The Issue Whether Polk County School Board ("School Board") has just cause to terminate Judy Gail Vann ("Respondent" or "Vann") pursuant to Section 1012.34, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent started working for the School Board in 2000. During the last ten years, she has taught English. In November 2008, the School Board recommended Respondent's termination for excessive absenteeism, dishonesty, ongoing gross insubordination, and not preparing lesson plans. The case came before the Division of Administrative Hearings in Case Number 09-0955.1 On August 20, 2009, a Recommended Order was entered concluding that a preponderance of the evidence in that case did not support the alleged acts in the charging document, and Respondent was reinstated with full back pay. After the School Board reinstated Respondent, for the 2009-2010 school year, she was assigned to Traviss Career Center ("Traviss") to teach 11th and 12th grade English. Prior to this assignment, Respondent had never taught in a high school. Traviss is a school for high school students and adults. Both high school diplomas and certificates in a career field or vocational trade are available to graduates. Traviss students that are trying to achieve a regular high school diploma take the FCAT. Seventy-seven percent of the student population at Traviss who took the 2008-2009 FCAT were reading at level two or below. Level two is a fifth-sixth grade reading level. Polk County requires that the 11th and 12th grade students do the same work as their counterparts at the traditional schools and follow the same curriculum maps.2 Alan Harrell ("Harrell"), the assistant director of curriculum, was Vann's supervisor at Traviss. His primary responsibility is to oversee the academic programs. Such duties include monitoring lesson plans and learning guides, and keeping the curriculum maps on target. Harrell also oversees students' grades and makes sure students are getting the right courses for their diploma. Harrell supervised Vann during the six periods she taught a day. Three of the classes were English III for juniors and three were English IV for seniors. Vann tried to be creative when teaching the curriculum maps. When the students were required to study Shakespeare, Chaucer, and epic works such as Beowulf, she would often-times show modern movies like Hercules to keep the students interested. Harrell did not think the movies were the best teaching methods for the students. Harrell made regular visits to Vann's classroom and met with her about various issues periodically. During Harrell's second meeting with Vann on October 16, 2009, some items discussed were students' grades, homework, and lesson plans. On November 17, 2009, Harrell emailed Vann to instruct her about her lesson plans for the two previous weeks. The email stated: Please post your lesson plans for week of 11/09/2009 and for week of 11/16/2009. They should be posted on Friday prior to the next week so we have some guideline for the substitute to be able to follow when the teacher is absent. During Harrell's fifth meeting with Vann on November 30, 2009, Harrell discussed several areas of concern. The first was her lesson plans not being posted. During the first semester, Vann was absent from school approximately 15 days. On December 11, 2009, Harrell met with Vann again to discuss proper protocol and procedures for preparing lesson plans. Harrell also discussed Vann's numerous absences and the effect on the students. On January 11, 2010, Harrell contacted Vann again about incomplete lesson plans by email. It stated: In reviewing your lesson plans for the week of 1/11/2010, I observe a number of discrepancies that need to be corrected. "same as above" under PLANNING does not define the objectives. "same as above" under PLANNING does not define the Standards/Benchmarks. Under Procedures/Activities, a description of what the intended activity is going to be needs to be described. As previously discussed your lesson plans need to be in line with the curriculum map. On January 13, 2010, Vann emailed Harrell and informed him that she had "reposted the completed version of the lesson plan template for 1/11/10." Deficiencies in Vann's performance as a teacher and absences from school continued into the second half of the school year. Vann's posted lesson plans were incomplete or insufficient, and she would email lesson plans to the school on the mornings when she was absent. Vann was absent approximately 10 days without pay between January 7, 2010, and February 11, 2010, including the 11th. The emails Vann sent during that period listed the following explanations for her absences: January 7, 2010, "I have no voice."; January 11, 2010, "Sick . . ."; January 12, 2010, at 5:19 a.m., "Sick since Friday . . . trying to see doctor today"; January 12, 2010, at 5:24 a.m., "As stated my lesson plan template was incomplete for 1/11/10 because I have been sick and was unable to complete the template."; January 19, 2010, "I have been down with a Migraine for three days and I hope to be able to see the doctor today."; February 9, 2010, "I am having very severe back problems and have a doctor's appointment today."3 On February 12, 2010, Respondent was in a car accident on the way from school on Thornhill Road. A car slammed into her going approximately 55 miles per hour in the drizzling rain. Vann first sought medical treatment on February 25, 2010, from a chiropractor, Dr. Sundermeyer.4 Vann was treated the rest of the school year for her back and spine by the chiropractor. As a result of Vann's continuing decline in performance, on February 25, 2010, Respondent received a Notice of Unsatisfactory Performance, which advised that she had performance deficiencies and was being placed on a 90-day probationary period pursuant to Section 1012.34(3)(d), Florida Statutes. The Notice of Unsatisfactory Performance informed Respondent that she had failed to perform satisfactorily in the following aspects or duties of her job: You have had excessive absences. You have failed to prepare and maintain current lesson plans for your classes. In addition to the fact that the preparation of lesson plans is a requirement of your job, your failure to prepare such plans has made it extremely difficult to maintain the educational process for your students during your absences. The management of your classroom environment, including student discipline, has been extremely poor. You have failed to prepare and deliver appropriate or effective teaching strategies for your students. You have failed to maintain an appropriate and distinct relationship as a teacher with your students. A meeting was held on March 1, 2010, with Vann to discuss recommendations and a plan of action to provide assistance in correcting the deficiencies identified in the Notice of Unsatisfactory Performance. Dr. Dickens, Harrell, Mrs. Amy Hardee("Hardee"), Ms. Angela Dawson, and Vann with her PEA representative attended the meeting. At the March 1, 2010, meeting Vann was informed that she needed to correct the following deficiencies: excessive absences, lesson plan preparation, classroom management, effective teaching strategies, and maintaining an appropriate and distinct relationship with her students. After the meeting, Vann and her union representative met with Hardee, the senior curriculum coordinator of language arts. Vann indicated that her textbook resources were out of date and requested Hardee fix the problem. Hardee immediately located literature and grammar books and made arrangements to have them delivered to Vann. On March 2, 1010, Vann received her 90-Day Corrective Action Plan that specified the following five areas that Respondent was to correct during her probationary period from March 2, 2010, to May 30, 2010: Excessive Absences-It was agreed that you will provide Traviss Career Center a doctor's note when you are ill. You will also make a diligent effort to contact Ms. Loretta Stewart(Principal Secretary) before 6:30am when you are not going to be at work. This will allow sufficient time to obtain a substitute instructor for your class. Lesson Plans-To assist you with improving your classroom management skills, it was suggested that PD 360 be used. Outlines of the segments are attached for your use. Classroom Management-To assist you with preparing lessons for your class, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Effective Teaching Strategies-To assist you in developing effective teaching strategies, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Maintaining a distinct relationship-It was recommended that you refrain from use of unprofessional language and allowing disruptive student behavior during instructional time. You are to work on building a better instructional relationship with your students and expect the respect you deserve. * * * Traviss will provide a substitute for you on Mondays and Thursdays for the remainder of this school year to allow you time to work in the above mentioned areas of deficiency. It is your responsibility to be present at school and working on the criteria listed above. To address the issues with lesson plans, classroom management, and effective teaching strategies, Hardee assigned Vann 39 segments of Professional Development 360 ("PD360") training to view and complete the questions during her probationary period.5 Vann had less than seven hours of PD360 training to complete during her 90-day probationary period. Respondent was provided a list of the 24 modules addressing classroom instruction and 15 modules on differentiated instruction. Each module included a video Vann was to view, followed by approximately six reflection questions that were to be answered on-line by her. On March 2, 2010, Vann acknowledged her understanding and agreement to adhere to the corrective action plan with her signature. To ensure that Vann was successful in completing her PD360 training, a substitute instructor was hired for classroom instruction to allow Vann some time to complete the professional development plan during the 90-day probationary period. However, Respondent chose not to come to work and was absent most of the remainder of the school year. While on probation, from March 3, 2010 to May 5, 2010, Respondent was absent without pay 12 days during March and 17 days during April 29 days.6 Respondent claims that she was not at work because she was sick and couldn't attend. However, Respondent only provided one medical note excusing her from working due to illness. Vann provided the School Board a note that excused her from work from March 17, 2010, until March 18, 2010, which was on an Auburndale Chiropractic, LLC Authorization for Absence form.7 Respondent also provided the School Board a letter dated May 10, 2010, that specified treatment but did not indicate Vann was prohibited from attending work. The letter was from the same chiropractor, Dr. Sundermeyer, on Auburndale Chiropractic, LLC letterhead, not an Authorization for Absence form as previously submitted by Respondent for the March 2010 excused absence. The letter on her chiropractor's letterhead stated: To Whom It May Concern: I am writing in regards of my patient, Judy Gail Vann. I have been treating Ms. Vann for neck pain and lower back pain since February 25, 2010. She has been under my constant care 3 times per week since she started her treatment in this office. Please feel free to contact me if you have any questions concerning my patient's health. Thank you, Dr. Sara Sundermeyer8 During her probationary period, Vann never sought treatment from a medical doctor other than the chiropractor, Dr. Sundermeyer. Respondent was not prohibited from attending work due to her illness.9 Vann failed to provide a doctor's note indicating that she could not attend work for her 29 days of absences without pay during her probationary period. Vann improved with her lesson plans. However, starting April 13, 2010, Respondent submitted the same lesson plans for all classes, no matter whether for the 11th or 12th grade students, and did not distinguish between the separate curriculums required for each grade. While on probation, Vann viewed only 15 of the assigned 39 PD360 modules.10 She completed one of the 15 reflection questions and answers, which was a total of two and one-half hours of the seven hours assigned. Vann also failed to meet either the criteria of contacting Ms. Loretta Stewart (Principal's Secretary) when absent or making the contact before 6:30 a.m. some mornings including: April 5, 2010; March 17, 2010; and April 15, 2010.11 By letter dated May 14, 2010, Principal Dickens ("Dickens") informed Vann that a decision had not yet been made on her reappointment at Traviss. The letter further informed Respondent that she had failed to fulfill several of the requirements for her 90-day Corrective Action Plan, including not providing a doctor's note covering all of her absences for illness when she was ill and unable to report to work and failing to complete the PD360 segments designed to help her with her classroom management skills, lesson plans, and effective teaching strategies. On June 3, 2010, Dickens recommended to Superintendent Gail McKenzie that Respondent's employment be terminated for failure to comply with the 90-day Corrective Action Plan, and her failure to perform her duties as an English teacher. The following items were identified as not being completed during the probationary period: failure to provide physician's notes when absent; Dr. Dickens' secretary was not contacted on days Respondent was absent; and the failure to complete the PD360 training. By letter dated July 15, 2010, Respondent was informed that the Superintendent would recommend her termination because Vann had "failed to correct [her] performance deficiencies, failed to complete [her] Professional Development Plan, and that there is 'just cause' for [her] termination pursuant to Section 1012.34, Florida Statutes."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Polk County School Board enter a final order ratifying Vann's termination from further employment in Polk County Public Schools. DONE AND ENTERED this 21st day of December, 2010, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2010.
Findings Of Fact C. T. "Pete" Knowles, III, was ,a student in Western Civilization, HY102, at Seminole Community College. This course was instructed by Leonard Zilles. Zilles established a grading format for HY102 which was announced orally to the class. The establishment of this system and its oral publication to the students was within his discretion under the college's policy handbook, although instructors are encouraged to publish course requirements in writing. The course, HY102, was an eight (8) week summer course presented in four, two week segments. There were four noncumulative examinations, one after each two week segment. Each examination consisted of two parts, a multiple choice portion and an essay portion. A total of six course points could be earned on each examination, two points maximum for the multiple choice portion and four points for the essay portion. One course point was earned for obtaining a numerical score between sixty and eighty-three on the multiple choice portion, or the equivalent of a letter grade of "D". Two points were earned for a numerical score of eighty-four points or higher on the multiple choice portion of the examination, or the equivalent grade of "C". No student could earn more than two points, or a "C", on the multiple choice portion of the examination. Letter grades were assigned to the essay portion of the examinations and three course points were earned for a "B" and four course points for an "A". No credit was received by the student on the essay portion of the examination for performance determined by the instructor to be below a grade of "B". A student who received less than a numerical grade of sixty on the multiple choice portion of the examination could still be awarded points for his performance on the essay portion. Final grades for the course were determined upon the accumulation of course points by a student. For the accumulation of four points a student received a grade of "D" in the course, for eight points a grade of "C," for sixteen points a grade of "B," and for twenty points a grade of "A." Attendance in the course was not mandatory and no statement was made regarding whether examinations were mandatory. Paul Jenkins, the only student in this course who made an "A," stated that a discussion was held during a class break immediately preceding the fourth examination in the course concerning whether students could skip the last examination and based their final grade upon the number of course points they had accumulated. This question was not raised in class and the matter clarified. There is no indication that Knowles was a party to this discussion; however, both Knowles and Frederick Norris testified that Zilles never stated that taking all examinations was a course requirement. Knowles arranged with his Health instructor, John Panatallis, to take his final examination in Health early so that Knowles could begin his vacation with his family. Panatallis inquired of Knowles when he came to take the Health examination how Knowles stood in Zilles' class, and Knowles advised Panatallis that he had enough points to ensure a "C." Pantallis stated that he did not require attendance at examinations but averaged a zero for a missed examination in his grading system. Knowles was aware that he had accumulated eight points on the basis of a discussion with Zilles one week before the fourth examination, at which time Zilles told Knowles that he had made a "B" on the essay portion of the third examination giving Knowles a total of eight points for the course. Knowles did not take the fourth examination because he did not believe that the examination was mandatory and in accordance with the professor's grading process, Knowles could not improve his course grade even if he earned a maximum of six course points. Zilles gave Knowles an "F" based upon Knowles' failure, in Zilles' opinion, to complete the course by taking the fourth examination. The director of academic affairs, Dr. Anita Harrow, stated that the college's handbook required that instructors be responsible for identifying course objectives and for making grading procedures clear to students. Instructors were urged, but not required, to present course objectives and grading procedures to the students in writing. In accordance with the college's policy, instructors were free to choose from any recognized standard of evaluation in grading the performance of their students, and attendance at examinations was not a uniform requirement for course completion. In response to a hypothetical question based upon the facts presented regarding the grading procedures and the information presented to the students in HY102 by Mr. Zilles, Dr. Harrow stated that in her opinion she would deem the course grade to be based upon the points accumulated by the students without regard to completion of all the examinations in the course. Mr. Zilles' grade sheet for the course, HY102, was introduced as Exhibit 1. Examination of this exhibit reveals that of the eleven students who finished the course and took the fourth examination, only four students received grades in accordance with the grading format which Zilles had announced. Grades of "B" were reported for Laplant and McDonald who had accumulated only eleven points. Rios accumulated a total of ten points, four of which were earned on the fourth examination, but received a grade of "D." Only two students, Bland and Laplant who could not improve their grades by taking the fourth examination took it. Lastly and most importantly, Pagan, who received no credit for the final examination, received a grade of "D" in the course based upon his accumulation of five course points for his previous work. Analysis of Exhibit 1 shows no consistency in the assignment of grades based upon the stated criteria.
Recommendation During the hearing process Mr. Knowles made the counsel for the College and the Hearing Officer aware of the fact that a determination on his petition was necessary for his continued enrollment in junior college. Mr. Milwee, the representative of the College, advised that if the Trustees of the College did not obtain a recommendation in time to consider it on the evening of the hearing, that it would be a month before the recommendation of the Hearing Officer could be considered. After the conclusion of the hearing, a posthearing conference was held in which the parties, having been advised of their procedural rights under Section 120.57, requested and agreed to the Hearing Officer making an oral recommendation for consideration by the Trustees to be followed by a formal written recommended order as required by the statute. After deliberation, the Hearing Officer's recommendation was announced to the parties. This written order is based upon the notes prepared by the Hearing Officer during his deliberations on the question. The following recommendation is essentially that presented to the parties in the posthearing conference. Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that Seminole Community College adjust the grade received by C. T. "Pete" Knowles in Western Civilization, HY102, from a "F" to a "C" based upon the course points accumulated by Knowles through the third examination. DONE and ORDERED this 13th of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. T. "Pete" Knowles 712 Eagle Avenue Longwood, Florida 32750 O. H. Eaton, Esquire Winter Park Federal Building 355 East Semonian Boulevard Altamonte Springs, Florida 32701
Findings Of Fact Before his current assignment to a textbook depository, respondent Kerby Clifton Smith taught school for the Duval County School Board for 26 years. Mr. Smith holds a teacher's certificate, No. 145127, authorizing him to teach physical education to sixth through twelfth graders and science to seventh, eighth and ninth graders. In 1980-81, respondent received an unsatisfactory evaluation, which he attributed to the distraction of his mother's terminal illness, culminating ultimately in her death on Thanksgiving Day 1981. Otherwise, his annual evaluations were satisfactory through the 1986-87 school year. He began in August of 1963 as a physical education teacher at Lake Shore Junior High School. He ended that school year and spent all the next at "Paxon Junior High School teaching physical education, coaching track, baseball and basketball." (T.557) Mr. Smith returned to Lake Shore Junior High School in the fall of 1965. Until 1967, all his classes were physical education classes. In 1967, when he began teaching three science classes, he continued to teach two physical education classes, and to coach after school. After 1974, although he continued to work as a coach, he did not teach physical education classes, with the exception of a single physical education course for hearing impaired students. Instead, he taught physical science and earth science (or earth and space science) to junior high or middle school students, mainly with ninth-graders. Leaves Lake Shore With the intention of pursuing computer science training, respondent requested a leave of absence for the school year 1986-87. Request granted, he began at Jacksonville University in the fall of 1986. But when he began to run out of money toward the end of the first semester, he decided to return to work. Because his position at Lake Shore was filled, he was sent to Fort Caroline Junior High School, where he substituted for eight days before he took over a retiring science teacher's five earth science classes, effective February 2, 1987. Soon after Mr. Smith began teaching the science classes, the principal at Fort Caroline Junior High School, Mr. Pratt-Dannals, conducted a formal observation, the first of at least three he conducted before the academic year ended. He gave respondent special attention because, during the school years 1981-82 and 1982-83, when Mr. Pratt-Dannals was dean of boys at Lake Shore Junior High School, he had concluded that "a general lack of proper classroom decorum" (T.43) in one or more of Mr. Smith's classes accounted for an "inordinate number of referrals" (T.53) to the dean's office. But he evaluated Mr. Smith's teaching in the spring of 1987 as satisfactory over all. He also offered criticisms of various aspects of his performance as a teacher, telling him he needed to improve. He urged Mr. Smith to enroll in certain methodology courses in the summer of 1987, but Mr. Smith declined because he "had the summer planned." T. 617. When Mr. Smith returned in the fall, he found himself without a classroom of his own. As a "travelling teacher," he moved from one classroom to another in the course of the school day. This may have accounted for some of his classes' getting off to less than a smooth start. T. 573. 1987-88 Observations On September 15, 1987, Mr. Pratt-Dannals observed Mr. Smith teaching an earth science class. On a "Summative Observation Instrument" he kept track of specified behaviors classed either as effective, or as ineffective, indicators. The former outnumbered the latter, and Mr. Pratt-Dannals commended respondent for "asking a large number of questions on the film strip" which he saw as evidence of a "desire to involve students in the discussion." Petitioner's Exhibit No. 5. But, from where he sat, Mr. Pratt-Dannals saw "students openly cheating on the quiz," (T.88) (although he took no action against the supposed offenders.) Mr. Smith did not see students cheating. T.594-5. "Mr. Smith warned a student to stop talking. The student continued to talk, and there was no repercussion." (T.88) On October 21, 1987, Mr. Pratt-Dannals observed another of Mr. Smith's earth science classes devoted, except for 18 minutes, to a test. He saw "13 students . . . openly sharing answers on the test," (T.88) again without taking any action. Again Mr. Smith did not see students cheating. T.594-5. Using the same "Summative Observation Instrument," Mr. Pratt-Dannals identified about as many "ineffective indicators" as "effective indicators." Among the ineffective teaching behaviors Mr. Pratt-Dannals made note of on October 21, 1987, was Mr. Smith's defining "seismograph" for the class without giving an example. (T.90) When one student said to another, "You do and I'll beat your butt," (T.88) and the other responded, "Faggot," neither the principal nor the teacher intervened, although respondent later reprimanded both students outside the class. T. 582. Mr. Smith recognized the voice of only one of the protagonists, and decided against "ask[ing] a class of 35 which one of you said, you're a faggot?" T.585. From the owner of the voice he recognized, he learned the identity of the other miscreant. On November 5, 1987, Mr. Pratt-Dannals observed Mr. Smith administering yet another test to yet another earth science class. Using the same form as before, he recorded more ineffective indicators than effective indicators. Petitioner's Exhibit No. 7. Mr. Pratt-Dannals testified: There's some additions and corrections to the test at the beginning of the period that created some confusion. These were said orally, so the student had to understand what he was saying orally and write it down on his test in order to do well on the test. I suggested Mr. Smith write these on the board if there were corrections necessary. The cheating continued, particularly where students sat next to each other. This was when Mr. Smith was helping another student. There is a term called with-itness, and that is where a teacher is able to do two things at one time. One of the things that would be required in this situation would be to assist a student who may have a question about the test while continuing to look over the rest of the class to determine if any cheating was going on. He told one student that he would deduct 10 points the next time he was talking. This was on the test. The student talked, and he did not deduct the points. In written remarks made at the time, Mr. Pratt-Dannals noted, "While there was some cheating going on, it was less than before," and suggested, "It looks like it is time to rewrite the 'House Rules' on your cart. The pencil scribble detracts from the impact." Petitioner's Exhibit No. 7. When Mr. Pratt-Dannals next observed respondent's teaching, on December 1, 1987, he perceived no "classroom management problems." (T.100) But he felt "[t]here were problems with presentation of content," id., specifically the effort to discuss dinosaurs, AIDS, the space program and the greenhouse effect in the same class period. He nevertheless commended respondent on a "[g]enerally good question/answer time with extension or correction as needed," Petitioner's Exhibit No. 8, and recorded many more "effective indicators" than "ineffective indicators." Id. Biweekly the science department received 50 student issues and a teacher's edition of Science World, a magazine to which the school subscribed. "There were eight science teachers and one set of magazines." T.591. The chairman of the science department asked science teachers to include all topics pertinent to their courses covered in the magazine "in our lesson plan biweekly." T.586. The then current issue contained articles on dinosaurs, AIDS, the space program, and the greenhouse effect (as well as numerous other topics) and respondent had passed copies out to the students. On February 18, 1988, Mr. Pratt-Dannals again observed respondent teaching and again recorded many more "effective indicators" than "ineffective indicators." But "problems with classroom management persisted, specifically open talking, interrupting and socializing." (T. 117) Nevertheless, according to Mr. Pratt-Dannals, "almost half of [Mr. Smith's] interventions were effective." Petitioner's Exhibit No. 9. Mr. Pratt-Dannals commended Mr. Smith for "[g]ood use of materials, orienting statements, and beginning review . . [g]ood circulation during seatwork . . . [and a]dequate coverage of 4 of 6 of the concepts," Petitioner's Exhibit No. 9, he explicated on February 18, 1988. The two concepts Mr. Pratt-Dannals felt received inadequate coverage "were that light passing through a prism gives a spectrum . . . [and] that the earth is spherical, therefore, that the light hits the earth directly at the equator, but it hits it at an angle at the poles. [Mr. Smith] stated those but did not give any kind of application." T.118. Finally, Mr. Pratt-Dannals again observed respondent's teaching on March 2, 1988. He saw Mr. Smith stop misconduct effectively on three occasions, but, on nine occasions, misconduct extended beyond a reasonable period of time. In other words, he might say, Okay, that's enough, stop talking, and the talking continued for a period of time following that. It may be that the talking continued throughout the whole period [, while the principal sat, mutely observing.] In many cases it continued for a longer period of time than was reasonable if the students were responding to his correction. T. 124. Mr. Smith also failed to give examples of several (but not all) of the terms he defined. According to Mr. Pratt-Dannals, the "problem . . . was that a definition was provided with no example . . . similar to," (T.124) the situation with "seismograph." In conjunction with his observations that school year, Mr. Pratt- Dannals read Mr. Smith's lesson plans for each of the half dozen classes he sat in on. These, he found, "minimally covered what is required." T.130. Aside from these six, he read no other lesson plans Mr. Smith prepared that year. He evaluated Mr. Smith's performance as a teacher as unsatisfactory principally because of classroom management problems. T.131. At Mr. Pratt-Dannals' behest, Gloriden J. Norris came to the school to evaluate respondent's teaching and test administration on December 18, 1987, and again on January 20, 1988. After her first visit, she reported, "[n]o major problem identified from these observations." Petitioner's Exhibit No. 26. On her second visit she recorded 30 effective teaching behaviors and only two ineffective teaching behaviors. Petitioner's Exhibit No. 28. Both Mrs. Norris and Mr. Pratt-Dannals gave Mr. Smith advance notice before observing his teaching. On the other hand, Daniel L. Weems, one of the science teachers whose classrooms respondent made intermittent use of, had occasion to enter his room without notice, during his own free period, while Mr. Smith was teaching there, "in the range of once a week," (T.188) for from two to 15 minutes at a time. Not infrequently he found that Mr. Smith did not have all the students' full attention. He observed "[o]n a number of occasions things such as heads down on the desk, writing notes or letters to one another, just talking with one another, being teenagers." T.177. MLST Petitioner requires students in its earth science courses to pass a Minimum Level Skills Test (MLST) demonstrating mastery of a specified fraction of about 19 percent of the course objectives, in order to pass the course. In March of 1988, Mr. Pratt-Dannals told Mr. Smith he was concerned that his students would not be properly prepared for the standardized test; and encouraged him to make special efforts to prepare them. Mr. Smith did make special efforts. The percentage of his students who passed the science MLST the first time they took it was higher than comparable percentages for two other science teachers' students, but lower than the comparable percentage for one of the other science teachers' students. Respondent's Exhibit No. 5. Mr. Smith's students' scores on the earth science MLST were not significantly better or worse than their scores on minimum level skills tests in other subject areas. 1988-89 At respondent's request, he was transferred from Fort Caroline Junior High School after Mr. Pratt-Dannals gave him an unsatisfactory evaluation. That summer he signed up for two of the three education courses Mr. Pratt-Dannals recommended that he take during the summer, but they were cancelled for lack of adequate enrollment. The third recommended course was already completed by the time he looked into it. Mr. Smith's request to teach physical education during the 1988-89 school year was not honored. Instead, he was assigned to teach two science courses, four classes of life science, which he had never taught before, and one class of physical science at the Eugene J. Butler Seventh Grade Center (Butler). His physical science students had all failed earlier attempts to pass the seventh grade. For the first two weeks of school or longer, Mr. Smith called students' names, and they raised their hands when he took roll, but after that he would simply "darken in the circles" (T.603) on a "bubble sheet" that listed the class roll. Once he had learned their names, this procedure saved class time, he felt. In each class, he asked a student to remind him to fill in the sheet before the hour was up. Before conducting his initial formal observation, Butler's principal, Kenneth Leon Manuel looked for respondent's lesson plans, but did not find them on file. When he did see the lesson plans, he concluded they "did not comply with the format of objectives, instructional strategies, materials and evaluation." Petitioner's Exhibit No. 14. In the classroom, he noticed several students "discours[ing] while [Mr. Smith] was talking," (T.259) on September 13, 1988, and again on October 18, 1988. Also on September 13, 1988, "several students walked in and out of the classroom. Like one kid would walk in with the hall pass. And by the time he put the hall pass down, another kid would get up, get the hall pass and walk out." T.260. Carole Lippert Benson, Butler's vice-principal, conducted a "formal observation" in one of Mr. Smith's classes on September 28, 1988. Even though class began four minutes late, five students were tardy. "The teacher usually makes some sort of notation that the child was tardy, or gives them some sort of reprimand," (T.404), but respondent did neither. When he began his presentation, one student was at the pencil sharpener and three others were out of their seats. He stood at an overhead projector with his back to half the class. Some students talked. One put his head down and went to sleep. A girl put on make up. Mr. Smith did not have the attention of several students. Kathleen Bowles, the science and health department chairperson at Butler had her planning period second hour during the 1988-89 school year. She walked through respondent's second period class on her way to the science department's storage rooms, "probably 20 times or more, throughout the entire school year." T.246. She saw children talking among themselves, writing notes and out of their seats. She even saw some listening to radios or cassette players with headphones. School policy forbids Walkman radios on campus. Mr. Smith violated departmental policy by letting the children "dissect pumpkins" without safety goggles, and nearly violated department policy "when he was going to dissect earthworms, and the safety contracts had not been signed." Although Ms. Bowles reported a "very high" noise level, a classroom teacher nearer by was not disturbed. On November 9, 1988, Kathleen Marie Poe, who then worked for petitioner as "a science consultant with professional development" (T.454) attended one of respondent's classes in order to conduct a scheduled formal observation. When the tardy bell rang two boys were arguing over which should retrieve a desk that had been moved for an earlier class. A student arrived late. One of the students walking around the room refused to obey several exhortations to sit down, so Mr. Smith ordered him to leave the class room "and that child wouldn't step outside, so they finally negotiated that he asked him to sit in the back of the room." T.455. But, when a girl finished sharpening her pencil, the recently seated student rose to sharpen his pencil. After these preliminaries, and a quiz, Mr. Smith made use of an overhead projector and began a far ranging lecture on sea life, mentioning (without defining that day) mollusks, bivalves, scallops, univalves, stingrays, echinoderms and the Great Barrier Reef. During the lecture, one girl put on make up, another did her English homework. On November 17, 1988, a student arriving for Mr. Smith's sixth period class told him he did not feel well, and asked to go home. Mr. Smith answered, "[S]ee if you can't tough it out one more period. Your mom's not going to want to come over here. Go . . . put your head down." T.624. Instead of putting his head down, the child lay down on a table. Mr. Manuel and Levi Garrett, another administrator in petitioner's employ, were present for the first five minutes of this class. Mr. Smith introduced Mr. Garrett to the students before proceeding with a scheduled VCR presentation. Neither Mr. Manuel's testimony that, "There were several kids that walked in and just lay down on the table," (T.266) nor his assertion that respondent's lesson plans were not on respondent's desk has been credited. On February 1, 1989, Ms. Norris observed respondent at Mr. Manuel's request. "Other than the inadequate preparation and delivery of content, [she] also concluded that there were some problems in inconsistency in . . . effective strategies . . . used to manage student conduct." T.384. On the test he gave that class, "there's a mixture of multiple choice and matching without directions." T.386. On February 15, 1989, Mr. Manuel conducted another formal observation, this time of respondent's third and fourth period classes. With regard to the third period class, Mr. Manuel reported: [B]asically the behaviors that were in that particular class during that time, there was a lot of deviant behavior. Mr. Smith, at one time, responded to the deviant behavior, "Neil, you better get busy. You guys get busy." There was continuous conversation with a student that had a missing lunch ticket. During the period of time in this particular classroom, Mr. Smith did circulate around the classroom. There were numerous misconducts [sic] of students going on. He had the opportunity to cease and desist some of that; however, in some cases he did not. Also, in that particular one, in that specific case, one student had indicated to Mr. Smith that he had completed the assigned task [an essay] . . . [A]nd Mr. Smith explained to him to continue to work on the essay. The child just went ahead on. T.275-7. About a third of the class finished the essay early, and had no additional assignment other than (possibly) homework. The fourth period class was the physical science class, full of students who were repeating. Several students "were continuously off task." T.279. Mr. Smith told a student she should have raised her hand, and she said he had not required another student to do that. After two warnings, Mr. Smith "wrote [a student] up on a referral, told him to leave the classroom." T.280. Another student was playing with the thermostat. Still another student "was constantly talking and complaining." T.281. On February 28, 1989, Ms. Poe again observed respondent, whose strength she had earlier described as "science content/knowledge." Petitioner's Exhibit No. 33. In connection with her February visit, she prepared written comments. "Some conduct problems - 4 students out of their seats - talking back - frequent interruptions. One was sent out on a referral (girl) transparencies were clearer as were his directions. He never raised his voice and was calm throughout the hour." Petitioner's Exhibit No. 33. Ms. Poe felt respondent "need[ed] to provide positive feedback to students' answers and . . . for correct behavior and to be consistent with his own set of classroom rules." Id. She also noticed that "he kept calling on the same students, the ones who were paying attention, to answer the question." T. 459. Two boys played "paper football across the desk," (T.456) a boy threw "basketball paper wads . . . three of them in a row", id, a distance of about six feet, and "[t]here were a couple of paper airplanes being flown around the room." T.456. Mr. Manuel conducted a final observation on March 13, 1989. After this observation he told respondent that he wished he had taught so well for the whole year or words to that effect. He told him that this was the type of teaching he had been looking for and was generally complimentary. Nevertheless the next day he made a final evaluation that Mr. Smith's work for the year had been unsatisfactory. After January 30, 1989, respondent did not file lesson plans until June 14, 1989, when he filed lesson plans for some four months' classes late. MLST At Butler Of the 21 students in Mr. Smith's year-long physical science class, only ten passed the physical science MLST the first time it was administered. T.302. Petitioner's Exhibit No. 23. Even fewer students passed the course itself. "That's the class that were repeaters . . . ." T.603. Most of the students who flunked the class "failed because we had an attendance policy. If you missed more than seven days [in "[e]ach grading period" (T.607)] . . . you automatically received an F or an E in the class." Id. Students in Mr. Smith's four first semester life science classes passed the life science MLST at rates of 34.8, 52.0, 52.2, and 63.6 percent, as compared to a 77.7 percent pass rate for all teachers' first semester life science students. Petitioner's Exhibit No. 24. But students in Mr. Smith's second semester life science classes passed the life science MLST at rates of 92.0, 93.8, 94.1 and 94.7 percent as compared to an average 93.9 percent for all teachers' life science students that semester. Petitioner's Exhibit No. 25. Popular With Colleagues A number of respondent's colleagues testified for him at hearing. Paul Z. Martin, a teacher at Lake Shore Junior High School from 1954 to 1976, said, in answer to counsel's questions: A He got along fine. I got jealous of him a lot of times, because he could handle the students so well, and the students liked him, and he had no problem there at all. And another thing -- let me say right there -- you know, things will happen, which is natural. They'll come up in class, or maybe under me or maybe under another coach. And, well, two or three times I recall where I would ask Kerby to go see if he could resolve that situation, and he did. He did a good job. He's a good disciplinarian. Q Good disciplinarian? A Good disciplinarian. And his work in his classroom was very efficient. (TR 344) Barbara Miller who taught at Lake Shore Junior High School for twenty- six (26) years and who, like Mr. Martin, had no personal knowledge of respondent's performance at Fort Caroline Junior High School testified: I think he is a very competent teacher. I say this due to the fact that when I walked into his classroom the many, many times that I did, that his class was in order, that he had control of his classroom, that his test scores were good, that his grades were better than mine, that he did take an interest in the children. And I have one real criteria for being a good teacher, and that is it involves the heart and the love of your job and the love of the children, and I absolutely will say under oath that Kerby has these things, that he enjoyed his job, he loved the kids, and he gave to them beyond the capacity of just your 7:30 - to - 2:40 requirement. And that says a lot for me. (TR 359, 360) A former principal, John Rowell, who served as principal at Lake Shore Junior High School, until 1969 testified: I would say he tries to reach every student that he can. He's very pleasant, and he -- for me, he maintained good order in the classroom and a well-disciplined gym class, and his teams that he coached were well-disciplined teams. He called on the kids to recite. He would explain, and they would recite. Q Do you think he was a competent teacher? A Yes. He was a competent teacher for me. Between 1963 and 1969, he was a very competent teacher." (TR 484-485) Another colleague who had not taught with Mr. Smith since he left Lake Shore Junior High School was Betty Tut who had herself taught for some twenty- five (25) years. She said: Did you ever observe Kerby Smith in the classroom? A No, not observe him in the classroom, but we taught P.E. kind of together. Sometimes we would be outside, but this was some time ago, not recent. Q But you could see each other? A Yes. Q What was his conduct with the class when you observed him? A Very caring and compassionate about them and wanting them to do well. He was very concerned about each of the kids and wanted them to do exceptionally well in what he was doing. I know that much. Q Did he seem to have control of his class? A Being outside, he had pretty good control outside. But when he was inside, I did not observe him. (TR 494) Another Lake Shore colleague, Floyd Watson, who taught at Lake Shore Junior High School from 1966 to 1988, answered counsel's questions, as follows: Q How did Mr. Smith conduct this classes? A What do you mean? Q You saw him in some of his classes. What were they like; well-run, poorly-run, whatever? A Of course, I'm not a science teacher, so I can't say that sort of thing. Q Did you find any atypical disciplinary problems in his classes, as compared to the others that you were familiar with? A No. Q Did he seem to have a rapport with the students or lack or rapport? A He seemed to have a good rapport. I think, with the latter part of the years, I was just thinking, when I came down here the other day, that he seemed to have a right good rapport, especially with minority students. Not all teachers have that." (TR 502) "Q In your opinion, from '63 to '85, was Mr. Smith a competent teacher? A Yes. Q And the reason for that statement? A Well, I think he's knowledgeable in his subject matter. I think he put the material across to the students. He did have a classroom management so that a student that wanted to learn could learn. He was able to talk with the students and get along with them reasonably well. Of course, like any teacher, you don't satisfy all of them. That never happens. But, overall, I think he got along very well with the students, and they tend to respect him. He made it such that if they wanted to learn they could, and he would try to teach them. (TR 503, 504) Robert A. Birmingham, an occupational specialist at Lake Shore Junior High School, 1985-1990, testified: Q What was the conduct of his classroom when you were there? A They're junior high kids, you know. In an educational setting, there can be noise, and it's educational noise, and there can uncontrolled noise. And I don't recall anything that I was unhappy with. (sic) (TR 510) Phil Valla, a 20-year teacher who taught with respondent early in his career, testified: Q How did he conduct his classes, as far as demeanor and the rest of it? A How did he conduct his classes? Q Yes. From your viewpoint as a teacher, yourself, do you have an opinion about how Kerby conducted his classes? A His classes were fine. Q Do you think he's a competent teacher? A Yes, sir. Q And could you tell the Hearing Officer why you think he's a competent teacher? A When we worked together, we seemed to accomplish everything we set out to do with the kids, and he seemed to get along real well with the kids and fellow coaches. Q How was discipline in his class? A Fine. Q What rapport, if any, did he have with his students? A It was excellent. He had superior rapport with the students. Q Do you think the students respected him? A Yes, sir. Q You say he accomplished everything he wanted to accomplish; was that subject matter? A Yes, sir. Q Do you think that got across? A Yes, sir. We taught -- our goals were to teach skills in physical education, and we accomplished that in those years. (TR 516, 517) And Georgette Macarthur, a teacher with 28 years of experience, offered her opinion, in response to counsel's questions: Q Do you have any opinion about how he conducted his classes? A Yes. He had a real special, I think, rapport with the students, and they liked him, and they performed for him. And I don't think he had a military discipline style, but that mold -- everybody doesn't fit that mold. His style of discipline was a little more relaxed, but the students learned well, I think, and they all did what they were supposed to do. I'm more of a relaxed teacher, myself. And I can see that what is right for one teacher, as far as discipline goes, is not right for another teacher. And students can't learn in chaos. That's not what I'm saying. What I'm saying is that if they're all tense and tight sometimes they don't do their best. I really like the way Kerby teaches, from my memory. It's been several years, but, from what I know, I really like the way he teaches. Q You've known him for over 20 years at Lakeshore (sic)? A Right, right. Q That's a long time to observe somebody. A That's right. That -- well, go on with your questions. Q And he left to go on a sabbatical? A Yes, and then he came back. Q And then -- I don't -- if I asked you this -- did I ask you, "Do you think he's a competent teacher?" A Yes, I do. From my observations and just from what I have known, I do think he's competent. (TR 524, 525) On the other hand, Messrs. Pratt-Dannals and Manuel, along with Ms. Bowles testified that respondent was not a competent teacher. Of the 6200 teachers the school board of Duval County employed in 1988-89, it sought to terminate the employment of only three. Raymond Bailey, petitioner's "director of certificated personnel," (T.200) testified: A competent teacher is one that has knowledge of subject matter, is able to impart and deliver that subject matter to students. That competent teacher also is one that is competent in the area of classroom management, meaning managing the learning activities that take place within those four walls. He's also an individual that is effective in his delivery of curricular material to students, interpreting the curriculum of the district and, again, imparting its students. He is an individual that is charged with the responsibility of teaching the curriculum as outlined by the district and has the knowledge and background to proceed through that and to provide his students with the very best education. While it is clear respondent did not provide his students with "the very best education," the evidence fell well short of a showing that he was among the three worst teachers in the school system. At one point when respondent was teaching at Lake Shore and Mr. Wechsler was serving as principal, all five or six science teachers were evaluated by the School District's "teacher educational consultant for science" (T.369), Gloriden J. Norris. Ms. Norris, who observed all of the teachers in their classrooms, did not conclude that respondent's performance was significantly worse than any of the other science teachers' performances. (T.399-400).
Recommendation It is accordingly, recommended that petitioner renew respondent's employment contract. RECOMMENDED this 22nd day of August, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4132 Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 26, 27, 28, 29, 30, 31, 37, 38, 39, 40, 45, 79, 87, and 89 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 7, 12, 13 and 14 pertain to matters outside the two-year period alleged by the Board, or are otherwise immaterial. Petitioner's proposed findings Nos. 15, 16, 17, 18, 23, 24, 25, 32, 33, 34, 36, 46 and 81 pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 19 through 22, see finding of fact Nos. 11 through 22. Petitioner's proposed findings of fact Nos. 35 and 86 were not established by the evidence. With respect to petitioner's proposed finding of fact No. 41, the testimony was that in no other case of this kind was a teacher assigned to teach subjects he had never taught before. With respect to petitioner's proposed findings of fact Nos. 42, 43 and 44, the evidence did not show that he was at any less disadvantage teaching life science, and the "special accommodations" were contrary to his request to teach physical education. With respect to petitioner's proposed findings of fact Nos. 47 through 65, 82, 83 and 84, see findings of fact Nos. 27 through 45. With respect to petitioner's proposed findings of fact Nos. 66 through 75, see findings of fact Nos. 46 and 47. Petitioner's proposed findings of fact Nos. 76, 77, and 78 have been adopted in substance, insofar as material, except that Mr. Manuel's testimony that lesson plans were not on respondent's desk has been rejected. With respect to petitioner's proposed findings of fact Nos. 80 and 85, that is the answer he gave on deposition. With respect to petitioner's proposed findings of fact Nos. 85 and 88, petitioner proved respondent was a weak teacher, but did not prove that he was incompetent, within the meaning of the statute. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 10, 13, 17 and 18 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 6 and 15 pertain to subordinate matters. The final two sentences of respondent's proposed finding of fact No. 7 have been adopted, in substance, insofar as material, but there were not six formal evaluations. With respect to respondent's proposed finding of fact No. 9, nobody testified that a traveling teacher should have any greater problems with discipline after the first few minutes of class. With respect to respondent's proposed finding of fact No. 11, the evidence did not show that he actually attended summer courses. With respect to respondent's proposed finding of fact No. 12, the first sentence has been adopted but it is not clear what comparison the second sentence is intended to make. Respondent's proposed finding of fact No. 14 is rejected. With respect to respondent's proposed finding of fact No. 16, she characterized certain behavior as inconsistent. COPIES FURNISHED: The Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207 James L. Harrison, General Counsel Gail Stafford, Assistant Counsel 421 West Church Street, Suite 715 Jacksonville, FL 32202 Al Millar, Esquire 2721 Park Street Jacksonville, FL 32205
The Issue The issues in this case are whether Respondent committed the acts alleged and violations charged in the Administrative Complaint; and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. Respondent is a teacher. At the time of the allegations in the Administrative Complaint, Respondent held Florida Educator's Certificate 1266409, covering the area Exceptional Student Education (ESE). Respondent's Background Respondent earned a bachelor's degree in special education from New York University and a master's degree in early childhood special education. From 1998 to 2015 she taught ESE in self-contained classrooms (classrooms dedicated to ESE students) in New York. Respondent moved to Florida and began working for Orange County Public Schools, where she was employed in February 2015 as an ESE teacher at Ocoee Elementary School (Ocoee Elementary). For reasons unrelated to this case, Respondent was moved to the position of behavioral specialist (a non-classroom position), but returned to ESE classroom teaching in the fall of 2017. Crisis Prevention Intervention (CPI) is a "best practice" crisis de- escalation protocol used district-wide in Orange County Public Schools. Respondent is CPI trained and certified. In June 2017, Respondent injured her shoulder and ankle at work while she was attempting to pick a student up from the floor. She returned to work after a few weeks of physical therapy. She continues to have pain in her shoulder and ankle. Respondent also suffers from asthma and recurrent nerve pain. By all accounts, Respondent was a dedicated and effective ESE teacher at Ocoee Elementary. She used her own funds to purchase supplies for her ESE students, including exercise balls for autistic students to prevent them from rocking in standard-issue chairs. Her evaluations from Ocoee Elementary were all "effective" or "highly effective." All of the witnesses who had occasion to observe Respondent in the classroom gave her high marks. There is no evidence that Respondent ever acted in anger or frustration with a student. She is accused of having done so in the incident at issue here. Respondent's Classroom For the fall of 2017, Respondent taught ESE students in a self- contained classroom at Ocoee Elementary. The grade level of her students spanned three grades, from second to fourth grade. The class size was approximately 12 students. The students were autistic and/or intellectually disabled. Paraprofessionals were assigned to assist Respondent in the classroom, including Cory Baker, Chanda Nguyen, and Michelle Hartley. The classroom had a designated "safe space," a small open area approximately three to four feet wide located between a large portable closet on wheels, a file cabinet on one side, and a wall on the other side. The safe space floor was covered with a soft mat and pillows. Posters on the safe space wall showed students how to breathe, relax, and decompress. A bathroom was located inside the classroom. The door opened out to the classroom. The door could be locked from the inside. Respondent and the paraprofessionals assigned to the classroom had access to an Allen key to unlock the bathroom door, but a disc had to be "popped" off of the lock to use it. Ocoee Elementary had a "crisis team" that could be called to assist when a student was in crisis, including removing the student if necessary. The crisis team included Juan Colon, who was the school's behavior specialist, and Isaac Bowen, a behavior trainer. The crisis team typically responded to a call for assistance within one to two minutes. The Incident with Student E.T. E.T. was assigned to Respondent's ESE classroom for the fall of 2017. He was 12 years old at that time. The other students ranged from seven to nine years of age. At approximately 5'6", E.T. was not only the largest student in the class, but he was also larger, and about four inches taller, than Respondent. E.T. was considered to be intellectually disabled. He was learning on a first or second grade level and his IQ was below 70. Some of the other students in the classroom were autistic, but E.T. was not. A Behavior Intervention Plan (BIP) is a written plan that identifies problematic behaviors of a particular ESE student and strategies staff should use to address them. E.T. had a BIP that listed three problematic behaviors: (1) noncompliance (that is, refusing to perform tasks, by saying words like "no," "this is stupid," making faces or squeaking noises, or simply walking away); (2) physical aggression (including aggressive posturing towards his peers and throwing small objects like pencils, erasers, and papers); and (3) elopement (defined as walking away from staff). On the morning of October 12, 2017, E.T. began engaging in disruptive behavior that ultimately required his removal from the classroom. The disruptive behavior began when E.T. crawled under the desk of one or more other students and grabbed crayons and pencils that were not his. Respondent attempted to de-escalate and redirect E.T. with oral instructions, but her attempts failed. Ultimately, Respondent called the crisis team for help with E.T. Mr. Bowen arrived at Respondent's classroom within a short time with two other behavior trainers. The rest of the class was taken to the playground. Respondent and Mr. Bowen sat with E.T. at a table to work on compliance tasks, and E.T.'s behavior and mood improved. Respondent and Mr. Bowen walked with E.T. to the playground to retrieve the rest of the class. Respondent, E.T., and the rest of the class went back to the classroom. Mr. Bowen and the other behavior trainers left to respond to another call. On the way back to Respondent's classroom, E.T. refused to walk in line with the other students. One of the paraprofessionals walked with E.T. and redirected him back to the line. Back in the classroom, E.T.'s disruptive behavior resumed. He grabbed pencils and crayons that were not his and crawled under the desks of other students. He also blew mucus out of his nose, spit saliva onto his hands, and wiped his mucus and saliva all over his body. Respondent attempted to redirect E.T., initially by ignoring his behavior. When that failed, she attempted to redirect him with instructions and incentives. This strategy also failed. Finally, Respondent asked two of the paraprofessionals, Ms. Nguyen and Ms. Hartley, to take the other students to the sensory room, an activity room located outside of Respondent's classroom. The class was removed in the hope that E.T.'s behavior would improve once he was denied an audience of his peers. Respondent asked Ms. Baker to remain in the classroom with her to assist with E.T. When E.T.'s behavior did not improve, Respondent and Ms. Baker called the crisis team again, but this time they were unable to reach Mr. Colon or Mr. Bowen because they were either responding to other calls for help or in a radio "dead zone." Respondent thought E.T. might respond better if he was allowed to talk with his mother, so she called E.T.'s mother and allowed him to talk to her on the class telephone. At that time, E.T. was under a table in the classroom pretending to be a turtle. E.T. feigned illness (fake coughing) and told his mother he wanted to go home. He also asked for potato chips to eat. The call terminated and E.T. refused to come out from under the table. After repeated unsuccessful attempts to coax E.T. out from under the table without laying hands on him, Respondent carefully pulled E.T. from under the table, making sure he did not hit his head. E.T. was not injured in any way in the process. Respondent then took E.T. to the classroom safe space. Once in the safe space, E.T. started to crawl under the portable wheeled closet. Respondent was concerned E.T. would injure himself in the process— legitimately so—and lifted him up and held him against the wall. E.T. made himself go limp to become "dead weight" and slumped down to the floor mat. Respondent lifted him back to his feet again and E.T. slumped back down to the floor. This process was repeated several times until E.T. reached on top of the closet and grabbed a basket of toys, causing the basket contents to fall to the safe space floor. The basket included toy train cars made of die cast metal. E.T. grabbed one of the train cars off the floor and threw it over the head of Ms. Baker, who was standing in the middle of the classroom. He threw another train car at Respondent, striking her in the head. Respondent stepped on one of the train cars and fell hard against the wall, pinning E.T. between her and the wall. E.T. said, "My chest hurts, my heart hurts," and "I think I am going to die." Respondent's shoulder hurt and she was short of breath. Having reached her physical limits, Respondent decided to remove E.T. from the safe space because she was concerned he would be able to reach other items on top of the closet, including a heavy paper slicer with a sharp cutting arm. Respondent's plan was to transport E.T. out of the classroom to the "calm-down" room, an empty classroom used to allow students in crisis to decompress. The calm-down room is located about 20 to 30 yards from Respondent's classroom. Respondent guided E.T. out of the safe space and toward the classroom door, with his arm under her armpit. This would be an approved CPI transport hold but for the fact that CPI transport requires two adults to transport a student in crisis in this manner, with each of the student's arms under the armpits of an adult on each side of the student. Ms. Baker—who was also CPI-trained—did not offer to serve as the second adult or provide any other assistance to Respondent while she was struggling to transport E.T. out of the safe space. E.T.—apparently unfazed by falling with Respondent against the safe space wall moments earlier—started to laugh and grabbed crayons off the desk of another student as he was being guided toward the classroom door. E.T. pulled away from Respondent and started walking quickly ahead of her. Respondent tried to maintain a hold on E.T., but was unable to do so without help from anyone (such as Ms. Baker, who continued as a spectator to Respondent's struggles). E.T. announced he was going to the bathroom and headed for the bathroom door. Respondent rushed to stop him, but tripped and landed hard against the bathroom door with E.T. Respondent was concerned—legitimately so—that E.T. could lock himself in the bathroom and create a mess or injure himself before the key to the bathroom could be accessed. Respondent applied all of her weight to the bathroom door, while E.T. held onto the doorknob, to prevent him from accessing the bathroom. Respondent held E.T. against the bathroom door, using her forearm against his chest. Respondent then struggled to lead E.T. away from the bathroom door and toward the classroom exit door, sliding with him against the wall. Natalie Hatch, a staffing specialist at Ocoee Elementary, and Mr. Colon entered the classroom door when Respondent was struggling to keep E.T. out of the bathroom. Mr. Colon immediately assisted Respondent to escort E.T. to the calm-down room using the dual-hold CPI transport position. On the way to the calm-down room, E.T. was crying and upset and he continued to wipe mucus and saliva on his body. In the calm-down room, E.T. tore paper and threw it on the floor. After about 15 minutes, he calmed down and Mr. Colon talked to him about the importance of following instructions. Ms. Colon asked E.T. to pick the paper off the floor and E.T. complied. Mr. Bowen also arrived and walked with E.T. and Mr. Colon back to Respondent's classroom. There were no further incidents involving E.T. that day. E.T. was not injured, physically or otherwise. The Findings of Fact regarding the incident with E.T. are based almost entirely on Respondent's testimony, which the undersigned found to be highly credible. The findings are also consistent with the credible testimony of Mr. Colon, who found nothing wrong with Respondent's attempt to keep E.T. from going into the bathroom by holding him against the bathroom door, nor did he find anything wrong with anything else he witnessed after entering Respondent's classroom. Ms. Baker stood in the middle of the classroom while Respondent struggled with E.T. Ms. Baker could not see all of the safe room interactions between Respondent and E.T., because her field of view was blocked by the closet and cabinet that formed the boundary of the safe space. Ms. Baker made repeated calls to the crisis team, but otherwise failed to offer any assistance to Respondent. Ms. Baker did not voice any objection to the manner in which Respondent physically interacted with E.T. The following day, Ms. Baker complained to administration that Respondent physically mistreated E.T. This led to an investigation of the incident and ultimately to Respondent's termination. Rejection of Corey Baker's Testimony Petitioner relies chiefly on the testimony of Ms. Baker to prove its case. For the reasons that follow, Ms. Baker's testimony was not credible and has not been accorded any weight. Ms. Baker's account of the incident differed from Respondent's in that she contends Respondent "manhandled" E.T. out of frustration, including: "snatching" him out from under the table when he was pretending to be a turtle; and repeatedly slamming E.T. hard against the wall of the safe room; and later the bathroom door. Essentially, Ms. Baker accuses Respondent of physically mistreating E.T. out of frustration with his conduct that day. Ms. Baker's testimony is rejected where it conflicts with the testimony of Respondent and Mr. Colon for several reasons. First, Ms. Baker 's field of view of the safe space was obstructed. No credit has been given to her testimony about what occurred when E.T. and Respondent were in the safe space together, because she could not see all of what happened there. That she would offer testimony describing events she could not have seen casts doubt on her overall veracity. Ms. Baker's credibility also suffers from her admitted failure to intercede in any way to aid a student she now claims to have been physically mistreated for a prolonged period of time. If, as Ms. Baker contends, Respondent "manhandled" E.T. while the three were alone in the classroom, then Ms. Baker should have attempted to separate the two or at least warn Respondent that she was being too rough; she did neither. Here is Ms. Baker's explanation for why she stood idle when Respondent and E.T. struggled: Q. So why didn't you jump into that space and help her lift him up? Why didn't you do something? A. Because, like I said, I do not feel comfortable with it being a blind corner [referring to the safe space] and already seeing stuff done that shouldn't have been done. If somebody came in, it would have literally looked like we were both just trying to take this kid out. In other words, Ms. Baker claims she did nothing to protect E.T. because she might also get into trouble. This explanation is rejected. It is inconceivable that Ms. Baker would sit back and do nothing if she believed Respondent was mistreating E.T. The rational explanation for why Ms. Baker did nothing to intercede to stop Respondent is that Respondent's actions were appropriate under the circumstances. Finally, Ms. Baker's credibility suffers from her embellishment of the incident, including the trauma she claims to have suffered after-the-fact. Ms. Baker testified that the incident was so traumatic that she had nightmares for a week or two afterwards. She went so far as to blame the stress of witnessing the incident for ending her relationship with her boyfriend. There was no evidence that E.T. was injured in the slightest. Indeed, as Ms. Baker admitted, E.T. laughed and continued to grab crayons that were not his after he left the safe space with Respondent. Ms. Baker grossly distorted the resulting trauma she claims to have suffered. For all of these reasons—and the undersigned's observation of the demeanor of the witnesses who testified live at the final hearing— Ms. Baker's account of the incident with E.T. is found to be grossly exaggerated and unreliable, and is given no weight.2 The OCPS Investigation Petitioner also offered the testimony of Acacia Vierbicky, an investigator for Orange County Public Schools (OCPS). Ms. Vierbicky was charged with investigating the incident involving E.T. after Ms. Baker complained to administration. Ms. Vierbicky testified that during the investigation, Respondent admitted to her that she "snatched" E.T.'s arm from underneath the table when he was pretending to be a turtle, and pinned him against the wall—face first—in the safe space. The Administrative Complaint does not allege facts regarding the manner in which Respondent removed E.T. from under the table as a predicate for any charges. Regardless, Respondent denied that she "snatched" E.T. from under the table and explained why she removed him from underneath the table. Respondent's testimony was credible and is accepted over Ms. Vierbicky's recollection of what she was told during her investigation. 2 Additional evidence was offered to impeach Ms. Baker's credibility. First, to suggest bias, Respondent and Ms. Baker were close friends at one time, but that relationship soured the summer before this incident occurred. Second, another teacher testified that Ms. Baker came forward with false allegations against her in an attempt to get her fired. Finally, another witness testified that Ms. Baker is prone to exaggerate events involving students in general. While all of this testimony may be true, it is unnecessary to rely upon it to reach the conclusion that Ms. Baker's testimony is unreliable. The characterization of whether Respondent "pinned" or "held" E.T. against the wall of the safe space with the weight of her body is not an important distinction here. What is important is that Respondent did so to prevent E.T. from crawling under the wheeled closet or grabbing dangerous items from the top of the closet. Holding E.T. against the wall under these circumstances—whether an approved CPI hold or not—was entirely reasonable to prevent E.T. from hurting himself or others. Ms. Vierbicky's testimony as to her recollection of Respondent's admissions is rejected where it differs from Respondent's live testimony.3 Crisis Prevention Intervention CPI is not the law; it has not been adopted by statute or rule. Petitioner offered the testimony of Kimberly Ann Smith, an expert in CPI and behavior analysis. Ms. Smith testified credibly that pinning or holding a student against a wall or holding a student with his arm behind his back is not an approved CPI hold. But, as Ms. Smith repeatedly acknowledged, CPI is a "best practice" protocol. As such, restraining a student with a non-CPI approved hold can be reasonable under certain circumstances even if it is not the "best practice." Ms. Smith testified that it is acceptable to physically restrain a student when the student may hurt himself or others. Ms. Smith also agreed that E.T. could have injured himself crawling under the wheeled closet and that throwing the metal trains presented a legitimate safety concern. The CPI training materials offer examples of approved holds that one teacher can apply to restrain a student, but these holds are not appropriate for a student 3 Ms. Vierbicky's investigative summary of the incident involving E.T. was admitted as an exhibit in this proceeding, as were the witness statements she collected during her investigation. Although admitted, these exhibits have not been relied upon here because they are largely hearsay. See § 120.57(1)(c), Fla. Stat. It is also noteworthy that there are obvious material omissions from Ms. Vierbicky's investigative summary, including the failure to mention that E.T. grabbed and threw metal trains while in the safe space and the failure to mention the fact that E.T. was not injured. Thus, even if not hearsay, or predicated on hearsay, the investigative summary represents an incomplete assessment of the incident with E.T., and is unreliable for this reason alone. who is taller than the teacher. In fact, these holds should only be used on a student who is at least a head shorter than the teacher. E.T. is significantly taller than Respondent. Petitioner offered no evidence of a CPI-approved hold that would have been appropriate for Respondent to use under the circumstances she confronted with E.T. Petitioner also offered testimony from Ms. Hatch to show that Respondent did not use a CPI-approved restraint when E.T. was attempting to enter the bathroom. Ms. Hatch testified that when she entered the classroom, she saw Respondent holding E.T. with his face against the wall with his hand behind his back. This differs from Mr. Colon's testimony, which was that Respondent was holding E.T. with his back against the bathroom door with her forearm on his chest. Although Mr. Colon's and Ms. Hatch's recollection of the positioning of Respondent and E.T. differ, the distinction is not material. Respondent had a legitimate concern to keep E.T. from entering the bathroom under the circumstances, and her attempts to do so—although not a CPI-approved hold—were reasonable under the circumstances. For all of these reasons, Respondent's admitted failure to use CPI- approved holds to restrain E.T. is not evidence that she failed to make reasonable effort to protect E.T. from any potentially harmful conditions, or that she exposed him to a risk of mental or physical harm. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent, in fact, made reasonable effort to protect E.T. from conditions harmful to learning and/or to his mental or physical health and/or to his safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of March, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 27th day of March, 2020. COPIES FURNISHED: Tobe M. Lev, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Law Office of Ron Weaver Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since August 21, 1998. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, is covered by the collective bargaining agreement between the School Board and TALC, and holds a professional service contract with the School Board At the time of his hiring, Respondent was assigned to the dropout prevention program at Academy High School, where he taught for one year. On August 17, 1999, Respondent began teaching at High Tech Central, a vocational/technical school. High Tech Central's student body includes both high school students and adults seeking to obtain job skills. A large percentage of the adults attending High Tech Central receive assistance from the Pell grant program, a need-based undergraduate financial aid program funded by the federal government. During the 1999-2000 and 2000-2001 school years, Respondent taught the second semester of the personal computer ("PC") support services class, sharing a large classroom with Beth Ames, the teacher who taught the first semester of the same class. During the 2001-2002 school year, Respondent taught a web design class. During the 2002-2003 school year, Respondent taught CET in a co-teaching arrangement with Jeff Ledger, who had taught the CET class for the previous six years. At the end of that school year, Mr. Ledger moved to Ohio. From the 2003-2004 school year until the time of his suspension, Respondent alone taught the CET class. Throughout his period of employment with the School Board, Respondent also taught computer, business, and accounting courses as an adjunct professor at Edison College in Fort Myers. Until the 2003-2004 school year, Respondent received nothing less than satisfactory performance assessments. For the 1998-1999 school year, his performance was graded as satisfactory in each of the twelve criteria listed on the performance assessment form.2 His assessor at Academy High School wrote in the comment section of the assessment that "Mr. Nevins is well versed in technology and vocational skills," and commented favorably on Respondent's flexibility and cooperativeness in meeting the needs of students. For the 1999-2000 school year, Respondent's performance in teaching the PC support services class at High Tech Central was graded as exceeding expectations in five of the twelve criteria listed in the performance assessment form and as meeting expectations in the remaining seven criteria. High Tech Central's assistant director Susan Cooley prepared the assessment and wrote that Respondent "has done an outstanding job with collaboration with teachers and staff here at [High Tech Central]. He is very creative and strives to produce projects and alternative techniques for student achievement." For the 2000-2001 school year, Respondent's performance was graded as exceeding expectations in five of the twelve criteria and as meeting expectations in the remaining seven criteria. Ronald Pentiuk, the director of High Tech Central, prepared the assessment and offered no written comments. For the 2001-2002 school year, when Respondent moved from PC support services to web design, Respondent's performance was graded as exceeding expectations in three of the twelve criteria, and as "meets expectations" in the remaining nine criteria. Mr. Pentiuk commented that "Mr. Nevins has performed in an outstanding manner-- really super job in preparing the new CET lab." For the 2002-2003 school year, when Respondent moved from web design to co-teaching the CET class with Mr. Ledger, Respondent's performance was graded as exceeding expectations in three of the twelve criteria and as meeting expectations in the remaining nine criteria. Mr. Pentiuk performed this assessment and offered no additional written comments. For the 2003-2004 school year, when Respondent began to teach the CET class alone, Respondent received a grade of meeting expectations in eight criteria. In the criteria titled "Planning for Student Achievement" and "Subject Matter," Respondent received a grade of "exceeds expectations." In the criteria titled "Assessment of Student Achievement" and "State, School & District Requirements," Respondent received a grade of "below expectations," meaning that his performance was unsatisfactory. Mr. Pentiuk performed this assessment and offered no additional written comments. The record established at the hearing shows that High Tech Central's administrators expressed concern about Respondent's teaching and record keeping practices as early as May 2002. Ms. Cooley testified that, at the conclusion of the 1999-2000 school year, Ms. Ames had approached her with a request that she be permitted to teach both sections of the PC support services class alone, rather than splitting the course with Respondent. Ms. Ames stated that she was doing all the work anyway and felt it would be better for the students if she handled the class without Respondent. Ms. Cooley left matters as they were for the 2000-2001 school year, but then moved Respondent into the web design class for the 2001-2002 school year. As the 2001-2002 school year progressed, Ms. Cooley became concerned that Respondent was not properly tracking the progress of his students. She recognized that this was the first time that High Tech Central had offered a web design course and there would be a "learning curve" for everyone involved, including the instructor. Thus, the school's administration gave Respondent time over the course of the school year to work out the problems. In particular, Ms. Cooley was concerned that Respondent was not using lesson plans or a "career map" in his class. Each technical program at High Tech Central consists of a progression of competencies. To complete the program, or to pass from one phase of the program to the next, a student must demonstrate mastery of a certain set of competencies. An "occupational completion point" ("OCP") is a cluster of related competencies that a student is able to demonstrate and perform. A career map is a written chart completed by the instructor and used by the student to track the student's progress through the OCPs of a given program. Ms. Cooley testified that during the spring of 2002, three or four students in Respondent's class came to her to complain that there were no lectures or structured class work in the web design class and that the students in the class were left to do whatever they wanted. In early May 2002, a substitute teacher in Respondent's class came to Ms. Cooley to complain that Respondent left no lesson plan, despite the fact that his absence had been scheduled. The substitute teacher told Ms Cooley that the web design students appeared to be doing as they pleased in the class, including playing games on their computers. On May 5, 2002, Ms. Cooley and Mr. McCormick had a meeting with Respondent to discuss the lack of structure, discipline, and record keeping in Respondent's class. Ms. Cooley stated that every time she talked with him, Respondent would say he was going to do things better. Her concern was that she never saw any evidence of Respondent's performance matching his words. When queried as to the positive performance assessment authored by Mr. Pentiuk for the 2001-2002 school year, Ms. Cooley testified that she and Mr. Pentiuk had "agreed to disagree" about Respondent. Mr. Pentiuk was a "very, very accommodating" and "very, very patient" administrator who believed that Respondent was trying to do things the right way.3 Ms. Cooley had many conversations with Mr. Pentiuk about Respondent, but Mr. Pentiuk's philosophy was to give Respondent time, talk to him, and let him try to turn things around. Mr. Pentiuk also believed that Respondent's contacts in the business community were an asset to his students. Mr. Pentiuk testified that, due to lack of enrollment in the web design class, Respondent was moved into the CET class with Mr. Ledger for the 2002-2003 school year. Ms. Cooley testified that the administration believed that Respondent and Mr. Ledger could share each other's expertise in the same class for one year, then the CET program could be expanded by splitting it into two classes. The Department of Education standards state that the purpose of the CET program is to prepare students for employment or advanced training in the computer electronics industry. The Department's curriculum framework set forth the program structure as follows: This program is a planned sequence of instruction consisting of five occupational completion points as follows: (1) End User Support Technician, Level I Support Technician, Help Desk Specialist; (2) PC Electronics Installer; (3) PC Technician, Field Technician, Level II Support Technician; (4) Computer Support Specialist, Level I LAN Technician, Field Service Technician; (5) PC/Network Technician (Digital Electronics Repairer, proposed name change for 2005). When the recommended sequence is followed, the structure will allow students to complete specified portions of the program for employment or to remain for advanced training. A student who completes the applicable competencies at any occupational completion point may either continue with the training or become an occupational completer. The courses [sic] content includes, but is not limited to, installation, programming, operation, maintenance and servicing of computer systems; and diagnosis and correction of operational problems in computers arising from mechanical, electrical or electronics, hardware, and software malfunctions. The course content includes, but is not limited to, communication, leadership skills, human relations, and employability skills; and safe, efficient work practices.4 Respondent testified that things went well with Mr. Ledger because their skills complemented each other. Mr. Pentiuk testified that Respondent told him that Mr. Ledger provided most of the computer training in the CET class, and Respondent mostly taught employability skills, such things as the ability to get and keep a job, communication skills, and getting along with co-workers. Respondent agreed that he taught these employability skills, but emphasized that he also taught operating systems, and other software, whereas Mr. Ledger was a "hardware guru." At the end of the 2002-2003 school year, Mr. Ledger resigned his position and moved to Ohio, leaving Respondent as the sole instructor in the CET program. Upon learning that he would be teaching the class alone, Respondent told Mr. Pentiuk that he would require a new co-teacher or at least an assistant for the class and that he would need help in "getting up to speed with the gap" in his teaching knowledge of computer hardware. Mr. Pentiuk testified that Respondent also expressed insecurity about the returning students. Respondent feared they would be loyal to Mr. Ledger and would not accept Respondent as their sole teacher. In light of Respondent's expressed uncertainty about teaching the CET class alone, Mr. Pentiuk had discussions with Respondent in June 2003 regarding Respondent's teaching alternatives for the upcoming 2003-2004 school year. Mr. Pentiuk was interested in starting a business management and supervision program and moving Respondent into a teaching position in that program. However, this placement would have required Respondent to obtain state certification in business education at his own expense, and Respondent told Mr. Pentiuk he could not afford it because he was paying for a daughter to attend an Ivy League college. Mr. Pentiuk sought the advice of Mr. McCormick regarding Respondent's situation. In an e-mail to Mr. Pentiuk dated July 8, 2003, Mr. McCormick wrote, in relevant part: The tone of what [Respondent] is saying here [in an e-mail exchange with Mr. Pentiuk] indicates to me that giving him the CET class would be a recipe for disaster, especially given its current size. He is apparently looking for a way to continue doing not much of anything. For whatever reason, he does not believe he can handle the class or the curriculum by himself, even though that is what his current certification is in. I'm not sure about hiring him an assistant . . . even though Darryl is a good guy and I am sure he would be great with the students, I don't believe he has the technical background in networking that would be required. Any assistant teamed with Barry is going to end up doing the lion's share of the work, and I think that would be wrong-- especially if the assistant is not certified and qualified in this highly technical field. I think the bottom line is that Barry only wants to teach the soft "business employability skills," and really has no interest in CET. If he wants to teach the business curriculums, he needs to get off the dime and get certified! That is his responsibility, not ours. The fact [that] he feels that "it is really not the right time" and that he "really can't afford it right now" is his concern, not ours. There has been, and continues to be plenty of opportunity for him to do this. It would seem to me that with his future employability in the balance, he would not be fighting us on this issue. I don't know what else we can do to accommodate this teacher. If he is "uncomfortable" with either of the two options you presented to him, then perhaps we should try to find a teacher elsewhere who can meet our needs. I know this sounds cold, but after all, the goal is to provide our students with the best possible instruction . . . not make sure that our teachers don't feel "uncomfortable." This guy needs to get real. We have gone way beyond what is fair in offering him these options. He needs to decide if he wants to work here or not. My suggestion would be to place him in the business class this year, with the understanding that in order to maintain his teaching position, he must get certified in business, or at least be well on the way to getting certified, by next summer. In the meantime, we could advertise for a CET instructor who would be willing to take on the entire curriculum, not just the "employability skills." [ellipses in original] Mr. Pentiuk replied to Mr. McCormick that he shared many of the same feelings. At the hearing, Mr. Pentiuk testified that his reply did not mean that he agreed Respondent was not "doing much of anything," but that he did have concerns about Respondent's ability to pick up the CET class and teach it alone. Mr. Pentiuk ultimately did not follow Mr. McCormick's suggestion that Respondent be placed in the business class for the 2003-2004 school year, in part because the business class had not been advertised and the CET program had an ongoing enrollment. Mr. Pentiuk placed Respondent in the CET class, hoping that the training he had obtained in working with Mr. Ledger, along with formal training at the Cisco Systems Networking Academy program in the fall of 2003, would enable Respondent to handle the program. The School Board paid for Respondent to obtain Cisco training in Tampa and arranged for substitute teachers to take over the CET class on those days Respondent was in Tampa for training. Respondent completed the Cisco Certified Network Associate 1 ("CCNA"), Networking Basics, course of the Cisco Networking Academy Program on October 31, 2003. Respondent completed the CCNA 2, Routers and Routing Basics, course on December 9, 2003. Two more courses were required to obtain CCNA certification. Respondent testified that School Board policy required an instructor to take the first two courses then teach that material for a year before taking the second two courses and that he was never given the opportunity to complete the CCNA program. Mr. Pentiuk testified that problems began in Respondent's class at the outset of the 2003-2004 school year. Several students approached Mr. Pentiuk with complaints about the quality of Respondent's teaching. One irate adult student told Mr. Pentiuk that he intended to leave the CET program because he was not getting his money's worth.5 Late in the fall of 2003, near the Christmas break, Mr. Pentiuk contacted Georgianna McDaniel, the School Board's director of personnel services, to express his concerns that Respondent was not turning in his attendance records in a timely fashion, that Respondent did not have control of the students in his class, and that Respondent was not following the school's standard practices in preparing grades and documentation of his students' progress in the CET program. Ms. McDaniel directed Mr. Pentiuk to follow up on these matters and to note them on Respondent's final performance assessment for the school year. Respondent conceded that during the 2003-2004 school year, he was getting up to speed on the technology that he was supposed to be teaching to the students and often had to write down their questions so that he could research them and come in with answers the next day. In early 2004, the High Tech Central administration began to conduct informal observations of Respondent's class and to meet with him about his procedures, particularly as to taking attendance. Tracking attendance was a critical matter at High Tech Central because of the high percentage of its students who received Pell grants. Pell grants are calculated based on how many hours a student is in class, not merely on the number of days the student is present. Thus, teachers at High Tech Central were required not only to take attendance at the beginning of their classes, but to have students sign in and out of the classrooms in order to track their activities throughout the day.6 On the morning of February 19, 2004, Ms. Cooley was working in the front office when Respondent phoned in to say that he was running late. Ms. Cooley said that she would open Respondent's classroom and substitute until Respondent arrived. In a statement dated November 30, 2004,7 Ms. Cooley described her experience in Respondent's class as follows, in relevant part: While I was subbing in Barry Nevins' class one morning last year, as he was late coming to school, I noticed students were not focused on any assignments. I felt there was very little productive work being accomplished. One student pulled up the Internet and was reading current events; another one was checking the weather. I circulated to every student and simply asked what they were working on. Most students would responded [sic] they were working on projects. I asked if I could see the project information sheet, assignment sheet, project criteria sheet or rubric for the projects. None of the students had any written project direction sheets. I could not find any lesson plans or grade book. Two students walked in after 8 a.m. I asked if they would go to the office for a tardy slip. They responded that Mr. Nevins gives them extra time to start class.[8] I noticed the lab was full of pop bottles, food wrappers, and trash. While circulating, I asked each student if they had a career map or competency sheet. Not one student had a career map, assignment sheet, list of assignments, or any other tracking system. Students were not aware the program was divided into occupational completion points. As I approached two high school students sitting in the back room, I asked what they were working on. I noticed a small book placed inside the large textbook. I asked to see the book, and it was a hackers handbook.[9] One student in particular stood up-- in my face-- and yelled at me. I felt threatened; I felt he was rude and disrespectful. I radioed for the Student Affairs Specialist to discipline the student. Soon after the Student Affairs Specialist and this high school student left the room, Mr. Nevins arrived. I was scheduled to give an Employability Seminar to another group of students across campus, so I was in a hurry to leave Mr. Nevins' room. I thought he would have called me later in the day to find out what happened. He never talked to me until days later. He stated the students were upset and wanted to come talk to me. I told him I would be happy to schedule appointments for each one. He said they wanted to come as a class. I responded I felt it would be better to have a conversation with each student-- one on one; but, I never heard from Mr. Nevins about the students. I never received a copy of the letter until Ms. Garlock allowed me to read it last week.[10] * * * After this visit, I became very concerned about the lack of educational focus in the classroom. I visited his classroom a couple of weeks later, and I saw the same types of things happening. This time I asked Mr. Nevins about my concerns, and his responses made me question classroom management skills, paperwork, curriculum, lesson plans, etc. Every instructor has a student tracking system they use to maintain the data on each student. Whether they use competency lists, career maps, list of class assignments, etc. Every teacher does it a little bit differently. I do become concerned when a teacher does not have a tracking system or it is not consistent for every student in the class . . . . In a memorandum to Respondent dated February 26, 2004, titled "Classroom Management/Record Keeping Concerns," Ms. Cooley wrote as follows, in relevant part: The purpose of this memorandum is to summarize our conference held at 3:00 p.m. on February 20th, 2004 concerning issues related to your classroom management and basic record keeping practices. As you recall, Mr. Ronald Pentiuk, Director, High Tech Central, and Mr. Bill McCormick, Assistant Director, Operation, High Tech Central, also attended this meeting. During the conference, the following conduct was discussed: Improper attendance documentation on student tardies and early releases. Lack of up-to-date and complete career map documentation on each student. Lack of complete and accurate lesson plans. Lack of on task work demonstrated by students. Non-enforcement of school policies evidenced by not beginning class on time and allowing students to arrive late without proper sign-in documentation. I have reviewed your conduct as it relates to the established expectations as provided by our school's faculty handbook, our standard operating policies, and The School District of Lee County student attendance policies. This information was provided to you during new teacher orientation and training, standard in-service session, and at the beginning of each academic year during the pre-school sessions. I informed you that your conduct negatively impacted your students and our school in as much as inaccurate or incomplete recordkeeping and attendance documentation jeopardizes our ability to maintain federal Pell financial aid. This conduct also exposes the school to many unforeseen liabilities when we are unable to produce accurate student attendance records. And finally, non-enforcement of school policies on your part undermines the maintaining of good order and discipline throughout our campus by breeding contempt and noncompliance with school rules. During the conference, I provided you with the following directive(s) and assistance to take effect on or before Monday, February 23rd, 2004 and to continue throughout the remainder of the school year. Use/set up a teacher hard-copy grade book using the materials given to you 3 weeks ago. Keep accurate track of all tardies and early dismissals by documenting exact arrival and departure times. Print out all daily lesson plans. Update and maintain daily career maps for all students. Monitor students for on task behavior and use of proper classroom materials. I also informed you that your failure to comply with any of the above directives will result in another formal counseling meeting and letter, as well as placement on intensive assistance. In March 2004, the school's attendance secretary complained to Mr. McCormick that Respondent was not following the school's prescribed attendance procedure. On March 26, 2004, Mr. McCormick sent Respondent an e-mail reminding him of the correct procedure and directing him to follow it. On March 30, 2004, the attendance secretary complained to Mr. McCormick that Respondent had not turned in his attendance sheets by 9:00 a.m., as required by school procedure. Mr. McCormick sent an e-mail to Respondent, who wrote back to apologize, stating that he "got busy teaching a lesson and dealing with some interesting problems" and forgot to turn in his attendance. On April 14, 2004, Mr. McCormick observed Respondent's class. The CET lab was a large L-shaped room, approximately 800 to 900 square feet. There was a central open area with computer tables and computers and four auxiliary rooms each sectioned off by a solid half-wall from the floor up to about waist-level and a chain link fence from the top of the half-wall to the ceiling. These auxiliary rooms were generally referred to as "cages." The CET class was conducted for five hours each weekday from 8:00 a.m. to 1:30 p.m., with a half-hour lunch break. The students were required to remain in the classroom at all times, except during the lunch recess. There were rest rooms and a water fountain inside the CET classroom, and the school's administration expected that any short breaks from class work should take place inside the classroom. After his observation, Mr. McCormick sent an e-mail to Respondent with the following "feedback": As I arrived at about 8:30, you were obviously involved in taking care of a student issue in your back cage. However, the majority of the remainder of the class did not appear to be actively engaged in much useful learning activity. A group of 5 students were huddled up to the front right of the class visiting with each other. 4 other students were on their computers. At least two of them did appear to be viewing the online Cisco curriculum, the other 2 seemed to be surfing the web. 2 other students were setting up one of the back cages that had been disturbed by the maintenance men who are fixing your counter tops. At about 8:35 you assembled a group of students to the white board and began a discussion presentation on the different types of business models such as sole proprietorships, partnerships, etc. . . . You tried to engage the students in a discussion of the advantages and disadvantages of each. It did not appear to me that the students had any prior background prep on this subject such as a reading assignment. Although it could be argued that some knowledge of this topic might be useful to your students, I question the immediate relevancy of it given the wealth of more concrete and practical technical material available in the CET curriculum. I do commend you on getting the most out of what appeared to me to be a group of disinterested and unengaged students. You did your best to try to keep their focus. While you engaged these students in your discussion, two other students continued to work independently on their computers. I assume on the online curriculum. You also gave instructions to two other students to continue setting up the back cage. The two students in the back cage did not continue to set up the cage as you had instructed, but instead sat down in the back corner by a computer. They positioned a CPU so that it hid the monitor from my view. It was obvious to me that they did not want me to see what they were doing, although mainly what they were doing was visiting. Shortly before I left, I walked back unexpectedly to them, and saw that the one on the keyboard was attempting to log into the computer as an "administrator" but apparently did not know the correct password. They said they were attempting to get the computer connected to a nearby switch or server. Was this correct? I concluded my observation of your class at about 9:15. A few suggestions: Prior to a discussion presentation, make sure to give a prior preparation assignment so that the students can participate more fully in the discussion. If you are going to give a presentation on such a broad-based general knowledge topic such as the different types of business models, involve everyone in your class, regardless of their current place in the curriculum. There is no reason why the four other students should have been excluded from your discussion, even if they were not in the curriculum group you had assembled. Do not allow students to reposition computer equipment so as to mask observation of the monitors. Even if they were not up to anything inappropriate, it sure looked like it. Give desk work requiring a written assignment when you are tied up with a student issue in your office-- or at any other time you want to refocus their attention. Something as simple as completing the questions at the back of chapter xxx in their textbook would at least keep them somewhat focused on something other than visiting with each other. Focus your discussion presentations on the concrete technical material more directly relevant to the CET curriculum. Although what you covered does have some use and interest as background information, your time with the students in actual presentation should be devoted to your core curriculum material. I know it is sometimes difficult and frustrating to have someone come into your class for 45 minutes and make a few critical comments and suggestions based on that brief visit. Please take them in the [spirit] they are intended... as observations and suggestions. Later that day, Respondent sent the following response to Mr. McCormick's e-mail: Thanks for the feedback. I appreciate the time and effort you put into this. The student issue was quite urgent and unexpected. I had the class together and ready to go when [J.] showed up and we had to have the talk right away. It threw us off considerably as did the fact that . . . we weren't sure whether the counter-top guys were coming back today or tomorrow. Obviously the equipment they usually have to work with wasn't available. I purposely had a non-technical topic picked because I didn't know if I would have access to hardware for demonstration or practice. Also, business ownership is part of our curriculum (16.06)[11] and a very important part. I like your idea of a reading assignment to go along with it. I'll have to find something at the right level. The two students in the back were setting up the Cisco equipment (yes-- that involves connecting to the switches and routers) and were having some password issues with the computers (nothing major-- just a bit confusing). They would have been administrators on those computers. By the way, the computers in the cages don't go to the network or the Internet so they are "relatively" low risk. I also purposely wanted those low powered computers for this because they also won't run any popular games. Not much harm they can do in there. Interesting note-- I always tell them that hiding monitors is the quickest way to get me to come over. They sort of have the idea it doesn't work. The five students "visiting" in front would probably have been working with equipment in the cages under normal circumstances but knowing those guys I'm 99% sure they were talking about computers anyway. Lastly, this topic was covered by last year's students so there was no need for them to go through it again. When I do the A+ materials,[12] everybody participates because the advanced students need the review. The Cisco stuff can't be done by the beginners because they aren't ready so I give them something to read, review, research, etc. Quite a juggling act. Thanks again. It's great to have constructive feedback. On May 6, 2004, the day before he signed Respondent's 2003-2004 performance assessment, Mr. Pentiuk wrote a letter to Ms. McDaniel requesting that Respondent be placed on "performance probation." The letter noted that Respondent would receive "below expectations" ratings in "Assessment of Student Achievement" and "State, School and District Requirements," then stated: During this school year, Mr. Nevins has meet [sic] with me, Sue Cooley, Assistant Director for Curriculum, or Bill McCormick, Assistant Director for Operations, on numerous occasions and discussed the concerns relating to the above mentioned Accomplished Practices. The dates of these meetings, as well as observations were, January 13, 2004, February 20, 2004, March 24 and 26, 2004, March 30, 2004, April 15, 2004, April 2, 2004, and May 5, 2004. Administration has offered a myriad of suggestions and support to assist Mr. Nevins in improving his classroom environment, teaching techniques, teacher duties, and student assessment responsibilities. Attached is correspondence that has been conducted to show a flow of conversations reaping no positive changes in performance. In fact, unfortunately, there have been excuses and rebuttals, but performance has not changed. Ms. Cooley testified that Mr. Pentiuk consulted with Mr. McCormick and her when considering the request for performance probation. Ms. Cooley further testified that she and Mr. McCormick concurred with Mr. Pentiuk that Respondent needed to be placed on probation because Respondent continued to get the same things wrong and his performance was not improving. After receiving his performance assessment, Respondent contacted Donna Mutzenard, the president of the Teachers Association of Lee County to act as his union representative in a meeting with Mr. Pentiuk and Ms. Cooley about the assessment. Shortly after this meeting, Respondent learned of Mr. Pentiuk's letter to Ms. McDaniel requesting performance probation, which would include the initiation of the School Board's "intensive assistance program." The intensive assistance program ("IAP") is designed to rehabilitate poorly performing teachers. When the principal of a school determines that a teacher is experiencing difficulty in some area of performance, the principal must inform the teacher of these performance problems and provide assistance in the area of deficiency. Frequent feedback, peer coaching, and opportunities for training and development, such as peer observation and outside training courses, are among the items of assistance the principal is expected to provide and document. If assistance at the school level does not solve the problem, then the superintendent of schools authorizes Ms. McDaniel to appoint an IAP team, which includes the teacher's immediate supervisor and other persons with knowledge of the curriculum and of the teacher's deficiencies. Ms. McDaniel testified that she also tries to appoint one person without personal knowledge of the teacher. The IAP team's first task is to meet with the teacher in order to review: the nature of the program; the teacher's job expectations and performance standards; past performance assessments and other documentation of performance concerns and assistance; and the teacher's experience, certifications, and current assignment. The team also schedules individual diagnostic performance observations and conferences with the teacher followed by meetings of the entire team. At the conclusion of the IAP team's eighth meeting,13 the team makes a recommendation for action to the superintendent of schools, who must decide whether the teacher has raised his performance to standards, requires continued assistance, should be reassigned to a more appropriate position, or be dismissed from employment with the School Board. Ms. Mutzenard discussed the matter with Ms. McDaniel, arguing that there was insufficient documentation to justify appointment of an IAP team for Respondent. Ms. Mutzenard felt that one final performance assessment with two grades of "below expectations" did not meet the criteria for the IAP. Ms. McDaniel consulted with the superintendent of schools, reviewed the record, and ultimately agreed with Ms. Mutzenard. By letter to Mr. Pentiuk dated June 10, 2004, Ms. McDaniel denied the request for performance probation. The letter stated, in relevant part: It is clear by the documentation you presented that there are performance issues regarding Mr. Nevins' deficiencies in Accomplished Practice Indicators 2 and 12 (Assessment of Student Achievement and State, School & District Requirements) as indicated by the Below Expectations ratings he received on this year's Final Performance Assessment. It is also noted that the school could receive audit findings in the accreditation process for the incomplete Career Maps and attendance records. As Mr. Nevins has been put on notice regarding his need for improvement in these areas, it is my recommendation that you give him every opportunity to correct these deficiencies for the first quarter of the 2004-05 school year. Please continue to monitor and document his performance on a regular basis. If there is not a complete turnaround in the fulfillment of professional obligations expected of Barry, he will be placed on performance probation in the second quarter. Despite his belief that Respondent needed the assistance of the IAP immediately, Mr. Pentiuk accepted Ms. McDaniel's decision and set out to help Respondent at the school level during the first semester of the 2004-2005 school year. Mr. Pentiuk discussed matters with Respondent, whom Mr. Pentiuk described as "always [having] an answer for everything," meaning glib excuses for poor performance and a refusal to accept fault in his performance. Mr. Pentiuk advised Respondent to "buckle down and do your job" during the upcoming semester. Mr. Pentiuk assigned Ms. Cooley and Mr. McCormick to advise, assist, and observe Respondent. All three administrators conducted observations of Respondent's class and met with him to share their observations. Ms. Cooley worked with Respondent on his career maps and his overall assessments of student performance. In his observations, Mr. Pentiuk was disturbed by the fact that Respondent's students, though they always appeared to be working on projects, never seemed to know where they were on their career maps. Some students were not even aware that they had career maps. Mr. Pentiuk also observed a student sleeping in Respondent's class. Respondent was not aware of the sleeping student until Mr. Pentiuk pointed him out. Mr. Pentiuk's overall impression was that "not a lot of structured instruction is taking place" in Respondent's class. These incidents and observations further convinced Mr. Pentiuk that Respondent required more help than could be provided at the school level. During the first semester of the 2004-2005 school year, Ms. Cooley continued to work with Respondent to assist his job performance. She lent Respondent an instructional videotape keyed to the Florida Performance Measurement System's "summative observation instrument," a chart used by classroom observers in the Lee County school system to chart instances of positive and negative teacher performance. The tape discussed the document step by step, showing examples of an effective teacher at work in the classroom. Ms. Cooley described it as a "wonderful, wonderful tape" to show a teacher the right way to run a class. Ms. Cooley told Respondent to watch the tape, then to sit down with her and talk about it. Five days later, Ms. Cooley needed the tape to show to a group of beginning teachers. She went to Respondent's classroom to retrieve the tape and asked him if he had watched it. Respondent told her that he "never got to it." On October 6, 2004, Ms. Cooley conducted an observation of Respondent's classroom. She entered the class at 12:15 p.m. and stayed for about 30 minutes. Ms. Cooley's notes of the observation read as follows, in relevant part: Upon entering, I noticed one student reading the "Life Styles" section of the newspaper. Mr. Nevins quickly got up from his lap top and told me he was helping the student find a job. Mr. Nevins stated he was preparing this student's resume. When I questioned why Mr. Nevins was writing the resume, Mr. Nevins stated the student needed a job as he had been in this program a short time. When I approached another student and asked what he was working on, he stated he was waiting until 1:30 p.m. I found out he was not a current student in class without the proper visitor's pass. When asked, none of the students saw their career maps. Some have been in the program for two semesters. Chips, muffins, gatoraide [sic] bottles were at the computer stations and throughout the lab. When I asked students what they were working on, all the responses were the same. They all responded by telling me they were working on projects. I asked Mr. Nevins about the various projects. I asked for a copy of the project assignment sheets, criteria sheets, or rubrics. Mr. Nevins replied that the students were developing their own projects. My observation was the students were doing whatever they wanted and were given no direction or instruction. Checkmarks in grade book were used for attendance, but no tardies or leave earlies were noted . . . I am concerned the students lack direction, instruction, and detailed curriculum assignments. In late October 2004, Ms. Cooley contacted Bob Gent, the CET program teacher at High Tech North, another Lee County school, and asked him to visit and observe Respondent's class. Ms. Cooley thought it would help Respondent to discuss his class with a successful teacher whose program mirrored his own. Arrangements were made for Mr. Gent to visit Respondent's class on November 3, 2004. On November 2, 2004, less than 24 hours before Mr. Gent's scheduled visit, Respondent e-mailed Ms. Cooley with the following message: "I've rethought the situation and I'd rather not go through with this tomorrow. I will let you know if I decide to reschedule." Ms. Cooley testified that Respondent never provided a real explanation for his sudden cancellation of Mr. Gent's visit. On November 3, 2004, Cathy Race, High Tech Central's information technology specialist, sent an informational e-mail to all personnel of the school regarding several computer- related issues. Ms. Race reminded the school's staff that they should not bring in personally owned computers for use on the school's network because of the risk of viruses, nor should they allow non-district computers belonging to contractors, vendors, auditors, or partnering agencies onto the network before Ms. Race verified that the computer has modern, updated anti- virus software and up-to-date patch levels. The next day, November 4, 2004, Respondent allowed a student to connect his personal computer to the district network, resulting in the importation of a virus into the network. Mr. McCormick sent an e-mail to Respondent about the incident that concluded: "This incident reflects poorly on our school and your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy. Please provide an explanation as to why you allowed this to occur and how you intend to prevent it in the future." Later on November 4, 2004, Respondent sent the following answer to Mr. McCormick: I have already talked to Cathy Race about how this has happened. A student brought in a computer of his own to work on and another student was helping him fix it. A part of this problem was that drivers had to be located. The student, against the policy, but with good intentions got online and located the drivers but apparently got more than he bargained for. I talked with Cathy Race about setting up a meeting with [district director of information technology support] Dwayne Alton about the difficulties the computer use policies are causing in running my program. My policy at the beginning of last year was to not allow students to bring in computers to work on. You changed it after a student came to see you and complained. I wouldn't have had this problem if we kept my original policy. "your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy?" Do you really think that every time there is a computer use problem that this is what it means? You were at a meeting last year where Dwayne Alton said that we were not considered a real problem for the district. Put a bunch of computer geeks together and some "challenges" are inevitable. Ask any computer teacher in the district. I find the whole statement-- but especially the "your inability to understand" line very insulting and disrespectful. Expect to be hearing more about that sort of usage and tone very soon. If we were so inclined there were two commands we could have used to release the IP address and you never would have found the computer in here. The students and I took immediate responsibility for what happened. I bring that up because I'm not so sure that taking responsibility for unfortunate events that take place under you is very popular around here. Mr. McCormick testified that he did not know what to make of Respondent's statement that he should expect to hear more about his usage and tone, and that it was not his intent to insult Respondent. Later on November 4, 2004, Mr. McCormick responded to Respondent as follows: Was the student aware of the policy at the time, and is he/her now? If the student was aware of the policy, but choose [sic] to ignore it, I would expect some sort of discipline action or referral. If the student was not aware of the policy, I would want to know why. I understand the unique challenges faced by your class, however I don't know how much clearer the district policy could be with regards to connecting "guest computers" to the network. The resulting manhours and resources needed to remedy these types of problems leave us no choice but to treat them serious [sic]. If you feel that you are unable to [adequately] monitor your students when they are working on their computers they have brought in, I certainy [sic] agree that we should revisit the policy of allowing them to do so. I'll let you make that call and will support you if you decide against it. Respondent did not directly respond to the questions raised by Mr. McCormick's second November 4, 2004, e-mail. However, on November 8, 2004, Respondent filed with the School Board an equity complaint, alleging that he had been discriminated against on the basis of his religion and his sex.14 In the narrative portion of the complaint, Respondent recited his work history at High Tech Central, including the allegation that except for the Cisco training, he had received "no support or encouragement from the administration" upon taking over the CET program after Mr. Ledger's departure. The following excerpt from the complaint set forth Respondent's essential allegations: The problems developed last year when [Ms. Cooley] had to watch my class for thirty minutes one morning and she did not do a very good job (see attachment).[15] I have been an express target of Administration's negative attention since then. They are often very confrontational and negative toward me and completely ignore points I make to show my efforts. My lessons and class work in [CET] fully correlate to the State Standards for my course. Administration has received lesson plans, unit planning documents, and assessment information to support this. My grading and progress reports are up to date. Furthermore, several of my students have been placed in industry related employment which is the ultimate goal and stated mission of the school. This information has not showed up in any documentation I have received from administration. Administration has gone to great lengths to reprimand me for not utilizing career maps (a particular tracking device) on a day to day basis in my class. I update them periodically based on unit completion but do not place a strong day to day focus on them because students are more interested and motivated by Industry Certification requirements which also very strongly relate to the career map's requirements. Students are made aware of the link. The case has been made by Administration that because I do not utilize and emphasize these career maps my teaching is unstructured and of low quality. A particular technique that has been used to evaluate my job performance is for an Administrator to come in to my classroom, seek out a student who may be having a bad day, may have just gotten reprimanded, may be somewhat overwhelmed by a particular section of material, etc. and badgering that student for negative information about me and the class. I don't think the proper way to judge our Administrators would be to go to a Faculty meeting and seek out the teachers who are rolling their eyes and snickering. I have been told that I am being judged on this "measure of satisfaction." Besides being a contract violation the selection and measurement technique used is highly subjective and arbitrary. Again, the case has been made, without logical connection, by Administration that because I do not meet these satisfaction standards my teaching is unstructured and of low quality. In my Department (Business Technology) the Department Chair and two other teachers who are National Board Certified (all three with twenty plus years of experience-- and all female) have not been required to work with the career maps. They have not been using them for at least the last several years and they have not received any type of reprimand. They use "competency sheets" which is quite similar to the system I use (and I also utilize the periodically updated career maps). In addition, these teachers are not subject to the same degree of scrutiny, evaluation, and criticism as has been shown in my case. Students are not encouraged to "snitch" and basically proper procedure is followed. The Administrators have little trouble in treating these other teachers with respect. Therefore I am asserting that Mrs. Cooley has selected me for "attention" based on my being male and Mr. Pentiuk and Mr. McCormick has [sic] been supportive of her. I do not rule out that my being Jewish, a New Yorker, and a Union Rep had an effect on their decision making. Administration has used this as the cornerstone of an overall effort to undermine and discredit my teaching efforts and abilities. The remainder of the complaint catalogued the negative effects "this situation" has had on Respondent, including stress and being treated as "a slacker and unprofessional." Respondent also discussed the "highly insulting and disrespectful" e-mail exchange of November 4, 2004, with Mr. McCormick. At the request of Becky Garlock, a School Board investigator, Mr. Pentiuk, Mr. McCormick, and Ms. Cooley prepared written statements in answer to Respondent's allegations.16 Mr. Pentiuk's statement was as follows, in full: This letter is in reference to the equity complaint filed by Barry Nevins. I regret that Mr. Nevins has these strong feelings about being picked on. The administration at High Tech Central is concerned about the structure of his program and his delivery relating to the competencies and Career Map for the [CET] program. We have recommended that Mr. Nevins be placed in the intensive assistance program and feel that he has the ability to become an effective teacher. We have also asked for a fellow [CET] instructor from High Tech North to come, and Mr. Nevins felt that it was not a good time. We are ready for Mr. Nevins to find the time to become a good teacher. I feel that these allegations are with no credibility and I wish that Mr. Nevins would exert the energy toward his program that he has toward this complaint. Mr. McCormick's statement discussed Respondent's problems in complying with attendance reporting policies, and further discussed the November 4, 2004, e-mail exchange regarding Respondent's student introducing a virus into the computer network. As to Respondent's main point, that his class was being unfairly singled out for administrative attention, Mr. McCormick wrote: As I recall, the administrative team began looking more closely at the CET program during the 2nd semester of the 03/04 school year when an adult student withdrew from the program and made some disturbing statements concerning the quality of the instruction and classroom management practices of the instructor. The student was being given a withdrawal interview by Ms. Soto, one of our guidance counselors. Because of the veracity of the comments made by the student, she referred the student to me. I interviewed the student and determined that he should make his comments known to Mr. Pentiuk, which he immediately did. Mr. Nevins was informed of the statements and given a chance to respond. He immediately dismissed the student as being unreliable and not trustworthy. His comment was "students will say anything." Nonetheless, the student appeared to be credible and this was our first real indication that the CET program may need some monitoring. Further discussions with the guidance department revealed other students had in recent months been dissatisfied in much the same way. On another front, Mr. King, the Student Affairs Specialist had also been indicating problems with attendance not being accurately recorded in CET. For example, he indicated that tardies and absences were not being recorded when necessary. This was confirmed with the attendance secretary. These indicators pointed to the fact that the quality of instruction and classroom management practices warranted some attention on the part of the administration. Upon some cursory reviewing of Mr. Nevins' academic and attendance records, it was apparent that he was in need of some assistance. Any inference that Mr. Nevins is being singled out for unwarranted attention by the administration of this school for any other reason but for legitimate concerns about classroom management practice and the quality of the instruction, is completely false. This administration wants Mr. Nevins to be successful, and we have demonstrated that through our actions. Most of Ms. Cooley's statement was devoted to explaining the events of February 19, 2004. Besides her version of those events, detailed at Finding of Fact 32 above, Ms. Cooley made the following general statements about Respondent and the school's administrators: Administration has supported Mr. Nevins in numerous ways. Thousands of dollars went into his lab for new desks and equipment. It was a state of the art lab. In fact, he even mentioned it was better than Edison College's computer lab. Administration sent Mr. Nevins to Cisco training (in Tampa, I think). This training took weeks and was very expensive. The school paid for his travel, food, lodging (if needed) and his class in order to help support him in his teaching efforts. Mr. Nevins even commented that some of the students would be upset with his teaching methods when the other teacher moved away. Mr. Pentiuk was extremely understanding, patient, and supportive of Mr. Nevins. * * * This is my 29th year in education. I have never had a teacher file a grievance. I feel my role is that of a support system for the instructors in my school. I share with the instructors when they are doing a good job and I remiss [sic] in my duty if I did not share my concerns. I believe Mr. Nevins is a very intelligent man. I believe he is very knowledgeable about computers. My objective is to help him be successful in the classroom, so he can help students be successful in the workforce. At the hearing, Respondent at least implied that the decision to recommend that he be placed in an IAP, and the ultimate decision to recommend his dismissal, was in retaliation for his filing an equity complaint against the three named High Tech Central administrators. The evidence does not support such a suggestion. Mr. Pentiuk, who in any event retired before the completion of the IAP process, had only a vague recollection of the complaint's allegations. Mr. McCormick never saw the equity complaint before he testified in this proceeding and knew none of its details, or even whether he was named in the complaint. His statement, described at Finding of Fact 64, was written at Ms. Garlock's request and was not based on Mr. MCormick's having read the complaint. Ms. Cooley was "shocked" by the equity complaint because she believed that her actions toward Respondent, while sometimes critical, had always been professional. Respondent's allegation of retaliatory intent on the part of anyone in the administration of High Tech Central is not credible. By letter to Ms. McDaniel dated November 15, 2004, Mr. Pentiuk renewed his request that Respondent be placed on performance probation. The letter reviewed the administration's efforts to assist Respondent during the first semester of the 2004-2005 school year, including Respondent's refusal to cooperate in Mr. Gent's visit to his class. By letter dated December 16, 2004, Superintendent James Browder informed Respondent that, pursuant to the recommendation of Mr. Pentiuk and Ms. McDaniel, Respondent would be placed on a plan of assistance. Mr. Browder wrote that he would appoint an assistance team to work with Respondent during the second semester of the 2004-2005 school year. Mr. Browder informed Respondent that the first meeting would take place in early January 2005, and that he could name a representative to attend the meetings on his behalf. On the same date, Ms. McDaniel hand-delivered the superintendent's letter to Respondent in Mr. Pentiuk's office. The superintendent delegated to Ms. McDaniel the task of choosing the members of the IAP team. She selected Mr. McCormick and Ms. Cooley, because they were Respondent's direct supervisors at High Tech Central and were aware of the curriculum and Respondent's deficiencies. Ms. McDaniel testified that she had appointed six IAP teams before this one and that her standard procedure was to appoint both assistant directors of the school. Ms. McDaniel also chose Suzanne Roshon, the School Board's coordinator for technical and career education, as an objective outsider without prior knowledge of Respondent, or his classroom setting. Ms. McDaniel acted as coordinator and facilitator for the IAP team meetings. Ms. Mutzenard was an observer at the IAP team meetings as Respondent's representative.17 The IAP team held its organizational meeting on January 13, 2005. Respondent and Ms. Mutzenard were present. In her role as coordinator, Ms. McDaniel chaired the meeting, explaining the steps in the IAP process. There would be seven weeks of observations in Respondent's class with three observations taking place each week. The observations would be unannounced. Not more than one observation could take place in a single day. The observers were not to talk to Respondent or the students during the observations, and Respondent was to act as though the observer were not present. The observers were not to discuss their observations with each other prior to the weekly team meetings. Respondent was directed to turn in his lesson plans each week so that the observers would know what to expect when they came into the classroom. Ms. McDaniel's role was to determine whether the observers had common concerns about Respondent's classroom methods, and to ensure those common concerns received emphasis at the team meetings. Ms. McDaniel testified that, at this initial meeting, it was clear that Respondent was not happy to be involved in the IAP process. He believed that he could document his program's success and that he should not be there.18 Ms. McDaniel emphasized the need to maintain a "positive attitude in a positive learning environment" because it was clear to her that Respondent did not have a positive attitude about the scrutiny he was receiving. Ms. Cooley conducted the first recorded observation, on January 21, 2005, at 12:30 p.m. As she entered the classroom, Ms. Cooley noted that two students were sitting at picnic tables outside the classroom and that Respondent walked to the door and told them to return to class. One student left the classroom carrying a length of cable then returned for a bowl of water and left again. A second student walked in and took another bowl of water out of the classroom. Ms. Cooley testified that the students had caught a stray dog on campus. They used the cable to tie the dog to a tree until school was out. Respondent knew what was going on with the dog and was not requiring the students to sign in and out of the class. Ten students were watching a video about the founder of Apple computers and events in the industry during the 1980s. Two students were working on a computer in the back of the room and another was working in one of the cages. Later, one of the two students in the back put his head down on the desk. After the video, Respondent asked the students what had changed over the years. Students shouted out answers, and Respondent corrected them for talking all at once. Respondent then asked another question. One student, Keith McNeil, dominated the discussion. One student received a call on his cell phone and walked out of the classroom. Another student was using his Palm Pilot and another was reading a book. Though the class would not be dismissed until 1:30 p.m., Respondent stopped teaching and ordered the students to clean up the classroom at 1:05 p.m. Ms. Cooley was surprised that Respondent had not prepared his class to be on its best behavior given that he knew there would be three observations that week. In her follow-up notations and recommendations to Respondent, Ms. Cooley observed that there were too many distractions in the classroom, that not all the students were focused on the video, that the video itself was too long and too old for meaningful use in the CET program, that a couple of questions were insufficient after spending over 30 minutes watching the video, and that 25 minutes was too much time for classroom clean-up. Ms. Cooley later testified that a computer class is a clean environment that should take only a few minutes to clean up at the end of the class session. Mr. McCormick conducted his first observation on January 24, 2005, at 8:00 a.m. He noted that only ten out of the fifteen students present had signed in on the attendance log. Respondent divided the class into three groups. While Respondent worked with one group, the students in the other two groups had no direction. One student took a phone call during classroom instructional time. While Respondent was reviewing material with one group, some students in that group were surfing the Internet.19 There were vending machines just outside Respondent's classroom door, and students from the class were going out to buy food and drink from the machines. Respondent had complained about the location of the machines, and they were later moved a bit farther away from the classroom door. Mr. McCormick conceded that the machines were too close to the classroom, that they were a temptation to Respondent's students and that they were a distraction to the class when anyone used them. However, Respondent was nonetheless remiss in allowing students to freely go in and out of the classroom except during the lunch break. Ms. Roshon made her first observation at noon on January 26, 2005. Ms. Roshon disclaimed any expertise in the CET program, but testified that she has observed the classes at both the High Tech Central and High Tech North campuses and was familiar with the CET performance standards. When she entered the classroom, Ms. Roshon saw no structured activities taking place. Several students were sitting around talking in the middle of the room and others were in two of the cages. Shortly thereafter, Respondent walked over to the group in the middle of the room and told them they were going to discuss Chapter 13, which caused some grumbling among the students. Respondent began his lecture with ten students, one of whom was reading a book and one of whom was writing. Ms. Roshon observed that no one was taking notes on Respondent's lecture. Respondent asked questions in an effort to engage the class, and there was some give and take among Respondent and two or three of the students. Several times during his lecture and PowerPoint presentation, Respondent told the class, "You won't need to know this" or "This isn't important." Ms. Roshon questioned why Respondent would teach material that was not important. One of the students asked a question. Respondent suggested that the student do some research on the topic. The student got up to go to a computer. Respondent asked him to do the research later, but the student ignored this instruction and went to the computer. He looked up and printed some information, then handed the printout to Respondent, who thanked him. Ms. Roshon observed one student sleeping during the lecture. Respondent made no effort to wake up the student. Several students were wearing hats, which is forbidden by School Board policy. Several students had sodas in the class. High Tech Central has a policy prohibiting food and drink (except for bottled water) in the classroom.20 Students seemed to come and go as they pleased during the lecture, without signing in or out of the classroom. The students in one of the cages were talking, laughing, and walking around throughout Ms. Roshon's observation, leading her to wonder if they were engaged in any sort of educational activity. One of the students in the cage laughed loudly after looking at someone else's computer screen. On February 1, 2005, at 8:30 a.m., Ms. Cooley conducted her next observation. There were fifteen students in the class, one of whom remained in one of the cages throughout the observation. As Ms. Cooley entered, she observed that Respondent was just starting a PowerPoint presentation on "Objectives, Attitude, Generic Troubleshooting," comprising issues such as not overlooking the obvious, performing research, checking simple things, and writing things down. Respondent read the PowerPoint slides to the students and asked questions such as, "Why would you need to write things down?" Respondent was still going through the PowerPoint presentation when Ms. Cooley left the classroom at 9:10 a.m. In her written report, Ms. Cooley noted that one student had his shoes off and another yawned very loudly during Respondent's presentation. Ms. Cooley recommended that Respondent reduce the time he spends on PowerPoint and get the students actively engaged in the class. She expressed a concern that everything she observed in the class was "generic, low level, basic material . . . I have not observed a lesson on A+, Cisco, or any specific networking material." She observed that the PowerPoint material was far below the level of the majority of the class who were returning students and that nothing she witnessed in the class corresponded to the lesson plan filed by Respondent. 85. On February 3, 2005, from 12:50 to 1:30 p.m., Ms. Roshon conducted her next observation. When she entered the classroom, Ms. Roshon noted that the students were sitting in groups talking, but not about anything related to their class work. Respondent was in one of the cages, but came out into the classroom when he saw Ms. Roshon. Respondent directed one group of five students to work on their class work, which they did. Respondent answered some of their questions. Ms. Roshon observed that students in the back cage became very loud. One student walked out of the classroom, bought a candy bar, then walked back in without asking Respondent's permission, or signing the attendance log. Students were eating and drinking at their computer stations. At 1:15 p.m., Respondent told the class to begin cleaning up. The clean-up was finished by 1:20, and the students spent the remaining ten minutes standing around talking about extraneous matters. Ms. Roshon observed that there was very little structure in the classroom, and students did not appear to know what they were supposed to be working on. She suggested that Respondent require the students to keep a daily journal of what they did in the class, and that Respondent should regularly check the journals and provide feedback to the students. Respondent did not implement this suggestion. 88. On February 4, 2005, from 9:20 to 10:00 a.m., Mr. McCormick conducted his next observation. Mr. McCormick initially criticized Respondent's weekly lesson plan as simply a list of topics with no detail as to how Respondent intended to teach those topics. Mr. McCormick noted that thirteen students were present, but that he could not determine whether they had signed in because Respondent had no sign-in sheet posted at the classroom door. For security purposes, High Tech Central required all staff, faculty, and students to wear photo identification badges around their necks or clipped to their clothing. During Mr. McCormick's observation, a school security guard entered the classroom to check the identification badges. Of the thirteen students present, five did not have their badges, leading Mr. McCormick to conclude that Respondent had not checked the students' identification at the beginning of class as required by school policy.21 Mr. McCormick noted that three students were working independently on computers in the main part of the lab, and that each student was on a different web site. One of the students was looking at telephones on Best Buy's web site, which Mr. McCormick believed could have been related to a class assignment. However, another of the students was looking at a "Twilight Zone" web site, clearly unrelated to the CET class. One of the three students left the classroom for ten minutes without signing out or obtaining a pass from Respondent. Another group of three students was working in the right-side cage. Two were on web sites and one was working on a curriculum test program. One of these students left class for twenty minutes without signing out or obtaining a pass. The remainder of the class was in the left-side cage, engaged in a group discussion. Mr. McCormick described it as follows: I was unable to determine the subject of discussion as it was unfocused and was not being led in any discernable or deliberate way. Students wandered in and out of the cage at random during the discussion. Overall impression of this activity was that it was unfocused and random. Students did not appear engaged in any meaningful way. At about 9:40 a.m., Respondent asked the group of students in the lab to "come up with some good scenarios and good stuff for the students in the cage." Mr. McCormick assumed that Respondent wanted to give some direction to the discussion going on in the cage and was relying on other students to supply the scenario. Mr. McCormick testified that he thought it showed poor preparation for Respondent to ask students to make up scenarios on the spot for a class discussion. Mr. McCormick noted that students were still making frequent trips outside to the vending machines and that Respondent allowed food and drink in the classroom. Mr. McCormick testified that the prohibition on food and drink is in the faculty handbook, and that the administration "harp[ed] on it" at every faculty meeting. Besides the potential for spilling food or drink on the computers, food and drink created a sanitation and pest control problem. In his written observation report, Mr. McCormick concluded that Respondent's classroom "presents a very unprofessional appearance." At the hearing, Mr. McCormick called the classroom "a mess." It was disorganized, strewn with snacks and drinks and littered with computer parts. On February 7, 2005, the IAP team met with Respondent, Ms. McDaniel and Ms. Mutzenard to review the observations made by the team members up to that point. The team members shared their observations with Respondent, including positive feedback and suggestions for improvement. Ms. McDaniel summarized the suggestions as follows: Lesson Plans need to be detailed so an observer or substitute can clearly determine who does what when. Classroom Rules need to be addressed and maintained including sign in/sign out, food and drink not allowed, students focused on time on task, cell phone use, students walking in and out of classroom for snacks, etc. in order to assist with classroom management strategies. Organizational tool to be created/maintained for student progress-- career map. Mrs. McDaniel will email Mr. Nevins a template of a lesson plan. Mr. Nevins can take advantage of other options; such options might include Mr. Nevins observing other instructors at other schools teaching similar programs or someone observing Mr. Nevins. At the hearing, Ms. McDaniel testified that Respondent was very defensive about the observations. He was argumentative and disagreed with what the observers said they saw in his classroom. Respondent refused to sign the summary minutes of the IAP team meeting. Rather, he requested an opportunity to respond to the minutes with additional information. Ms. McDaniel could not recall that Respondent ever followed up with any additional information. On February 9, 2005, at 12:55 p.m., Ms. Cooley conducted her next observation. As she entered the classroom, Ms. Cooley saw a student talking on a cell phone. Respondent called out to the students to be seated so that he could go over their test answers. Of the eleven students present, two remained in the back cage area. Respondent read out the first test question and several students called out answers. Respondent asked them not to shout out the answers. He read the next question, and several students called out answers. This time, Respondent did not correct the students, nor did he correct them when they shouted out answers to the next five questions. Finally, Respondent said, "Guys, one at a time." A student yelled out, "Clean up." Respondent continued talking, but students talked over him. Some students began standing around, waiting for class to end. In her comments, Ms. Cooley wrote that Respondent "needs to be consistent with his classroom policies and procedures." She noted that the seven minutes allotted for end-of-class cleanup was more appropriate for a computer class than the fifteen minutes she noted in an earlier observation. On February 10, 2005, from noon to 12:40 p.m., Ms. Roshon conducted her next observation. Respondent called the class to attention to hear a lecture by a fellow student, Keith McNeil, on the Linux operating system.22 Ms. Roshon acknowledged that the student appeared to be very knowledgeable, but she was uncomfortable with his "lording it over" the other students that he knew this material and they did not. She also wondered if all the students were required to give such lectures, or if this student was lecturing for some particular reason. Ms. Roshon noted that Respondent's questions made it apparent that he did not know the software or the material the student was presenting. She was concerned that this made it appear to the class that Respondent knew less about the class subject matter than did the student. She was more concerned that Respondent had not reviewed the software for appropriateness before he allowed the student to teach it to the class. Ms. Roshon noted that the student giving the lecture was drinking from a bottle of soda in front of the group. She commented that if Respondent was going to give students leadership opportunities, he should require them to act as role models. She also noted that students "still get up, move around, use the rest room, etc. at random. Seem to come and go as they please." In her written report of the observation, Ms. Roshon stated to Respondent: "You are very fortunate to have a student with so much knowledge and what appears to be a good rapport with your class. BUT, this student was doing EXACTLY what I have been waiting to see YOU do-- TEACH." Ms. Roshon saw Respondent go around the classroom and speak to individual students, but did not observe Respondent teaching the class as a whole. 104. On February 11, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. When Mr. McCormick arrived in the class, Respondent was grading tests that the students had just taken. Mr. McCormick noted that the students appeared "unengaged" in any activity related to the CET curriculum. One student was talking on the phone to a Staples store, with a sales brochure in front of him, and three other students were playing "Doom 2" on an old Macintosh computer. Respondent returned the tests to one group of students then commenced an oral review of the questions and answers. Mr. McCormick noted that Respondent conducted the review in distracting proximity to another group of students. Mr. McCormick also noted with disapproval that Respondent referred to the multiple choice test as "multiple guess." One student left the class early without signing out. Another student had a two-liter bottle of soda on his desk, which Respondent eventually asked the student to remove. Clean-up activity began at 1:16 p.m., fourteen minutes before the end of class. The clean-up consisted of about one minute of straightening chairs, after which the students were unengaged until 1:30 p.m. Earlier in the day, Mr. McCormick had received a report that someone in Respondent's class had visited a pornographic web site. Mr. McCormick decided to investigate the matter because the school district's firewall filter should have prevented such activity. After the class was dismissed, Mr. McCormick asked a student in Respondent's class to show him the web site. The student did so and arrived at a site displaying what Mr. McCormick described as pornographic photos. Mr. McCormick realized the site was available because the web address did not contain the key words that the district's firewall is set up to block. At the hearing, Mr. McCormick emphasized that he did not believe Respondent would knowingly allow his students to access pornographic web sites. Mr. McCormick's criticism was that Respondent did not know, which was emblematic of Respondent's inability to maintain control of and know what was going on inside his classroom. Mr. McCormick suggested that Respondent position the computer monitors in the class to give himself maximum observation ability from a central position. Mr. McCormick testified that many students would position themselves so that their monitors could not be seen unless an observer was standing directly behind them. On February 16, 2005, the IAP team met with Respondent, Ms. McDaniel, and Ms. Mutzenard. At the outset, Respondent stated that he would submit his written responses from the previous team meeting at the next team meeting on February 28, 2005. As Ms. McDaniel testified, no such written responses were ever supplied by Respondent. Ms. Roshon then gave a summary of her February 10, observation and also stated that she had observed the CET teacher at High Tech North. Based on these observations, she had the following suggestions for Respondent: require students to prepare a notebook based on the chapter notes and software the students use on a daily basis, which could be used as a trouble-shooting reference; require students to sign in and out for bathroom breaks; and require students to keep a daily log of their work, upon which Respondent could check and comment. Respondent defended himself regarding some aspects of Ms. Roshon's observation. Mr. McNeil, the student who gave the Linux lecture, was fighting a sore throat and had asked Respondent for permission to drink a soda during his talk. Respondent also stated that he trusted the student not to do anything inappropriate and, thus, felt no need to preview the software prior to the student's lecture. Mr. McCormick then described his observation of February 11, 2005. He agreed with Ms. Roshon that a daily log would be helpful for Respondent to keep track of his students' progress. Mr. McCormick also agreed with Ms. Roshon's suggestions that students be required to sign in and out for restroom breaks and that they be required to keep trouble-shooting notebooks. Respondent disagreed with requiring students to keep a notebook. Ms. Cooley described her observation of February 9, 2005, and made a particular point of her concern that Respondent was inconsistent on the matter of allowing students to shout out answers. Ms. McDaniel summarized the deficiencies in Respondent's performance as noted by the IAP team, including: lack of consistency with rules and procedures; lack of consistency with students signing in and out; removal of all games from classroom computers; and arranging the classroom computers for maximum viewing capability by Respondent. Mr. McCormick stated that there were students still in the CET program who had completed all their occupational completion points and a lengthy discussion ensued regarding Respondent's tracking of students' progress. Ms. Cooley stated that Respondent had not turned in revisions to a Council on Occupational Education program reports that were due during the previous school year.23 Respondent promised to turn in the revisions on February 22, 2005. Respondent also promised to bring to the next IAP team meeting his grade book and all the career maps, or other tracking devices for his CET class, neither of which the IAP team had seen at this point. He also committed to removing all games from the computers in his classroom. Ms. McDaniel testified that by the time of the February 14, 2005, meeting, she perceived that Respondent was angry about the IAP process. It appeared to Ms. McDaniel that Respondent did not believe that he or his students needed to follow the rules and procedures established by the School Board or High Tech Central. Mr. McCormick testified that by this time he was "astounded" that the IAP team's observations and comments were the same every week. Respondent was not correcting the items noted by the team and was very defensive in the team meetings. 117. On February 22, 2005, from 8:15 to 8:45 a.m., Ms. Cooley conducted her next observation of Respondent's classroom. Respondent was working on computer assembly with five students in one of the back cages. Three students were in the other back cage. One of these students was looking up computer parts prices on the Internet and told Ms. Cooley he was seeing where the market was going. Thirteen students were present in the class, but only eleven had signed in. Two of the eleven had not indicated the time they arrived. No students were wearing identification badges. Six students were in the main computer lab. Two of them were reading the novel Great Expectations for another class and continued reading throughout Ms. Cooley's observation. Ms. Cooley asked them about their career maps. They replied that they knew nothing about career maps. When Ms. Cooley asked them how they knew which competencies they were working on, they told her they went "chapter by chapter." Ms. Cooley tried to redirect the students who were doing outside work. Respondent was so focused on the group he was working with that he did not notice what the other students were doing. Ms. Cooley noted that, based on Respondent's lesson plans, she could not tell one group of students from another. Not one student was working on assignments identified in the lesson plan. She concluded that the students "are not on task, not on track." 121. On February 23, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation. A music video, bearing no apparent relationship to CET class work, played over and over again on a classroom projector throughout the observation period. Three students were on shopping web sites and one was on E-Bay. Respondent had assigned them to learn how to acquire computer parts and build the best computer possible for $1,500. Mr. McCormick noted that this was legitimate CET class work. Respondent was circulating through the room. Mr. McCormick observed that it was still difficult to see the computer monitors in the back cages from the main part of the classroom. One student was reading a booklet that was not related to the CET program. A two-liter bottle of soda was on the classroom floor and an open bottle of soda was on a student's desk. Once more, all work stopped at 1:15 p.m. for clean-up activity that took about one minute. In the follow-up remarks to his written observation report, Mr. McCormick noted the unprofessional appearance and distracting effect of playing music videos in the classroom. He again suggested that Respondent stop wasting the last fifteen minutes of class and plan activities to keep the students busy until the dismissal bell. Mr. McCormick again told Respondent that he must enforce the rules against food and drink in the classroom. 125. On March 2, 2005, from 10:10 to 10:50 a.m., Ms. Roshon conducted her next observation of Respondent's class. When she walked into the classroom, Ms. Roshon noted that Respondent was sitting and talking with a group of four students. The conversation was apparently not related to class work because Respondent jumped up when he saw Ms. Roshon. He told her that half the class was "missing," without explaining where the students were, and that two of his students had placed in the "Skills USA" competition.24 Respondent announced that it was time to go over the test. Some students asked, "What test?" It transpired that not all of the students present had taken the test. Respondent spent eight minutes looking for the test. The group who had been talking with Respondent when Ms. Roshon entered continued their conversation about the relative merits of "a small house" versus "a condo." Three other students were working in the back cage, and Ms. Roshon noted that she still could not see their monitors from the classroom. When she approached the students, one of them turned off his monitor. Ms. Roshon also noted that the sign-in sheet was still not being used. Respondent gathered two students to go over their tests. They discussed the questions and answers aloud although another group of students was still taking the test. Ms. Roshon noted that Respondent told a student who was withdrawing from the class to take the test "for old times sake." Respondent then had this student correct his own test and those of the other students. Ms. Roshon observed that the student made some critical remarks about his classmates' performance on the test. Ms. Roshon positively noted that, when one student was confused about an issue, Respondent had the students go on their computers to find the answer. However, she also noted that one student appeared to become bored with the test review, rolled his chair away from the group, and turned on his MP3 player with earphones. The student even played "air guitar" near the group reviewing the test, and Respondent said nothing. In her written comments to Respondent, Ms. Roshon wrote, in relevant part: One big concern I have with the structure of today's activity is that you have this huge classroom and yet all of your students were packed into one small area at the back of the room. It would have made more sense to me that you would have taken the students you were going over the test with to an area of the classroom that would have been quieter and would have caused less distraction to other students. It was also a VERY relaxed atmosphere and not as conducive to feedback and interaction from students as it could have been. * * * I did have trouble following your lesson plan . . . . Once again, I don't know how the students know what they are to be doing. I didn't see any evidence of log books or checklists. * * * My concerns still are: How do students know what to work on. Class activity seems to start AFTER I walk into the room. Students seem to wander around however they feel like. On March 3, 2005, at 8:15 a.m., Ms. Cooley performed her next observation of Respondent's class. When she arrived, a film on PC navigation and commands was being shown. One student was working on his laptop computer. One student was reading sports web pages on his computer, while another surfed web pages on computer parts. A group of students worked in the back cage. Respondent's lesson plan stated only "lab work," which was so vague that Ms. Cooley could not tell one group from another. Respondent showed the film throughout Ms. Cooley's observation, which prompted her to suggest that Respondent show films in shorter segments and get the class actively engaged sooner. Also on March 3, 2005, at 9:30 a.m., Ms. Cooley attended an "attendance hearing" for one of Respondent's adult students. High Tech Central policy regarding adult attendance provides that after four absences, the student is to be advised that his absences jeopardize his financial aid. After five absences, the teacher is to have a conference with the student. After eight absences, the teacher is to advise the student that two more absences will result in an administrative review and possible withdrawal until the start of the next semester. After ten absences, the teacher is to complete an attendance documentation form and give it to the school's student affairs specialist, who then schedules an administrative review, or "attendance hearing." An adult student with ten accumulated absences may be withdrawn and lose credit for that semester, depending on the outcome of the attendance hearing and the reasons established for the absences. Dan King, the student affairs specialist, convened the hearing with an adult CET student who had 16 absences since January. Respondent was not present at the hearing, but sent to Mr. King the student's career map and an adult attendance documentation form. Mr. King asked the student why he had missed so many days, noting that the student was on kidney dialysis. The student stated that he goes to dialysis before and after school and that Respondent never asked for notes regarding his absences or even asked why he was absent so frequently. Mr. King directed the student to go back and retrace his steps regarding the dates he had missed because many of those absences could have been excused because of illness. Ms. Cooley criticized Respondent for his failure to hold the required conferences with the student, or to make the required referral to Mr. King after the tenth absence. At the attendance hearing, the student told Mr. King that the CET class was completely different when an observer was in the classroom. Mr. King showed the student his career map. The student stated that he had seen the blank career map back in August when he started the CET program and that this was just the second time he had seen it. The student stated that Respondent had never reviewed it with him, although Respondent had checked off many competencies as completed. The student was surprised to see everything he had accomplished. Ms. Cooley noted that the career map is supposed to be a motivator for students to show their accomplishments and track their competency completions and that it was improper for Respondent not to review the career map with the student. 135. On March 4, 2005, from 12:50 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. He saw four students grouped together in the front of the class. One was working on a laptop computer, one was working on class-related questions, one was using a cell phone, and the fourth was playing with a portable CD player in his lap.25 Some students were working in the back cage on projects though it was still difficult to observe their monitors from the classroom. Respondent was circulating around the classroom. Mr. McCormick observed five cups and soda bottles throughout the classroom, including one on Respondent's desk. One student had an entire fast food meal of a sandwich, French fries, and a soft drink spread out at his computer workstation. The student ate and drank throughout Mr. McCormick's observation. Mr. McCormick observed one student get Respondent's attention by calling out, "Nevins!" After discovering they had mistakenly printed a document to another teacher's printer, two students left the CET classroom to "apologize" to the other teacher. These students did not sign out or inform Respondent that they were leaving. Work stopped and "clean up" commenced at 1:00 p.m., a full half-hour before the end of class. Mr. McCormick's written comments on this observation were as follows: Mr. Nevins must design teaching activities so that students are engaged in learning activities throughout the day. No visible order to the way the material is presented. Much too much wandering, visiting and playing has been observed in this classroom. Suggest planning activities that will keep students busy until dismissal bell. Clean- up in this class only takes about 1 minute (as it is now structured), so save this until a few minutes before 1:30. Mr. Nevins must enforce classroom rules about food and drink-- but apparently is unable or unwilling to do so. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. Mr. Nevins must never allow students to address him by his last name only. This shows a complete lack of respect for the status of the teacher in the classroom. At the hearing, Mr. McCormick testified that he was "incredulous" that the problems with food and drink were still going on. The problem was so easily corrected that he had to conclude Respondent could not, or would not enforce the rule. Mr. McCormick believed that such simple classroom management issues were the last thing that should be dominating discussion in the IAP team meetings, but that the IAP team could never get past enforcement of the most basic classroom rules and employment of the most basic classroom management skills in attempting to assist Respondent. The IAP team met on March 7, 2005, to review the team's observations since the last meeting and to offer recommendations to Respondent. Ms. McDaniel and Ms. Mutzenard were present. Mr. McCormick, Ms. Cooley, and Ms. Roshon each gave an oral report of the observations described above. After Mr. McCormick described the playing of music videos in the class, Respondent stated that the music was "something different" for the students in the afternoon and that it was not distracting. He cited "brain based research" to the effect that music helps set the tone for the class and assists in learning. Ms. McDaniel pointed out that there is a difference between music and music videos and that the latter are not to be played in the classroom. Respondent also stated that he felt he was being picked on about the question of sodas in the classroom. Mr. McCormick stated that it was simply a question of school policies that Respondent must enforce, and that Respondent's classroom was so relaxed and uncontrolled that Respondent had difficulty maintaining order and focus. Respondent acknowledged that bending the rules causes problems, but also contended that students sometimes learn more in his relaxed environment. Respondent was once again asked to bring his grade book and career maps, or other student tracking system to the next IAP team meeting. He had been asked to bring these items to the March 7, 2005, meeting but failed to do so. At the hearing, Ms. McDaniel testified that after the March 7, 2005, IAP team meeting, she continued to feel that Respondent did not have a positive outlook on the process. Of greater concern was her growing conviction that Respondent was deliberately not following the instructions and recommendations of the IAP team. She did not share this conviction with the IAP team because she did not wish to influence the objectivity of their observations. Mr. McCormick conducted his next observation on March 10, 2005, between 12:40 and 1:30 p.m. Twelve students were present in the classroom. Five students were working on computers in the main lab, three students were working on projects on the back cage, and two were working with Respondent in a side cage. Two students were asleep in the front of the classroom with their textbooks open and their heads down on their desks. Mr. McCormick testified that the students woke up at some point during his observation. When Respondent saw Mr. McCormick enter the classroom, he left the cage and came out into the main lab and began circulating among the students. Mr. McCormick noted that the monitors in the back cage were still positioned to make observation difficult from the main lab. He also noted that the "Doom 2" game was still loaded on the old Macintosh computer in the classroom. Student Keith McNeil approached Mr. McCormick and was "very forceful" in trying to determine why Respondent was being observed. Mr. McNeil explained at length that MP3 players were integral to the CET program and could be used as data storage devices. Mr. McCormick noted that every student he had observed using an MP3 player in Respondent's class was listening to music. Mr. McCormick also observed that Mr. McNeil was a very bright student and that Respondent seemed to employ him as an informal teacher's aide, helping Respondent to run the CET program. Mr. McCormick's written comments on this observation were as follows: No visible order to the way material is presented. Too much wandering, visiting, and playing going on in this classroom. Students don't seem to ever be on task at anything for more than a few moments. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. On March 11, 2005, at 9:30 a.m., Ms. Cooley attended an attendance hearing for another of Respondent's CET students. This student had 14 absences. Respondent did not attend the meeting, but provided the student's career map and certificates of completion to Mr. King before the meeting. As did the student at the previous attendance hearing, this student told Mr. King that he had not seen his career map since Respondent showed him a blank one at the beginning of the course. The student stated that Respondent never reviewed his progress with him. He had never received any certificates of completion, although the career map submitted by Respondent showed that the student had completed three occupational completion points meaning that he should have had three certificates. The student felt unmotivated. He believed he was wasting his time and not accomplishing anything in Respondent's class. He told Mr. King that he might have felt more motivation had he known his progress in the program. The student told Mr. King that he wanted to make up some of the time he had missed, but that he could never get Respondent to commit to a specific date and time. After a while, the student became discouraged and stopped asking Respondent about making up the time. Ms. Cooley testified that by now she had conducted five observations and attended two attendance hearings, and she was frustrate d because the same things cropped up at every observation: food and drink, name badges for students, the failure to keep career maps, or some other tracking device for student progress. Ms. Cooley performed her next observation of Respondent's class on March 22, 2005, at 8:45 a.m. She noted that while Respondent lectured on how to set up a parts table on Microsoft Access, one student was typing, one student was sleeping, two were looking at a computer board, and one was playing with his cell phone. Students were calling out numbers and items to place in the Access spreadsheet. Food wrappers were on the desks. Respondent was wearing an MP3 player around his neck. He told the students to get started on their assignment, but they walked to the back cages and did not work on the assignment. Mr. McCormick observed Respondent's class on March 23, 2005, between 9:15 and 10:00 a.m. Twelve students were present in the class. Three students were working on projects in the cages. The other nine students were clustered around six computers. Mr. McCormick noted that there were plenty of computers in the classroom and that each student should be assigned his own computer. He observed that when students gather around a few computers some are just watching rather than actively participating in the class activity. In this instance, only two of the nine students appeared to be on task. The others were talking and "wandering around." Mr. McCormick noted that students were leaving the CET classroom to attend other classes, but were not signing out on the classroom attendance log. He checked the log and found that it had not been used since March 14, 2005. Mr. McCormick noted that at 9:30 a.m., a student walked into the classroom with a bag of chips and began eating them while working with another student. Respondent did nothing, although he did later pick up a soda bottle from a workstation and dispose of it. Another student listened to an MP3 player during the entirety of the observation. Mr. McCormick did note that all the old Apple computers had been disconnected thus, disposing of the "Doom 2" game problem. In his written comments to this observation, Mr. McCormick yet again stated that Respondent must enforce School Board policies on food and drink in class, the use of portable music devices in class, and the use of the attendance log. The IAP team convened its next meeting on March 24, 2005.26 Also present were Ms. McDaniel and Ms. Mutzenard. As in the other meetings, the three IAP team members reviewed their observations and made comments and suggestions to Respondent for improving his performance. As in the other meetings, Respondent reacted defensively. When Mr. McCormick commented that there was too much "wandering, visiting, and playing" going on in the classroom, Respondent asked Mr. McCormick not to say that his students did not appear to be learning because there was no data to prove that assertion. The lack of structure in Respondent's classroom was a common criticism. Ms. McDaniel attempted to explain to Respondent the need to draft and use coherent, detailed lesson plans, if only for the eventuality that a substitute would need such a plan in Respondent's absence. Ms. McDaniel told Respondent that a substitute would be "clueless" if forced to use Respondent's lesson plans.27 Using Respondent's method of teaching Microsoft Access as a point of discussion, the team attempted to make Respondent understand the need for some tangible artifact to demonstrate that the students have mastered a given OCP. Respondent answered that the majority of students were pleased with his methods. At the conclusion of the meeting, Ms. McDaniel once again reminded Respondent to bring his grade book, career maps and tracking sheets to the next meeting. Ms. McDaniel testified that at every meeting, Respondent had an excuse for not bringing these materials. He would say that the files were at his home, or back in his classroom. On April 4, 2005, at 12:20 p.m., Ms. Roshon conducted her last observation of Respondent's class. She observed six students in the main lab, one of whom was sleeping. Respondent walked over to the sleeping student and woke him. Three students in the back cage were talking about "witnesses" and "getting caught." Respondent approached Ms. Roshon and explained what each group was doing. She noted several soda bottles, cups, and chips around the room. Ms. Roshon observed a student go to the back cage to get Mr. McNeil to come out and assist him. She thought this remarkable because Respondent was circulating through the classroom and would logically have been the person to approach. Ms. Roshon later concluded that Mr. McNeil's assistance was needed because the question had to do with the Linux system, about which he had lectured during Ms. Roshon's February 10, 2005, observation. Ms. Roshon observed a conversation among several students regarding the capacity of an iPod to download the music on the computer. She noted that a student had his iPod plugged into the computer leading her to conclude the student was downloading music during class. One student did not seem involved in the class. Respondent engaged this student by demonstrating how to share files between computers. Ms. Roshon was favorably impressed by Respondent's method in this instance. Some students knocked at the locked back door of the classroom and were let in by students inside. The students did not sign in, which led Ms. Roshon to wonder whether the attendance log was being used at all. She checked and saw that the sign-in sheet had not been used since March 14, 2005. Mr. McNeil approached Ms. Roshon and attempted to discuss a letter he had sent to the school district's administrators in defense of Respondent. Ms. Roshon told him that she was not at liberty to discuss the matter.28 Mr. McNeil then proceeded to complain about the "new rules and regulations" in the class, by which he meant the long-standing but seldom enforced prohibition on food and drink in the classroom. On April 5, 2005, Mr. McCormick conducted his last observation of Respondent's class. Mr. McNeil approached Mr. McCormick and attempted to question him about his situation with Mr. Wiseman, as described in footnote 28 above. Mr. McCormick told Mr. McNeil that he was there to observe the class and would speak to Mr. McNeil at another time. Though he still noted sodas and a bag of chips in the classroom, Mr. McCormick observed that the activity for the day seemed to be well planned and that the students appeared to be actively engaged and on task. One student was working on an assignment for another class that was related to his high school graduation requirement. Ms. Cooley conducted her last observation on April 6, 2005. She noted soda bottles and drinks in the class and saw one student drinking a soda. Mr. McNeil was teaching the class along with Respondent. On April 6, 2005, at 1:45 p.m., the last IAP team meeting was convened. Ms. McDaniel and Ms. Mutzenard were present. This meeting was held in the CET lab, so that Respondent would have no excuse for failing to produce his grade book and career maps. After the observations were reviewed with Respondent, Ms. McDaniel asked Respondent to show the team his career maps, grade book, and tracking sheets. One member of the team asked Respondent how often he went over the career maps, and he stated that he did so every two weeks. Ms. Cooley asked Respondent why neither student at the two attendance hearings had ever received or reviewed a career map in Respondent's class. Respondent stated that every student had the opportunity to ask him for a copy, but that he did not give them out to everyone. Ms. McDaniel expressed concern that the Council on Occupational Education would review the school in November and would have to be shown these career maps and this grade book. The school's accreditation and its Pell grants would be placed at risk if it could not document what is being taught in the classroom. Ms. McDaniel noted that all the career maps were written in the same color ink. She testified that the maps looked as though they had all been completed at the same time, rather than at different points during the semester as students completed their various OCPs. The minutes of the meeting indicate the concerns raised as the team reviewed Respondent's materials: Mrs. McDaniel made numerous attempts to see if the career map matched and aligned with the gradebook and tracking sheets. Mrs. Roshon and Mr. McCormick would check the gradebook while Mrs. McDaniel would check the career maps. OCP completions were not recorded in gradebook. Quarter grades were missing. No actual dates were written in the career maps. Dates did not aligned [sic] in gradebook with career maps. Yellow attendance sheets were not found.29 Some tests did not have a grade on them. Only chapter test grades were recorded in gradebook. No lab work grades were recorded. No rubrics were used to grade projects. There were numerous questions on the correlation of grades. Mrs. McDaniel stated the career maps should prove the competency completed; but these competencies recorded with a month and year did not align with the gradebook. Some career maps were missing. Mr. Nevins stated he might have left them at home. The gradebook did not reflect what was in the student folders and career maps. . . . Ms. McDaniel testified that it was not possible to look at Respondent's grade book and correlate the numbers therein with any OCP. There were test grades, but no indication of what test was given. The tests in the student folders did not align with anything in the grade book. Ms. McDaniel concluded the meeting and stated that the team would schedule a meeting to make a recommendation to the superintendent as to Respondent's status. In fact, the team met with Ms. McDaniel and the school's new director, Robert Durham, in the administrative offices of High Tech Central immediately after their meeting with Respondent and unanimously recommended that Respondent's employment be terminated. As to her recommendation, Ms. Roshon testified that she told Respondent "that if I were a teacher and I knew I was being observed and that I had an opportunity to make . . . some pretty simple changes to my classroom and what went on in it, that I would have made every effort possible to do that, and that I felt like Mr. Nevins hadn't done that." At the final meeting, Ms. McDaniel presented the option of extending the IAP process, but Ms. Roshon did not believe that more time would make any difference in Respondent's classroom. The IAP process had already lasted for eight weeks, and Ms. Roshon had seen no difference "in classroom management, in teaching style, in anything within the classroom." She believed that Respondent had been given a full and fair opportunity to make significant changes and either chose not to make those changes, or was unable to change. In any event, she believed that Respondent was not an effective teacher. Mr. McCormick testified that Respondent is a very intelligent man, understood the purpose of the IAP process, and further understood the criticisms and advice he was receiving from the observers. However, Respondent did not accept the legitimacy of the criticism, or the need to change his classroom methods. Mr. McCormick recommended termination because he believed that Respondent's classroom shortcomings were very serious, and he did not see any evidence of improvement during the IAP process nor any willingness to make changes in the classroom. Mr. McCormick agreed with Ms. Roshon that extending the IAP process would be extremely unlikely to make any difference in Respondent's job performance. Ms. Cooley recommended termination and testified that she "felt bad about it, because I felt that I honestly tried to help change the situation by the many attempts of telling him what I saw and what I observed." She believed that Respondent is a very intelligent man, but not a teacher. By letter dated April 11, 2005, Mr. Browder notified Respondent that he was being suspended with pay and benefits, effective immediately, pending the outcome of a School Board investigation.30 A predetermination conference was held on April 28, 2005, to give Respondent an opportunity to respond to the IAP team's concerns regarding his competency to teach. Present at the conference were: Respondent and his legal counsel, Robert Coleman; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment administrator; and Paul Carland, then the School Board's attorney. By letter dated May 3, 2005, Mr. Carland notified Mr. Coleman that the School Board had found probable cause to terminate Respondent's employment. In his defense, Respondent raised several issues, both substantive and procedural. Respondent alleged in his equity complaint that he had been "an express target" of negative attention since Ms. Cooley substituted in his class on February 19, 2004. At the hearing in the instant case, Charlotte Rae Nicely, the former financial aid administrator at High Tech Central, testified that Ms. Cooley was "very vengeful" and "had it in" for Respondent. However, Ms. Nicely had been reassigned to a teaching position following the federal audit of the school's Pell grant program and believed she had been made a scapegoat by the High Tech Central administration. Ms. Nicely did not believe that Ms. Cooley was a good administrator and alleged that she carried grudges against other teachers. Though she claimed she had "chosen to forgive" the High Tech Central administration for its treatment of her, Ms. Nicely was a less than credible witness, not only because of her personal feelings about Ms. Cooley, but because of her limited knowledge of Respondent's teaching practices. The evidence did not establish that any administrator at High Tech Central, or the School Board had any personal animus against Respondent for his union activities, his religion, his place of origin, or any other reason. The school's administrators were concerned about Respondent's performance well before Ms. Cooley's experience substituting in Respondent's class, and the evidence was persuasive that Respondent was in no way "singled out" for any reason other than his job performance.31 Respondent contended that the process did not give him adequate notice of the areas of his performance requiring improvement or correction that there were no "uniform scoring criteria" used by the IAP team to evaluate Respondent's performance. This contention is without merit. While the observers used different instruments to record their observations, and their observations varied in some particulars simply because the observers came into the class on different days, there was a remarkable overall consistency in the observations and recommendations. Respondent did not enforce classroom discipline regarding such matters as food and drink and MP3 players. He did not follow proper administrative procedures in monitoring attendance. He did not file proper lesson plans. If he did track his students' progress and performance, he did not do so in an intelligible, coherent fashion, and he did not keep his students aware of their progress in any consistent way. Too often, no teaching appeared to be taking place at all in Respondent's classroom. Students appeared to be doing as they pleased. Any claim that Respondent did not know what was required to improve his performance is disingenuous and cannot be credited.32 Respondent notes that Subsection 1012.34(3)(d), Florida Statutes,33 provides that a teacher holding a professional service contract who is charged with unsatisfactory performance must be notified he is being placed on performance probation for the following 90 calendar days during which he is expected to demonstrate corrective action. School holidays and school vacation periods are expressly excluded from the 90-day period. Throughout the 90-day period, the teacher must be evaluated periodically and apprised of the progress achieved, and provided assistance and in-service training opportunities to help correct the performance deficiencies. Respondent further notes that, at the initial IAP meeting, Ms. McDaniel stated that Respondent would be the subject of observations for seven weeks, that there would be three observations per week, and that the observations would be 30 to 45 minutes in length. She also told Respondent that the IAP team would meet weekly and he would receive a signed copy of the minutes of the meeting. Respondent states that the IAP process lasted only 84 calendar days, from January 13 to April 6, 2005, and that nine of those days were school holidays. The IAP team met only six times, on January 13, February 7, February 16, March 7, March 24, and April 6, 2005. The IAP team failed to conduct three observations each week and at least two of the observations exceeded 45 minutes in length. The IAP team did not meet with Respondent every week of the process, and Respondent did not receive signed minutes of the meetings every week. Respondent claims that the School Board's failure to comply with the legal requirements for termination of a teacher on a professional service contract were not followed and failure to follow its own IAP procedures necessitate dismissal of the Petition. In fact, Respondent was provided notice that he was being placed on performance probation via Dr. Browder's letter dated December 16, 2004. Thus, the period of evaluation lasted a period of 93 calendar days, from December 16, 2004 to April 6, 2005, excluding 18 days for winter break, Martin Luther King Day, Presidents' Day, and spring break. The School Board complied with the express requirements of Subsection 1012.34(3)(d), Florida Statutes. The School Board also substantially complied with the procedures described by Ms. McDaniel at the first IAP meeting and set forth in its written IAP materials. The IAP team members conducted a total of 20 observations (not counting Ms. Cooley's attendance at two student attendance hearings), rather than the 21 observations promised by Ms. McDaniel. This was due to the fact that Ms. Roshon broke her arm and missed one week's observation. The IAP team met only six times because Respondent called in sick on March 16, 2005, forcing the cancellation and rescheduling of one meeting. Neither of these minor deviations from the schedule of events had a substantial impact on the IAP process. Neither Respondent nor his representative, Ms. Mutzenard, lodged a contemporaneous protest regarding these alleged procedural failings. In fact, they agreed to combine two weeks of observations into one IAP meeting in order to make up for the cancelled meeting. Ms. Mutzenard, who has represented union members in at least ten IAPs, testified that, although seven weeks of observations with three observations per week is the officially stated practice, this practice "has not always worked. Because of scheduling conflicts with the teacher and with other members of the team and myself and with meetings and conferences and all of that type of thing, there is [sic] some weeks we just can't schedule something." The process is sometimes extended to accommodate schedules. Ms. Mutzenard testified that the 45-minute limit on observations is simply a time management issue: if one person conducts a two-hour observation, another observer could be hampered from coming into the classroom. Ms. Mutzenard was positive about the flexibility of the process. She testified that scheduling was freely discussed at the meetings and that neither she nor Respondent objected to the dates of the meetings or the number of observations. Ms. Mutzenard testified that the IAP process is usually successful so long as the teacher follows the IAP team's suggestions. She has been involved in other IAPs that resulted in transfers and terminations, but stated that in the case of termination recommendations, the teacher usually resigns. Ms. Mutzenard believed that the IAP process would be extended for another eight weeks after April 6, 2005, to give Respondent more time to work on "a few minor things" such as the food and drink problem and to correct his record keeping. Her view was that, aside from being disorganized as to paperwork, Respondent presented no insurmountable problems and should have been given more time in the IAP process.34 Ms. Mutzenard stated that record keeping is unrelated to a teacher's competence and that Respondent's students were doing well in obtaining jobs. However, she conceded that she had seen no objective data regarding the employment rate of Respondent's students and that Respondent himself was her source of information.35 Ms. Mutzenard also conceded that Respondent did not really believe he should have to stop his students from bringing food and drink into the classroom. She discussed the issue with Respondent and he agreed that he should follow the school policy though the testimony from the IAP team members makes it clear that Respondent never seriously enforced the prohibition on food and drink.36 Respondent presented the testimony of several witnesses besides Ms. Mutzenard and Ms. Nicely. Richard Kennedy, now retired, was a School Board employee for 29 years and ran a special needs exploratory after school program at High Tech Central. This program brought students identified as high drop-out risks to High Tech Central to explore the option of vocational education. The population in the program consisted mostly of middle school special education students ranging from educable mentally handicapped to intellectually above average. Respondent was a paid volunteer in the program for about five years, teaching a web design class. Mr. Kennedy conducted no formal observations of the class, but did drop in on the class frequently. Mr. Kennedy testified that Respondent was a good teacher and was popular with the students. However, Mr. Kennedy conceded that his special needs program was very different from the regular day programs such as CET and that he had very little knowledge of why Respondent was suspended or of the IAP process in which Respondent was involved. Dennette Foy is the district coordinator for business and technology programs at Edison College and is responsible for hiring adjunct instructors such as Respondent. She is Respondent's immediate supervisor at Edison College, in charge of assessing his performance and offering him contracts for successive semesters. She opined that Respondent is a "very adequate teacher." Greg Meisel is a technology teacher for the School Board and runs a computer lab supporting the instructors at Edison College. Mr. Meisel was Respondent's lab assistant at Edison College. Mr. Meisel believed that Respondent was a competent, effective teacher. Respondent's delivery was good and he respected and cared about his students. Mr. Meisel's only knowledge of Respondent was in a college setting. He was not aware of Respondent's classroom management skills at High Tech Central, how Respondent tracked attendance in his classes, or whether Respondent enforced School Board policies in his classroom at High Tech Central. Ms. Foy's and Mr. Meisel's testimony is of limited use because of the differences between teaching at the college and high school level, particularly in a vocational education program such as the CET class. Ms. Cooley pointed out that many of the students at High Tech Central could never meet the academic requirements to be admitted to college, and have in fact been unsuccessful in a traditional high school setting. Students in a college classroom are self-selecting, highly motivated, independent thinkers, whereas students at High Tech Central tend to require greater supervision, discipline, and one-on-one assistance. The same teacher may be highly successful at the college level and be unfit to teach vocational educational classes. Richard Oglesby was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, he worked in the television department at CompUSA and credited Respondent with telling him about the job opening and for giving him the skills necessary to obtain the job. While a student in the CET class, Mr. Oglesby competed in the Skills USA competition and made it past the regional to the state level. He testified that he considered Respondent a friend and had recently attended a movie with Respondent. Mr. Oglesby called Respondent a very good instructor, who followed the textbook, gave tests, kept the students apprised of their academic progress, and managed the class well. Mr. Oglesby testified that Respondent made some attempts to forbid students from listening to MP3 players, or having food or drink in the class. However, he also admitted that students in fact brought MP3 players and food and drink into the class with virtual impunity, and that he never saw Respondent discipline a student for these violations. Mr. Oglesby stated that he always signed in and out of class, but could not say whether other students did. He could not remember seeing anyone sleeping in the class. Keith McNeil, as noted above, was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, Mr. McNeil was the head of the software and video game department at CompUSA. Respondent helped Mr. McNeil obtain his job. Mr. McNeil's loyalty to Respondent was evidenced by the fact that three days after Respondent was suspended, Mr. McNeil received a two-day out-of-school suspension for spinning a glass table 180 degrees and chipping it after Respondent's replacement asked Mr. McNeil to stop sitting on the side of his desk. Mr. McNeil attributed this outburst to the tension and frustration he and the rest of the class felt after Respondent left. During the 2005-2006 school year, Mr. McNeil was officially disciplined twice for insubordinate, disrespectful behavior toward Respondent's successor. Mr. McNeil testified that Respondent was the best teacher he ever had. He described Respondent's technique as nontraditional and "rather lenient." Respondent told the students not to bring food and drink into the class, but the students ignored this admonition and brought the food and drink into the class anyway. Respondent would "chastise" the students, but did not otherwise discipline them. Similarly, Respondent told students not to use cell phones in the class, but students would take calls and walk out of the room to speak. Mr. McNeil testified that students would work on material for other classes in Respondent's class. Some people listened to MP3 players. Students would play computer games during class. Respondent would not discipline these students beyond turning off their computers. Mr. McNeil testified that Respondent "made a big point" of having students sign in and out of the class, which directly contradicts the observations and testimony of every member of the IAP team. Mr. McNeil denied that he ever took on the role of teacher in the class, or that Respondent allowed him to take over the class. People "flocked" to him to ask questions because of his greater knowledge: And so a lot of times I would come up with something, I would realize something; and in the time when, you know, if somebody was done with their work and Barry wasn't giving any form of instruction or anything, then I would say, "Oh, hey, check this out or check this out," and then sometimes like two or three other guys would comment and listen and we'd talk and stuff. * * * It wasn't that frequent. It was just, you know, sometimes like-- sometimes like, you know, we'd finish up and then we'd have like an hour or so or sometimes we might only have a couple minutes or something like that. It wasn't like I would be able to give keynote speeches. (emphasis added) While Mr. McNeil was conducting these sessions, Respondent would be doing "paperwork or something off to himself," or perhaps circulating among the students. In summary, Respondent would forego "an hour or so" of teaching time to allow the students to do as they pleased. This testimony confirms the observations of the IAP team regarding the rudderless appearance of Respondent's classroom. Both Mr. Oglesby and Mr. McNeil appeared to be highly motivated students who succeeded in spite of Respondent's lack of effort in the classroom. They liked the very aspects of the class that the IAP team found most problematic such as the lack of discipline and structure. While such a free-form atmosphere might not prove detrimental to bright, self-motivated students such as Mr. Oglesby and Mr. McNeil, the evidence established that the majority of students in the CET program required a structured classroom that Respondent was unable or unwilling to provide. Respondent testified on his own behalf, recounting his educational experience, employment history, and his certifications. He reviewed his evaluations and described the CET class. However, Respondent was silent as to the IAP process, leaving unrefuted the testimony of Ms. McDaniel, Mr. Pentiuk, Ms. Cooley, Mr. McCormick, and Ms. Roshon. In summary, the School Board established that Respondent was unable or unwilling, when charged with running a classroom unassisted, to maintain student discipline, enforce well-established School Board and High Tech Central rules, teach in a coherent, organized fashion, or perform the administrative duties required of faculty at High Tech Central.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order upholding the suspension of Respondent and terminating Respondent from his position as a teacher with the Lee County School District. DONE AND ENTERED this 31th day of August, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of August, 2006.
The Issue The issue is whether Petitioner may terminate Respondent's contract for immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code; misconduct in office, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code; and incompetency, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1), Florida Administrative Code.
Findings Of Fact Respondent came to the United States from British Guyana in 1977. In 1988, Respondent obtained an educator's certificate and began teaching in Dade County. Petitioner hired him in 1992 and assigned him to Silver Lakes Middle School. For several years, Respondent taught language arts, which is the area in which he is certified, to all grades. Petitioner later assigned Respondent to teach students in the dropout prevention program at Silver Lakes Middle School. The students in the dropout prevention program typically represent greater academic challenges to a teacher than do their counterparts in regular education. For the past five or six years, Respondent taught dropout prevention at Silver Lakes Middle School. His teaching approach is to try to develop rapport with the students during the first nine weeks of the school year while, at the same time, identify specific areas of weakness within each student that may require attention during the school year. On October 17, 2001, Respondent administered a diagnostic test to identify areas in which students needed work. Unable to answer some of the questions, some students asked Respondent for help. Respondent declined to help because his assistance would destroy the purpose of the test. Some of the students began to misbehave. After several attempts by Respondent to control these students, they threatened to go to the office and complain about Respondent. Respondent invited the students to go to the office and complain about him. He wrote passes for several students, and several more students joined the others to visit the office, rather than take the test, and complain to an administrator about Respondent. The principal received the students in her office and listened to their complaints, which appear to have been the source of the allegations in this case. The principal took statements from the students and then returned with them to Respondent's classroom. While in the classroom, the principal helped the students with the diagnostic test that Respondent had been administering. Recognizing that the diagnostic value of his test was lost, Respondent then joined the principal in helping the students with their diagnostic test. Prominent among the students' complaints to the principal was that Respondent had struck a student, J. H. Petitioner produced little direct evidence supporting this allegation. Twice, J. H. ignored subpoenas to testify in this case. Respondent testified that J. H. later admitted to him that other boys in the class made him lie and say that Respondent hit him. J. H.'s failure to comply with subpoenas is consistent with Respondent's testimony. Absent J. H.'s testimony, it is difficult to determine exactly what, if anything, happened with him and Respondent. The most likely scenario is that J. H. succumbed to the pressures of other students in the class and lied that Respondent had hit him, knowing that the only contact that had taken place between Respondent and J. H. was incidental contact during a minor incident of horseplay. Three of the four student witnesses whom Petitioner called to substantiate the charges were unconvincing. The fourth--J. G.--was vague and unable or unwilling to supply evidence against Respondent, whom he described as "the nicest man." Student D. S. testified at the hearing that Respondent ignored the students' questions in class about classroom material, called J. H. "peanut head," called "Jarvis" "bumbleclot," told D. S. that he lacked motivation and was lazy, and told other students that they came to school looking like a "bum." "Bumbleclot" appears to be a derogatory term in a Jamaican patois, although the record does not establish the intended or actual effect that any use of the word would have in Respondent's class. When handed a previous statement, D. S. added to his complaints that Respondent often said "bloody" in class and would . . . like nudge [J. H.], like, hit him in the arm." D. S. also recalled that Respondent said "cock-eyed" in class. D. S. admitted that he never heard Respondent threaten to "pop" a student. Discrepancies exist between D. S.'s testimony and his prior statements. First, he initially omitted the most significant allegation--that Respondent struck J. H.--and, when he later mentioned it, he downplayed it to a "nudge." Likewise, D. S. initially omitted any mention of Respondent's use of "bloody." Also, D. S. never mentioned Respondent's use of "bumbleclot" in his previous statements. D. S.'s testimony establishes the unlikelihood that Respondent actually hit J. H. or that he ever threatened to "pop" a student in class. Student J. P. testified that she heard other students say that Respondent pushed D. V. out the door of the portable classroom after ejecting him from class. Due to J. P.'s admitted failure to have observed the incident, the Administrative Law Judge struck the testimony. However, despite admitting that she did not see this incident, J. P. stated that she went to the office with other students and informed the principal of the incident. J. P. also testified that Respondent often said "bloody" and refused to explain all of an assignment to her after she missed school, which she admitted happened frequently. Lastly, J. P. complained that Respondent issued her a referral for going to the bathroom. In addition to missing school, J. P. was often tardy when returning from various errands, and many times she did not do her work. J. P.'s testimony establishes only that Respondent may have said "bloody" a few times in class. Student J. G. testified that he recalled Respondent using "hell or damn" in class, although, on cross-examination, he denied any recollection of any use of either of these words. J. G. testified that he heard Respondent say something about knocking a student into next week, although he could not recall whether the latter comment was made in jest. J. G. added that he saw Respondent give J. H. "a little hit." Student D. V. testified that he saw Respondent hit J. H., although his description of the conversation accompanying the incident was materially different at the hearing than in a previous statement. D. V. testified that Respondent threatened to "pop" students and told them to "shut [their] bloody mouths." D. V. added that he asked Respondent one time if he could call his mother to bring his medication for attention deficit disorder, and Respondent denied him permission to make the call. D. V. also testified that Respondent, while sitting beside the door, pushed D. V. on the shoulder to get him out of the classroom, and D. V. responded by warning that he would get his sister to "kick [Respondent's] ass." Although D. V.'s testimony is not undermined by the inconsistencies plaguing the testimony of D. S. and J. P., D. V. shares the antipathy of these other two students for Respondent. Each of these students resented Respondent's efforts to discipline and teach them. Each of these students betrayed a desire to act in concert to get Respondent in trouble, as they felt he had gotten them into trouble. Respondent called as a witness one student, W. L., who testified forcefully that she heard the other students coercing J. H. to say falsely that Respondent had hit him. W. L. testified that the only improper word that she heard Respondent use was "bloody" and that Respondent and J. H. engaged in some horseplay in class. Perhaps the most useful witness was an assistant principal at Silver Lakes Middle School. At the end of the 2001-02 school year, the assistant principal completed an evaluation of Respondent in which he assigned him a satisfactory rating, which is the highest, in all categories, including classroom management. It is clear from the testimony of the assistant principal that he gave the complaints of Respondent's students exactly the weight that they deserved. Respondent admitted that he used "bloody" in class, but the record fails to develop the appreciation of his students for the intensity of this word in certain non-American cultures. Respondent admitted that he once used the phrase, "pop you one," but the record fails to develop the context so as to preclude the likelihood that Respondent said these words in jest. Respondent admitted that he used "cock-eyed," "skinny boy," and "bony boy," but, again, the record fails to establish a context as to permit a finding that these terms were abusive or disparaging. Respondent, who is black, mentioned that he had been called "black nugget" and "kiwi," but only as part of an effort to develop tolerance for names among students eager to take offense. Respondent ejected D. V. from the classroom for legitimate reasons. According to D. V. himself, any followup contact was with Respondent in the seated position, so as not likely to have been significant. According to another student, D. V. grabbed Respondent. At most, the record depicts an angry, disruptive student who has stubbornly refused to comply with his teacher's ejection of him from the classroom, so that other students have a chance to learn. Likewise, D. V.'s complaint that Respondent denied him the chance to call his mother for his attention deficit medication suffers for the lack of context. Undoubtedly, D. V. joined in ongoing efforts to disrupt the class and avoid receiving instruction. The only context for this request provided by the record is that D. V. asked for permission immediately after returning from lunch, when he would have had ample opportunity to call his mother. Although it is possible that D. V. first thought of the missing medication after lunch, it is at least as likely that he thought of the missing medication as a convenient excuse to extend his mid-day respite from learning. For the foregoing reasons, Petitioner has failed to prove that Respondent was guilty of misconduct in office, incompetency, or immorality.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of April, 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Carmen M. Rodriguez Law Offices of Carmen Rodriguez, P.A. 9245 Southwest 157th Street Suite 209 Miami, Florida 33157 Mark F. Kelly Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 Tampa, Florida 33675-0638
Findings Of Fact Goodman holds Florida teaching certificate number 295031, post-graduate rank III, valid through June 30, 1983 covering the areas of physical education and junior college. At all times pertinent hereto, Goodman was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Goodman was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Goodman prepared a student attendance register for the summer school of 1978 physical education class beginning June 16, 1978, and ending July 28, 1979. That register reflects 28 enrolled students in the course. Goodman also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 29, 1978, and shows 28 students enrolled in physical education. The second is dated July 10, 1978, and reflects 27 full-time students enrolled in physical education. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Goodman. Jacquelyn Merritt enrolled in the summer school physical education course but never attended. Nonetheless, the attendance register shows Ms. Merritt as having attended 28 days. Ms. Merritt was awarded the grade of "B" for the course. Lorretta Roundtree neither enrolled nor attended physical education class. Nonetheless, the attendance register reflects 30 days attendance and Ms. Roundtree received a grade of "A" for the physical education course. Patricia Willis never attended the physical education class although she did enroll. The student attendance register reflects that Ms. Willis attended 30 days and received a grade of "B" for the physical education course. Cimmie McBride attended the physical education class for about a week. However, the class attendance register reflects 30 days attendance for Ms. McBride and she ultimately received a grade of "A" for the physical education course. Shelia Jackson attended one day of physical education during the summer school session but the student attendance register reflects 28 days attendance. Ms. Jackson received a grade of "B" for the physical education course. Carla Todd did not enroll in nor attend the summer school physical education class but the student attendance register shows Carla Todd being present for 30 days. Ms. Todd received a grade of "A" for the physical education class. Raymond Riley did not attend the summer school but the student attendance register reflects 28 days attendance and Mr. Riley received a grade of "B" for the physical education course. Steve Simon never attended summer school but the student attendance register reflects 29 days attendance and Mr. Simon received a grade of "B" for the physical education course. Deidra Sampson enrolled in the physical education course for the summer school session and attended three or four days. However the student attendance register reflects 30 days attendance and Ms. Sampson was awarded a grade of "A" for the physical education course. Claudia Tyson never enrolled in nor attended physical education during the summer school session hut the student attendance register reflects 28 days of attendance and Ms. Tyson received a grade of "B" for the physical education course. Martin Vaughn attended one day of physical education during the summer school session but the student attendance register reflects 30 days of attendance. Mr. Vaughn received a grade of "B" for the physical education class. Sharon Williams enrolled in the physical education course but never attended any classes. Nonetheless, the student attendance register reflects 30 days attendance and Ms. Williams received a grade of "A" for the physical education course. Hellen Pinkney enrolled in the physical education course for the summer school session but never attended. Nonetheless, the student attendance register reflects 30 days attendance and Ms. Pinkney received a grade of "A" for the physical education class. Willie Ward attended the physical education class during summer school for approximately one week. The student attendance register reflects 29 days attendance and Mr. Ward received a grade of "B" for the physical education class. It was Goodman's responsibility to prepare the student attendance registers and grade reporting forms for her class. The evidence establishes that Goodman's signature appears on those forms which reflect inaccurate attendance data and the award of undeserved grades. Goodman signed her name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the physical education class. Had the class been cancelled, Goodman would not have received remuneration for her services as a physical education instructor during that summer session of school. The evidence does not establish Goodman's motivation as being that of protecting her income or insuring that the course was made available to those students who did attend. Goodman's efficiency ratings reflect that she is an otherwise effective teacher.
The Issue The issue presented is whether Petitioner's application for a Florida educator's certificate should be granted.
Findings Of Fact Petitioner is an applicant for a Florida educator's certificate from the Florida Department of Education. On May 19, 1997, Petitioner was adjudicated guilty of driving under the influence of alcohol. She was sentenced to six months' probation. She was also required to perform 50 hours of community service and to pay $1,245 in fines and court costs. Her driver's license was revoked, and she was required to attend DUI school. Petitioner is the mother of two sons. On July 31, 2000, William was eight years of age and Jeffrey was 12 1/2. William and Jeffrey had lived primarily with Jo Kathryn Crawford, Petitioner's mother and their grandmother, since the middle of 1998. During the weekend prior to Monday, July 31, 2000, Petitioner had called her mother's home a number of times during which she was drunk and belligerent. Even so, arrangements were made for Petitioner to pick up William Monday morning to take him to a doctor's appointment after which she would take both William and Jeffrey to her "new" home. Her new home was a home which Jacksonville Habitat had built for her and had deeded to her in October 1999. She did not move into the home at that time but had continued to live in a trailer park. She wanted to spend her first night with William and Jeffrey in the home and wanted them to help her with the moving-in chores. On Monday, July 31, 2000, she picked up William and took him to his medical appointment. When she brought William back to his grandmother's home, William was hungry, and his grandmother insisted on fixing lunch for him. Petitioner was annoyed at having to wait, but she did. She then left with William and Jeffrey, saying that she would return them the next morning, Tuesday. While Petitioner and her sons were eating dinner that evening at her new home, Petitioner became angry because William crawled under the table and was shaking it. When William got out from under the table to go to the bedroom he would be sharing with Jeffrey, he knocked over a pile of clothes. Petitioner became highly irritated and then enraged, yelling and chasing William down the hallway. She caught up with him at the doorway to the bedroom, grabbed a belt, and started swinging it indiscriminately at William with the buckle end toward the child. William was crying and begging her to stop. He was also trying to get away from her. Petitioner was using severe blows with the full range of motion of her arm, and the belt buckle hit William multiple times. The belt was moving fast, and Petitioner was inflicting severe blows, while still screaming at William. Jeffrey, who was also in the bedroom, could even hear the belt hitting William but felt powerless to do anything to help his brother. During this episode Petitioner remained enraged and lacked any self-control. When the beating was over, Petitioner did not attend to William. Jeffrey was the one who rendered comfort to his brother and put a Band-Aid on his brother's finger, where the stem of the belt buckle had pierced or cut it. Petitioner did not return the boys to their grandmother's home until Wednesday. The grandmother asked William about the Band-Aid on his finger. William did not want to tell her what happened to his finger, but over the course of the afternoon he told his grandmother what had happened at Petitioner's home. Jeffrey confirmed what William told his grandmother. The grandmother raised William's shirt. He had marks and bruises on his back and front. There were long, red welts on his back and on his side. Some marks were large, some were small, some were round, and some were distinctively the shape of a belt buckle. There were dark blue and purple bruises on his lower buttocks on both sides and on his elbow. There was a round mark like a pencil eraser above his right knee. There were longer bruises in his front groin area. On his upper leg were round, large, black and red bruises. The grandmother took pictures of the marks on William's body. The next day, August 3, 2000, she consulted an attorney to find out what she should do. She then went to the Jacksonville Beach Police Department, where she spoke with Detective Tommy Crumley and showed him the pictures. Crumley contacted the abuse hotline. He then went to the grandmother's home, looked at William's bruises, took pictures, and talked to both boys separately. At final hearing, he described the bruises, categorized them as severe, and thought they appeared to be painful. Prior to July 31, 2000, Petitioner beat William when he made her mad. Although William was unable to quantify the number of times, he described the number as being "a lot." He did not tell his grandmother about the source of the bruises he had from those occasions. Prior to July 31, 2000, and as far back as Jeffrey can remember, Petitioner also beat Jeffrey. She beat him twice on some days and not at all on other days. It depended upon her mood and her temper. When beating him, Petitioner used her hands, a belt, or a wooden spoon. Prior to July 31, 2000, Petitioner beat her sons whenever they did something that made her angry, even for spilling a drink. The beatings were severe, and she did not care where her blows landed. Although the beatings left bruises, the children told no one for fear of being hit even more. On August 4, 2000, Petitioner was arrested and charged with aggravated child abuse, a felony. She was also later charged with contributing to the delinquency of a minor, a misdemeanor. Pursuant to a plea agreement, on August 14, 2001, the charge of aggravated child abuse was dismissed, and Petitioner pled guilty to contributing to the delinquency of a minor. She was placed on probation with special conditions for a period of 12 months. Petitioner completed her probation early. Both of Petitioner's sons were in psychological therapy throughout high school. Until they saw each other at the final hearing in this cause, Petitioner had not seen either of her sons since she returned them to the grandmother's house on August 3, 2000. The grandmother has had legal custody of Petitioner's sons since August 7, 2000. They continue to live with their grandmother. Jeffrey, who is now 20, is a junior in college, majoring in chemistry. He also works at Marsh Landing Country Club. William, who is now 16, was, at the time of the final hearing, temporarily residing at Impact House, a juvenile detention facility, where he had been for 10 days for violation of probation. Even though Petitioner does not possess a teaching certificate, she has been employed as an ESE teacher by the Duval County Public Schools in Jacksonville since March 2007. She is assigned to middle-school exceptional student education classes. She has been re-appointed for the coming school year. Petitioner explains the marks she made on William's body by suggesting that maybe he got the bruises from playing or roughhousing with his brother or maybe his grandmother hit him with a wooden spoon. She explains the cut on William's finger by saying the belt slipped out of her hand while she was "swatting" him and fell, hitting him on the finger. It is clear that, even after eight years, Petitioner does not understand the shocking and inappropriate nature of her behavior. Further, she has still not accepted responsibility for her actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for a Florida educator's certificate, permanently barring her from re-applying in the future, and providing that the Department may refuse to consider a subsequent application from her. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 11th day of August, 2008. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202
The Issue Whether Respondent, Yvonne B. Eisenberg (Respondent), committed the violations alleged in the Amended Administrative Complaint filed on September 27, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Manatee County Public School District (School District). As such, it has the authority to regulate all personnel matters for the School District. See § 1001.32, Fla. Stat. (2012). Dr. Timothy McGonegal is the superintendent of the public schools for the School District. Dr. McGonegal has the authority to recommend suspension and/or termination of employees for alleged misconduct. At all times material to the allegations of this case, Yvonne B. Eisenberg was an employee of the School District assigned to teach profoundly mentally handicapped (PMH) students at Southeast High School. At all times material to the allegations of this case, Mr. Hall was an assistant principal at Southeast High School. Mr. Hall’s responsibilities included overseeing the exceptional student education (ESE) program at Southeast High School. Respondent’s PMH class fell within the purview of the ESE program. Ms. Toole, an ESE specialist at Southeast High School who is the ESE department chairperson, directly supervised Respondent’s class. PMH students require constant supervision and care. Respondent was assigned a full-time aide to assist her with the class. At times Respondent was assigned a second aide to help with students. Students in Respondent’s class were limited intellectually and physically. All required assistance with feeding, diaper changes, and mobility. It is undisputed that the challenges of managing Respondent’s classroom were daunting. No one disputes that Respondent’s daily work required physical and emotional strength. Cooperation between Respondent and others assigned to work in her classroom was important in order for the school day to run smoothly. Students in Respondent’s PMH class ranged in age and size. The eldest student could be 22 years old. It is undisputed that a 22-year-old might prove to be a physical burden for mobility and diaper changes. Respondent has received satisfactory performance evaluations in the past. Respondent is effective as an ESE teacher. Nevertheless, on November 12, 2010, Mr. Hall conducted a conference with Respondent to present, in writing, specific expectations for Respondent’s future job performance. Mr. Hall advised Respondent to follow the Code of Ethics and to speak civilly and professionally to staff and co-workers. On June 10, 2011, Mr. Hall gave Respondent a written reprimand for her actions during the 2010-2011 school year. More specifically, Mr. Hall cited Respondent’s failure to correct her unprofessional conduct toward staff and co-workers, and her willful neglect of duties. Among other items not pertinent here, Respondent was directed to complete sensitivity training and to promote a positive atmosphere in her classroom. Respondent denied the underlying facts that gave rise to the reprimand, but admitted to “yelling” at her aide. Speaking disrespectfully and loudly toward others was a chief component of Mr. Hall’s concern regarding Respondent’s behavior. On September 20, 2011, Respondent approached Mr. Hall at approximately 8:00 a.m. and asked to talk to him. Mr. Hall had a busy morning agenda but told Respondent he would talk to her later in the day. Respondent accepted the deferment of the talk and did not suggest an emergency situation that required more immediate attention. Later in the day, at approximately 10:30 a.m., Respondent returned to Mr. Hall’s office and asked for a meeting. In the interim between the first request for a talk and the second request, Respondent had sent Mr. Hall e-mails outlining a need for supplies, a request for input regarding an aide’s condition (whether the aide had been cleared to help lift students), and a need for gloves. Mr. Hall advised Respondent that she was not responsible for buying gloves and soap, and that those types of supplies for her students would be provided by the School District. Respondent claimed that a second aide was not needed in her classroom because she felt the two aides assigned to the PMH class were “against her.” Finally, Respondent asked about the status of any physical restrictions for a specifically named aide, Ms. Mitchell. Mr. Hall assured Respondent that the aide could lift as required by the job and had no restrictions. The meeting ended with Mr. Hall presuming he had addressed Respondent’s concerns. Mr. Hall also mentioned that Mr. Johnson, a substitute teacher at Southeast High School, could be made available to help lift Respondent’s students when needed. At approximately 1:15 p.m. the same day (September 20, 2011), Respondent approached Mr. Hall’s office with her fists clenched, her face red with anger, and yelled, “Am I going to get any help in here today?” Mr. Hall was surprised by the loud yelling and was taken aback for a moment. Since he did not understand her request he asked Respondent for a clarification. After a brief exchange, it became apparent to Mr. Hall that Respondent was upset because her students had not been changed all day and were sitting in dirty diapers. Mr. Hall maintained that Respondent had not clearly asked for assistance in changing the students during the two exchanges they had had during the school day. At that point, Respondent exited Mr. Hall’s office and slammed the door. Mr. Hall then telephoned an ESE classroom near Respondent’s room and directed Mr. Hubbard to report to Respondent’s classroom to assist her with changing the students. As Mr. Hall was completing that call, Respondent reappeared at his office and Mr. Hall asked her to step inside. At that time, Mr. Hall told Respondent she could not communicate with him as she had, that she must remain respectful and professional. Respondent then advised Mr. Hall that she was “pissed off.” Mr. Hall directed Respondent to return to his office at the end of the school day, and that Mr. Hubbard was in her classroom waiting to assist her with the diaper changes. Subsequently, Respondent told Ms. Toole that she yelled at Mr. Hall. Respondent maintains that the frustrations of her job and the events of the day supported her behavior. Moreover, Respondent asserts that her passion for the care of her students led to the emotional outburst. Respondent did not return to Mr. Hall’s office at the end of the school day. Mr. Hall reported the matter to his principal and to the District’s Office of Professional Standards. The Superintendent of schools recommended that Respondent receive a three-day suspension without pay for her conduct toward Mr. Hall and her failure to correct behaviors that had previously been identified. The requirement that Respondent show respect toward co-workers was not a new theme. Had Respondent exhibited patience and a professional demeanor, clearly articulated her need for assistance in lifting her students for diaper changes, and sought help in a timely manner (during any portion of the school day prior to 1:15 p.m.), she could have easily avoided disciplinary action. As soon as Mr. Hall was made aware of her need for lifting assistance, he directed additional help to Respondent’s classroom. Curiously, Respondent did not ask Ms. Toole, her ESE supervisor, for help.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be suspended for three days without pay. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2013. COPIES FURNISHED: Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez and Hearing P.A. 201 North Franklin Street, Suite 1600 Post Office Box 639 Tampa, Florida 33602 Melissa C. Mihok, Esquire Kelly and McKee, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Dr. David Gayler, Interim Superintendent Manatee County School Board 215 Manatee Avenue West Bradenton, Florida 34205-9069 Dr. Tony Bennett, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY 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 22d day of November, 1994.
