, in late March or early April of 2009, the School Board terminated Ms. Acevedo's employment. At that time, and on an interim basis, Jeff Arnott assumed Ms. Acevedo's duties as the director of the adult education program. Over the next five months, the Gootees continued to submit their weekly timesheets, which Mr. Arnott approved.8/ Thereafter, in September 2009, Mr. Arnott was appointed as the director of the adult education program on a permanent basis, at which point he gained access to the School Board's master schedule. From his examination of the schedule, Mr. Arnott learned that the Gootees' work for the adult program occurred during regular school hours, as opposed to some other time period that did not coincide with their salaried work schedule. Concerned with the "overlap" in the hours, Mr. Arnott immediately inquired of the Gootees (both of whom enjoyed excellent reputations as professionals, a point Mr. Arnott conceded at hearing), who explained, correctly, that the arrangement had been ongoing for years with the approval of the prior directors.9/ Nevertheless, Mr. Arnott reported the issue to the superintendent of schools, culminating in the initiation of the instant proceeding. As noted earlier, the School Board called only two witnesses in this matter: Mr. Arnott, who had no involvement in the adult education department until 2009, some eight years after the Gootees began receiving the hourly pay; and Debra Henriquez, an employee in the School Board's payroll department. Through Ms. Henriquez' testimony, the School Board attempted to establish that the payroll department was unaware of the overlap in the Gootees' hours——an arrangement the witness opines was improper——until September 2009. The School Board fails to recognize, however, that Ms. Henriquez' knowledge of the situation10/ and her view of its legitimacy are of no moment; the issue, as framed by the Complaints, is whether the Gootees, in accepting the hourly compensation, acted with dishonest or fraudulent intent. It is concluded, for the reasons explained below, that the Gootees did not act with such intent. Contrary to the School Board's suggestion, this is not a situation where an educator committed an obvious and indefensible act of impropriety, such as accepting bribes for inflating grades, helping students cheat on the FCAT, or stealing money from the lunchroom cash register——behavior that could not be legitimately defended on the basis that it occurred with a supervisor's encouragement or approval. Here, the director of the adult program, an individual tasked with utilizing adult education funds,11/ offered the Gootees extra pay (approximately $10,000 each per school year, a sum that is hardly conscience shocking) in exchange for their assumption of additional duties; that the work with the adults occurred during regular school hours does not change this fact, nor does it compel a rejection of the Gootees' credible and reasonable testimony that they believed in the arrangement's propriety. This is particularly so in the absence of any evidence that the Gootees' professional services contracts obligated them to accept the adult education students without any corresponding increase in compensation. Finally, the undersigned rejects the School Board's contention that the Gootees' notations on their weekly, adult education timesheets were somehow fraudulent or dishonest. Notably, the entries recorded on the forms accurately reflected the spans of time, during regular school hours, in which the Gootees instructed the adult students——i.e., there is no evidence that the Gootees attempted to conceal the "overlap" by recording time periods when they were not dealing with the adult students, such as after the normal school day or during the evening. Indeed, that the timesheet entries plainly indicated the existence of an overlap only further supports the Gootees' credible testimony that they believed in the arrangement's legitimacy. Determinations of Ultimate Fact It is determined, as a matter of ultimate fact, that Respondents are not guilty of failing to maintain honesty in their professional dealings. It is determined, as a matter of ultimate fact, that Respondents are not guilty of submitting fraudulent information on documents connected with their professional dealings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order: dismissing the administrative complaints; immediately reinstating Respondents' employment; and awarding Respondents any lost salary and benefits. DONE AND ENTERED this 4th day of November, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 4th day of November, 2013.
The Issue Whether it was proven by clear and convincing evidence that Respondent committed the offense(s) charged in Petitioner's Petition; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Stipulated Facts During the 2014-15 school year, Respondent was employed as a teacher at Frontier Elementary School ("Frontier"). Respondent is an experienced teacher. Facts Established at the Hearing Petitioner is the duly-constituted school board of Palm Beach County, Florida. It is charged with the duty to provide a public education to the students of Palm Beach County and to establish policies and programs consistent with state law and rules that are necessary for the efficient operation and general improvement of the Palm Beach County district school system. Respondent was employed by Petitioner as a teacher in the Palm Beach County district school system for 16 years and has been teaching since 1996. At all relevant times, Respondent was employed at Frontier in Palm Beach County, Florida. Respondent previously taught second grade, third grade, and fifth grade in self-contained class settings. During the events relevant to this action, she was an English Language Learners (ELL) resource teacher to children in grades first through fifth. Her performance evaluations had been positive up until the events which are involved in this matter. The employment relationship between Petitioner and Respondent is subject to the terms and conditions of a collective bargaining agreement between Petitioner and the Classroom Teachers Association of Palm Beach County ("CTA"). Petitioner has alleged in its Petition that Respondent is guilty of the following violations of statute, School Board policies, or administrative rules: School Board Policies 0.01(2)(c) and (2)(d) Commitment to the Student, Principle I; School Board Policy 3.02(4)(a), (4)(d), (4)(e), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 5.002, Anti-Bullying and Harassment, Expectations; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff, School Board Policies; School Board Policy 3.27, Criteria for Suspension & Dismissal and Code of Ethics of the Education Profession in Florida; Article II, Section M of the CTA Collective Bargaining Agreement; Rule 6A-5.056, F.A.C., (2) Misconduct in Office; H. Rule 6A-5.056(4), F.A.C., of [sic] Ethics of the Education Profession in Florida; I. Rules 6A-10.081(3)(a) and (3)(e), F.A.C., Principles of Professional Conduct for the Education Profession in Florida. The facts underlying these alleged violations are outlined in paragraphs 8 through 12 of the Petition filed by the School Board dated March 2, 2016. See DOAH docket entry and Petition filed on March 2, 2016. Incident Involving Z.N. Z.N., a student of Respondent, was called by the School Board. On direct examination, he was unable to remember how he was treated by Turnbull when she was his teacher. Other than acknowledging that he remembered being pulled out of Petitioner's class, Z.N. articulated no credible, clear, or convincing testimony supporting any of the allegations lodged against Respondent regarding her interaction(s) with him. Z.N.'s mother, J.N., testified that Turnbull was her son's teacher when he previously attended H.L. Johnson Elementary School ("H.L. Johnson"). Z.N. would come home every day crying and seemed miserable in Respondent's class. These observations occurred when he was Respondent's student at that elementary school. He was moved to her class at Frontier on September 22, 2013. There were times when he attended her class at H.L. Johnson that he would come home from school and would be visibly shaking. He would throw up the night before school, and she would have to physically put him in the classroom while he would beg and scream not to stay. Prior to and after leaving her class, Z.N. did not exhibit those behaviors. She wrote a letter complaining to the principal about Respondent. His mother also testified that Z.N. has been diagnosed as having attention-deficit/hyperactivity disorder ("ADHD"). The mother observed that on days where he had to attend school with Respondent at H.L. Johnson, she noticed a big difference in his sleeping and his eating. His demeanor would change, and he became withdrawn. The mother of Z.N. did not personally observe any interaction between her son and Respondent in the classroom. The father of Z.N. testified as well. He recounted that his son did not want to attend school while he was previously in Respondent's class at H.L. Johnson. He would become upset, emotional, and withdrawn. His son "threw fits," broke down, and cried when he had to go to school. To investigate his son's disconcerting response, the father personally "observed" the class three times, from outside the door.1/ During one visit, he observed the class being somewhat reckless, and Respondent was trying to get her class under control. He heard Turnbull slam a book on the desk to get the attention of the class. He heard Petitioner use the "F bomb" on one occasion.2/ When Z.N. transferred out of Turnbull's class, he started doing very well, began to succeed, and started to come out of his shell. He began going to school with less of a problem. Like the mother, Z.N.'s father did not personally observe or witness any interaction between his son and Respondent. E.D. was a student in the same class with Z.N. and Respondent at H.L. Johnson. She testified that she found Respondent to be a great teacher, and she learned things in the class with her. She felt that Turnbull was very nice to other students and her. She never saw Turnbull pick on Z.N., or treat him in a way that she felt was unfair. On the other hand, E.D. testified that Z.N. was loud and disruptive in class. Z.N. caused problems in the class which prevented the class from moving forward. E.D. did not recall hearing Respondent yell at any students, other than perhaps once when the class was loud. She never saw or heard Z.N. cry in class. The testimony of E.D. was credible and gained from personal knowledge and actual observation of teacher/student interactions in the classroom. Turnbull testified about her involvement with Z.N. At some point in time, Z.N. eventually became her class student. He was bright, although he had a diagnosis of ADHD and had been prescribed medication, which he "took infrequently, at best." He acted out and was disruptive in class virtually every day. He was disruptive in different ways, sometimes calling out and sometimes making funny noises with his mouth. At times, he would bother the other children. The behavior of Z.N., combined with that of other students, was difficult and disruptive, preventing her class from moving along according to the curriculum. As a result, the class was falling behind the other classes academically. Respondent did yell at Z.N. but not as a first resort. She would first talk to him and ask him to stop. She tried different techniques with Z.N., but admitted that there could have been times when her voice got louder when she had to repeat the same thing to Z.N. six or seven times within a short time period. She has a loud voice, which some students can interpret as yelling, but that was not her intent. Until the time Z.N. left her classroom, she felt that the parents were supportive. The mother sent her emails thanking her partially for what she was doing for her son, including an email thanking her for easing his transition into her class. She felt compassion for Z.N. and believed that he could not control what he was doing, particularly when he was not regularly taking his prescribed medication. The more persuasive evidence is that Z.N. presented teaching problems and challenges to Respondent. He disliked going to school after he was assigned to Respondent's classroom, but the undersigned is not convinced that his reaction to school was based on any traumatic treatment by Respondent. Z.N. himself offered absolutely no evidence regarding any wrongdoing by Respondent. Based on this record, there was simply a lack of clear and convincing evidence to support the allegation(s) that Respondent violated any statute, policy, or rule regarding her interaction with Z.N. Incident Involving Student A.C. A.C. was called by the School Board. He was Turnbull's fifth-grade student at Frontier. A.C. is now 13 years old and in seventh grade. On direct examination, he testified that he liked having Respondent as his teacher. He also recounted that there was not a time he did not want her to be his teacher or a time he did not want to be taught by her. Inconsistently, however, he also testified that he talked to his parents about getting him out of Respondent's class because she was rude and he did not want to be in her class. After he was no longer in her class group, there came a time when Respondent wanted A.C. to return to her group. A.C. testified that Turnbull came to get him and took him outside to talk. She stood close to him outside in a hallway alcove. He said that he was scared and nervous because he did not like the idea of a teacher talking to him. However, Respondent did nothing else to make him feel uncomfortable while they were standing in the hall. Respondent was merely talking to him. A.C. testified that when he spoke with Respondent in the hallway, she told him how much she liked him. She was not yelling or rude to him. This same hallway discussion between Turnbull and A.C. was apparently observed by Jacquelyn Marie Smith, a ten-year teacher at Frontier. She testified that one day as she was walking down the hallway with a few students, she observed Respondent and A.C. in the alcove of a doorway outside a classroom, standing about eight inches apart. It appeared to her that Respondent was speaking to A.C. and reprimanding him for something. She observed the look on A.C.'s face and could tell that he was very uncomfortable. However, she did not hear anything said by either Respondent or the student. She assumed the student was being disciplined based on his body stance and facial expressions. She did not observe Respondent place her hands on A.C. in the hallway. She testified that she observed the situation for "maybe 10 seconds."3/ There was nothing about Respondent's demeanor, posture, or anything else that led her to believe that Respondent was angry or upset. She never observed A.C. crying during her brief observation of this hallway encounter. Another teacher, Rosa Cabrera, testified that as she was passing by, she also saw Respondent in the hallway with her finger pointed at "J," a second-grader. Respondent was crouched down in the student's face saying things which Cabrera could not hear. She had no idea what Respondent was saying to the child. She did not hear anything, although she passed very close to Respondent and the student. The two were talking in a tone lower than a typical conversational tone. Like Smith, Cabrera found the fact that Respondent was standing so close to the student to be improper.4/ Respondent testified that A.C. was removed from her group for a period of time. She understood that he had gone home one day and expressed to his father that he was upset because he felt that she did not like him or that she had been mean to him and he did not want to go back to her class. When he was removed from her teaching group, Turnbull became concerned about A.C. not being provided the teaching instructions he needed. It was unrebutted that she exchanged emails with the assistant principal expressing her concern for him and her desire to work with A.C. again. As a result of her request, she was directed by the assistant principal to work with A.C. again. Respondent decided to speak to A.C. first to be sure that he was comfortable with her. She asked A.C. to come out of his class into the hallway, and they spoke in the hallway alcove. The alcove was the width of the door and perhaps an additional six inches on either side. She did this so that their conversation would not be overheard by classmates, would not embarrass him, and to ensure that A.C.'s privacy would be protected. She stood close to A.C. because there was little room in the alcove and she could hear his voice. She wanted to speak quietly and gently to him so that she would be more reassuring to him.5/ Respondent told A.C. that she understood that he felt that she was angry at him for some reason. She told him that she wanted to reassure him that she was not angry with him. Respondent told A.C. that there had been some misunderstanding between them and she would like to try to clear it up. She asked him how he felt about coming back into her class group, and told him that they missed him because he was a great addition to it. By the time the conversation was over, A.C. was smiling. They shook hands and said that they would see each other in group later that day. A.C. came to her group later that day and had an excellent session, smiling more than he had before. At no time in her conversation with him was there any scolding, anger, or cross words used. The evidence from the student, A.C., did not support a finding of any violations by clear and convincing evidence. What he did recall, and testify to, did not amount to infractions by Respondent. Likewise, the fellow teachers' unfavorable conclusions about what they observed in the hallway alcove were based on brief observations and did not constitute clear or convincing evidence of any violations. Incident Regarding Marisa Madzi Respondent "pushed in" to the classroom of Marisa Madzi, a third-grade teacher at Frontier.6/ Madzi alleged that Respondent "corrected her" in front of the class, although Madzi could not recall specifically what the correction was about. She recalled that Respondent "chimed in," telling her that she was wrong about a point or topic she had been explaining to her class. Madzi felt that Respondent acted in an unprofessional manner and that if she had an issue, she thought she should have addressed it afterwards and not in front of the class. However, Respondent's statement in front of the class did not cause her to stop her teaching. Respondent previously complained to Madzi that Madzi was loud in the classroom when she taught and that it was interrupting Respondent while she was working with her small group.7/ Respondent explained the incident in a different way. She was working with her students when one of them shared with her his response to Madzi's explanation of the answer. The student explained to Turnbull that he did not understand why his answer was wrong. She looked at the question and could see where his confusion came from. Either Madzi walked over to her to determine what she was talking to the student about or Respondent gestured for her to come over. She told Madzi that "I explained it to him, but you may want to go further into explaining to him why that's the right answer." Madzi had a reaction to being called over by Turnbull and said, "Okay, I will take care of it." Madzi had a funny look on her face that made Respondent uncomfortable. Thinking that Madzi may have been upset by their interaction in class, Respondent sent her an email (Resp. Ex. 40), saying that she did not intend to step on Madzi's toes. The purpose of the email was to apologize for giving Madzi the impression that she was correcting her. Turnbull testified that during the entire time that Respondent worked at Frontier, Madzi never spoke to her to suggest that there was anything about her, her teaching style, or her dealings with her students that she was uncomfortable with. The undersigned finds that there was not clear or convincing evidence to conclude that the incident in Madzi's class constituted a violation of any statute, policy, or rule. Incident Involving Rose Cabrera Rose Cabrera has been a teacher at Frontier for 12 years. She was driving home from campus one day and felt that Respondent was driving behind her in an aggressive manner.8/ The next day Cabrera approached Respondent on campus and said that she was the one that Respondent was tailgating and yelling at. She claimed that Respondent immediately got upset and started yelling at her and telling her that she was unprofessional. Cabrera then walked away. The next work day, Respondent stopped Cabrera in the hallway and asked to talk. Cabrera claimed that Respondent told her that "there were two possible reasons why people tailgate; either they are crazy or they have a problem, like something's going on." Cabrera testified that she walked away; but, that Respondent continued to yell at her, saying that she was unprofessional and pointing her finger at her. No students or other employees were present at either of these encounters between Respondent and Cabrera, and none were called to testify about them. Turnbull testified that she recalled the incident. She was running late for an appointment and was driving in a rush. She did not recognize the person driving the car in front of her. The next day, as she left the mail room, a person whom she did not recognize was blocking her way. The woman began to berate her, stating that Respondent had been tailgating her, that she was crazy on the road, that the woman had recently had an accident and was very nervous on the road, and that Respondent should not have been doing what she did. Respondent "could not get a word in edgewise." Neither woman was shouting. Shortly thereafter, Respondent saw Cabrera in the hallway and asked to speak with her. She tried to explain to her that she was sorry if she had upset her on the road. The two were talking over each other, but Respondent tried to explain that if somebody is behind her or beeping or waving or tailgating, she usually just gets out of their way, as obviously they are in a hurry for some reason. Cabrera said that she did not want to talk to Respondent. She had upset her the other day and was upsetting her again, so she walked away. As Cabrera was walking away, Respondent told her she was being unprofessional because she was not allowing Respondent to reply to the accusation. They never spoke of the matter again. The off campus incident on the road and the follow-up discussions on campus do not support a violation of any statute, rule, or policy by clear and convincing evidence. There was no credible evidence presented to suggest that any students or other staff members were affected, and the dispute was in the nature of a personal disagreement between Turnbull and Cabrera. This conduct and personal encounter, while regrettable, did not rise to the level of a violation of a statute, policy, or rule by Respondent. Incident in Alyssia Liberati's classroom. Alyssia Liberati worked as a teacher at Frontier for approximately 15 years. Respondent was teaching two students at the back table in her classroom, while Liberati was teaching the main class a social studies lesson. Liberati asked her students a question and, when some raised their hands, Respondent inexplicably raised her hand as well. The students thought that was funny. Liberati did not find Respondent's action to be appropriate because she was asking the children the question, not Respondent. Liberati could not remember whether Respondent was working with her students on a separate matter or whether they were included as part of the social studies lesson. Respondent claims they were coordinating their work, and one of her students wanted to participate in Liberati's question. Turnbull further testified that when the class was asked this question by Liberati, one of Respondent's own students had the correct answer. She encouraged the student to raise his hand and answer Liberati's question. When he just smiled, she offered to raise her hand for him, and he agreed. When she raised her hand, Liberati called on her. When the student would not answer, despite her encouragement, Respondent announced the student's answer and attributed it to him. Liberati said nothing to her then or after class and did not chastise her in any way, then or later. Respondent testified that part of her job was to help the English for Speaker of Other Languages (ESOL) students acquire oral language and the ability to socially interact and participate. She wanted to show the student that he should not be afraid of participating. Liberati continued on with her class and never suggested to Respondent that by raising her hand and offering her student's answer, she had disturbed her class. Empty Classroom Incident with Alyssia Liberati On another occasion, Respondent went to Liberati's classroom to "push in" and found the classroom dark and empty. Respondent waited for approximately ten minutes, thinking that the students may have been out of the room for some reason and would be late getting back. When the class never appeared, Respondent left. She wrote an email to Liberati, asking that she be notified in the future if the class and teacher were not going to be in the room at her designated arrival time.9/ Pet. Ex. 12. Liberati testified that she received an email from Respondent that night, which she characterized as requesting that she let Respondent know next time in advance if she was not going to be in the classroom because her time is valuable, that she does not have much time to go from one classroom to the next, and that she had wasted her time trying to find out where her students were. She responded to the email late that night, explaining about her daughter. She found Respondent's email to be offensive and inappropriate. The next morning, Respondent read the late night email from Liberati and, for the first time, found out about Liberati's daughter's situation. She responded immediately to Liberati and explained that at the time that she wrote her email, she had not known that Liberati's absence had been due to a family emergency. She also inquired about the well-being of her daughter. Pet. Ex. 12. Respondent further wrote, "No offense was intended," and "[S]o I hope none was taken." She followed up by going to Liberati's room in the morning to ask her if she had seen her email from that morning. Liberati replied that she had not yet seen it. Respondent explained to her that had she known that Liberati's daughter was ill, she would have never sent the email. Respondent told Liberati that her daughter takes priority and that she inquired as to how her daughter was doing. Liberati testified that she was offended by the email and that Respondent did not have to send it. She felt that Respondent could have asked another teacher where her students were. Respondent tried to explain to her that she had been instructed not to knock on other teachers' doors for any reason, so she did not-–as she did not want to disturb other classes. Nonetheless, Liberati was very angry with her. During Respondent's follow-up about the second email the next morning, Liberati felt that Respondent was in her personal space and she felt uncomfortable. She noted that Respondent's tone was very rude and confrontational and felt Respondent should not be speaking to her like that in front of the children in the hall. However, Liberati acknowledged that Respondent expressed to her in one form or another that no offense was intended. Liberati's coworker, Tara Levine, saw Respondent come down the hallway the next morning in what she described as a fairly aggressive manner, at a fast pace and with an annoyed look on her face. Levine observed a conversation between Liberati and Respondent which she felt was "a little heated." However, Levine admitted that she could not remember the conversation or its tone. She felt it was necessary to remove students from the area, which was in the hallway just before school started. Levine testified that Respondent's finger was in Liberati's face, although she observed that Liberati is much taller than Respondent, who was standing very close to Liberati. Levine never reported the incident to any administrator. Based on an objective view of the facts involving Liberati's classroom hand-raising incident and their exchange of comments regarding the empty classroom incident, there is no clear and convincing evidence that these events constituted a violation of any statute or rule. Respondent was attempting to coach her student to raise his hand when he had the right answer, and then modeled the hand-raising for him. Rather than doing something improper, Respondent was serving her student in a manner that caused no problem to Liberati. While Liberati may have been taken back by this technique, it did not constitute a violation of any rule or policy. Likewise, there was nothing improper about the email written by Respondent, who did not know about the ill child. When she found out, she responded appropriately and with due concern for the child, explaining that she did not know of the circumstances. Although the undersigned credits the observation by Levine, the hallway confrontation between Liberati and Respondent does not rise to the level of clear and convincing evidence to support a violation of statute, policy, or rule. Incidents Involving J.B. Respondent taught in a class of students with Janet Vino, a teacher at Frontier. Vino testified that Respondent was very aggressive toward her student, J.B. Respondent would get "in his face," speaking loudly enough for the rest of the class to hear. While Vino conceded that there was nothing inappropriate about reprimanding a student who is having behavior issues, Respondent did so in a way that Vino could hear Respondent as she was teaching her lesson off to the side. Vino described Respondent's demeanor with J.B. as very loud, with her being very close to him and with her fingers pointing in his face. Vino said that Respondent on occasion would ask her in class whether she had issues with him too. On occasion, J.B. would hide in the bathroom to avoid going with Respondent. When he would come out to go with her, he would be sulking. J.B. was in the midst of a number of family and legal-related problems, and he also had discipline issues. Vino acknowledged that she was never trained to avoid pointing your finger and shaking it at a student or not to "get too close to a student." Respondent conceded that she had problems with J.B. He would not do his work and was disruptive. J.B. would do disruptive things, like crawl under the work table and lift it up with his shoulders, while she was working with the other students. J.B. spoke to her disrespectfully at times and would hold up the class by taking his time getting started and by not being ready when she would arrive to pick him up. Sometimes he would go in the bathroom and would not come out. The effect of J.B.'s behavior on her teaching was to limit the time that she had available to teach him and other students in his group. It often took ten minutes to get J.B. to the room and seated at the table, before they could even get started. His behavior interrupted the lessons that Respondent was trying to teach and interrupted the learning of the other students. Respondent sought help with J.B. from his teacher, Vino, and Assistant Principal Witt. Respondent sought help from Vino one time in her classroom, calling her to ask if she could come over and help with J.B. because he was refusing to work and instead was writing on the worktable with a crayon. Vino never complained to Respondent about her request for help but seemed unwilling to help her with J.B. As a result, Respondent did not seek her assistance again. Turnbull sent emails to the principal and the assistant principal concerning J.B. and his problems at school. Respondent felt that J.B. was a special child who came from a difficult situation and that people at the school should be working to help him. She wanted to keep the administration informed regarding her dealings with him and how he was doing with her. Resp. Exs. 10, 11, 12, 15, and 24. Respondent made efforts to try to work with and communicate with J.B., notwithstanding his behavioral issues. She tried speaking to him directly and told him that his behaving was keeping him from learning and preventing the other student from learning. Respondent testified that she liked J.B., and, as disruptive as he was, she felt a great deal of compassion for him. She understood his bad situation at home and knew that his family was split up among foster homes. She believed that his disruptive behavior was attention-seeking and that he was an angry boy. The undersigned finds that the more credible and persuasive evidence establishes that Respondent had trouble with J.B., who presented a formidable challenge to teach. This very likely would have been true for any teacher dealing with him. Respondent sought help from his teacher and the administration. The observations and concerns raised by Vino, while understandable, do not rise to the level of providing clear and convincing evidence of a violation of any statute, policy, or rule. Behavior Observed by Principal Susan Groth Susan Groth has been the principal at Frontier for six years. She felt that the collegial and helpful climate at her school changed after Respondent came to the school. While offering no causal or underlying link to Respondent, Groth claimed that teachers became more reserved, no longer left their doors open in the morning, and had fewer interactions with one another. She claimed that this collegial atmosphere changed with Respondent's arrival.10/ Groth claimed to have personally witnessed that after certain encounters with Respondent, Community Language Facilitator Melady Roque would be shaken and crying.11/ Groth personally encountered combative behavior from Turnbull when she would try to have conversations with her. She also started to receive complaints from other teachers about Turnbull.12/ In response, she offered Respondent different training opportunities, which Respondent attended. Groth provided Respondent with two mentors for advice because she was new to the "push in" and "pull out" class system at Frontier. Groth was made aware of issues involving Respondent from other teachers within her first three weeks at the school. She received reports about Respondent concerning intimidation, humiliation, interruptions, unprofessionalism, and Respondent being very defensive.13/ However, she did not witness those encounters or behaviors herself. She noted that Respondent was defensive when she would provide constructive feedback to her. During one of her classroom observations of Respondent at work, a student misread certain sight words. Respondent nonetheless praised his work. Groth addressed the matter with her. She felt that Respondent's response to her counseling was very defensive. Subsequently, Groth gave a written observation report to Respondent. Respondent disagreed with several observation points made by Groth. She provided Groth with a written explanation setting forth her rebuttal and verbally defended her position.14/ Despite this, when Groth provided her with helpful resources and training to review, Respondent participated. However, Groth felt that Respondent did not accept her criticism very well. The issues that Groth had with Respondent were becoming less serious as time went on. It appeared to Groth that by January of Respondent's first year at Frontier, Respondent was beginning to properly adjust to the school environment and personnel. However, shortly thereafter, during an investigative meeting with Turnbull, Groth confronted Respondent with the names of several teachers that had complained about Respondent's behavior.15/ During the meeting, Turnbull had a pad of paper out and was bearing down hard and writing every time a new name of a witness was disclosed by Groth. At one point, she threw down her pencil on the table in frustration and stated, "This is horse shit." She did not throw the pencil at any person, nor did Groth think that it was her intent to do so. Respondent's union representative, at one point, had to calm her down because Respondent's arms were flailing, and she was explosive. Respondent used profanity during the meeting.16/ Despite Turnbull's actions, the process went on to completion. Neither Respondent nor her union representative ever asked for the meeting to be adjourned. Respondent's actions during that meeting were documented.17/ Pet. Ex. 11. Turnbull provided her version of this investigatory meeting with Groth. She received notification that an incident involving A.C. was being investigated. The notice of the meeting advised her that there was going to be an inquiry into an incident regarding A.C. At the meeting, other matters, unrelated to A.C., were brought up by the principal. Respondent objected to the other matters being raised. She felt that she had been "blindsided" and was being treated unfairly by consideration of matters that were not part of the official notice to her. Respondent became upset and started crying because these issues were statements made against her by colleagues, and she did not know so many people were upset with her. She testified that none of her colleagues ever approached her about any of these complaints or issues. She thought that the meeting was called to discuss one specific incident regarding one specific child. She was overwhelmed when she learned that there were so many complaints against her by teachers who had never said anything to her. Respondent was completely unaware that the statements from other teachers had even been taken. She admitted she felt betrayed and was extremely upset, stunned, and shocked. She did not threaten any person and did not confront any of the complaining teachers or staff members. Groth claimed to be worried about the safety and security of her staff and students, because of Respondent's profanity, emotional state, and explosive behavior at the meeting. Groth worried about Respondent "going after" one of the people on the list of witnesses announced at the meeting. After the meeting, Respondent was escorted off the campus without incident. Groth's belief that the mood at her school changed after Respondent arrived, without her own specific observations of conduct by Respondent, is nonetheless credited. However, her "sense" of an atmospheric change falls short of clear and convincing evidence of a violation of a policy or rule by Respondent. While Groth had the responsibility to observe and evaluate Respondent's performance, Respondent had the right to professionally and respectfully defend that performance in the observation conference. The manner of her evaluation performance defense does not violate any statutory policy or rule. However, the undersigned finds that Respondent's use of profanity and her unrestrained and explosive conduct, at the investigative meeting, were inappropriate and insubordinate. Petitioner provided sufficient and credible evidence to prove a violation of the rules and policies by clear and convincing evidence regarding her actions and conduct during this investigatory meeting with Groth. Other Relevant Events and Testimony From Respondent Aside from teachers who claimed difficulties or hostile encounters with Respondent, there were also teachers and colleagues who complimented her work and teaching methods. Janine Brockelbank has been a "push in" teacher at Frontier since 2003, like Turnbull. When she worked together in the room, she did not observe any problems with Turnbull. She observed Respondent working with Lisa Caprio's students, and the interaction seemed positive and professional to her. Turnbull often spoke closely and quietly to children in consideration of the privacy of the children and to prevent embarrassment. Brockelbank also stated that Respondent was cooperative and collaborative when they compared lesson plans with one another. Caprio taught at Frontier since it opened in 2001. She found Respondent to be on time and was always prepared to work with students. She promptly got started with the students and seemed to be ready to work with them. Caprio never had any issues with Respondent in her classroom. Caprio stated she did not find any issues with a teacher interrupting her lesson for assistance with a student. In her view, it was appropriate for a "push in" teacher to ask for her help with a student. Jennifer Eddy taught at Frontier for 13 years. Eddy observed Respondent work with her students. There was nothing that Respondent did while she was teaching in the same room that disturbed her or kept her from doing her job, nor caused her concern for the well-being of Eddy's students while they were taught by Respondent. Eddy thought that Respondent's one-on-one instruction seemed appropriate, collaborative, positive, helpful, and beneficial to the students. Catherine Burda is a 14-year veteran teacher at Frontier. She observed Respondent work hard and well with one of her students and felt she learned a lot from Respondent. Respondent had a good relationship with her students and came prepared each day. Burda wrote a positive and praising email to the principal regarding Respondent's work. Resp. Ex. 16. Burda appreciated that Respondent always spoke honestly and freely with her. Karen Lundgren worked with Respondent at H.L. Johnson and considered her to be a good colleague. Lundgren worked closely with Respondent, who was cooperative, collegial, and friendly. Respondent got along with students and taught them well. She acted professional and caring towards both students and colleagues. Smyrna Daumec, an 18-year teacher, taught with Respondent at H.L. Johnson. She found Respondent to be a good colleague because Respondent would contribute ideas on how they could work together and they shared lesson plans. Notably, she witnessed Respondent having professional disagreements with colleagues, but none of those professional disagreements adversely impacted her ability to teach. Respondent knew the material that she was teaching and was a cooperative coworker. Respondent was kind to the students and not belittling or mean. Parent S.S. had a daughter in Respondent's third- grade, gifted math class at H.L. Johnson. Her child learned and made progress in Respondent's class. Respondent remains her favorite teacher to this day. Her child learned and achieved in Respondent's class. Respondent consistently kept S.S. updated on her child's progress through email or notes in the agenda. S.S. never had any problems with Respondent, and her daughter had a good year of school when she was with Turnbull. She observed that Respondent interacted warmly with students and parents and acted very friendly and cheerful. Parent C.B. knew Respondent as a teacher for her two children at H.L. Johnson. When her children had Respondent as a teacher, they never acted or manifested a desire not to go to school. Respondent kept her updated on her children's progress, and she had open communication with Respondent while she was the teacher for both of her children. She found Respondent to be volunteering and helpful. She saw Respondent interact with other children in addition to her own when she was on campus and did not observe anything that was negative in those interactions. Her children had good years in school when they were in Respondent's class and seemed happy with her as a teacher, despite Respondent being a strict teacher. As a parent, C.B. was very happy with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order withdrawing the proposed five-day suspension and issuing instead a letter of reprimand to Respondent regarding her conduct during the investigatory interview with her school principal. DONE AND ENTERED this 9th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2017.
Findings Of Fact On November 11, 1989, Respondent forwarded a request for hearing by Petitioner to contest his suspension without pay and dismissal by the school board. Due to insufficient information being furnished, no case was opened. Subsequent administrative oversight resulted in no action being taken on this request by the Division of Administrative Hearings. By letter dated June 5, 1989, Petitioner, by and through his attorney, requested the status of the hearing requested by the school board in November 1987. In response thereto, Respondent filed the Motion to Dismiss that constituted the basis for the telephone conference call. At this conference call hearing, Petitioner conceded that all facts recited in the Motion to Dismiss are accurate and, that on May 14, 1987, Petitioner and the Florida Department of Education entered into a Stipulation for Settlement wherein Petitioner's teaching certificate was suspended for one year retroactive to April 25, 1986. Petitioner was suspended without pay by Respondent on May 14, 1986, based upon his arrest for the offense which resulted in the suspension of his teaching certificate by the Department of Education. Petitioner was subsequently terminated by Respondent on May 26, 1987, retroactive to May 14, 1986, the date he was suspended without pay. On the effective date of Petitioner's termination by Respondent, May 14, 1986, he did not hold an active teaching certificate from the State Department of Education and was not qualified to work as a teacher in any Florida public school.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Franklin B. Etheridge's request for hearing to challenge his dismissal by the School Board of Polk County be denied, and Respondent's Motion to Dismiss be granted. Entered this 18th day of August, 1989, in Tallahassee, Florida. K.N. AYERS 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 18th day of August, 1989. COPIES FURNISHED: Dr. John A. Stewart Superintendent Polk County Schools Post Office Box 391 Bartow, Florida 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 C. A. Boswell, Esquire School Board of Polk County Post Office Box 391 Bartow, Florida 33830 John F. Laurent, Esquire Post Office Box 1018 Bartow, Florida 33830
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated December 17, 2003, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as Commissioner of the Florida Department of Education, is responsible to investigate and prosecute complaints against individuals who hold a Florida educator's certificate and are alleged to have violated provisions(s)of Section 1012.795 and related Rules. In cases where there is clear and convincing evidence to support any alleged violation, Petitioner is responsible to bring the case forward to the Education Practices Commission (EPC) for the imposition of discipline. At all times material to this case, Sanchez holds a Florida educator's certificate and is certified to teach social science. Sanchez was employed as a social studies teacher at Pinellas County's Northeast High School from January 1996 until August 8, 2001. He resigned on that date when confronted with the allegations which give rise to this case. Sanchez is a second-generation educator. Over the years he has been an effective teacher in a variety of settings, and has had a positive impact upon the lives of many students. At times relevant to this case, Sanchez had personal problems which he describes as "marriage problems, ex-wife hassles, money issues, lack of focus." In an effort to address the "money issues," Sanchez took a part time job at Sam's Club (Sam's), where he continues to work. At times relevant to this case, Sanchez was considered an excellent employee and team player by both Sam's and Northeast High School. At times relevant to this case, Sanchez shared a classroom at Northeast High with a teacher colleague. Each was provided by the Pinellas County school district with a classroom computer with Internet access. The computers were to be used exclusively for pedagogical purposes, including work related communications. Sanchez knew or should have known that the use of his classroom computer for non-professional purposes, including the exchange of sexually explicit or suggestive e-mail, or to download pornography, was expressly prohibited by the Pinellas County school district. At all times material to this case, the Pinellas County school district protected all of its computers with a so- called filter program called Net Nanny. The program's purpose is to filter out inappropriate websites, including pornographic websites. However, the Net Nanny filter is easily defeated if an Internet service provider such as America On Line (AOL) is installed on an individual computer. For that reason, the Pinellas County school district properly prohibited teachers from installing AOL on their assigned classroom computers. Sanchez claimed not to know of this prohibition, but the fact finder credits the testimony of Assistant Principal Cynthia Hearn (Hearn), Northeast High's technology specialist, who had a clear and precise recollection of having personally instructed Sanchez to remove AOL from his computer at least six months prior to the events giving rise to this case. Sanchez freely admits that at all times relevant, AOL was on his classroom computer and frequently utilized because he considers it "an amazing resource for teachers." At all times relevant to this case, AOL users have access to an "instant message" service. Sanchez claims that at relevant times, he confined his use of this service to brief messages such as "I'm on the way home" to his then-wife. Sanchez also admits to using the instant message service "on a fairly regular basis" to participate in informal work-related discussion chat rooms with "several colleagues that had . . . similar set ups on their computers at work as well. " Sanchez' description of his use of AOL was less than forthcoming. At times relevant to this case, Sanchez established Internet accounts in names such as "FunkyLoverMan99@yahoo.com" and used these accounts to access the Internet via AOL for purposes of exchanging sexually explicit and sexually suggestive e-mail with a woman with whom he was having an extra-martial affair. In addition, at times relevant to this case Sanchez downloaded a substantial amount of adult pornography to his classroom computer. Some of these unauthorized uses of the classroom computer occurred during hours when students were in the classroom. There is no evidence regarding what, if any, specific pornographic images or sexually inappropriate e-mail was viewed by any student. Sanchez' misuse of the classroom computer came to the attention of Northeast's administration on March 6, 2001, when two students from Sanchez' class were sent to the office of Assistant Principal Harry Brown on disciplinary referral. The girls alleged to Brown that Sanchez was using his computer for personal e-mail and further claimed they had seen pictures of girls on his computer. After school, Brown, accompanied by Hearn, entered Sanchez' classroom and turned on the computer assigned to Sanchez. Brown noticed an AOL icon and asked Hearn to launch the program. She did so, and immediately the AOL instant messenger program opened and revealed messages directed to Sanchez. Hearn reviewed the computer's records of websites which had been accessed that day. Some appeared to be teen- oriented sex sites. The computer assigned to the teacher who shared Sanchez' classroom was also turned on and its content reviewed. No inappropriate websites or programs were found. Brown and Hearn seized the central processing unit of Sanchez' computer and locked it in a closet in the main office. The following day, Michael Bissette (Bissette), chief investigator for the Pinellas County school district's Office of Professional Standards, reviewed the history as recorded on the central processing unit with regard to websites which had been accessed on Sanchez' computer. Finding a number of pornographic sites, Bissette turned the central processing unit over to law enforcement to determine if any crimes had been committed. It is the policy of the Pinellas County school district not to conduct any administrative investigation of an employee during the pendency of a criminal investigation, nor to allow a teacher to teach while under criminal investigation. Accordingly, the Pinellas County school district made arrangements to have a substitute teacher cover Sanchez' classes indefinitely pending the outcome of the criminal investigation. Sanchez was at first unaware he was under investigation because for much of March 2001, he was on leave for reasons related to the illness and subsequent death of his father. Upon his return from leave on or about March 29, 2001, Sanchez went to his classroom to prepare for the day and was soon confronted by an assistant principal who told Sanchez to gather his things. Sanchez was thereafter escorted off campus. Months later, law enforcement returned the case to the Pinellas County school district, having determined that there was no evidence that any crime had been committed. However, an analysis of the central processing unit revealed that thousands of adult pornographic images had been downloaded to the computer assigned to Sanchez. Pursuant to Pinellas County school district procedures, Bissette arranged a meeting with Sanchez and his union representative Betty Shields (Shields) to be held on August 8, 2001. At that meeting, and on other occasions prior to the final hearing, Sanchez admitted accessing adult pornography sites. He has consistently denied accessing teen pornography. This is a distinction without a difference in context of this case, because at all relevant times, the Pinellas County school district had a zero tolerance policy with reference to the use of its computers to access pornography of any kind. Employees believed to have abused computer access in this manner are in all cases offered the opportunity to resign in lieu of termination proceedings. Pursuant to that policy, Sanchez was offered, and accepted, the opportunity to resign his teaching position with the Pinellas County school district. At hearing, Sanchez insisted that Bissette coerced his resignation through the use of tactics which were improper and possibly illegal. Sanchez further testified that he submitted to Bissette's coercive tactics in part because he had incompetent union representation. Shields died prior to the hearing and thus was unable to be present to defend herself. The trier-of-fact carefully observed the demeanor of Bissette and Sanchez as they testified regarding all aspects of this case, including the circumstances surrounding the resignation. Under all of the circumstances, including the documentary evidence; the motivation to recall events in a particular light; and the level of detail one would reasonably expect each to be able to recall after three years and in light of the relative significance of the meeting to each man who was present, it is determined that Bissette's recollection of the circumstances surrounding the resignation is much closer to the truth than Sanchez'. In particular, it is determined that Sanchez' resignation was not coerced. The fact that Sanchez resigned voluntarily is not deemed to be an admission of any nor all of the conduct alleged in the Administrative Complaint, and has not been considered with respect to the matter of whether or not the alleged violations were committed by Sanchez. In addition to accusing Bissette and Shields of incompetence or worse, without corroborating evidence of any kind, Sanchez also repeatedly suggested--again without corroboration of any sort--that other individuals were responsible for some or all of the pornography found on his computer. Specifically, Sanchez attempted to cast suspicion upon student helpers, workers involved in construction projects at Northeast High, and even the teacher with whom Sanchez shared his classroom. This tactic was ill-advised and unavailing. Sanchez does not contend, nor could he, that anyone but he was responsible for the e-mail exchanges between himself and his mistress. With reference to the pornographic websites, it is emphatically noted that there is not a shred of evidence connecting anyone but Sanchez to such websites. Sanchez appealed for sympathy for his personal problems, and made repeated efforts to draw attention to his years of exemplary teaching service. It is not necessary to decide when, if ever, a professional's personal problems would justify seeking refuge in pornography and an extramarital affair, inasmuch as Sanchez seeks exoneration, not mercy. Sanchez' blanket denial that he downloaded pornography is not credited. In addition to making baseless accusations against innocent third parties, Sanchez' credibility was tainted by deceptive testimony at hearing about even inconsequential matters. For example, Sanchez was asked if he visited his mistress on the way to school in the mornings. He replied, "On occasion, yes." Under follow-up questioning, he acknowledged, "It was actually a fairly regular visit." To take another example, in the course of attempting to implicate others in the misuse of the computer, Sanchez intimated that former students, present in the classroom to "grade papers," had access to the computer. Asked to explain why former students would have been grading papers, Sanchez amended his testimony to say that former students would come by his class to "help out," but not to grade papers. The lack of candor exhibited by Sanchez in his hearing testimony is not, of course, proof of the charges set forth in the Administrative Complaint. It does, however, provide an extra measure of confidence in the proof offered by Sanchez' colleagues who testified regarding their knowledge of and concerns regarding his trustworthiness and continued efficacy as a teacher. Pursuant to the Pinellas County school district's above-described zero tolerance policy, Sanchez will not be restored to employment as a teacher in that district, regardless of the outcome of these proceedings.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsection 1012.795(1)(c), Florida Statutes; finding Respondent guilty of violating Subsections 1012.795(1)(f) and (i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006 (4)(c). It is further RECOMMENDED that Respondent’s teaching certificate be suspended retroactive to August 8, 2001, through and including the date of the entry of a Final Order by Petitioner, followed by five years of probation under conditions deemed appropriate by the EPC. Such conditions may reasonably include evaluation by a mental health professional with training in pornography addiction to determine if Sanchez poses any risk of repeating the conduct which gave rise to this case; and denial of access to a classroom computer and/or periodic examination of any classroom computer by appropriately trained personnel. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 29th day of October, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Robert E. Sickles, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33601-3310 Joan Stewart, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32301 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner has "just cause" to terminate Respondent's employment.
Findings Of Fact At all times material here, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Madison County, Florida. Respondent is an educator, certified by the Florida Department of Education. During the 2008-2009 and 2009-2010 school years, Petitioner employed Respondent as a teacher at the Madison Excel Alternative School (Excel). Excel is a non-traditional school. Students who attend Excel are behind academically or have other problems, requiring removal from the regular school setting. Instruction at Excel is self-paced and computer-based. Teachers at Excel may be responsible for assisting students in more than one subject during any one class period. Typically, computer coursework makes up 75 percent of a student's grade. The other 25 percent of a grade depends on the student's participation and/or other student work. Once a student completes a computer course, a report is generated to verify completion with a satisfactory grade of at least 70 percent. The student then must take an exam and pass it. If the computer program does not have an internal comprehensive exam, the teacher must generate an exam. There were at least three different computer programs used at Excel during the 2008-2009 school year. The A+LS system was the program used for computer-based instruction. Pinnacle has been used as the official, computer-based grade book and attendance record since the 2007-2008 school year. Additionally, the MIS system was used to maintain the cumulative permanent educational record for each student, including the classes taken and the grades in each subject. During the 2008-2009 school year, administrators (principal and/or secretary) were responsible for enrolling students in classes at Excel. This responsibility included enrolling students at the beginning of a term, consistent with students' academic programs and the Department of Education's student progress requirements. The school administrators also enrolled students in other courses when they completed course work prior to the end of a term. When an administrator enrolled a student in a particular course, the administrator would also permit the student access to the course material on the A+LS system and add the class to the computer-based grade book, Pinnacle. The Pinnacle system only allows so many classes per student per semester. When a student exceeds that number, school administrators have to notify Petitioner's district office to ensure that the student's grades are properly recorded. During most of the 2008-2009 school year, and prior thereto, Respondent kept a hand-written grade book. He used the grade book to record attendance as well as grades. Petitioner's policy required teachers to put weekly grades in Pinnacle for each student in each course. In the fall of 2008, Respondent did not follow the policy; he refused to enter a string of zeros when students, who were already behind, continuously failed to make progress. On or about February 17, 2009, the principal of Excel, Elizabeth Hodge, gave Respondent a written reprimand. The reprimand related to Respondent's failure to properly post grades in Pinnacle, the computerized grading system. Respondent ceased using his hand-written grade book at or about this time. During the 2008-2009 school year, Q. F. and S. B. were students at Excel in classes taught by Respondent. During the first semester of that year, Respondent taught each student at least three subjects. S. B. was in Respondent's first, third, and sixth-period classes. Q. F. was in Respondent's second, fourth, and fifth-period classes. Respondent was S. B.'s teacher for Integrated Math 1 during the third period of the first semester of the 2008-2009 school year. S. B. earned a semester grade of 93 in Integrated Math 1. With Respondent as her teacher, S. B. began, but did not complete, Economics at Excel during the second semester of the 2008-2009 school year. Respondent was Q. F.'s teacher for Algebra 1-A during the fourth period of the first semester of the 2008-2009 school year. Q. F. earned a semester grade of 73 in Algebra 1-A. With Respondent as her teacher, Q. F. began, but did not complete, Biology at Excel during the second semester of the 2008-2009 school year. During the 2009-2010 school year, Q. F. and S. B. enrolled in Petitioner's high school. At that time, they were no longer Respondent's students. Upon commencement of the 2009-2010 school term, the high school guidance staff placed S. B. into classes that Pinnacle showed were appropriate. S. B. objected to her placement, stating that she had taken some of the classes from Respondent while enrolled in Excel. In order to show that she had taken some of the classes, S. B. went to Respondent and requested that he provide the high school with a letter concerning the classes she took at Excel. The letter he wrote, dated November 17, 2009, stated as follows: This is to acknowledge that I was the instructor of record for [S. B.] in the school year 2007-08 [sic]. She completed the second semester of Biology and Economics. Our input system at Excel failed to grant these credits due to employee turnover and untimely submission of grades. At the time, we were in the process of changing principals and losing our data entry personnel. I can assure you that [S. B.] earned an 87 in Biology and 83 in Economics. We at Excel regret any unnecessary inconvenience that [S. B.] might have suffered. The guidance staff at the high school could not substantiate that S. B. had completed the classes referenced in the November 17, 2009, letter. S. B. then approached Respondent and requested documentation to confirm the matters set out in the November 17, 2009 letter. In response to the request, Respondent prepared a letter dated January 11, 2010, which states as follows: Conformation Record The 3rd & 4th periods consisted of six or seven different subjects. [S. B.] took Economics. (Economics, Pre-Algebra, Integrated Math 1 & 2, Algebra A and B, Consumer Math & Geometry). Respondent attached a copy of a page from his grade book to the January 11, 2010, letter. Respondent then gave the letter and the grade book page in a sealed envelope to S. B. to hand-deliver to the high school. The grade book page attached to the January 11, 2010, letter was for the fall semester of the 2008-2009 school term. It shows a list of third-period student names, including S. B., with grades next to them under a list of courses entitled "Econ, Pre-Algebra, Integrated Math." The term "Econ" is written in a different pen than the other subjects. There is no way from looking at the grade book page to know which student was taking which class. According to Respondent, S. B.'s grades on the page were for Economics. The greater weight of the evidence indicates that no grades for Economics were posted in Respondent's grade book or any computerized system for any students listed on the grade book page for the fall term of 2008. Instead, S. B. received credit that semester for Integrated Math. In the spring of 2009, the term during which Respondent was reprimanded and forced to cease using his grade book, S. B. attempted but did not complete course work for Economics. Respondent failed to record any grades in Pinnacle to show S. B.'s work in Economics. Upon commencement of the 2009-2010 school year, the guidance staff at the high school placed Q. F. in appropriate classes according to Pinnacle. Q. F. objected to her placement, stating that she had taken some of the classes from Respondent at Excel. Q. F. went to see Respondent. Q. F. requested Respondent to provide the high school with a letter concerning the classes she took while enrolled at Excel. In response to Q. F.'s request, Respondent prepared a letter dated January 13, 2010, and delivered it to the high school. The letter advised the high school as follows in relevant part: This 2nd semester class shows (4th period) as an example that . . . [Q. F.] was taking Biology. [Q. F.] had an 85 average in Biology. The January 13, 2010, letter had a copy of the same page from the grade book attached to it that was attached to the January 11, 2010, letter concerning S. B. The grade book page shows a list of fourth-period student names, including Q. F., with grades next to them under a list of courses entitled "Alg 1A-B/Consumer Math/Biology/Geometry." There is no way from looking at the grade book page to know which student took which class. According to Respondent, Q. F.'s grades on the page were for Biology. Upon investigation, Respondent's staff determined that no grades for Biology were posted for any fourth-period students listed in the grade book page for the fall term of 2008. Instead, Q. F. received credit for "Alg 1A-B." Respondent confirmed Q. F.'s grade in Algebra 1 for the fall term of 2008. For the spring term of 2009, Q. F. completed a half credit in Biology. Respondent failed to have this attempt properly entered into the computerized grading system. Comparing a copy of the page from the grade book that was attached to the January 13, 2010, letter, with a copy of the page from the grade book that was attached to the January 11, 2010, letter, it is apparent that Respondent altered the former. The alteration concerns the group of subjects listed over the fourth-period students' names. The grade book page attached to the January 11, 2010, letter listed the following fourth-period subjects: Alg 1A- B/Consumer Math/Geometry. The grade book page attached to the January 13, 2010, letter listed the following subjects: Alg 1A- B/Consumer Math/ Biology/Geometry. Because the subject "Biology" appears in the copy of the grade book page attached to the January 13, 2010, letter, but not in the copy of the grade book page attached to the January 11, 2010, letter, it is clear that it was added after January 11, 2010. Additionally, the term "Biology" was not simply added by writing it above the student names in pen. Instead, Respondent admitted that he cut a strip from a back page in the grade book, re-wrote the group of courses, and then photocopied the grade book page so that it would appear as through the subject "Biology" was always listed. Respondent testified that he remembered that Q. F. had taken Biology, so he was simply trying to "correct" the grade book. Respondent attempted to intentionally deceive Petitioner into awarding credit for classes that had not been earned. He did this in the following ways: (a) stating in the November 17, 2009, letter that S. B. had completed Economics and Biology when this was not true; (b) attempting to substantiate the falsehood by sending the January 11, 2010, letter and attaching to it a copy of a page from his grade book that had been altered by adding the term "Econ" to the subject line, then falsely asserting that the page showed S. B.'s completion of Economics; and (c) sending the January 13, 2010, letter and attaching to it a copy of a page from his grade book that had been intentionally altered by adding the term "Biology" to the group of subjects above Q. F.'s name, then falsely asserting that the page showed Q. F.'s completion of Biology.
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. DONE AND ENTERED this 16th day of July, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 July, 2010. COPIES FURNISHED: Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 George T. Reeves, Esquire Davis, Schnitker, Reeves & Browning, P.A. Post Office Box 652 Madison, Florida 32341-0652 Lou S. Miller, Superintendent District School Board of Madison County 210 Northeast Duval Avenue Madison, Florida 32340 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
The Issue Whether just cause exists to terminate Respondent's employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. Respondent began her teaching career with the Broward County School District in or around January 2002, at which time she was assigned to South Broward High School ("South Broward").2/ In or around 2006, Petitioner introduced a program known as "Post-Graduate Alternatives for Secondary Students" ("PASS program") to most of its high schools, including South Broward. As explained by various witnesses during the final hearing, the PASS program is designed to assist students with moderate to significant learning disabilities——all of whom are between the ages of 18 to 21 and have already received special high school diplomas——attain the highest possible level of independence. This is achieved by placing students in a variety of work experience sites (simulated at first in the classroom and later at actual work locations), providing instruction related to community living tasks (e.g., use of money, transportation, shopping), and working to improve the students' behavior and communication skills. Following its district-wide introduction in 2006, the PASS program underwent various refinements, which included the development of clear, well-defined "steps" for instructors to follow in their implementation of the program. "Step 1," for instance, requires a PASS teacher, who is supported by two classroom paraprofessionals, to create a minimum of five stations (or, in Petitioner's terminology, "zones") within the classroom, with each zone consisting of multiple tasks. Such stations can run the gamut from a "restaurant zone," where students learn, for example, to sort silverware, to a "laundry zone," where students are taught to fold and hang clothing. Among other things, the PASS steps also require the teacher to: create specialized zone instructions for each of the approximately 10-12 students to which the PASS instructor is assigned; create schedules to govern the rotation of students from zone to zone; and collect data that tracks each student's performance on every assigned task, which is later used for "job matching" and to determine if the students are meeting the goals in their Transition Individualized Education Plans ("TIEPs"). As will be seen shortly, Respondent demonstrated a substantial lack of compliance with several of the PASS steps during the 2010-2011 and 2011-2012 school years, most notably in the area of data collection; it is upon that particular failing that the ensuing factual recitation will largely focus. 2010-2011 School Year Prior to the start of the 2010-2011 academic year, Respondent was provided with a document titled, "PASS Process Implementation Steps & Expectations," which plainly instructed, inter alia, that PASS teachers record data (at least one time per week) for each student and for every task to which the student was assigned. The document read: STEP 1: IDENTIFY ZONES Arrange furniture/physical space for zones All zones clearly defined and labeled Minimum of 5 zones/areas 1:1 zone/area defined STEP 2: DETERMINE TASKS PER ZONE At least 3-5 tasks in each zone to start; increase number of tasks as they are mastered Construct tasks for the zones – both high and low level Age appropriate materials must be used; nothing that's typically seen in elementary classrooms Variety of instructional methods used STEP 3: DEVELOP THE MASTER SCHEDULE Implement the Master Schedule Master Schedule/zone assignments are based on [each students' transition individualized education plan or "TIEP"] STEP 4: DEVELOP THE ZONE PROFILES Post a Zone Profile in every zone; zone profile shows, at a glance, which student should be in the zone at what particular time. STEP 5: DEVELOP AND IMPLEMENT STAFF SCHEDULES Teacher and paraprofessional schedules are complete Schedule shows coverage for each zone STEP 6: DEVELOP AND IMPLEMENT ZONE BINDERS WITH TASK INSTRUCTIONS Individualized task instructions for every task and every student in every zone (includes written instructions for readers/visual instructions for nonreaders) STEP 7: DEVELOP INDIVIDUAL DAILY STUDENTS SCHEDULES Create master individual schedules for students Implement Daily Independent Individual Student Schedule; student is following their individual schedule and going to zone that is stated on their schedule at their own individual pace Students rotating from zone to zone independently by following their individual daily schedule Students do schedule review at the end of the day for the next day; teacher/para checks for accuracy Students meaningfully engaged in zones STEP 8: COMPLETE STUDENT ASSESSMENTS Complete comprehensive vocational assessment(s) Complete specific behavior assessments (each task, for each student, for each zone, each week) Evidence of data collection Evidence of individual student binders to contain record keeping Evidence that staff is implementing students' TIEP STEP 9: DEVELOP AND IMPLEMENT [Community Based Instruction "CBI"] PROCESS Sites based on TIEP and student assessments Classroom zones based on CBI/Community sites Individualized student schedules created for each CBI site Preparation of students before CBI Follow-up CBI's CBI schedule posted 3-4 students maximum at any given site (emphasis added). As established during the final hearing, the school district did not simply disseminate the foregoing steps to Respondent and leave her to her own devices. On the contrary, Respondent——who previously received formal PASS training from the school district——was provided with significant support throughout the 2010-2011 school year from Ms. Wendy Barnes, a PASS program transition instructor. Nevertheless, evidence of Respondent's noncompliance with the PASS steps was evident by early October 2010. Indeed, a classroom observation on October 5, 2010, by Ms. Barnes and Deborah Kearns (an assistant principal at South Broward and Respondent's immediate supervisor) revealed no evidence of data collection, contrary to Step Eight of the PASS program. In addition, the observers discovered a more fundamental problem in that the zone instruction binders were incomplete and not individualized for the students. Subsequently, on October 14, 2010, a conference was held with Respondent to discuss her noncompliance with the PASS program and to develop a plan to correct the shortcomings. At the conclusion of the meeting, Respondent was: advised that she was being placed on a cycle of assistance, whereby she would be provided with written directives on a weekly basis by Ms. Kearns; informed that she would continue to receive support from Ms. Barnes, who would assist her in complying with the directives; and provided with a memorandum from Ms. Kearns, which emphasized, among other things, that her "failure to implement and demonstrate improvements throughout this cycle of assistance may result in [her] placement on a Professional Development Plan." Owing perhaps to the sheer impracticability of ordering Respondent to bring all PASS steps into immediate compliance, Ms. Barnes instead directed, in a memorandum dated October 20, 2010, that Respondent correct Step Two (and only Step Two) within the next six days. In relevant part, the memorandum read: On 10/19/10, Ms. Barnes assisted you with regard to Step 2 of the PASS process Implementation Expectations. As discussed at that time, PASS Step 2 requires that zone binders and individual zone tasks reflect the following: Students must be assigned at least 3-5 activities per zone. Students must be assigned an amount and level of zone activities to maintain engagement during the period scheduled within each zone. Students must be assigned zone tasks that are [] varied by level and challenging based upon individual student ability and need. Students must be assigned zone tasks that are appropriate . . . . You are directed to bring these aspects of Step 2 of the PASS program into compliance by October 26, 2010. Unfortunately, Respondent failed to satisfy this reasonable——and modest——directive, as Ms. Kearns and Ms. Barnes discovered during an observation of Respondent's classroom on October 26, 2010. In response, Ms. Barnes issued a memorandum to Respondent the following day, wherein she directed Respondent to bring "item three" of Step Two (i.e., assign zone tasks of varying difficulty based upon student ability), as well as Steps Three and Four, into compliance by November 2, 2010. Ms. Barnes' ample and appropriate support efforts notwithstanding, Respondent brought only one of the PASS steps (Step One) into compliance by mid-December, a fact that was confirmed during a classroom observation on December 14, 2010. Ms. Kearns discussed this issue with Respondent during a pre- disciplinary conference held the following day, at which time Respondent admitted that she had "muddled" the implementation of the PASS steps. Two days later, on December 17, 2010, Ms. Kearns warned Respondent in writing that her continued failure to implement the PASS steps might result in further disciplinary action. As the 2010-2011 school year progressed, Respondent's failure to implement the PASS steps——particularly the step related to data3/ collection——continued in spite of frequent classroom visits, numerous memoranda4/ and emails, and regular meetings5/ with Ms. Kearns, Ms. Barnes, and Ms. Aldridge. Ultimately, on April 5, 2011, Ms. Kearns provided written notification to Respondent that she was being placed on a 90-day Performance Development Plan ("PDP") due to deficiencies in the areas of lesson management, lesson presentation, and student performance evaluation (i.e., assessments and data collection). The PDP, which was drafted during a meeting held the same date (attended by Ms. Kearns, Respondent, the school principal, and a union representative), articulated the corrections Respondent was required to make, various strategies for improvement, and the assistance with which Respondent would be provided. With respect to the issue of data collection, for example, the PDP contemplated that by September 19, 2011, Respondent would be required to demonstrate mastery of the requirement that she "collect and record quantitative data for each task in each zone for each student on a weekly basis." The PDP further provided that Ms. Barnes and/or Ms. Aldridge would work with Respondent to improve her data collection methods. (At Respondent's request, this portion of the PDP was amended on May 31, 2011, to read that only "District Personnel and/or Shalita Aldridge" would assist her.) On April 11, 2011, less than one week after the creation of the PDP, Ms. Barnes met with Respondent (for one hour) to review and discuss proper data collection methods. Despite this meeting and the subsequent provision of ample support, Respondent's failure to collect proper data——and comply with numerous other PASS steps——persisted: on April 27, 2011, Ms. Kearns noticed during a classroom observation that Respondent was still not collecting weekly data for each task and, further, that the data she had collected was not measureable; on May 3, 2011, Ms. Barnes and Ms. Kearns examined a sample of recent data sheets, which revealed that Respondent's data entries were vague and not recorded separately by task type; on May 16, 2012, during a classroom visit by Alan Strauss (South Broward's principal) and Louis Ruccolo (a transition supervisor with the district), it was observed that six PASS steps were out of compliance, including data collection; and, on May 19, 2011, a one-hour classroom observation by Ms. Kearns uncovered myriad data collection issues, which included, with respect to one particular student, zero "office zone" data entries during the preceding six weeks. Respondent's continued noncompliance resulted, not surprisingly, in the issuance of several reprimands by Ms. Kearns. The first, provided to Respondent in writing on May 12, 2011, was based upon her repeated failure to comply with time- bound directives; the second, issued in early June of 2011, disciplined Respondent for her lack of adherence to "directives relative to student supervision." On or about June 10, 2011, Ms. Kearns issued a memorandum to Respondent that discussed, in painstaking detail, what would be expected of her during the following school year. Among other things, the memorandum advised Respondent that she would be required, effective August 22, 2011, to "utilize the specific data collection tools that are named in [her] PDP," including but not limited to weekly zone task data. Respondent was further informed, accurately as it turns out, that "District support will continue to be provided . . . during the school year and will begin the week of August 15, 2011." 2011-2012 School Year At the outset of the 2011-2012 school year, Mr. Strauss provided Respondent with two memoranda. The first, dated August 16, 2012, recounted Respondent's shortcomings during the preceding academic year, which included her failure to "collect and maintain consistent and quantitative data through specific zone task data collection." The second, which Respondent received on August 22, 2011, reminded her that her PDP (initiated on April 1, 2011) had carried over from the previous year and would expire on September 13, 2011; Respondent was further advised that the performance evaluation to be conducted upon the expiration of her PDP would be drafted under the assessment system in effect during the 2010-2011 school year. Pursuant to the School Board's evaluation system (known as the Instructional Personnel Assessment System or "IPAS"), teachers are rated (satisfactory, in need of improvement, or unsatisfactory) in ten areas: instructional planning; lesson management; lesson presentation; communication; classroom management; behavior management; records management; subject matter knowledge; "other professional competencies"; and student performance evaluation. On September 19, 2011, Ms. Khandia Pinkney——an assistant principal at South Broward, who assumed the duties of Ms. Kearns——issued Respondent's evaluation for the 2010-2011 school year. In the evaluation, Ms. Pinkney awarded Respondent satisfactory ratings in seven of the performance areas, while the remaining three (lesson management, lesson presentation, and student performance evaluation) were deemed unsatisfactory. In light of her failure to achieve satisfactory ratings in all ten performance areas, Respondent was issued an overall performance rating of unsatisfactory. Although Respondent's poor evaluation could have resulted in the initiation of termination proceedings, Mr. Strauss and Ms. Pinkney elected instead to place Respondent on a new, 90-day PDP. The second PDP, which was drafted with Respondent's collaboration on September 19, 2011, listed 14 specific deficiencies (e.g., "collect and record quantitative data for every task in each zone for each student on a weekly basis") that Respondent was required to correct by January 10, 2012. In accordance with the terms of the second PDP, Respondent received considerable support and supervision as the school year progressed. Such support included twice-weekly visits by Ms. Shaneka President (a district-level transition teacher) to Respondent's classroom, as well as weekly follow-up e-mails that emphasized, among various issues, the necessity of proper data collection.6/ Respondent's data collection issues persisted; in light of this continued failing, as well as several other concerns, Ms. Pinkney drafted a written recommendation, dated October 17, 2011, that Respondent be suspended from work for three days.7/ In pertinent part, the recommendation read: On 10/13/2010 you received a summary memo, on 12/17/2010 you received a written warning, on 3/01/2011 you received a verbal reprimand, and on 5/12/2011 and 6/10/2011 you received written reprimands. All notifications were regarding the concern with your failure to follow directives. You have failed to meet the performance standards required of your position as a teacher. Specifically, you have failed to follow directives relative to leaving campus without administrative approval, following time-bound directives, directives relative to student supervision by failing to properly supervise you SVE students, utilizing instructional time for personal activities such as smoking and personal phone calls, and not following procedural directives. . . . Your repeated failure to follow directives is a serious breach of conduct that cannot be tolerated. Therefore, I am recommending that your name be sent before the School Board . . . for a 3-day suspension. Petitioner's receipt of the foregoing memorandum did not spur her into compliance: two days later, on October 19, 2011, Mr. Ruccolo and Ms. Pinkney conducted an observation of Petitioner's classroom, during which they noticed——among other deficiencies——instances of incomplete8/ and/or inaccurate data.9/ The observed deficiencies were discussed with Respondent during a meeting with Ms. Pinkney on October 25, 2011, and further outlined in a memorandum issued to Respondent two days later. During the ensuing four weeks, Ms. President continued to remind Respondent, in writing and on no fewer than four occasions, of the requirement to record data "for every task for every student in every zone on a weekly basis."10/ Respondent, however, failed to heed this guidance——as Mr. Strauss learned during a classroom observation of Respondent's classroom on December 1, 2011. On that occasion, Mr. Strauss and an intern principal (Ms. Cherie Hodgson-Toeller) uncovered numerous data collection issues, each of which was discussed with Respondent during a meeting on December 5, 2011, as well as detailed in a memorandum provided to Respondent the following week. The memorandum read, in relevant part: We also pointed out that [student "Sa."] had no data in her binder with respect to her performance in the Office zone. We discussed that no data was reflected in the binders for the current week and commented that the data recorded in the binders was lacking uniformity and data recorded did not provide[] comparison details to determine the students['] current percentage of correct completions while performing the task or indicate whether or not they are making adequate progress. . . . It was also discussed that we witnessed a lot of confusion in the classroom and inconsistencies in monitoring, scheduling, and tracking of data continue to exist. (emphasis added). Over the next four weeks, Respondent's issues with data collection persisted, and, in at least one regard, worsened. During an observation of Respondent's class on January 3, 2012, Ms. Pinkney discovered that no data had been recorded for one particular student in the "restaurant zone"; with respect to another student, Ms. Pinkney noted, troublingly, that "restaurant zone" data had been recorded for a date (December 15, 2011) that the student had been absent. The cause of the latter discrepancy, as established by Ms. Riley's credible testimony, was a directive to Ms. Riley from Respondent to manufacture data entries (after the fact) to create the appearance of proper data collection. As Ms. Riley explained during the final hearing: There were times [when] I was uncomfortable. Ms. Liquori would say, well, Ms. Presidente [sic] and them are coming on Monday, or, they are coming this and such date, so you need to go ahead and put your data in. And there was a time where she asked me to put in data for a student that had not been in school for three weeks. And I told her, I said, I don't think that we are supposed to be doing that. I know that's not right for us to do that. But because you are my supervisor and teacher, then I have to follow orders from my supervising teacher. Q. So, if I understand correctly then, Ms. Liquori instructed you to put in data on a student that wasn't present. A. That is correct. Q. And that was false data. A. Right. And there was [sic] times where we would have to put down a student mastered a task when we know that the student had not mastered that task. Q. Why would Ms. Liquori make you do that? A. Because data needs to be put in before Ms. Presidente [sic] and them would come in. Because when they come in they did the observations. (emphasis added). A meeting was thereafter scheduled for January 12, 2012, during which Ms. Pinkney intended to close Respondent's PDP and draft an unfavorable performance evaluation. From what can be gleaned from the record, however, the meeting was postponed by virtue of Respondent's placement on medical leave. The meeting was ultimately convened on April 26, 2012, at which time Ms. Pinkney issued a written performance evaluation that rated Respondent unsatisfactory in three performance areas (lesson management, lesson presentation, and student performance evaluation——the same categories that were rated unsatisfactory during the previous evaluation), satisfactory in the other seven areas, and unsatisfactory overall. Petitioner has demonstrated by a greater weight of the evidence that Respondent's failure to collect appropriate PASS data, a deficiency that persisted for more than one and one-half school years, constituted a willful neglect of her duties. In so finding, it is notable: that the data collection tasks Respondent was directed to perform were uncomplicated and reasonable in nature; that Respondent received adequate training concerning the PASS program prior to the 2010-2011 school year, as well as substantial levels of support and guidance during each school year at issue; and that Respondent never indicated, at any point during the 2010-2011 or 2011-2012 school years, that she did not understand her obligations or was unable to perform them.11/
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 8th day of February, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 8th day of February, 2013.
The Issue The issue in this case is whether there is just cause to terminate Francis Madassery’s employment with the Miami-Dade County School Board based upon the allegations made in its Notice of Specific Charges filed on August 6, 2013.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Madassery started his employment with the School Board in 2004. He was employed pursuant to a professional services contract. From 2004-2011, Madassery taught Exceptional Student Education (“ESE”) at Norland Elementary School ("Norland"). He was not subject to any discipline while employed as an ESE teacher, and his tenure in that position was successful. During that period, he received exemplary or satisfactory evaluations. In October 2011, Norland Principal, Powers, moved Madassery from his ESE position to a regular mathematics second- grade education class after Norland lost an ESE teaching position because student enrollment declined. Throughout the rest of the 2011-2012 school year, Madassery co-taught with Shenika Uptgrow. Madassery received a satisfactory performance evaluation for the 2011-2012 school year. During the Norland 2012-2013 school year, Madassery expected to return to teaching ESE, but he was assigned to a second-grade regular mathematics classroom. Madassery co-taught with Johnson the same group of students in different subject areas. Madassery taught math, science, and social studies, and Johnson taught the same students reading and language arts. Madassery and Johnson’s second-grade class was challenging with approximately eight students out of the total 38 students with behavioral problems. Problems ranged from students unable to remain on task or complete assignments to students who disrupted the classroom. Even though Johnson had been teaching for seven years, she found it difficult to teach the second graders at times because of the behavioral problems. Occasionally, she had to spend part of the class period dealing with the behavioral issues. Madassery and Johnson discussed the behavioral problems of their students often and strategized on how to control their behavior. On October 15, 2012, Powers observed Respondent in his classroom for an hour and fifteen minutes. Powers documented her observations on the Observations of Standards Form-Teacher. During the observation, Respondent was deficient in the area of knowledge of learners, Performance Standard (“Standard”) 2, and the area of instructional delivery and engagement, Standard 4. Respondent failed to meet Standard 2 because Madassery instructed every student in the same manner as opposed to using the different types of instruction for varying ability levels. Respondent should have instructed the students in groups based on their performance level and their baseline scores. Madassery was deficient in Standard 4 because he failed to deliver a complete Go Math1/ lesson for the day by allowing students to work on problems by themselves without any instructions, not introducing the problem-solving or hot questions. Powers saw Respondent walk around and work with students individually during the observation but he did not teach each student how to work through the problems as required. Instead, he wrote the correct answers for each student. On October 17, 2012, Powers notified Madassery that a support dialogue meeting was being held to discuss the observation of October 15, 2012. During the meeting, Powers placed Madassery on a support dialog, a 21-day period wherein a math coach and another second-grade teacher were to provide assistance to Madassery so that he could improve his deficiencies. On November 13, 2012, Powers performed a second classroom observation of Madassery teaching math for an hour and 26 minutes. During the observation, Respondent was deficient in three standards. Respondent still did not meet Standard 2 because he did not separate students into small groups for instruction based on their specific learning needs. As in the first observation, Madassery still walked around the room again checking the students’ work and wrote correct answers in the workbooks instead of re-teaching the specific math skill to a small group of students. Students who finished their work had nothing to do because Respondent spent most of the 90-minute lesson correcting answers in the workbooks. Madassery was still deficient in Standard 4 because he presented information to his class that was unclear and not one of the 13 “students were able to break down the number to subtract into two numbers.” Furthermore, Respondent answered his own questions while teaching the lesson and taught part of the lesson at his computer with his back to the students. During the second observation, Madassery was also deficient of Standard 8 because he was unable to establish effective classroom management. Students got up to use the bathroom at will, two students fell out of their chairs, students were arguing with each other, and one student had his head down for approximately nine minutes. Respondent’s only responses to improper behavior were to bang on the desk and whisper in the students’ ears. On November 19, 2012, Powers held a Conference for the Record with Madassery regarding the November 13, 2012, observation. Powers discussed her observations and placed Respondent on a 90-Calendar Day Performance Probation, which was documented by an Improvement Plan (“IP”) for Respondent to follow. Madassery’s IP was designed to help improve his specified deficiencies and required that he complete six activities by December 19, 2012. As of January 17, 2013, Respondent had only shown two of the six requested activities to Powers. On January 17, 2013, Powers issued Respondent a written Professional Responsibilities memo. The memo dated January 17, 2013, stated: On November 28, 2012, you were given Improvement Plans (IP) for Performance Standards 2, 4, and 8 with specific activities to complete and submit by December 19, 2012. As of this date, you have shown two of the requested activities to this administrator. The following is a summary of the activities which still need to be submitted for each performance standard: Performance Standard 2: “Best Practice” summary from Ms. Fuller, Ms. Colbourne, and the UTD Mentor Performance Standard 4: Submit a revised mathematics lesson plan Summarize a “Best Practice” after observing Ms. Buchanan Performance Standard 8: Submit a parent communication log Please be reminded that during the 90- Calendar Day probationary period, it is your responsibility to submit the requested activities to this administrator on time. You are requested to submit the remaining items by January 25, 2013. Please see me if you have any questions. Thank you in advance for your cooperation. Madassery submitted the remaining IP assignments that were originally due on December 19, 2012, to Powers on January 25, 2013. The third observation of Madassery was conducted by Assistant Principal Johnson-Brinson, on January 8, 2013. Johnson-Brinson observed Madassery teaching second-grade mathematics from 10:17 a.m. to 11:35 a.m. During the third observation, Madassery did not use the Go Math2/ curriculum. Instead, Respondent wrote on the smartboard and lectured his second graders throughout the math lesson without using any manipulatives3/ for the required objective of the math lesson taught for the day. Madassery was still deficient in Standards 2, 4, and 8. After the January 8, 2013, observation, a post- observation meeting was held on January 17, 2013. Madassery was placed on a revised IP to help him learn techniques and improve his deficiencies. In order to improve deficiency in Standard 2, Madassery was given the following IP assignments, due on February 16, 2013: to read an article on Identifying Students’ Learning Styles and then identify two strategies that he could use to address the learning styles of his students. Respondent was also required to attend a professional development session with his union mentor regarding differentiated instruction and summarize how he planned to implement differentiated instruction in his classroom after the session. In the IP for deficiency Standard 4, Respondent was assigned to observe the math coach teach a lesson utilizing manipulatives, teach a lesson as the math coach observed, and get feedback from the math coach. On February 14, 2013, Powers observed Respondent’s math class for one hour and 25 minutes. The subject for the lesson was the use of grams versus kilograms to weigh objects. Madassery was still deficient in Standard 2 because he taught the whole group of students by asking and answering his own questions and never separated the students into differentiated instructional groups. Madassery also demonstrated he was deficient in Standard 4 during the observation because he did not follow the Go Math curriculum by starting the lesson by explaining the purpose. Additionally, when Respondent used the smartboard, only two out of 17 students were paying attention. Of the remaining students, six were talking, three were out of their seats, three were on the computer, two had their heads down, and one was playing with a toy. Respondent also failed to teach the problem-solving portion of the Go Math lesson. Madassery was deficient in Standard 5 because his student folders were not maintained in a way to record how each child was performing in class. When Powers reviewed the student folders, they were dated from August through November 2012, even though it was the third grading period. None of the folders indicated how Respondent was evaluating grades for the second and third grading periods. Madassery provided Powers graded papers with smiley faces rather than the required letter grades. Additionally, there were two stacks of ungraded and undated math assignments in the classroom. Madassery also spent the majority of the 90-minute class trying to control his students’ behavior and Madassery failed to deal with the behavioral issues effectively. Therefore, Respondent was deficient in Standard 8. On February 21, 2013, a post-observation meeting was held with Madassery regarding the fourth observation on February 14, 2013. Madassery was deficient in four areas during the observation. Additionally, Respondent had failed to timely turn in his IP assignments a second time. The deadline was February 16, 2013. Powers issued Madassery a second professional responsibilities memo regarding following the IP and deadlines. During the meeting, Powers also provided Madassery another revised IP with assignments for him to complete to help improve the four February 14, 2013, observation deficiencies and gave a March 14, 2013, deadline. For deficiency of Standard 2, Madassery was to attend a professional development workshop on differentiated instruction and write a summary of how he implements differentiated instruction in his classroom, analyze his students’ data from the winter math interim test, and write a plan on how he will address his students’ strengths and weaknesses. For Standard 4, Respondent was assigned to watch the math coach model a math lesson and then submit an outline of a math lesson from start to finish. For Standard 5, Respondent was assigned to communicate with another teacher about how to organize the students’ folders and submit a summary on how he planned to implement an organizational plan, discuss grading papers with the math coach, and submit a procedure for how he planned to grade papers and place grades in the e-gradebook. The February 19, 2013, IP also required Respondent to revise his discipline plan, and outline a best practice to be utilized in his classroom based on the article, “The Well- Managed Classroom,” to help improve Respondent’s skills for Standard 8. Another evaluation was conducted by Powers on March 20, 2013. During the observation, Madassery displayed the same deficiencies as previous observations and no improvement had taken place despite all the assistance provided to Madassery. The observation lasted an hour and 10 minutes. Madassery still was deficient in Standard 2 because even though he separated the students into groups, the groups were not divided according to the students’ abilities. For example, three students needed math remediation but Respondent placed them at the computer to do a reading program. Also, he grouped two students together who understood the lesson and provided them remedial assistance even though they should have received enrichment activities. Madassery was still also deficient in Standard 4 because he did not begin the lesson by explaining its purpose and connecting it to the students’ prior knowledge. During the observation, Powers reviewed Madassery’s student folders to see if Respondent had brought them up to date as previously instructed. On March 20, 2013, the student folders still only contained papers dated from August 2012 to November 2012. Additionally, stacks of ungraded and undated papers were still located on a shelf behind Respondent’s desk. Madassery also still failed to manage the students’ behavior effectively during the observation. For example, four students were continuously walking around the classroom, six students were off-task, and the remaining seven students sat at desks without doing anything. After the observation, Powers determined that Respondent was incapable of effectively teaching in the classroom and recommended that Madassery’s employment contract be terminated. On April 17, 2013, Petitioner took action to suspend and initiate dismissal proceedings against Respondent for just cause, including, but not limited to, failure to correct noted performance deficiencies within the 90-calendar-day performance probation period and incompetency due to inefficiency. Petitioner ultimately charged Madassery with two counts in Notice of Specific Charges dated August 6, 2013, that included Count I, Failure to Correct Performance Deficiencies, and Count II, Incompetency Due to Inefficiency.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Miami-Dade County School Board enter a final order that: Immediately reinstates Respondent Francis Madassery; and Issues Respondent back salary. DONE AND ENTERED this 30th day of December, 2013, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2013.
