The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
Findings Of Fact The Respondent Myers holds teaching certificate number 329276. The Respondent's certificate is a Rank 3 covering the area of elementary education. The Respondent Myers holds a fourth annual contract as a teacher with the Dade County public schools which expires at the end of the 1983-84 school year. During the 1982-83 school year, she was employed at North Hialeah Elementary School as a second grade teacher. Allen C. Starke was the principal of that school. Mr. Starke and Ms. Myers met during the first week of the school term when Starke asked Myers to balance a student's grades, which Myers had neglected to do the previous year. A student's grade is balanced when the teacher gives a final grade balancing all four nine-week reporting period grades. The Respondent took the student' file home and notwithstanding that there was nothing in the file to warrant a failing grade, gave the student all F's. Starke requested that the Respondent regrade the project, giving the appropriate grades. The task was accomplished. The 1982-83 school year was the Respondent's third year of service with the Dade County public schools. Had her performance that year been satisfactory, she would have been eligible for continuing contract (tenure) status. As a third year teacher, she was subject to being observed in the classroom by her supervisors. Maria Pernas, the assistant principal at North Hialeah Elementary School, scheduled such an observation of the Respondent for October 5, 1982. However, when Ms. Pernas arrived in the classroom, it was in such a state of chaos and confusion that she approached the Respondent and told her that she would come back at a later date, hoping to give the Respondent the benefit of the doubt. Ms. Pernas returned to Respondent's classroom on November 2, 1982, but found the same state of affairs which she had observed on October Again she decided to give the Respondent another chance and did not officially observe her on that date. Ms. Pernas' official observation of the Respondent took place on November 18, 1982. The classroom climate was again chaotic and confused. The Respondent, however, appeared unaware of the lack of student interest or of the difficulties being encountered by her students. When students raised their hands, the Respondent either did not notice or paid no attention to them. The Respondent was attempting to conduct a reading lesson but she lacked the basic elements for implementing the same. It is an accepted technique in the teaching of reading for the teacher to physically divide the class into approximately three ability groups. The teacher then conducts approximately 20 minutes of teacher-directed lesson with one of those groups while the other groups do independent, previously assigned work. The teacher concludes with the first group, assigns them independent study, moves to the next group, etc. until the School Board mandated one consecutive hour of reading is complete and she has conducted a teacher-directed lesson with each group. The Respondent conducted no teacher-directed reading lesson and assigned no independent work. She did not have appropriate lesson plans and the class did not last the required one hour notwithstanding the fact that the Respondent was aware of this requirement. Ms. Pernas recommended several sources of help to the Respondent, including books and documents. Subsequent to this observation, Mr. Starke, Ms. Pernas and the Respondent participated in a conference-for-the-record held on November 30, 1982. The Respondent was advised to study various texts and to enroll in a course in "techniques of instruction" through the Teacher Education Center. The Teacher Education Center is an educational center mandated by the Florida Legislature. Its purpose is to provide in-service staff development courses and workshops for instructional personnel. Cathia Darling had also been called in to assist the Respondent. Ms. Darling is a teaching specialist who implements workshops for beginning teachers in the Dade County school system who may be having difficulty. On October 18, 19, and 21 1982, she had been at North Hialeah Elementary School providing teachers an update on the PREP program, a Dade County program designed to give students expanded services, both academically and physically, in the classroom. She was called back by Ms. Pernas on November 4 and 10 to go over the implementation of a reading program (RSVP) 1/ with two of the teachers at North Hialeah Elementary School who required further help. The Respondent was one of those teachers and Ms. Darling met with her for approximately one-half hour to 45 minutes at that time. Ms. Pernas observed the Respondent again on January 21, 1983. At that time she was teaching a science class and the topic was "Body Temperature." Pernas noted that the Respondent had insufficient visual aids and/or manipulative devices. Further, she did not appear to understand the substance of what she was teaching. She wrote a "102 degree Fahrenheit temperature" as "1.02." Pernas advised her that there should be no decimal point when recording such a temperature. When a student answered a question in Celsius (the student was Hispanic and accustomed to Celsius), the Respondent said the answer was wrong. Pernas suggested that the Respondent review literature regarding Fahrenheit and Celsius. She also recommended that the Respondent attend a TEC workshop in preparation and planning. The Respondent did not attend the prescribed workshop on preparation and planning, because the course was too far away from her home. Another course was offered but she did not attend that one either, stating that her sister was ill. Subsequent to Pernas' second evaluation, the Respondent told Mr. Starke that she believed Ms. Pernas was being unfair. Accordingly, Starke offered to observe the Respondent and she agreed. The observation took place on February 11, 1983. Starke found the classroom to be disorganized and confused. When he entered the classroom, the Respondent picked up a book and began to read. The children did not have their books open. They were walking about the classroom, generally entertaining themselves. They were not involved in the lesson and they were not paying any attention to the Respondent who continued to read verbatim from the book. From time to time, she would say "Sit down, sit down, can't you hear I'm reading?" The children continued to walk about. Starke felt they exhibited this behavior because they didn't know what they were supposed to be doing. After observing the classroom for a period, Starke began to check the Respondent's student folders. Teachers in the Dade County school system are required to keep folders to show samples of students' work. He found that as of February 11, 1983, no papers had been graded and placed in the folders since November 18, 1982. Starke pointed out that if the children's work had not been graded, a diagnostic, prescriptive approach to teaching could not be utilized. In short, the Respondent could not possibly have known at what level her students were functioning if she did not grade their papers. Accordingly, she could not teach them what they needed to know. Starke made several suggestions in his recommended prescription as to how the Respondent could improve her performance. He asked her to become familiar with the lesson before attempting to deliver it and he told her to read the teacher's guide and use it throughout the period as appropriate. He prescribed that in order to cut down on classroom disruption, she obtain the children's attention before attempting to introduce a lesson and that she distribute the books and other needed materials before the class activities began. He asked her to use the grade level chairperson as a resource. She was directed to report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and did not see the grade level chairperson. The Respondent was also told to correct and grade the students' papers as mandated and to place at least two graded papers per student per subject matter per week in each work folder. She did not comply with this directive, nor did she comply with Starke's repeated direction to contact the TEC to enroll in the course. At this point, Starke advised the Respondent that since her teaching performance had been unsatisfactory during that school year, he would not recommend her for continuing contract for the school year 1983-84. He did state, however, that he would recommend that she be granted a fourth year annual contract. He had not given up on her at that time and wanted to give her all the possible assistance he could. Starke observed the Respondent again on March 24, 1983. According to Starke's master schedule, the Respondent was to be teaching a reading lesson. However, when he entered the class- room, she was not teaching reading. Again, the class was chaotic. The students were unprepared for work. The Respondent herself had no lesson plans for the lesson. The students in the Respondent's class never moved into reading groups and she never gave a teacher-directed lesson to any group. Instead, she called on four students to read orally out of four different texts, each book representing an ability group. The students who were not studying a particular book derived no benefit from the reading. After 30 minutes, the Respondent asked the students to put their reading books away, and started a spelling lesson. Starke noted that she had only one grade in her record book for eight weeks of instruction. She should have had 16 or 18 or at least one grade per week per subject. Additionally, the Respondent had not graded any papers since November 18, 1982. Starke gave her another prescription telling her to have lesson plans before attempting to teach and to arrange her students into reading groups. He asked that she introduce all lessons and make sure materials were in place before instructions were given. She was told again to teach reading for 60 consecutive minutes and she was directed to grade her students' papers -- at least one grade per student per subject per week. Starke, at that point, kept eight of the folders that he had been going through in Ms. Myers' room. Subsequently, he replaced five of them, and three were introduced into evidence in this case. A review of these files indicates that when the papers were graded (prior to November 18, 1982), they were graded incorrectly. Credit was given for obvious errors. Sometimes the corrections themselves were incorrect. Corrections were written as "Not rite," or "Not finiseb." A math paper was graded A when 6 of the 15 problems were done incorrectly. Incorrect answers were marked "correct," correct answers were marked "incorrect," and some answers were not marked at all. The Respondent testified that all of the grades which appear in Exhibits 10A, B and C are marks which she did not personally put there and that she does not know who graded those papers or when. The Hearing Officer finds that the Respondent's explanation lacks credibility and that the Respondent graded the papers incorrectly. Another conference-for-the-record was held on March 30, 1983. At that time, the Respondent and Starke discussed her inadequate lesson plans. The Respondent stated, "I had lesson plans, but they did not represent what I was teaching." When questioned about not grading her students' papers, the Respondent stated that some of the papers were graded but that she didn't have time to grade them all. At that conference, Starke also noted that he had come upon the Respondent sitting with her grade book in front of her and placing grades in that book. He noted that there were no papers in front of the Respondent from which she could be recording the grades. When he inquired about it, she said that she was putting grades in the book. He asked how she could put grades in her book with no papers to copy from and she said she just knew what the children had done. Starke believed that this was impossible, considering the size of her class. Subsequently, at the conference of March 30, the Respondent said that, in fact, the grades had always been in the book but that she just hadn't seen them, and that when Starke had come upon her she was just checking students present or absent. Starke advised the Respondent that based upon her total performance, he was changing his recommendation from an extended annual contract to dismissal for cause. Notwithstanding this recommendation, Starke testified that if the Respondent had suddenly given some evidence that she was going to become a competent teacher, he would have changed his recommendation. On April 5, 1983, Mr. Starke gave the Respondent a memorandum from John N. Ranieri, the director of the Dade-Monroe Education Center, outlining numerous courses which Starke felt would be of benefit to Ms. Myers in improving her deficiencies. These were courses which he had prescribed for her and which she had not taken. John Ranieri testified that the Respondent did in fact enroll in three TEC courses during the 1982-83 school year. She enrolled in Techniques of Instruction twice and she enrolled in a class in Classroom Management. The system does not permit credit for taking a course over, therefore she did not get credit for the second time she took the Techniques of Instruction course. She did receive credit, however, for taking that course once. The Respondent failed the Classroom Management course. The records of the Teacher Education Center indicate that she did not turn in her assignments, she did not pass the test (she received the second lowest test score in a class of 90) and she was late to class three out of the four times the class met. Each time she was late over twenty minutes. The Respondent had numerous excuses for her lack of success in this class. She stated that she was late for the first class because the traffic was heavy. She stated that even though Starke had told her she could leave school 15 minutes early, her relief teacher did not show up on time and she therefore did not leave on time. She testified that she told Starke about her problem with the substitute teacher, but Starke testified that this was not so. The Respondent said that she failed the test in the course because the instructor gave her the wrong test and that when he gave her the right test, she only had 20 minutes left out of an hour class to take the test. The Hearing Officer finds this testimony by the Respondent not credible. On April 29, 1983, Cathia Darling returned to North Hialeah Elementary School to once again attempt to assist the Respondent in establishing a reading program. While Darling had been working with the Respondent in November, she had explained how to initiate the pre-testing, instruction, and, finally, post- testing. When Darling returned in April, the Respondent had still not mastered what she had been taught in November, and the process had to be started over again. Darling returned again in May to follow up, and the Respondent still had not implemented any of the testing. This testing should have been started at the beginning of the school year. At that point, Darling implemented the Respondent's testing program and charted the results. In Darling's opinion, the Respondent never implemented a reading program in her second grade classroom. In an attempt to explain her failure to implement the program, the Respondent stated that she asked for an RSVP kit four or five times but was never given one. Allen Starke testi- fied that the Respondent never asked him for any instructional materials and that he had never denied her request for an RSVP kit at any time during the 1982-83 school year, nor to his knowledge had anyone ever denied her access to the kit. Cathia Darling noted that the booklets necessary to implement the program were in the school, although they were not in Daisy Myers' classroom when Darling visited that classroom. No teacher at North Hialeah had complained to Darling about not having access to the RSVP kits or booklets. On May 5, 1983, Eneida Hartner, a school system area director who supervises 18 schools including North Hialeah Elementary School, observed the Respondent teach a reading class. Hartner was called in to observe the teacher as an objective outside observer. She noted for the record that it is always possible that an outside observer might feel that a teacher could improve her performance. Hartner observed that a significant amount of class time was wasted by students talking to each other. This occurred because they had not been given any clear direction as to what they were to do, The Respondent was not using a lesson plan nor was she using the teacher's guide for the reading lesson. She interacted with the children for a very limited amount of time when she should have worked with each group of children for 20 minutes. She was not teaching decoding skills, which she should have been teaching (decoding teaches the sound a letter makes). Ms. Hartner looked at the student folders and found that the answers in the fo1ders were not marked right or wrong. Grades were given to the students but there was no indication as to whether the answer to the question was correct. When Ms. Hartner asked the Respondent about her diagnostic/prescriptive folders (testing, teaching, testing) which every teacher is required to maintain, Myers said that she did not have any. She had no records of what the children knew or what they did not know. Hartner saw no visible evidence that any child had learned anything from the Respondent. Subsequent to her observation of the Respondent, Ms. Hartner gave Mr. Starke a prescription to be delivered to the Respondent. The prescription consisted of a group of activities having to do with self-assessment, self- analysis, making changes and trying them out in the classroom. The Respondent did not fully comply with the prescription, and Hartner testified that it was her opinion that no further remediation would he successful in making the Respondent a competent teacher. The Respondent was observed one more time during the 1982-83 school year. On June 9, 1983, Maria Pernas observed what was scheduled as a reading lesson. In fact, the Respondent was teaching writing. Pernas noted that the Respondent's plans did not match what she was teaching. She also found that the Respondent continued to be unacceptable in teaching techniques, assessment techniques and professional responsibility. Pernas testified that if she were to rank all of the teachers that she has evaluated during her years as an assistant principal, the Respondent would be in the very last place. She does not believe that the Respondent's students gained anything by being in her class during the 1982-83 school year. Allen Starke agreed with Ms. Pernas' evaluation. In fact, he felt that the Respondent's second grade students had learned so little during their year in Respondent's class that he broke the class up into smaller groups, assigning them to numerous other teachers for the third grade. He did this because he felt that the students might learn more from other students who had had a successful experience in the second grade than if they were all kept together. Starke does not believe that the Respondent should be a classroom teacher. The last witness to testify for the Petitioners was Patrick Gray, Executive Director of the Division of Personnel Control for the School Board of Dade County, Florida. He stated that having reviewed the file of the Respondent, based on his extensive experience in the field of personnel control and education, it was his judgment that she had been provided every opportunity to demonstrate competence or to become competent in an instructional capacity in the public school system, that she had failed to evidence the required standard of instructional competence and that she should therefore not be licensed to teach children by the State of Florida; neither is she competent to be employed by the school in the Dade County public school system. Dr. Gray testified that the Respondent had been ranked acceptable for her performance for the 1980-81 school year and the 1981-82 school year; however, that both of the principals who evaluated her those years noted that there were categories which required improvement. He also noted that in a letter from the Respondent's 1980-81 principal, Ms. Culver, the principal declined to testify on her behalf at this hearing. She stated that she recalled that the two areas in which the Respondent required improvement as a teacher in 1980-81 were preparation and planning and classroom management and that her reviews of the observations of Myers' teaching made during the 1982-83 school year showed that time and time again the same areas were listed as unacceptable. Ms. Culver felt that the Respondent's planning should have been greatly improved by the end of her second year of teaching. She also noted that during the 1980- 81 school year, she had released the Respondent on several occasions to observe and work with other classroom teachers who excelled in the area of classroom management. Both Ms. Culver and the assistant principal had recommended books in both areas to the Respondent. Ms. Culver observed that the Respondent had taken courses in RSVP as early as 1980-81, which she felt should have benefited her in teaching reading. Yet, the 1982-83 observations showed that the Respondent lacked competence in the area. Ms. Culver concluded that the Respondent is a fine person but, apparently, she lacks the basic skills to be a teacher.
Recommendation Based on the foregoing, it is recommended that: The teaching certificate of Respondent Daisy Myers be permanently revoked; and The suspension of the Respondent, Daisy Myers by the School Board of Dade County, Florida, be sustained, and that Respondent Myers be dismissed from employment with the School Board of Dade County, Florida, and any claim for back pay be denied. DONE and ORDERED this 11th day of January, 1985, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher, for alleged violations of various School Board rules and policies, as outlined in the Superintendent’s letter to Respondent, dated June 15, 2009.
Findings Of Fact Petitioner is the School Board of Sarasota County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools within Sarasota County, in accordance with Part II, Chapter 1001, Florida Statutes (2009). The School is a middle school operated by Petitioner. Petitioner employed Respondent, Brian Berry, as a teacher at the School for several years. Respondent taught students with ESE designation. Respondent is an “instructional employee” under the Instructional Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association (“Union”), and Petitioner (July 1, 2006 – June 30, 2009, for the 2008-2009 year)(the “Collective Bargaining Agreement”). Article XXV of the Collective Bargaining Agreement governs disciplinary actions against teachers, including Respondent. The Collective Bargaining Agreement requires there to be just cause for any discipline. Normally, the following progressive discipline steps are administered: (1) verbal reprimand; (2) written reprimand; (3) suspension and, (4) termination. Following progressive discipline is not required “in cases that constitute a real immediate danger to the district or other flagrant violations.” During the 2008-2009 school year, Respondent’s classroom was one of four classrooms arranged in a quadrant fashion around a center internal office that connects the four classrooms to each other. Respondent’s room was in the southwest quadrant. Holmes had the room in the northwest quadrant. Brooks had the room in the southeast quadrant. Like Respondent, Holmes and Brooks taught ESE students. Brooks and Respondent shared a paraprofessional, Collins. Bazenas became the School’s principal in April 2006, and has been its principal since that time. Before resorting to the progressive discipline system, School administration routinely counsel employees on an informal basis when there is a concern. Generally, the counseling occurs as a conversation between the administrator and instructor. This informal counseling is non-punitive. Administrators also use Memorandums of Instruction to clarify expectations. A Memorandum of Instruction is also non-punitive in nature; however, failing to abide by the expectation contained in a Memorandum of Instruction could warrant discipline. Respondent’s prior disciplinary history includes: Verbal Reprimand, dated December 17, 2007, for failing to monitor students. Verbal Reprimand, dated January 19, 2009, for failing to submit student attendance on 39 occasions during the 2008- 2009 school year through January 6, 2009. Written Reprimand, dated January 20, 2009, for failing to follow three separate Memorandums of Instruction concerning posting student attendance and for failing to report student attendance on January 7, 2009. Individual Education Plans During the 2008-2009 school year, Respondent was the case manager responsible for drafting Individual Education Plans (“IEPs”) for several of his students. Under federal law, IEPs must be updated at least once each year. Failing to update an IEP by the time the prior IEP becomes out of date means such IEP is out of compliance. This jeopardizes ESE funding, which comes from state and federal sources. During the 2008-2009 school year, there was an ESE liaison (Cindy Lowery) at the School who routinely and timely reminded case managers, including Respondent, of their IEP responsibilities, important deadlines, and steps necessary to be taken by the case manager. At the beginning of the school year, Lowery explained the procedures to case managers, including Respondent. Respondent received numerous reminders prior to the expiration of each IEP for which he was responsible. The expectations relating to IEP completion were clear and known to case managers, including Respondent, at all relevant times. At all times during the 2008-2009 school year prior to his being placed on administrative leave on March 17, 2009, Respondent had the ability to complete in a timely manner each IEP for which he was responsible. He also had access to all materials and assistance necessary to timely complete each of the IEPs. During school year 2008-2009, Respondent was the case manager and responsible for the IEPs of students A.M. (due 11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed 2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due 2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009); B.B. (due 3/11/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009). Reporting Attendance Teachers are required to take classroom attendance each period and timely post that attendance into the School’s computer program that tracks attendance. This expectation is contained in the School’s staff handbook, which is developed and reviewed annually by a shared-decision making team, composed of administrators, teachers, and community members. Reporting attendance each period is a safety and security matter. Reporting attendance also assists with accountability for funding purposes. During the 2008-2009 school year prior to being placed on administrative leave on March 17, 2009, Respondent failed to report attendance in at least one period on: August 20, 21, 25, 26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30; October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12, 18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19, 24; and March 3, 4, 10, 13, and 16. In all but six of those dates, Respondent failed to report attendance for multiple periods. On October 20, 2008, November 24, 2008, and January 7, 2009, administrators at the School provided Respondent with Memorandums of Instruction reminding Respondent of the need to submit attendance electronically each period. FCAT Proctoring On March 10 and 11, 2009, the FCAT was administered at the School. Respondent was assigned to proctor students who were permitted testing accommodations. Some permitted accommodations included extended testing time and having proctors read questions. Testing of these students occurred in the School’s media center. Another ESE teacher, Aisha Holmes, was also assigned to proctor similar students. Proctors were instructed that they needed to sign-in and sign-out upon entering and leaving the media center; that they could not engage in personal reading; and that they needed to actively supervise the students at all times. A preponderance of evidence supports the finding that Respondent engaged in the following activities contrary to his duties as proctor: Over the two-day proctoring session, Respondent failed to sign-in and sign-out every time that he took a break. Respondent engaged in personal reading and other non-proctoring activities when he was required to be actively proctoring the FCAT. Respondent stood over student S.L.’s shoulder for a time period exceeding two minutes. While Respondent contends that he was trying to determine if S.L. had finished, S.L. had not finished. Respondent’s actions were intimidating to S.L. On the second testing day, Respondent fell asleep on a couch in the media center for a period of time when he should have been actively proctoring. Respondent snored, causing a disturbance to the students engaged in testing activities. While the length of time Respondent slept was in dispute, the evidence demonstrates that it was considerably longer than a brief moment as advanced by Respondent. On the second day of testing, a student spilled juice on that student’s reference sheet. Respondent placed the reference sheet in the microwave but did not monitor the drying process. The microwave scorched the reference sheet, resulting in a burnt smell invading the testing area and causing another disturbance to the students engaged in testing activities. Use of Video with No Learning Objective in Place In February 2009, Respondent showed the movie “Happy Feet” to his class. He concedes that he had no learning objective in mind in showing this video. Although Respondent explained that in his opinion, no learning could be accomplished that day due to the death of a co-teacher’s fiancé, Respondent conceded that he requested no assistance in addressing this situation despite such assistance being available to him. Lesson Plans Teachers are required to prepare lesson plans at least one week in advance. Teachers are also required to have the lesson plan on their desk and available for review. The lesson plan expectations are contained in the School’s staff handbook. The lesson plans are the guiding document for instruction, which requires teachers to give forethought as to the content of their lessons. It is used by teachers to focus their lessons, by administrators to ensure content aligns with teaching objectives, and by substitutes in the absence of the teacher. It is undisputed that the School’s administration repeatedly counseled Respondent to create and have lesson plans available. Respondent failed to have lesson plans completed and available for the week of October 6, November 17, and December 15, 2008, and January 5, January 20 and February 2, 2009. February 3, 2009 Weingarten Hearing On February 3, 2009, Bazenas and Respondent met in a formal, noticed meeting to discuss Respondent’s failure to complete IEPs for Students J.G. and U.S. That meeting also addressed Respondent’s continued failure to comply with school policy on maintaining lesson plans. It is undisputed that Respondent failed to timely complete the IEPs for students J.G. and U.S., and that he failed to comply with the lesson plan requirement. March 16, 2009 Weingarten Hearing On the afternoon of Monday, March 16, 2009, Bazenas and Respondent and others met in a formal, noticed meeting to discuss: (1) Respondent’s failure to complete IEPs for students N.C. and B.B. prior to their IEPs becoming out of compliance; (2) the FCAT proctoring matters; (3) use of the video “Happy Feet” with no learning objective; (4) continued failure to comply with the lesson plan expectation; (5) tardiness on March 9, and March 10, 2009; and (6) use of the girls’ restroom.1 It is undisputed that Respondent failed to complete the IEPs for students N.C. and B.B. in a timely manner, and that he used the video “Happy Feet” with no learning objective in place. During the meeting, Bazenas presented Respondent with the summary of Holmes’ observations of Respondent’s conduct while proctoring the FCAT. Respondent conceded that he was inattentive at times during FCAT proctoring and did fall asleep for some period of time during the FCAT, although he disputes it was for 45 minutes. March 17, 2009, Confrontation On the morning of Tuesday, March 17, 2009, Respondent entered Holmes’ classroom to “discuss” Holmes’ summary of her observations of Respondent during the FCAT. A student, whom Holmes was tutoring, was present in Holmes’ room at the time. Holmes was uncomfortable with Respondent’s insistence on discussing the FCAT matter at that time in front of the student. Holmes advised Respondent that she would talk to him later. Respondent, however, persisted in continuing his challenge to Holmes’ FCAT proctoring observations in front of the student. At that point, Bazenas entered Holmes’s room. Bazenas observed that the situation was “tense” and that Holmes was backed into a corner of the room. Bazenas also observed that the student that was present looked very uncomfortable. At that point, Bazenas, in a reasonable voice, requested that Respondent return to his own classroom to supervise his students. Respondent immediately became upset and began yelling at Bazenas, telling Bazenas not to interrupt him. Respondent approached him and pointed his finger in Bazenas’ face. At that time, Collins was in Brooks’ room. Collins heard shouting coming from the direction of Holmes’ room. Collins proceeded into the center office of the quad. She observed Respondent shouting at Bazenas that he was a “liar” and that Respondent would see Bazenas “in court.” Collins did not hear Bazenas raise his voice. Collins was fearful of Respondent; she had never seen Respondent act in that way. She also testified that Bazenas looked fearful of Respondent. Respondent then proceeded into his classroom and Bazenas followed Respondent into the classroom. He put himself between Respondent and his students, permitting Collins to remove the students from Respondent’s classroom, taking them into Brooks’ classroom. Respondent continued with his emotional outburst during this time. When Bazenas requested that Respondent leave campus immediately, Respondent threatened Bazenas. Bazenas subjectively believed that Respondent’s agitated behavior and his statement to be a threat of violence. Respondent also directed inappropriate comments to his students about Bazenas during his outburst. As Collins brought Respondent’s students into Brooks’ classroom, Collins was shaking and looked very fearful. After all of Respondent’s students were in Brooks’ classroom, Brooks locked the doors. Locking the doors is an unusual occurrence; however, Respondent did leave campus voluntarily. Respondent was immediately placed on administrative leave. Shortly thereafter, a police officer went to Respondent’s house to advise Respondent to stay away from campus. Respondent complied with the request. Respondent’s outburst on March 17, 2009, constituted a real and immediate threat to the School administration, teachers and students and was a flagrant violation of school policies and the State Principles of Professional Conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating the employment of Respondent from the date Respondent was placed on unpaid leave of absence. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
Findings Of Fact The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part: The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule. Gadsden County School Board Rule 4.113, provides in pertinent part: TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . .. * * * (2) In order to meet the staffing needs of the district, it is occasionally necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part: The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . .. * * * In making transfers, the Board will first review requests of volunteers. . . .. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.) The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/ The situation was brought to the attention of the Superintendent and his staff. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs. RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of June, 1994.
Findings Of Fact The Respondent, Steven T. George, began teaching in the Bay County school system in the fall of 1977. He was employed as a physical education teacher and as a coach. The Respondent has had an exemplary record as an instructional employee of the Bay County School Board until he encountered personal problems during the 1988-89 school year. During the 1988-89 school year, he was employed as a physical education teacher and assistant football coach at Mosley High School. During that school year, his supervisor, Assistant Principal Sarah Cooper, observed his performance deteriorate unexpectedly and in a way which was out of character from his previous level of performance and demeanor. She found occasions when he was not properly supervising his class and when he had not done lesson plans, as required by the school administration. Ms. Cooper had to assist the Respondent in developing a semester examination, however, he ultimately used an examination given to him by another teacher. Thereafter, he administered the examination but did not complete the grading of it and failed to complete his grade book, which responsibility was ultimately performed by Ms. Cooper. Additionally, during the 1988-89 school year, the Respondent was observed to become increasingly isolated from other members of the faculty. His behavior became characterized by unpredictability, excessive arrogance, argumentativeness, anger and verbal aggression, which was entirely different from the personality traits which he had exhibited and which his co-workers and supervisors had observed since he had been with the school system. Indeed, female teachers in the physical education department were reluctant to be alone in the workroom with him because of the advent of these objectionable personality traits. The Respondent, during this period of time, was undergoing a divorce, or the aftermath of one, which involved a very emotional custody dispute with his former wife concerning custody of their daughter. During the 1988-89 school year, he was observed to repeatedly burden his co-workers and school administrators with the details of his personal problems and to exhibit uncharacteristic and rather severe emotional outbursts of both anger and grief. After being counseled by his supervisors concerning what they believed to be rather bizarre behavior, when measured against his prior performance and demeanor in other school years, the Respondent ultimately voluntarily admitted himself to Charter Woods, a psychiatric treatment and evaluation facility. The Respondent spent approximately 5-1/2 months in that facility, underwent treatment in response to his supervisor's advice to "get some help", and returned to Mosley High School to complete the 1988-89 school year. For the remainder of that school year, the Respondent satisfactorily assumed and carried out all of his responsibilities and performed his work as a teacher in good fashion. His temperament and demeanor had returned to that of the friendly and caring teacher and co-worker which he had formerly been before his personal problems developed. His supervisor, Ms. Cooper, gave him a satisfactory annual evaluation at the conclusion of the 1988-89 school year. The Respondent's emotional difficulties and related performance difficulties as a teacher reappeared in the 1989-90 school year. During the pre-planning phase of his teaching and coaching duties for the 1989-90 school year, in August of 1989, the Respondent was observed to be very disruptive, argumentative, and, indeed, hostile to a visiting speaker at a seminar for instructional personnel. He was observed to repeatedly interrupt the speaker with arrogant, argumentative questions and comments, during the course of which behavior he was observed to be pacing back and forth at the rear of the room where the seminar was conducted while all other attendees at the seminar were seated and listening to the speaker. This arrogant, argumentative behavior was so apparent and so inappropriate for the seminar-type setting in which it occurred that his supervisor felt it necessary to apologize to the speaker at the lunch break on that day. Additionally, during this pre-planning phase of the school year, which is before the children arrive for the school year, the Respondent was observed to have difficulties in his dealings and relationships with other coaches arising out of his increasingly arrogant, argumentative attitude and behavior. Because of this and, inferentially, because his supervisors were aware of his emotional difficulties with which they had had experience the previous school year, the decision was made to relieve him as assistant football coach at Mosley High School. A meeting was held with the Respondent, Mr. Tucker, the Principal, and Mr. Cochran, the head coach, to explain that action to the Respondent and to explain to him that he would still continue as a physical education instructor. In the course of that meeting, the Respondent became very emotional, hostile, and argumentative. He exhibited frequent angry outbursts to the extent that he would not allow Mr. Tucker or Mr. Cochran to adequately explain the basis of the personnel action directed at him. The Respondent ultimately, angrily departed from the meeting before it was completed. On that same day, he left Mosley High School without administrative permission and went to Cherry Street Elementary School on some mission related to his daughter, who was a student at that school. She had been the subject of a bitter custody dispute between the Respondent and his former wife. He is accused of interfering with the operation of Cherry Street Elementary School on that occasion, although the record does not reflect what his conduct was at Cherry Street Elementary School that day. The 1989-90 school year then commenced at Mosley High School with the arrival of the students. The Respondent assumed his regular duties as a physical education instructor. He was observed, early in that school year, on a number of occasions, to fail to control behavior of students in his gym class and to fail to be in his gym class at appropriate times which amounted to inadequate supervision of his students on those occasions. His planning for his classes was observed to become sporadic, with repeated occasions when he failed to have lesson plans prepared. Also, in the fall of the 1989-90 school year, he was observed to forget his keys to the physical education area on a number of occasions. He would, on repeated occasions, forget, from one period in a school day to the next, what he was to teach that following period. He would have to be reminded by his colleagues. He would also forget to call his students in adequate time at the end of the physical education period for them to dress for their next classes. He had to be reminded by his colleagues to do this. He would also repeatedly forget when he had extra duty, such as "door duty" and locker room assignments. His general level of cooperativeness with his colleagues declined markedly. His behavior became harsh and rude to his colleagues and to students. He was observed to be very harsh and rude to a new student coming into his physical education class and spoke loudly, in an abrasive manner to the student in front of the class, embarrassing that student. These problems occurred repetitively and in rapid succession during the first month of the school year in September of 1989. Because of the nature of the problems, the past history of the Respondent's emotional instability whereby he had lost his ability to be a caring, productive, well-performing teacher (which had been his unblemished record of behavior and performance for all the years he taught prior to the 1988-89 school year), Mr. Tucker, the Principal, felt that he had to act quickly to prevent an even worse situation occurring in the 1989-90 school year when he observed that the Respondent's emotional instability of the year before was recurring. Consequently, Mr. Tucker requested that the superintendent, Mr. Simonson, meet with the Respondent in an effort to resolve his difficulties in the matter of his perceived emotional instability and resulting declining performance. Accordingly, a meeting was held with the Respondent, Mr. Simonson, and Mr. Tucker on September 30th. At the meeting, the Respondent was confronted with the fact of his displayed emotional instability and related declining teaching performance, at which point he became very belligerent and hostile. He was, alternatively, on the verge of tears and shouting in anger. Because of the above-stated reasons for the meeting and because of the emotional instability which was so apparently displayed by the Respondent during the meeting, Mr. Simonson gave the Respondent three days of sick leave to allow him to remain at home and get some professional attention to try to regain his emotional stability before returning to the classroom. The Respondent's problems persisted, however. Although the precise date is uncertain, at approximately this time, the Respondent announced that he was going to seek election as Superintendent of the Bay County school system in opposition to Mr. Simonson. The Respondent testified himself that he elected to run for this office while he was still a teacher at Mosley High School in part, at least, to save his job because he believed that the Bay County school administration and particularly, Mr. Simonson, would be reluctant to discharge him while he was a political candidate in opposition to Mr. Simonson because of the bad impression that might make on the electorate. Shortly after he made this announcement, again on an undetermined date in the fall of 1989, the Respondent was involuntarily hospitalized pursuant to the "Baker Act", Section 394.467, Florida Statutes. Apparently, the Respondent's family members had him committed although the precise reasons are not of record. The Respondent expressed the belief at hearing that his family members had him committed because of his announcement to run for Superintendent, although that is not established to be the case. The Respondent, at the time he was committed, believed that he did not suffer from a mental condition justifying his commitment pursuant to the Baker Act. The Respondent has since come to understand that he suffered from a manic-depressive condition, also known as a "bi-polar disorder". As a result of this eventuality, Mr. Simonson determined that the Respondent should not be teaching in the school system during such a period of emotional instability. In order to be fair to the Respondent, he did not want to actually suspend him from his duties. Accordingly, Mr. Simonson elected to place the Respondent in the status known as "overused sick leave", which means that the Respondent, although he had used up all of his annual and sick leave, could still be carried on the personnel records as an employee in terms of retaining his retirement and insurance benefits, although he was not paid for the time he was absent from his duties as a result of this decision and as a result of his emotional condition. Accordingly, the Respondent was, in this fashion, removed from his instructional duties and from his job site in the fall of 1989, after his involuntary commitment, pursuant to the Baker Act. Thereafter, in the fall of 1989, the Respondent obtained treatment at the "Life Management Center" in Bay County under the care of Dr. Nellis. Dr. Nellis diagnosed the Respondent as suffering from manic-depression and prescribed Lithium to treat his manic condition. The Respondent responded well to treatment, such that Dr. Nellis, late in the fall of 1989, opined that he was fit to return to work as a teacher. The Respondent apparently accepted the fact of his illness, continued taking his medication after being released by Dr. Nellis, and was returned to his duties with the Bay County school system at Rosenwald Middle School in late January or early February of 1990. Once again, he returned to his "old self", in terms of his adequate performance as a teacher, his emotional stability, good relationships with colleagues and students, and his prior demeanor as a genuinely caring teacher. His performance for the remainder of 1990 through the end of classes in June was good. He worked for the remainder of that school year as a physical education instructor, which is the field in which he is certified as a teacher. The Respondent had also been seen by Dr. Zumarraga beginning in November of 1989, who also found him to be manic-depressive, and who informed Mr. Simonson, by letter presented to Mr. Simonson by the Respondent, that the Respondent was taking medication for his illness and had exhibited acceptable behavior. As a result of those assurances by the Respondent's psychiatrist, Mr. Simonson had allowed the Respondent to return to work at Rosenwald Middle School in approximately early February of 1990. Apparently, sometime in late spring or early summer of 1990, the Respondent had doubts that he was still suffering from his condition and consulted another physician for an additional opinion. Apparently, he quit taking his medication sometime during the summer of 1990 as a result of that consultation. In late August of 1990, the Respondent returned to Rosenwald Middle School as a physical education instructor. Ms. Love, who had been Assistant Principal at the school, had moved up to the position of Principal. In the spring of 1990, the Respondent had been quiet and cooperative, had gotten along well with colleagues and students, and had performed his duties well, after undergoing treatment and being placed on a program of medication for his manic- depressive disorder. In the fall, however, he was immediately observed by Ms. Love and others of his colleagues and supervisors to have reverted to the arrogant, abrasive and extremely assertive attitudes and behavior, which he had exhibited in the fall of 1989, prior to securing treatment. Before these attitudes and behavior had manifested themselves, however, and immediately upon the start of the 1990-91 school year, given his long and worthwhile experience in the physical education field in the county system, Ms. Love asked the Respondent if he would work on a plan for a "middle school olympics" athletic event. The Respondent agreed to do this and immediately began setting about the formulation of a plan whereby all of the middle schools in the county would participate in the olympics athletic event on a given day at Tommy Oliver Stadium. He arrived at a plan to accomplish this and drafted it in memorandum form. Instead of sharing it with Ms. Love, however, he transmitted it directly to the Superintendent, Mr. Simonson. This was a departure from appropriate procedures for the planning of such events because the Respondent did not transmit his plan to Ms. Love for her initial approval before its being communicated to supervisory personnel at the county district level. The Respondent became somewhat obsessed with the idea of planning and conducting the olympics event, devoting an inordinate amount of time and energy to it. In early September, the Respondent brought a student to the office for disciplinary reasons asserting that he had caught the student stealing or "going through the lockers". Upon questioning of the Respondent by Ms. Love, it was learned that he did not find the child in the locker room or dressing room actually invading lockers, but found him in the locker room area where he was not supposed to be. He accused the child of stealing or attempting to steal when he had not actually observed him do this. The Respondent was criticized in this action for not having actually observed the child stealing and yet accusing him of it and for having brought prior behavior of the child up in his disciplining of the child, which Ms. Love felt to be inappropriate. In fact, the Respondent had some justification for suspecting this particular child of wrongful conduct or illegal activity because of past disciplinary violations committed by the child of a similar nature. At approximately the same period of time, in early September, the Respondent was observed to have grabbed a child by the arm in the act of admonishing the child for some alleged miscreant behavior and stating that "I am going to break your little arm". Ms. Love counseled the Respondent about these two instances and gave him an "improvement notice" on September 7, 1990 concerning them. An improvement notice is a disciplinary memorandum or report to a teacher such as the Respondent by which the Principal admonishes a teacher for inappropriate behavior and directs steps for improvement of the situation which led to that criticized behavior. On September 14, 1990, Ms. Love had another formal conference with the Respondent, since she had seen his arrogant, abrasive, overly-assertive behavior with colleagues and students continuing. She discussed with him his inappropriate behavior towards students and faculty and the matter of the Respondent's disciplinary referral of a student to the guidance counselor. He had referred a student to the guidance counselor for discipline and had been overbearing and abusive to the guidance counselor in his communication with her concerning the disciplinary referral. Ms. Love counseled him about the basic procedures involved in referring students for discipline, which specifically do not involve the guidance counselor. Rather, disciplinary referrals should appropriately go to the administration of the school, as delineated in the teacher's handbook, which the Respondent had previously been provided. Additionally, Ms. Love felt that the Respondent had exhibited a pattern of not turning in required documents in a timely manner; therefore, she gave him an improvement notice for these matters dated September 28, 1990. In fact, however, it was not established by the Petitioner that the Respondent had been untimely in turning in any required documents, reports, and the like, other than one report which had been due on a Friday, when he was absent due to illness and which he promptly turned in on the following Monday. During the fall of 1990, the Respondent was observed to frequently share details of his custody dispute and problems concerning his child and problems with his wife or former wife through notes, letters and conversations with other members of the staff in an inappropriate manner. He appeared to be emotionally preoccupied with these personal problems while on duty. On the third day of school in the fall of 1990, Mr. Simonson located his office temporarily at Rosenwald Middle School. He had done the same thing at other schools in the county that were having disruptions caused by on-going construction during the fall. Rosenwald Middle School at this time was undergoing construction work, including work on its air-conditioning system, such that many of the students and teachers did not have the benefit of air- conditioning. Mr. Simonson, therefore, elected to spend a day or so at Rosenwald Middle School on a sort of "Bob Graham Work Day". Ms. Love announced that fact over the public address system during the morning announcements on that day. The Respondent came to Ms. Love's office a short time later carrying the school's daily bulletin in his hand. He seemed hostile and agitated, leaned over her desk and shook the bulletin in her face, stating to her that he wanted her to sign on the bulletin her name and the statement she had made about the reason the Superintendent was at the school on that day. He further stated to her, in effect, that he was "fixing to be fired" and that he wanted Ms. Love to admit and put in writing on the face of the morning school bulletin the real reason, as he felt it, why the Superintendent was at the school that day. Ms. Love refused to do this and considered this behavior to be bizarre and threatening, given that the Respondent obviously felt that the Superintendent had been on campus that day to "spy on him". During late September of 1990, the school embarked, at the behest of Ms. Love and other administrators and teachers, on a "school spirit week" contest. The contest involved decorating the doors of the classrooms by the students, using as themes for the decorations certain words which denoted various aspects of "school spirit". The doors were to be decorated during "trust class time". "Trust classes" are classes which meet for approximately fifteen minutes or so at the outset of the school day, somewhat analogous to what is commonly known as "homeroom classes". The students were allowed to decorate the doors during their trust class time. Ms. Love accused the Respondent of keeping students overtime in their trust class, which required them to miss part of their next class and be tardy to that class in order to decorate his room door. In fact, she gave him an "improvement notice" in the nature of a reprimand for this on September 28, 1990. It was not proven, however, that the Respondent had actually kept students late at his behest for this purpose. In fact, his testimony is that he required no students to stay in his trust class working on door decorations after the time for the trust class to be over and instructed them to obtain permission from their other teachers should they elect to stay overtime to decorate the doors. The Hearing Officer having weighed the testimony, candor and credibility of the witnesses on this issue, including the ability of the witnesses to have knowledge of the facts concerning the time and methods employed to accomplish the door decoration effort, this violation of school procedures was not proven. The door decoration contest was judged on September 28, 1990 and the Respondent's class did not win. The Respondent became very agitated and angry at this result to the point of requesting and obtaining a meeting with Ms. Love concerning it. His temper and emotions were out of control on this occasion. He behaved in a loud, abrasive, and angry manner, even to the point of alternately crying, shaking, and shouting. He accused Ms. Love of penalizing his children by denigrating their efforts in the door decoration contest in order to hurt him, claiming that her actions really were a personal vendetta against him in the course of which the children were victimized. In the midst of his emotional outburst concerning this matter, he refused to listen to any explanation which Ms. Love attempted to give him but repeatedly interrupted her efforts to explain how the contest was judged and its rules. He even attempted to call a newspaper concerning the incident. He was inordinately obsessed with the conduct of the contest and with the result. As this incident with Ms. Love was progressing, Corporal Lassiter, the school Resource Officer, observed and heard part of it. In his view, having observed the behavior of the Respondent on this occasion and being aware of the Respondent's past history, Mr. Lassiter considered the possibility of initiating an involuntary Baker Act hospitalization at that moment, because of the Respondent's behavior. During the course of this confrontation with Ms. Love, Mr. Lassiter or others persuaded the Respondent to step across the hall to a different office to calm down. After he went into the other office with Mr. Lassiter and another administrator, Mr. Barnes, the Respondent's behavior continued to be somewhat bizarre. His demeanor toward Mr. Lassiter and Mr. Barnes alternated from being very angry and upset with them to calling them, and acting toward them, as though they were good friends. At one point, he told Mr. Lassiter that when he got elected Superintendent, all would hear about this incident in the newspaper and the reasons for it all "would become very clear". He stated then that Mr. Lassiter and Mr. Barnes would have good employment positions with him when he became Superintendent. Alternatively, before making these statements and also after making these statements, he became angry and hostile to both men, saying, in essence, that they were "all against me", becoming accusatory toward them and asserting, in essence, that Mr. Lassiter, Mr. Barnes, Ms. Love, and others in the administration were seeking to do him harm. Partly at the instance of Mr. Lassiter, the Respondent finally calmed down sufficiently to accede to Mr. Lassiter's recommendation that he call a substitute to take over his classes for the remainder of the day. A substitute was called and Mr. Lassiter then escorted the Respondent to his truck in order to see that he was removed safely from the campus without further incident with colleagues or students. As the Respondent was getting into his truck, preparing to leave the campus, he told Mr. Lassiter to "tell Ms. Love that she can kiss my ass". Teachers are required to be at Rosenwald Middle School by 7:30 a.m. The first bell rings at 7:37 a.m., and the "trust class" begins at 7:45 a.m. On approximately six occasions during September of 1990, Ms. Love had to sit in on the Respondent's trust class because he was late arriving at his class. She gave him an improvement notice concerning this deficiency on September 28, 1990. Additionally, on two separate occasions, Mr. Lassiter handled the Respondent's trust classes when he was late. The next school day after the incident concerning the door decoration contest on September 28, 1990 was October 1, 1990, a Monday. The Respondent was approximately 20 minutes late to school that day. Ms. Love, being concerned about the ramifications of the behavior she had witnessed in the Respondent the preceding Friday, met with the Respondent when he arrived at school for purposes of determining his state of mind and to talk to him about his tardiness. She found him still agitated, although not as much as he had been on Friday, the 28th. He continued to accept no responsibility for those actions and for his tardiness. He denied even being late, and as a result, Ms. Love assigned the school Resource Officer, Corporal Lassiter, to accompany the Respondent whenever he had students with him for the remainder of the day. It should be pointed out, however, that on most of the occasions when the Respondent was tardy to his first class during September of 1990, it was because he did not have a key to fit his office and would have to look for another co-worker to let him in. He was given a key at the outset of the school year which did not fit. Consequently, he disposed of it, ordering another key, the provision of which to him was delayed for unknown reasons. Later that same day, the Respondent brought between 20 and 30 students to the office for being tardy to class. The procedure for handling tardies at Rosenwald Middle School is that if a child is tardy, a teacher counsels with the child at first. The parents are contacted, the child is assigned to "team detention", and a student misconduct form is forwarded to the appropriate administrator upon tardies becoming repetitive. It is unusual to bring a student to the Principal's office for tardiness. The Respondent explained when they arrived at the Principal's office that all of the students were late to class and that Ms. Love should do something about it. This was a departure from normal procedures in dealing with tardy students. It should also be pointed out, however, that the school administration had recently issued a memorandum admonishing teachers that they should deal more severely with tardy students. When this entire group of students proved to be tardy on the day in question, the Respondent volunteered, with the agreement of the other physical education teachers/coaches, to escort the students to the Principal's office for disciplinary reasons concerning their tardiness. The other teachers involved agreed. On that same occasion, on October 1, 1990, when the Respondent had the group of students waiting outside the Principal's office, he apparently had some sort of confrontation with a student named Malackai. Apparently, the student was arguing with him and denying being tardy, which was the reason he was brought to the office. The Respondent offered to wrestle the student after school and "tear him limb from limb". This action caused Mr. Lassiter to step between the Respondent and the student and to send the student to Ms. Love's office to prevent any further such confrontation. Although the student was large for his age, these actions by the Respondent intimidated the student. On that same day, the Respondent was giving a lesson in softball on the softball field. He was being observed by Mr. Lassiter at the time at the behest of Ms. Love, who was concerned about his emotional stability. During this lesson, the Respondent, for unknown reasons, began rather randomly talking about accidents, lions, the dangers of eating red meat, and some sort of discussion of suicide. When he observed a student not paying attention to him, he hit the student on the head with a clipboard. He then continued his rambling discussion. A few minutes later, the same child asked when they would be allowed to play softball; and the Respondent hit him with the clipboard again. The student got tears in his eyes and was intimidated by the Respondent's conduct. When Mr. Lassiter observed that the Respondent might be about to commit the same act for a third time, he stepped between the student and the Respondent in order to prevent this from happening again. Physical education teachers are required to supervise students by direct observation in their locker room where they dress out for physical education classes and then dress in their regular clothes again at the end of classes. This is necessary in order to prevent fights and horseplay in the locker room, which can be dangerous. On October 1, 1990, during the Respondent's period to supervise the boys' locker room, he attempted to telephone Mr. Tucker, the Principal at Mosley High School. While he was on the telephone, he left the locker room class unsupervised and was unable to observe and supervise the locker room from the location of the telephone in the coach's office. On October 2, 1990, the Respondent again left his physical education class unsupervised while he was talking on the telephone for some 15-20 minutes. During the month that the Respondent had worked with Mr. Kent in the physical education department, Mr. Kent felt that although the Respondent generally had handled his duties well, he had spent an excessive amount of time on the telephone, rather than being in his assigned area. October 2, 1990 was the Respondent's last day of employment with the Petitioner. He was suspended with pay and shortly thereafter, the School Board met and accepted the Superintendent's recommendation to suspend the Respondent without pay based upon the conduct described in the above Findings of Fact occurring in August and September of 1990. The Board took the positions that this conduct amounted to gross insubordination, willful neglect of duty, and misconduct in office. In the Amended Administrative Complaint, on which this matter proceeded to hearing, which was filed on July 30, 1991, the factual allegations of the Complaint assert that the suspension action was taken based upon "alleged gross insubordination, willful neglect of duty, and misconduct in office"; however, the Amended Complaint actually charges that the factual allegations set forth in the Amended Complaint violate Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code, concerning misconduct in office allegedly so serious as to impair the Respondent's effectiveness in the school system and charges incapacity (as a subset of incompetency) alleging violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code. Thereafter, after the suspension occurred, the Respondent was involuntarily hospitalized pursuant to the Baker Act on the day following an apparent arrest for DUI, fleeing or attempting to elude a police officer, and having a concealed firearm. The Respondent was convicted of none of these charges but, rather, pled nolo contendere to a reduced charge of reckless driving and to a misdemeanor weapons charge. Adjudication of guilt was withheld. In fact, the weapon which the Respondent had in his car was believed by him to be legally possessed since it was merely the 22 pistol with which he used blanks for training his bird dogs. The pistol happened to be on the floorboard of his car when he was arrested by the officer. The Respondent spent a short period of time at Bay Medical Center, pursuant to involuntary Baker Act commitment on this occasion. Also, in 1990, at an undetermined time in the fall, he voluntarily admitted himself to the Rivendell Psychiatric Center for approximately 2-1/2 weeks in order to receive additional evaluation because he was unsure whether he was actually manic-depressive or not. Thereafter, while still suspended from his employment, in May of 1991, the Respondent apparently had an argument with his parents at their home in Bonifay and then left their home to return to his own home in the vicinity of Panama City in Bay County, Florida. Rumors apparently were communicated to law enforcement officials to the effect that the Respondent had threatened to kill his parents and had left their home with a high-powered rifle and was journeying to Panama City to his own home. Apparently, as a result of such reports, after the Respondent was at his own home, to his surprise, law enforcement vehicles and numerous law enforcement personnel, especially the Bay County Sheriff Department Swat Team, arrived in his yard, and, by megaphone, demanded his surrender. A television news crew was present at the scene and filmed the incident, which may have received billing as an "armed confrontation" between the swat team and the Respondent. In fact, this is untrue. When the Respondent observed the law enforcement officers arriving on his premises in a number of vehicles, he telephoned his attorney to inform him of the situation and then went to the door in response to the directive that he come outside. When he went to the door to ascertain why the law enforcement officers were at his residence, he was armed with a fork and a hamburger. He was charged with no crime in connection with this incident, although, apparently, he was involuntarily committed under the Baker Act once again for a brief period of time. The incident was disseminated to the public on the electronic media. However, no armed confrontation was proven to have occurred, nor was there any proof that the Respondent ever threatened to kill his parents. Although Mr. Simonson testified that there would be a great public outcry if he reinstated the Respondent because of this incident and the other incidents, there was no showing by the Petitioner that the incidents occurring at Rosenwald Middle School leading to the Respondent's suspension nor the incidents involving the alleged high-speed chase were ever communicated to the public generally or to parents of students of the Bay County school system or the students themselves. It was not shown by the Petitioner that the Superintendent or other officials of the Petitioner received any complaints from parents or members of the general public concerning the Respondent, his behavior, or his teaching performance. The incidents involving the alleged high-speed chase and the swat team confrontation, delineated in the above Findings of Fact, did not occur while the Respondent was on school premises nor while he was engaged in his duties as a teacher or coach. With regard to either incident, he was not shown to have committed any crime or conduct which can constitute misconduct in office. Both incidents occurred in the Respondent's private life, away from his employment and away from the School Board premises. The only conduct shown to have been disseminated in the public media involved the Respondent being taken into custody at his home by the Sheriff's swat team because the television news crew was there filming the incident. He was charged with no crime on that occasion and was shown to have committed no form of reprehensible conduct. He was merely involuntarily committed shortly thereafter, pursuant to the Baker Act. None of that can constitute misconduct in office, much less misconduct in office which in any way abrogates his effectiveness as a teacher in the school system involved. The Respondent has been taking Lithium and Prozac for his manic- depressive condition since 1989. He is presently under the treatment of Dr. David Smith, a licensed psychologist; and Dr. Ben Pimentel, a licensed psychiatrist, at a facility known as the "Life Management Center", as an outpatient. Both of these professionals opined that if the Respondent continues to take his medication, the symptoms of mania and depression will remain in remission, as they are at the present time. Indeed, in the past, since he first began taking medication for his condition in 1989 after being diagnosed as manic-depressive, at those times when the Respondent was taking his medication, his behavior and his teaching performance was up to the good and satisfactory standard which he had consistently exhibited from 1977 through the 1987-88 school year. It is only on those occasions when he has ceased taking his medication, in the apparent belief that his problem was not a chronic one, that he has exhibited the emotional instability, such as that displayed at Rosenwald Middle School in August and September of 1990, which is the subject of this proceeding. Indeed, both Drs. Smith and Pimentel, the only experts testifying in this proceeding, who testified for the Respondent, established that if the Respondent continues to take his medication, his symptoms of mania and depression will remain in remission and he will be competent to teach in terms of both his emotional stability and his ability to perform his duties as a teacher. Although Dr. Smith acknowledged that the rudeness exhibited by the Respondent on the occasions at issue in this case and his behavior involving striking a student and offering to wrestle a student might be behavior unrelated to the bi-polar disorder, the totality of the evidence supports the finding that, in the Respondent's case, given the many years of his teaching experience when he was a calm, caring, competently-performing instructional employee with behavior not characterized by such outbursts and aggressiveness, such conduct is, indeed, directly related to the present, active nature of his disorder on those occasions. On those occasions, he was not taking his medication. Dr. Pimentel believes that the Respondent needs to continue his medication. If he does continue his medication, he will be competent to continue teaching or to once again teach because his symptoms will remain in remission. Dr. Pimentel believes that the Respondent may need the motivation of a court order or employment directive or condition to insure that he continues his medication because if he obtains a medical opinion that he is no longer sick, he may not take the medication and stop the treatment. Additionally, Dr. Pimentel finds that the Respondent will require monthly counselling sessions and monitoring of his medication level to make sure it remains at a therapeutic level. Under those conditions, however, he would be capable of resuming his teaching duties. The Respondent, in his testimony, expressed the wish to obtain another medical opinion to make sure, in his view, that he is still manic- depressive, although he accepts the diagnosis that he is manic-depressive and is willing to continue his medication and to submit to monthly monitoring of his medication and monthly treatment by his presently-treating professionals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Steven T. George, be suspended for a period of two years, but that the suspension be abated and the Respondent immediately reinstated to his duties as an instructional employee of the Bay County school district, with all of the rights of a tenured teacher, under the following circumstances which should remain in effect for a probationary period of two (2) years: His psychiatrist shall file monthly with the School Board a detailed report of his attendance at counselling sessions and the result of his monthly blood tests to ascertain if his medication remains at therapeutic levels. He is required to maintain the therapeutic levels of Lithium and Prozac or such medication as his physician and psychiatrist deem medically appropriate. If he fails to attend counselling sessions or to maintain therapeutic blood levels of his appropriate medication for any two (2) consecutive months, then this should be determined to be, at law, willful neglect of duty, subjecting him to dismissal as a teacher with the Bay County school district subject to the Respondent's right to contest such an employment action, pursuant to Section 120.57, Florida Statutes, in this forum. There should be no award of back pay in light of the above Findings of Fact and Conclusions of Law. There should be no award of attorney's fees in light of the above Findings of Facts and Conclusions of Law , and the opinion in Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). The cases cited by the Respondent seem to accord the Respondent a hearing opportunity on the issue, with award of fees being discretionary. The Werthman decision appears contra in termination proceedings, however. DONE AND ENTERED this 31st day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-23. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record evidence. Accepted. Accepted, except that it was not proven that he had "gone through Ms. Love's mailbox". Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 28-29. Accepted. Rejected, as not supported by preponderant, competent evidence. Rejected, as not supported by preponderant, competent evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 33-35. Accepted. 36. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 37-39. Accepted. 40. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 41-47. Accepted. 48. Rejected, as not, in its entirety, being in accordance with the preponderant, competent evidence of record. 49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 57-61. Accepted. 62. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-13. Accepted. 14. Rejected, as not supported by preponderant evidence. 15-22. Accepted. 23. Rejected, as not entirely in accordance with the preponderant evidence. 24-30. Accepted. 31-36. Accepted. 37. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant evidence. 38-41. Accepted. 42-48. Accepted. 49-51. Accepted. 52. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 53-54. Accepted. Rejected, as not in accordance with the evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not in accordance with the preponderant evidence of record. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 61-63. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 64-72. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected, as not in accordance with the preponderant evidence of record. (Second No. 74). Accepted. 75-78. Accepted. 79. Rejected in the sense that it was proven by the Petitioner that at the time he was suspended, the Respondent was incompetent to teach due to incapacity related to his emotional instability. 80-85. Accepted. COPIES FURNISHED: Jack W. Simonson, Superintendent P.O. Drawer 820 Panama City, FL 32402 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Franklin R. Harrison, Esq. HARRISON, SALE, ET AL. 304 Magnolia Avenue P.O. Drawer 1579 Panama City, FL 32401 David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A. 210 South Monroe Street P.O. Box 430 Tallahassee, FL 32302
Findings Of Fact The Respondent, Raphu Williams, presently holds Florida Teacher's Certificate Number 3436, Life Graduate State, Rank 3, and is employed in the public schools of Dade County, Florida. By way of background, Respondent was a teacher employed in the public schools during 1937 through 1942 and from 1961 to the present time. He attended Tuskegee Institute, where he received a Bachelor of Science degree. Respondent is presently certified in the fields of Auto Mechanics, Industrial Arts, Business Administration, and Guidance and Counselling. During his educational pursuit, he attended Boston University, Pittsburgh State, FAMU, Harvard, Suffolk Law School, and the University of Miami. When Respondent was re-employed as a teacher during 1961, he taught at Mays for approximately five years and returned to Booker T. Washington High School, where he was employed through school year 1970. At the end of the 1970 school year, he was transferred to Riviera Junior High School, where he remained until 1975. Throughout his career, he always taught "trainable" students. This, according to Respondent, is a student classification based on students whose IQ's range from 55 down to 30. During the 1975-76 school year, he served as an itinerant teacher receiving assignments from his supervisor, Mrs. Wylamere Marshall. Pauline A. Young, an educational specialist for Dade County for approximately eight years, met Respondent while he was employed at Riviera Junior High School. Miss Young was called upon to observe the vocational unit as a liaison from the area office; and in her opinion, Respondent's performance was inadequate. This opinion rested upon her observation that when she visited the Respondent's classroom, he was asleep. She observed the Respondent asleep on two occasions. On the first occasion, she awakened him and the second time, she browsed around his room for several minutes; and he never knew that she was there. She testified that the students were "just milling round the room -- doing nothing in particular". She testified that when she awakened the Respondent on the first occasion, he acknowledged the fact that he was asleep, and Respondent said "What can you expect? They can only do so much". The Respondent was then teaching trainable mentally-retarded students. While observing Respondent's class, Miss Young requested that Respondent show her his lesson plans, whereupon he responded that he had no lesson plans, his plans were in his head and that he had no plans for Mr. Jones, Mr. Whigham, or Mr. Turner. Respondent advised Miss Young that the "white man owed him this salary and that he was going to continue to stay on even though he made more money on other jobs and, in fact, did not need this job". Miss Young further testified that when Respondent was presented with new reading techniques, he resisted change. Respecting Respondent's classroom contact with students, Miss Young observed that Respondent opened the class by calling the class roll and thereafter, he had no structured format to conduct his class. Miss Young observed Respondent criticizing a student, Darlene Mickens' dress complaining that "she should not wear tennis shoes because she was black and further that because she was black, she need not look bad". In Miss Young's opinion, the student was neat and appropriately dressed. Finally, she testified that she never observed Respondent doing anything productive during her observation of him during his classes. Dora Whitaker Wright, an instructor employed by the Dade County School Board for approximately 21 years and presently the Assistant Principal and teacher at Richmond Heights in charge of guidance, testified that she has known the Respondent for approximately two years. During this period, she visited Respondent's classroom to observe on one occasion, and she also noted that his classroom was unsupervised on approximately three occasions. She further testified that the Respondent failed to report for duty when scheduled. On the three occasions in which Respondent left his class unsupervised, she remained with the students for approximately 15 minutes on the first occasion; approximately 20 minutes on the second occasion; and on the third occasion, the students were left unsupervised and roamed the halls without a pass. She examined Respondent's lesson plans and noted that they contained little, if any, guidance in which to advise emergency substitute teachers or administrators what the teacher (Respondent) was teaching his students. She, thereafter, gave the Respondent sample lesson plans that were submitted by other instructors as a guide to prepare his lesson plans. When Mrs. Wright advised Respondent that he would be held accountable for the return of the classroom books, he rebelled in front of students complaining that it was not his responsibility to account for books given to students. He also contested Mrs. Wright's authority stating that he, like Mrs. Wright, had a Master's degree and had taught as much as she. He further remarked that he had more teaching experience than anyone presently teaching in that school. Among other things, Mrs. Wright's duties include the proper classification and testing of "trainable students" and to ascertain that the instructors are utilizing proper teaching methods. When she discussed the "core" lesson plans systems with Respondent and the teaching guidelines that were published and approved by the school district, the Respondent objected to the use of such plans. Additionally, she testified that he refused to accept the textbooks for each student based on his position that he would not be held accountable for the textbooks under any circumstances. She testified that the School Board, although desirous of giving each student an individual textbook, instructional level, lacked the funds for such an expenditure. Respondent threatened to hurt a student (Lorenzo Richardson) if he was not removed from his class. When cautioned that the supervisor would be visiting his classroom on various days, Mrs. Wright testified that the Respondent rebelled, stating that "he would teach things the way he wanted". Respondent advised Mrs. Wright that he was hit with a soda can while he was laying his head down on his desk. She testified that during her observance of the Respondent, she noticed him playing checkers with students and offered them one dollar if they beat him in a game of checkers. Helen Gentile, the curriculum secretary, who is responsible for calling substitutes, maintaining inventory records, ordering materials and maintaining emergency lesson plans, testified that she received two complaints from substitute teachers regarding the failure of Respondent to provide adequate emergency lesson plans. She examined the Respondent's lesson plans and the only thing contained therein was "personal philosophies of what Respondent noted about each student, with no direction for course structure for students". She recalled Respondent being tardy on at least three occasions and that he failed to call to advise that he would be late. She testified that from time to time, it was necessary that she call upon instructors to cover for classes during the "free period" but that when she would ask Respondent to do this, he yelled at her, stating that it was not his responsibility to cover classes. She did, however, testify that after Respondent shouted to her, he later apologized. Zackery Lee Hagen, a 14-year-old student of Respondent for approximately two years, testified that he was struck by a desk that was pushed by Respondent. Hagan recalled incidents in which the Respondent slept in class and recalled one instance in which he awakened the Respondent by banking on his desk. He also recalled the Respondent using profanity, such as "damn" in class. Hagen testified that his reading skill level had improved under the Respondent's teaching. Jane Boyer, secretary to the principal, Lonnie Coleman, testified that the Respondent failed to follow the established policy of the School Board. Specifically, she testified that he would not timely call to advise of his absence which created hardships in locating substitute teachers. She recalled instances in which students were locked out of their classrooms and were sitting in the hall approximately eight to ten times. On the other hand, she testified that when Respondent wanted requests, he wanted an answer the very instant in which the request was made. Mrs. Boyer observed the Respondent using profanity on at least two occasions. On one occasion, she recalled the Respondent using profanity while escorting a student to Mr. Coleman's office, and the second occasion occurred during a telephone conversation with a parent. She testified that the Respondent, on the second occasion, was talking to a neighbor of a parent and wanted the neighbor to summon the student home "before he killed him". She testified that the Respondent indicated to her that the student had struck the Respondent with a book, whereupon the Respondent called the student a "little bastard". Cynthia Grace, a 13-year-old student of Respondent, also recalled instances in which the Respondent used profane language when the class was unruly. Students, Charles Gardner and Oscar Bryant, also recalled the Respondent using profanity during his teaching. Gardner also confirmed earlier testimony that the Respondent was asleep when he was struck on the head by a coca-cola can. Mitchell Watson, a student, also recalled an instance in which the Respondent fell asleep in class. He testified that the Respondent observed a fight between two students and made no attempt to control the situation or to halt the fight. Clarence H. Gilliard, an instructor and department chairman for special education at Richmond Heights, explained his difficulty in receiving emergency lesson plans and Respondent's failure to accept responsibility for textbooks. He also testified that the Respondent continuously balked when requested to follow established procedures set forth by the school board. Donald Helip, an Assistant Principal at Richmond Heights Junior High School, was called upon to try to resolve the differences which Respondent was having in following procedures. He testified that in so doing, he observed the Respondent's classroom; and on several occasions, the students were left unsupervised. When he cautioned Respondent regarding this problem, the Respondent balked. He testified that after repeated requests, Respondent ultimately turned in emergency lesson plans which were inadequate inasmuch as they only contained "philosophical statements", as opposed to directives that substitute teachers could follow during the Respondent's absence. He recalled one instance in which the Respondent reported late for work and his students had to be reassigned to another instructor. Immediately thereafter, he passed the teacher's lounge and the Respondent was there talking to another instructor. Mr. Helip counselled the Respondent about this problem whereupon the Respondent advised that "he was new and a nice guy and that he should not be used by the system". He further cautioned Mr. Helip that he should not "cross him or if he did, he would be crushed". Mr. Helip perceived these remarks as a threat. Finally, the Respondent advised Mr. Helip that he should advise what kind of flowers he liked so that he would receive them if he, in fact, got hurt. Mr. Helip also voiced his opinion that the Respondent was not an effective school board employee inasmuch as he (1) failed to report timely for work, (2) enjoyed a poor relationship with students, including sleeping while on duty, and (3) based upon his failure to follow established procedures. Lonnie C. Coleman, the principal of Richmond Heights Junior High School for approximately three years, testified that the Respondent was assigned to his school as an itinerant school teacher (surplus) during the past school year. During October, he was assigned classes. Coleman testified that Respondent repeatedly balked at assignments and due to his repeated protests, he removed him from the class due to the number and magnitude of problems he encountered from Respondent. Specifically, he testified that the Respondent averaged two to three disciplinary referrals to him daily and Respondent continuously ejected students from his class because they did not have writing paper. He testified that when this problem increased, he had to issue a directive to Respondent that students were to be kept in class despite the fact that they did not have writing paper. He testified as to the inadequacy of the Respondent's emergency lesson plans which were submitted only due to repeated requests from his department head. He testified that when the Respondent was provided a sample lesson plan as a directive in preparing his plans, the Respondent refused and based on the repeated problems from Respondent, he requested and was granted permission to remove him from the classroom. He termed the Respondent's attendance as being "spotty" and recalled an instance in which the Respondent attended a meeting away from his assigned area without permission. Based thereon, in his opinion, the Respondent's effectiveness had been reduced and should not be permitted to remain an instructor in the Dade County School System. He denied that he and respondent had any personal problems or personality clashes and, in fact, testified that when he confronted the Respondent with procedural problems and afforded the Respondent an opportunity to correct such, the Respondent failed to take any corrective action. Wylamere Marshall, area director and coordinator for the Guidance Division, testified that she offered Respondent a position in order that the could tap his resources as an employability skills teacher to work with special education students. Initially, she assigned the Respondent as an itinerant teacher and experienced problems with him reporting to duty as assigned. She indicated that the Respondent was generally irresponsible and repeatedly slept on the job. She testified that the Respondent requested and was, in fact, granted a transfer during 1975-76 to Richmond Heights Junior High School. She testified that some of the deficiencies in the Respondent's performance included his failure to plan or supervise class activities. He also permitted students to randomly select class assignments. She testified that although the Respondent had numerous shortcoming as a teacher-educator, she felt that he was an able administrator. As to her opinion of Respondent as a teacher, she testified that he was totally inefficient and was not an effective teacher in the educable mentally-retarded program (special education). Bennie Pollock, a Social Studies teacher at Richmond Heights Junior High School during the school year 1975-76 and the beginning of the school year 1976-77 and presently employed as a bargaining agent representative for United Teachers of Dade, testified that he met Respondent during his tenure at Richmond Heights Junior High School. He testified that during the fall of 1976, while the Respondent was serving as a surplus teacher, he had a conversation with Lonnie Coleman regarding the Respondent. He had been approached by the United Teachers of Dade to accept a position which he ultimately accepted around October 13, 1976. He testified that Coleman told him "Bennie, I've got a problem, they want me to take Ralphu (Respondent) in another teacher's place, who had recently resigned (Diana Hunt). I don't want the man. I am going to do everything I can to get rid of him if they make me take him." Pollock responded "We have a contract; it's not a buffet table. There are ways of doing things." He testified that Coleman indicated to him that "We might have to clash on this", whereupon Mr. Pollock replied "Make sure you've got yourself right and do it because if, you know, I'll go by the contract 100 percent." The Respondent expressed his opinion that he was not an administrator but was, rather, a teacher, a profession which motivates him. He recalled that one instructor, Diana Hunt, also had no teaching plans. He testified that, initially, he conducts an orientation in his class to determine the category in which students should be placed. He prefers individual assignments for each student, as opposed to the "core" system, wherein all students are taught around the "core". While he agreed that students are permitted to come in class a certain way, for example, wearing jeans, sneakers, etc., he wanted students to come to school looking and smelling clean before he could teach them. He also indicated that he wanted three or four instructional level texts for each student, whereas the county only gave one book to each student. He expressed his opinion that this thwarted growth and did nothing to stimulate students to read. He expressed the belief that he was being singled out because he was called in without exception to report his lateness. He recalled only one instance in which he was "tied up" and, therefore, called in late. He testified that during school year 1976-77, while assigned teaching duties, he was absent approximately four days. Respondent voiced the opinion that there was no difference in the emergency lesson plan submitted by him as compared to that of instructor Gilliard, who is also an instructor at Richmond Heights Junior High School (Respondent's Exhibit Nos. 2 and 3). Respondent was evaluated by Mr. Coleman for the school year 1975-76, at which time he received an average score of 3.8 out of a possible 5.0. See Respondent's Exhibit No. 1). Based upon the evidence adduced herein, including the conflicting testimony of the various witnesses, I find that there is sufficient substantial and competent evidence to conclude that the Respondent, on numerous occasions, failed to follow established guidelines and, therefore, ran afoul of the dictates of Chapters 232.27 and 231.09(2), (3), (4), and (6), Florida Statutes. Additionally, by striking the student with the desk, he ran afoul of Chapter 232.27, Florida Statutes, respecting corporal punishment, and he failed to follow Chapter 231.28, Florida Statutes, by his failure to follow State Board of Education Rules contained in Chapter 6B-5, which are entitled "Standards for Competent Professional Performance". Numerous witnesses testified that the Respondent was asleep in his classroom on various occasions. Chapter 231.28, Florida Statutes, provides that an educator's certificate may be revoked or suspended on several different grounds. The evidence here reveals that the Respondent repeatedly refused to follow written directives from administrators regarding corporal punishment, the filing of lesson plans, his use of abusive language during his classroom instruction, the use of threatening language to other instructors and/or administrators, and the striking of another student, apparently innocent, with a desk, and his eviction of students from his classroom constitute conduct from which sanctions should flow based on the department's rules. It is true that almost all of the student witnesses who testified indicated that their reading level had improved under the Respondent's instructions. They all consistently testified that he used abusive and profane language during class time and fell asleep during class periods. I have also considered the Respondent's contention that he is a victim of a disparity of treatment in that other teachers file similar lesson plans without criticism by administrators. However, in proving a case of disparity, it must be shown that other instructors were permitted to file plans and that they were not counselled and failed to take other corrective steps to remedy the stated deficiencies. In this regard, no such showing has been made and, therefore, the proof falls short. I shall, therefore, recommend that the Respondent be found guilty of unprofessional and unethical acts and conduct based upon testimony which revealed that he pushed and hit a student in an effort to evict a student from his classroom in violation of Subsection 232.27, Florida Statutes, and 6B5.07.1 and (4) of the Rules of the Board of Education. I shall further recommend that the Respondent be found guilty of using abusive, inappropriate, profane and threatening language, as set forth in detail above, in violation of Chapter 239.09(2), (3), (4) and (6), Florida Statutes, based on conduct set forth in detail above. In consideration of the Respondent's total dedication to the teaching profession and his educational pursuits, I shall only recommend that his teacher's certificate be suspended for a period of two years.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, I hereby recommend: That the Respondent's teacher's certificate be suspended for a period of two years. DONE and ENTERED this 22nd day of August, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 E. College Avenue Tallahassee, Florida Elizabeth J. DuFresne, Esquire 1809 Brickell Ave., Ste. 208 Miami, Florida Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32304 Tom Benton Professional Practices Council 319 West Madison Street Tallahassee, Florida
Findings Of Fact Respondent began working for Petitioner in 1966 as a teacher's aide. She became a teacher in 1974 at Olympia Heights Elementary School under the principalship of William Kennedy. Although Respondent received acceptable evaluations from Kennedy for the next several years, she frequently had problems in classroom management and in her paperwork. Kennedy admonished Respondent to utilize more voice control in giving directions and corrections to students, since she frequently yelled at the students and sometimes the yelling could be heard in the hallway and even in the principal's office. Kennedy held informal conferences with Respondent. He also directed the assistant principal, Tessa Gold, and Respondent's fellow teacher, Josie Wright, to give advice to Respondent. Additionally, he changed Respondent's grade-level assignments from fifth grade to third grade to first grade and then to kindergarten in an attempt to assist her. Respondent basically corrected her errors each year and managed to obtain a good evaluation by the end of each school year. However, each year she required more administrative input in order to be an adequate teacher. On or about October 28, 1977, Respondent struck a child with a ruler. Kennedy and Gold saw redness and ruler marks on the child's hands. Respondent admitted to Kennedy that she had struck children, and Kennedy directly ordered her never to strike a child again. Clifford Herrman became the principal of Olympia Heights Elementary School for the 1981-82 school year. Although Herrman's goal was to visit every classroom once a day, he was generally successful in visiting each classroom at least three times a week for a short visit or "walk-through" for up to five minutes. Herrman also was responsible for official evaluations of the teachers at his school. New teachers are required to have a certain number of observations. As teachers have more seniority, fewer observation are required. If a teacher was found to be unacceptable in any area, Herrman was required to reevaluate to see that the improvements that had been recommended were actually made. Therefore, every time, as will be set forth below, that Respondent was rated "unacceptable" in a long series of observations, Herrman was required to reevaluate Respondent to ascertain if the recommended improvements had been made. Accordingly, mare formal observations were performed on Respondent than on other teachers with the same seniority in order that Respondent could demonstrate improvement. Respondent was promised a kindergarten class for the 1981-82 school year by Kennedy before he was replaced as the principal by Herrman. During the preceding summer, Herrman questioned whether there would be enough students for that additional kindergarten class. He therefore notified Respondent that she would be teaching a third grade class but that if there were enough kindergarten students he would make sure she taught a kindergarten class. During the pre-planning week, Herrman ascertained that the number of students was sufficient to generate the additional kindergarten class, and he so notified Respondent. Although she had only one afternoon to get ready for her kindergarten class, Respondent was not penalized in any way for having a late start. Herrman assigned the other kindergarten teachers to assist Respondent in preparing her classroom and son plans because of the reduced time Respondent had to prepare individually. When Herrman made his first official observation of Respondent on September 14, 1981, he rated her performance as acceptable. The Balanced Curriculum is a Dade County Public Schools district policy. It mandates that certain blocks of time be committed to different areas of study. Different grade levels require different lengths of time, and certain material must be taught within those blocks of time. PREP is a program mandated by the State Legislature. The most important aspect of the PREP program is that the children receive an intense amount of individualized help. Their problems are identified early in their school careers. The intent is to identify problem areas and eliminate those areas by the use of small class size, low teacher ratio, and a lot of support in the kindergarten through third grade classrooms. When a child enters school, a test is given. Through the results of that test, the child is placed into one of the three PREP strategies. The preventative strategy means that there is an identifiable, correctable problem. A "preventative child" needs a lot of manipulatives, a lot of "hands-on" activities, and more one-to-one instruction. A "developmental child" is one who is progressing the way a child is expected to progress at that grade level. These are generally the "average" children. The "enrichment children" would include the gifted and those children who need extended activities because they finish their work early and need to be challenged. The children are charted on a PREP roster, which is a classroom chart. A teacher's plans must reflect different activities for the children on the different strategies, and the children's work folders must reflect the strategies. Dade County provides in-service training for the PREP program in the form of a 30-hour course. Respondent had received her PREP training during the first year of teaching kindergarten, probably before Thanksgiving. Dade County requires all of the schools to have children's work folders with graded, dated work. Homework is to be reflected in those folders. The work must show corrections. There is also a requirement that the grade book reflect at least one grade per week in each subject area. The next formal observation of Respondent was performed by Herrman on November 24, 1981. Respondent was found to be unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Respondent was marked unacceptable in preparation and planning because she was not following her lesson plans and was therefore off task. Her lesson plans did not reflect the specific time allocations for different subject areas as required by the Dade County Balanced Curriculum. Respondent wad unacceptable in classroom management because the students were not on task, they were noisy, and they were out of their seats. Respondent did not appear to be aware of which students were on or off task. Respondent was unacceptable in the area of techniques of instruction because she was not involving the students in a diagnostic prescriptive program, as required by Dade County policy. All of Respondent's students were given the same material and were not put into PREP strategies. This meant that the work was too difficult for some and too easy for others. Respondent therefore failed to meet the individual needs of her students, as required by Dade County policy. Additionally, Respondent's directions were not given in a clear and precise manner. Respondent was found to be unacceptable in teacher-student relationships because her verbal communication was found to be inappropriate and very negative. She used phrases such as "Shut up" and "You're acting like babies." Respondent was found to be unacceptable in maintaining a complete grade book. There were many entries in the grade book that had no indication as to what they were for and for which date. There were grades missing for some subject areas. There were not sufficient grades in the grade book to document a child's progress at the end of the nine-week grading period. The grade book is used to determine whether a student has mastered the skills according to the Dade County Public Schools Minimum Performance Standards and to document whether a child has met the requirements for promotion to the next grade. Herrman prescribed help for Respondent. He directed her to (1) follow planned lessons, (2) establish classroom procedures and require the children to follow those procedures, (3) periodically check the students to see that they remain on task, (4) give directions in a clear and precise manner, (5) date her grades, and (6) have more complete grades. He further directed that her verbal communication should be more positive. Herrman performed the next formal observation of Respondent on December 1, 1981. She was found to be unacceptable overall, and she was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, and assessment techniques. Tessa Gold, the assistant principal, was in the Respondent's classroom when this observation was made, and she is in full agreement with the observation. Respondent was found to be unacceptable in preparation and planning because her lesson plans did not reflect the Balanced Curriculum requirements. Respondent failed to ascertain whether the students' record player was working properly. The record player was on the wrong speed, and the lesson was inaudible to the children who were using headphones. Respondent was found to be unacceptable in classroom management because the children were not on task and doing their lesson. instead, they were doing other things, talking, and out of their seats. Respondent was found unacceptable in her techniques of instruction because nothing was being done to remediate the deficiencies of the children. Much of the work was at a level that was too difficult for them. The strategies were not appropriate for them, they were not on task, and they were not supervised closely. Respondent was evaluated unacceptable in her assessment techniques. There were still insufficient grades to determine a student's progress. The Teacher's Handbook for Respondent's school indicated the requirement that a minimum of one grade per week per subject area be given. Respondent had no more than five grades in any one subject area for a period of 13 weeks. Herrman prescribed help for Respondent and directed that his recommendations for improvement be implemented by December 7, 1981. He directed Respondent to show all times of day in her plan book along with individual lessons with objectives from the “balanced Curriculum. Her grade book was to show the dates and objectives. She was to monitor individual group activities to see that the children remained on task and was to limit the number of group activities so as to allow time to move from group to group to see that the students understood and were on task. She was to meet regularly with the kindergarten staff, at least twice a week, so that they could assist her in complying with the recommendations. She was advised that all grades in her grade book must be identified by date and subject and that a minimum of one grade per week per required subject area was required to be recorded in her grade book. Teacher-directed activities were to be relevant to the needs of the students, and basic skills of the Balanced Curriculum were to be taught. Respondent was to implement a classroom management system that emphasized positive interaction with students. She was to keep the office advised of the status of compliance or noncompliance with these recommendations. Respondent was next formally observed by Tessa Gold, assistant principal, on January 22, 1982. She was found to be unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Respondent was found to be unacceptable in preparation and planning because her plans were not in compliance with the Balanced Curriculum. All of the teachers in the school had received copies of the Balanced Curriculum, and there had been meetings to review that information. Respondent did not have the materials at hand which were necessary to conduct the lesson she intended to teach, and the lesson which was being taught was not listed in the lesson plan. Respondent was found to be unacceptable in the area of classroom management because the students were not attentive and were talking. Further, a group of students returned from the ESOL program (English for Speakers of Other Languages), entered the room noisily, and did not settle down. The students were not incorporated into the lesson. Other students were trying to explain to these students what to do, and that made the class even noisier. Respondent was found to be unacceptable in her techniques of instruction because the students never settled down to pay attention to the lesson that was being taught. Respondent did not use motivating factors to begin her lesson and never obtained the attention of the students. Respondent was found to be unacceptable in her teacher-student relationships. She made inappropriate comments to the students, such as "Don't bother me now. This is inappropriate because it does not build a comfortable feeling on the part of the students about coming to school. She also threatened to send a student to the principal if he did not listen, and then, when the student had to be reprimanded again, Respondent did not follow through with her threat. Gold also recommended help for Respondent. She directed Respondent to follow the time guidelines for the Balanced Curriculum and to adjust her schedule accordingly. Gold indicated that the instructional time must follow the plan book times and that all lessons taught must be written in the lesson plans. Respondent was directed to have all supplies ready and available before beginning a lesson. Respondent was directed to compliment the students who listened and to reward their positive behavior. Gold further suggested that Respondent take a workshop course in classroom management and gave her a copy of 62 Suggestions to Improve Classroom Discipline. Respondent was directed to become familiar with the Science Teacher Manual and to utilize the information therein to prepare the students. Respondent was directed to be more positive with the students and not to threaten the students unless she intended to follow through with her threat. On January 26, 1982, in an effort to aid Respondent in complying with the Balanced Curriculum, Herrman developed a lesson plan for her to use. She was instructed to follow this lesson plan and to make no changes without first discussing it with him. Herrman's next formal observation of Respondent was on February 12, 1982. She was found to be unacceptable overall and was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. Gold accompanied Herrman during this observation and concurred with his observations. Respondent was found to be unacceptable in preparation and planning because during the time that was allotted for a literature and expressive language lesson, she passed out art materials for 15 minutes. She also read a story, which was used as a time filler. She did nothing with the story to make it into a literature and expressive language lesson. She was therefore not meeting the Balanced Curriculum for language and literature on that day. Further, Respondent had not made the necessary arrangements for materials relative to the planned lesson. Respondent was also found to be unacceptable in her knowledge of the subject matter because she was not teaching the lesson in the plan book in the required manner, which entailed introducing the lesson and using some type of activity involving the students and some type of assessment. Respondent was also found to be unacceptable in classroom management because the children were very loud, and Respondent had to stop the lesson four times to quiet the students so that she could proceed. Respondent was marked unacceptable in techniques of instruction. The lesson was not appropriate, was not in compliance with the lesson plan, and did not meet the interests, needs, and abilities of the students. No interaction was taking place. Respondent was not teaching the subject listed in the lesson plans, and no directions were given by Respondent for the completion of tasks. Respondent was found unacceptable in student-teacher relationships because she used very negative communications and raised her voice almost to the scolding pitch. It was at this time that Herrman discovered Respondent had struck six children with a pointer stick. Although Respondent admitted hitting the children, she only admitted hitting four of them even though she had been previously advised by Principal Kennedy that corporal punishment was contrary to Dade County School Board policy. There is a relationship between classroom management and corporal punishment. Corporal punishment is a last-resort type of discipline for children. Respondent's repeated use of corporal punishment was a further indication that Respondent's class was out of control. Herrman made several recommendations to Respondent for improvement. He directed her to follow her lesson plans. He directed her to observe the classes of Mrs. Wright and Mrs. Peraza in order to observe their classroom management skills, and he arranged for coverage for Respondent's class so that she could observe those classes. He directed her to use motivation preceding all lessons and to encourage pupil participation and interest by discussions. He suggested that she enroll in one of the Teacher Education Center courses. He directed her to incorporate a behavior management program that stresses positives. He reiterated to respondent the fact that corporal punishment is not permitted by staff at the school and that, if punishments are deemed necessary, school board policies must not be violated. Respondent was next formally observed by Herrman on March 15, 1982. She was found unacceptable overall and was rated unacceptable in the areas of preparation and planning classroom management, techniques of instruction, assessment techniques, and teacher-student relationships. Gold accompanied Herrman during this observation and concurred with his observations. Respondent was exhibiting the same kinds of problems that were found unacceptable on previous observations. All students were receiving the same lesson. No pre- and post-assessments were done, and the needs of the individual children were not being met. Negative responses were given to students, and Respondent discouraged student expression. The lesson was not being; introduced, and the children were not given adequate instructions as to what to do. Many of the children sat with no work to do for most of the period. In an effort to help Respondent, Herrman recommended that Respondent ask students to repeat the directions. He also indicated that a positive approach to classroom management must occur to improve the teacher-student relationship. Respondent was next formally observed by Herrman on April 15, 1982. She was found to be acceptable overall; however, she was found to be unacceptable in the areas of assessment techniques and professional responsibility. Respondent was found to be unacceptable in professional responsibility because she had not implemented the directives for improvement as requested thus far and was still having trouble with certain areas She was still teaching the same lesson to the whole class. There were not enough grades recorded in her grade book. There were no recorded expressive language grades since march 10, 1982; no social studies grades since March 12, 1982; no science grades since march 10, 1982; no homework grades since February 23, 1982; and no health and safety grades since February 23, 1982. As a recommendation for improvement Respondent was again directed to record a minimum of one grade par week as per prior recommendations. Herrman next formally observed despondent on May 11, 1982. She was found to be unacceptable overall and was rated acceptable in the areas of preparation and planning, classroom management, techniques of instruction, teacher-student relationships and professional responsibility. The areas marked acceptable at this time were areas that had been marked unacceptable at various times over the year. The reason for Respondent's decline in performance since her prior observation is that she had been given a tremendous amount of support in the way of help being provided. Once she was left on her own to proceed and implement recommendations or to follow through on things that had been demonstrated, she could not do so. Her lessons again became acceptable in many areas. For example, she taught a lesson for only 10 minutes that should have taken 30 minutes. The children's individual needs were not taken into consideration in the presentation of the lessons. Classroom management became acceptable again. The children did not follow the directions, and Respondent resorted to a very negative approach in dealing with the children. There was no organization evidence in the classroom. Respondent was marked acceptable in professional responsibility because she was still not being consistent in implementing the recommendation for improvement. Herrman made recommendations for improvement and noted that all of the recommendations made had been made before and that implementation dates had been set and not met. He directed Respondent to meet these reasonable directives immediately. On the May 11, 1982, evaluation, Herrman noted that Respondent's grade book was complete and up to date. Subsequently, he discovered that the grades did not reflect the academic achievement or non-academic achievement of the students. The work was graded, but the grade was not a legitimate evaluation of the students' progress. Further, the grades were not substantiated by documentation of the students' work in the students' folders, as required by Dade County policy. At the close of Respondent's first year in the kindergarten classroom Herrman prepared an annual evaluation, which is a summary of all of the observations done during the year. While he believed that Respondent had not performed satisfactorily enough to attain an acceptable rating in most of the areas observed, he recommended her for reemployment because he was still committed to working with her in trying to improve her performance to bring it up to an acceptable level. In a memorandum to Respondent, Herrman indicated that he was still greatly concerned about her potential to implement recommendations for improvement. He stated that if improvement were not shown during the next year disciplinary action might be taken. He offered to continue to assist her in meeting the goals, but that, after one year of intensive assistance, he felt she must now assume a major portion of the responsibility. The first formal observation of Respondent during her second year of teaching kindergarten was performed by Herrman on September 13, 1982. She was found unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, assessment techniques, and professional responsibility. Some of the areas that were unacceptable previously were still unacceptable, and some of the areas where she had previously shown improvement were again unacceptable. Respondent spent more than one-half of the time intended for the lesson just getting the children ready. Ten minutes were used for passing out science books and locating page 35. The children were lacking the skills to know the number 35, and consequently they could not find the page. It took Respondent a long time to realize that the children did not know the concept They could have been introduced to it at that time, but they were not. This resulted in their being on the wrong pages, and few children, if any, could find the right page. This was not an appropriate introduction to the lesson. Additionally, children were not attentive to the lesson being taught, and they were flipping pages, talking, and out of their seats. No assessment of the lesson was done. The grade book had no recorded names or grades for any subject. Respondent was again given specific recommendations for improvement. On September 24, 1982, a conference-for-the-record was held to discuss Respondent's noncompliance with recommendations for improvement. Herrman and Barbara Porzio, the assistant principal, reviewed all areas that had been marked unacceptable on the prior evaluations. Respondent was directed to use each of these recommendations when planning, teaching, evaluating, and conducting her professional responsibilities. Herrman performed the next formal observation of Respondent on September 24, 1982. She was found unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, assessment techniques, teacher-student relationships, and professional responsibility. The same problems continued to surface: lesson plans did not reflect what was happening in the classroom; the lesson proceeded even though the children were off task; Respondent made negative comments to the students; and Respondent was still not recording grades as directed. As a recommendation for improvement, Herrman directed Respondent to review all recommendations for improvement and to incorporate them into her planning, teaching, and follow-through strategies. Respondent was next officially observed by Barbara Porzio on October 15, 1982. Respondent was found to be unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, assessment techniques, and teacher-student relationships. Earlier in the year, Porzio had passed through Respondents classroom on a daily basis and had made some unofficial observations: she noted that there was general confusion in the classroom; Respondent and the children were speaking at the same time; there was an unrest that should not have been there; and Respondent reinforced the unrest by rewarding bad behavior, i.e., giving attention to the children who were not seeking it appropriately. Respondent was rated unacceptable in preparation and planning because she ignored the workbook directions which would have been more appropriate than the directions she gave, which directions were confusing to the children. Respondent did not review with the children what a good breakfast was. The children were directed to a two-digit page number, which they had difficulty finding because they did not have knowledge of two- digit numbers. They looked at each other and thumbed through the pages until they came to the number that Respondent wanted them to have. Herrman had previously recommended that the books could have been distributed prior to the lesson and the pages marked or the books opened to the right page for these kindergarten students. Respondent was marked unacceptable in classroom management because the children were out of their seats, talking while directions were being given, talking throughout the lesson, and talking at will. Respondent was marked unacceptable in techniques of ink auction because several children clearly needed more explanation than was given. The whole class received the same lesson. Both the health lesson and the math lesson were presented to the whole class and not to smaller groups. The lesson on the square was presented in a very abstract manner. Respondent defined the word "square" by using the word "square." She did not have the children identify squares in the room and did not have them see and feel squares. Respondent was marked unacceptable in assessment techniques because there were no grades or corrections on the papers in the children's folders. The papers only had happy faces and sad faces on them. The child had no way to look at the paper and know what part of the paper was unacceptable. Finally, there were no grades in the grade book for that particular week. Respondent was marked unacceptable in teacher-student relationships. Some children monopolized Respondent's attention by calling out, talking, and/or being out of their places. There were children who were not getting the recognition they should have had. There was one problem child in the class who needed outside attention but was not referred by Respondent until March, after Respondent had complained about the student all year and after being prodded by the administration. Although Respondent got along well with the children and the children liked her, it is possible to have good rapport but still not effectively conduct a class. Children can like a teacher, but that does not mean that the teacher is necessarily relating to them in an appropriate teacher-student relationship. Respondent communicated with the children more on a personal level, and the communication of skills and learning was not done well. Porzio recommended Respondent establish classroom rules for behavior. Eye contact should be made when addressing a group, the class should be broken down into small groups, and a method for recognition, such as raising hands, must be established. Corrections on children's papers should be made in such a way that the child can identify his or her mistakes. Porzio further recommended that Respondent observe another lesson in Mrs. Wright's kindergarten class, that Porzio teach a lesson in Respondent's class, and that Porzio observe another lesson done by Respondent. The first two suggestions were rejected by Respondent. She did, however, invite Porzio back to observe another lesson. While Respondent is very artistic and her room was creatively decorated, she did not change those decorations frequently enough in order for them to be stimulating and interesting to the children. She did display some children's work, but the work remained on display for a long time. It would have been more effective to keep changing the display so that the children could be rewarded for doing well. At Herrman's request, during the months of November and December 1982, despondent was provided additional help by the PREP specialist for the south Central Area, Marcia Fulton. Herrman felt that he had exhausted the resources within his building and some outside the building, such as the Teacher Education Center, in his efforts to assist Respondent. Therefore, he contacted the area office for some other suggestions and the area office assigned a resource specialist to help Respondent. Fulton made six classroom visitations. When Fulton first arrived, Respondent did not have her PREP roster posted, nor did she have it in her planning or grade book, nor was it readily accessible. The Kindergarten tests which had been given by the counselor had the strategies marked at the top. The PREP chart had the children's names on it, but the strategies had not been filled in with the appropriate "Xs." The PREP chart is required to be completed within the first 20 days of school, so the PREP chart should certainly have been done by November. Fulton completed Respondent's PREP chart for her. Fulton determined that Respondent's lesson plans did not reflect strategies for the different children and were not in compliance with the Dade County Balanced Curriculum. Fulton further observed that Respondent did not spend the required time for math and did not teach the children according to their different strategies. They were all doing the same lesson. This was not appropriate because her PREP roster indicated that she had children in all three strategies. There was no evidence that the children had been grouped into reading groups. By testing the children, Fulton found that there was one child who was very advanced in reading, and she recommended resourcing that child to first grade for reading. Prior to Fulton's suggestion, that child's needs were not being met. The children who were resourced out for Spanish and ESOL were not getting the required subjects upon their return to Respondent's classroom. Fulton restructured Respondent's schedule to put her into compliance with the Balanced Curriculum. Fulton observed that Respondent did not prepare her materials prior to the lesson, for academic lessons and holiday activities as well, and that Respondent was still preparing her materials for Thanksgiving and Christmas activities at the beginning of the class. Only part of the class could begin work, while the rest of the class had to wait until materials were finished so that they could have some meaningful work to do. They had no other work to do in the meantime, and this caused discipline problems as well as lost instructional time. Even though Respondent cooperated and gathered some materials at the suggestion of Fulton, the kindergarten curriculum was not being implemented to the extent that a mid-year kindergarten teacher should have been implementing it. Fulton arranged for Respondent to accompany her to visit another elementary school to observe an excellent kindergarten program, but she was disappointed that the main concept which Respondent grasped from that visit was an art idea which she would try with her own students. Fulton had hoped that Respondent would gain ideas as to how to integrate and reinforce kindergarten objectives. The next formal observation of Respondent was performed by Herrman on November 30, 1982. She was found to be unacceptable overall was rated unacceptable the areas preparation and planning, classroom management, techniques of instruction, assessment techniques, teacher-student relationships, and professional responsibility. This observation was similar to prior ones: all of the students still had the same assignment; Respondent did not follow the plan in the teacher's manual, and she gave an inadequate presentation; she was not utilizing diagnostic information to meet the individual needs of the students; the lesson plans were not followed; the students did not follow directions, talked out loud, were out of their seats, and did not raise their hands after being told eight times; the children were noisy and off task; PREP strategies were not being followed; children were not given adequate introductions to lessons, and papers graded with an "N" (Needs Improvement) did not show what items were wrong. There were only two grades in the grade book for math in November, two missing grades for science and writing, no social studies grades, no health and safety grades, and no expressive language grades. Lastly, there were many negative interactions, and Respondent made few positive remarks. Dorothy Adside, the area director, formally observed Respondent on January 21, 1983, and found Respondent unacceptable overall, with "unacceptable" ratings in the areas of preparation and planning, classroom management, techniques of instruction, and assessment techniques. Respondent was unacceptable in preparation and planning because she had one lesson plan for all children. There was no evidence of any attempt to vary the instruction according to the Dade County policy for diagnostic prescriptive teaching in elementary schools. Adside suggested that Respondent carefully study the PREP tests, seat work, and class participation to determine where additional instruction was needed. Children were to be grouped according to the skills to be taught, and they were to be taught in small groups within the PREP strategies. Respondent was to include opportunities for evaluation and development of independent work habits. Respondent was to be certain that the children's independent work had been taught previously, so that they understood it well enough to work without assistance and confusion. She was to learn the parts of a lesson and the sequence for teaching it. Respondent was rated unacceptable in classroom management because the general procedures she used resulted in confusion and chaos. For example, a spelling lesson was given which was too simple for some children, about right for some, and too difficult for others. As a result, some children finished quickly and became discipline problems. Also, when Respondent was to begin the math lesson, she sent four children to get "counters" for each table without giving further instructions. When the children returned to he tables, they grabbed, dropped, scrambled for, crawled for, and played with the counters loudly. Although Respondent began teaching the lesson, she never did capture the students' attention, and order was never restored. Adside recommended that Respondent use the assistance given by the PREP specialist, Marcia Fulton. Respondent was also to implement the techniques demonstrated by the specialist and was to take a course in classroom management. Respondent was marked unacceptable in techniques of instruction because she was not teaching the children according to their interests and levels of learning. All children were given work on the same level. There was limited and inadequate opportunity for children to express their ideas. The lesson was dull, and there was no motivation for learning. Instructions in spelling and math were poorly given, thereby resulting in confusion. Children who finished their work early were given busy work to do. Respondent inappropriately had the children count from right to left, contrary to the required pre-reading skill of going from left to right. Adside also found that some seat work was too mature for kindergarten children, and the lines upon which they were to write were too close together. Respondent was found unacceptable in assessment techniques because she did not make use of the diagnostic prescriptive strategies. The PREP records were not current. There was no evidence of the use of listed sources to select instructional strategies for meeting students' needs. When Adside asked for Respondent's PREP roster, Respondent took it out of the middle of a stack of materials that was in the desk drawer. Adside recommended that Respondent use test materials and teaching strategies to assess strengths, weaknesses, and levels of learning. She suggested that Respondent study assessment data to group children according to skills missed and then to teach in either small groups or individually, as needed. She was to update her records to show the progress or lack of it. The next formal observation performed by Herrman was on March 4, 1983. Respondent was found unacceptable overall and in the areas of preparation and planning, techniques of instruction, assessment techniques, and professional responsibility. Porzio was in the room during the time that this observation was made and is in agreement with it. Respondent still had lesson plans that were incomplete and inappropriate. There was no lesson plan for development or enrichment PREP strategies for Friday. Children were not properly placed in groups. The children did not have the correct materials according to their individual needs. According to lessons and the PREP roster, students were given inappropriate assignments. Student folders contained grading errors. Herrman directed that the lesson being taught be reflected in Respondent's lesson plans. He directed that the children on the enrichment strategy have enrichment level material. He directed Respondent to involve all students in a diagnostic prescriptive program which reflected appropriate assignments. Assignments were to reflect PREP strategies. Respondent was directed to correctly grade and date all papers and was told that when an "S" or "N" was used as a grade there must be consistent indications of what is right or wrong with the paper. Herrman attached student papers to this observation form as an example for Respondent so that she could see the errors in the grading of papers in the student folders and because she insisted that she was grading papers correctly. The papers are representative of great inconsistency in grading and incorrect grading. The student papers indicated that some children received grades on a particular lesson while other students received no grade at all for the same lesson. One child received a perfect score on a paper, but his paper was completely wrong. Incomplete papers had perfect or satisfactory grades. On a paper where Respondent had marked all the correct answers, she missed some, which would indicate to the child that his answer was wrong when it was not. The grades that these children were receiving were inconsistent with their performance. On some papers, Respondent failed to indicate to the students what needed to be corrected or worked upon. There was also inconsistency in grading symbols. On some papers, a checkmark meant "correct," while on others it indicated a wrong response. There were indications of busy work in the folders. Some papers indicated that the children were given written work to do on unlined paper, which is inappropriate for kindergarten children who need to develop their motor skills. Some of the student papers did not have dates on them. Dates are needed to substantiate grades that are given for a particular marking period. The work folders indicated that "Erika" was working with the developmental group, even though she is listed on Respondent's PREP roster as an "enrichment" child. During the school year, Respondent had changes Erika's PREP strategy from enrichment to developmental and had documented that in her lesson plan book; however, Respondent admitted that she did not change the level on her PREP roster. Previously, Respondent had told Herrman that she worked directly from her PREP roster. While it is acceptable for a teacher to use teacher judgment to change the strategies of children, there must be appropriate documentation. If the PREP roster reflects that the teacher has enrichment children, there must be a different kind of activity going on in the classroom for those children. Respondent was suspended from employment on March 16, 1983, and Respondent's class was taught by a substitute teacher for the remainder of that school year. Under the substitute teacher, there was a great change in the classroom. The children were working on task. Even a child who was a hyperactive discipline problem was working on task--not perfectly, but on task. The disruptions to the teacher were almost totally dismissed by her organization methods. There was a change in atmosphere in the room, and the curriculum was implemented by the new teacher. The substitute had to be given a lot of help by Porzio because of the state the classroom was in upon Respondent's suspension. The papers that were found in the children's folders had grades on them, but they were not graded correctly. The grades did not match the work on the paper, and therefore the grade book was not representative of the children's achievement. The children had to be organized into groups. Some of the children were given assignments that they had been given earlier in the year; since they had not received the basic skills, the substitute was required to go back to fill in these deficiencies. Some of the lessons which had been given earlier may not have been appropriate for the children at the time they were given, and therefore the children were given some of the same assignments over again because they were more appropriate to what the children were now doing. During the 1981-82 and the 1982-83 school years, Respondent was unable or unwilling to communicate with and relate to the children in her classroom to such an extent that those children were deprived of minimum educational experience. Respondent is incompetent to teach and to perform her duties as an employee of the Dade County Public School system. Respondent has been either unwilling or unable to implement the directives given to her by her superiors for attaining acceptable teaching methods and procedures and for complying with the Policies of the School Board of Dade County. The prescriptions given to Respondent by Kennedy, Herrman, Gold, Porzio, and Adside are not merely suggestions but rather are mandates. Further, those prescriptions were reasonable and given by persons with proper authority. A continual noncompliance with repeated Prescriptions and a continual, or at least repeated, failure to comply with school board policies constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Specific Notice of Charges filed against her, affirming the suspension of Respondent from employment, dismissing Respondent from her employment as a teacher with the School Board of Dade County, Florida, and denying Respondent's claim for back pay. DONE and RECOMMENDED this 6th day of February, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1984. COPIES FURNISHED: Madelyn P. Schere, Esquire 1410 Northeast Second Avenue, Suite 200 Miami, Florida 33132 Patricia Williams, Esquire 18583 Northwest 27th Avenue Miami, Florida 33056 Dr. Leonard Brittonp Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue Whether Respondent should be dismissed from her employment as a teacher in the Orange County Public Schools based on charges of incompetency and gross insubordination, as set forth in the letter of L. Linton Deck, Jr., dated August 16, 1977.
Findings Of Fact Respondent Ethel R. Jones has been an elementary school teacher for twelve years. She taught a year in Georgia before obtaining her degree in commercial education at Bethune-Cookman College at Daytona Beach, Florida, in 1960. After teaching for one year at Hungerford Elementary School in Eatonville, Orange County, Florida, in 1963, she pursued further studies and received her certification in elementary education. After teaching several years in various Orange County and Highlands County public schools, she became employed at Ocoee Elementary School, Ocoee, Florida, in 1970 and taught there for seven years through the 1976-77 school year. She was on annual contract for the first four years and then was granted a continuing contract the following year. She taught a sixth-grade class her first year at Ocoee and then became a fourth-grade teacher until the 1976-77 year when she again instructed a class of approximately 31 sixth-grade pupils. (Testimony of Respondent) Respondent served under three principals at Ocoee from 1972 to 1977. School records reflect that from 1973 two of the principals each rendered two annual performance reports on respondent termed "Assessment of Instruction." During the first year of each of these periods, the principals noted that respondent needed improvement in maintaining good rapport with students, parents and co-workers. During the second year of each period, each principal rated the respondent satisfactory in all respects. The third principal, Maxie Cinnamon, assumed her duties at Ocoee during the 1976-77 school year. (Petitioner's Composite Exhibit 1) During the first month of the school year, Principal Cinnamon received approximately twelve-complaints about the respondent from parents of children in her class. Most of these complaints dealt with apprehensions concerning respondent's teaching ability based on her prior performance with fourth-grade students. As a result, Cinnamon visited the respondent's classroom on September 9, 1976, and observed class instruction for several hours. She noted a number of deficiencies in the quality of respondent's teaching. These included unfamiliarity with the definitions of common words, inadequate preparation and lesson plans, inappropriate grouping of students and poor communication with students. These observations were set forth in great detail in a written document, dated September 14, 1976, which was provided to respondent as recommendations for improvement. Additionally, an unofficial "Assessment of Instruction" was rendered by the principal that indicated need for improvement in various areas. (Testimony of Cinnamon, Petitioner's Composite Exhibits 1, 7) During the course of the school year, the principal continued to receive complaints from parents and requests that their children be transferred from respondent's class. These complaints included reports that respondent was an inadequate teacher and that her disciplinary methods were inappropriate. In addition, no improvement in the previously-noted areas of deficiency had been observed by the principal. A number of conferences between Cinnamon and the respondent transpired in the fall of 1976 in an attempt to resolve these continuing problems, but achieved little or no success. Cinnamon directed a number of memorandums to respondent pointing out problem areas and suggesting remedial steps. She also suggested special courses and seminars that respondent could attend to improve her classroom instruction and to achieve a better relationship with parents and students. The respondent referred students to the principal's office on disciplinary matters some 35 times during the school year. For the most part, these referrals involved male students who were low achievers and either disrupted the classroom or failed to complete lesson assignments. (Testimony of Cinnamon, Respondent, Petitioner's Exhibits 8,9, 11-14) In December, 1976, Principal Cinnamon requested the Professional Practice Council of the State Department of Education to make a professional reviewer available to observe respondent's classroom performance and provide any necessary suggestions or recommendations for improvement. Thereafter, on January 31 and February 1, 1977, Mrs. Gretchen M. Olcott, a classroom teacher from Pinellas County, was sent to Ocoee Elementary School and conducted a "remediation review" concerning respondent. She rendered a report of her observations which was furnished to the respondent on March 11, 1977. The report contained many critical remarks concerning the quality of respondent's teaching ability and included detailed recommendations and suggestions for improvement. Most of Olcott's observations paralleled closely the previous deficiencies noted by Cinnamon and dealt primarily with inadequate lesson plans, lack of organization, poor student behavior patterns, lack of effective use of teaching materials and equipment, and the need to establish clear objectives and long-range goals. Also on March 11, Cinnamon wrote a letter to the respondent again listing her deficiencies and providing recommendations in that regard. The letter informed the respondent that unless she showed substantial improvement in all the noted areas by May 1, 1977, it would be necessary that she be recommended for dismissal to the Superintendent of the Orange County Schools. (Testimony of Cinnamon, Petitioner's Exhibits 3-5) During the ensuing weeks, Cinnamon was of the opinion that respondent had not materially improved her shortcomings despite efforts to assist her. At a conference in March, she told respondent that if she made no substantial improvement by May 23, she would recommend dismissal. She also requested that another reviewer be provided by the Professional Practices Council. Mr. Richard Svirskas visited respondent's classroom from May 11 to 13, 1977, for the Professional Practices Council. His report was similar to that of the previous reviewer and it concluded that respondent was far below average in ability in comparison with the majority of teachers known to the reviewer. (Testimony of Cinnamon, Petitioner's Exhibit 6) As a result of the reviewers' reports and respondent's failure to show improvement, Principal Cinnamon, on June 7, 1977, recommended to the Superintendent of Orange County public schools that she be dismissed from employment. Based on this recommendation, the Superintendent, by letter of August 16, 1977, charged the respondent with 14 areas of incompetency and three instances of gross insubordination. On August 18, 1977, the Superintendent recommended to the School Board of Orange County that respondent be suspended without pay pending a hearing on the charges if requested. The school board approved the recommendation and suspended the respondent without pay. Respondent thereafter requested a hearing in the matter. (Testimony of Cinnamon, Case File) Respondent testified as a witness and maintained that she had received no support during the year from the school administration and that she could not please Principal Cinnamon in any respect. She feels that she was the victim of a conspiracy between Cinnamon and parents of her students, and that the independent reviewers sent to assess her classroom performance were "against" her because they had met with Cinnamon in private during their visit. The respondent further implied that Cinnamon had a dislike for her because she was the only black teacher in the intermediate level. No black students were enrolled at Ocoee Elementary School during the 1976-77 school year, but there were five black teachers including the respondent. The respondent further claimed that she had done her utmost to follow the recommendations for improvement made to her by Cinnamon and the reviewers, but that she received no assistance from the administration in this regard. Further, she claimed that she was unable to enroll in certain reading, student discipline, and teacher effectiveness courses for various reasons; however, she did take a mathematics course at her own expense and attended several seminars. Although Cinnamon had testified that she had instructed respondent not to set up learning centers in her classroom because of her lack of organizational ability, the respondent denied that she was given such instructions. She testified that she established this system of instruction because Cinnamon had recommended it to her. She also denied that she had placed children in the halls for disciplinary reasons, or deliberately omitted to teach reading and math on each school day, contrary to instructions, as claimed by Cinnamon. (Testimony of Jones, Cinnamon) Based on the evidence presented at the hearing, it is found that during the 1976-77 school year: Respondent failed to make adequate plans and set definite objectives for her class- room instruction. Respondent failed to provide learning situations consistent with students' abilities. Respondent failed to exhibit adequate command of the subject matter that she taught. Respondent failed to communicate clearly and effectively with the students. Respondent failed to control the class so that a positive learning environment was created and maintained. Respondent failed to adequately pursue her professional growth and to seek ways of correcting identified deficiencies. It is further found that there is insufficient evidence to establish that the respondent committed the following alleged acts of gross insubordination: Suspended children from class by placing them in the hall and otherwise leaving them unsupervised after being specifically told not to do so. Failed to teach reading and math on each school day as specifically instructed to do. Failed and refused to maintain and utilize a plan book as instructed by the principal. It is further found that insufficient evidence was presented to establish that the respondent was a victim of a conspiracy by the principal of Ocoee Elementary School or anyone else, or that any racial discrimination was practiced against her.
Recommendation That respondent Ethel R. Jones be dismissed from employment by the School Board of Orange County, Florida, for incompetency, pursuant to Section 231.36(6), Florida Statutes. Done and Entered this 5th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Howard W. Cooper, Esquire 101 South Lake Avenue Orlando, Florida 32801 John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801
The Issue Whether just cause exists to terminate Respondent from her employment with the Sarasota County School Board.
Findings Of Fact GENERAL BACKGROUND Petitioner is responsible for operating the public schools in the Sarasota County School District and for hiring, firing, and overseeing both instructional employees and non- instructional “educational support” employees within Sarasota County, Florida. At all times pertinent to this case, Respondent was employed by the Sarasota Board as a teacher at Booker. Respondent holds a multi-grade integrated teaching certificate, which allows her to teach middle school through ninth grade students. Respondent taught high school level algebra during the 2012-2013 and 2013-2014 school years, and social studies during the 2014-2015 and 2015-2016 school years at Booker. Booker is a Title I public school which has approximately 800 to 900 students, and 60 to 80 instructional personnel. Ms. Frost is now the principal at Booker, having previously served as one of its assistant principals. At the beginning of each school year, teachers report one week prior to the students (planning week). During planning week, teachers are reminded of the school’s expectations for the coming year, they develop lesson plans for the coming year, they set up their individual classrooms, and they are provided additional professional development. Booker’s administrators set high standards for their teachers and students. The pertinent parts of the performance responsibilities within the job description for instructional teachers are as follows: *10) Establish and maintain effective and efficient record keeping procedures.7/ * * * *(13) Participate in the development and implementation of IEP’s, EP’s & 504 Plans for exceptional education students, as appropriate. * * * *(15) Interpret data for diagnosis, instructional planning and program evaluation. * * * *(21) Apply appropriate instructional modification for students with special needs. * * * *(27) Communicate effectively, both orally and in writing, with other professionals, students, parents and the community. * * * *(35) Prepare all required reports and maintain all appropriate records. There was no dispute that a collective bargaining agreement (“CBA”) existed between the School Board and the Sarasota Classified/Teachers Association (SC/TA). Article XIX of the CBA references the evaluation of students. The pertinent part of Article XIX includes: Teachers shall maintain the responsibility to determine grades and other evaluations of students within the terms of the grading regulations of the Sarasota County School system. Ms. Frost believes that every child deserves a “high quality education” and she looks for highly effective teachers to ensure they are providing quality education for all Booker’s students. Ms. Frost maintains that “regardless of what the socioeconomic situation might be for [the] children, they deserve to be educated, obtain a college- and career-readiness education.” Booker teachers are expected and required to teach the Florida standards, which are “much more rigorous standards than” before. These standards require “teachers to be more deliberate about their planning, . . . classroom procedures, and instructions” and develop a student-centered classroom. A Weingarten hearing (Weingarten) is conducted as a fact-finding meeting where an employee is asked to attend and answer questions about whatever situation is being investigated. The employee may appear with or without representation. Based on the facts obtained during a Weingarten hearing and the investigation, a determination is made whether any disciplinary action is necessary. A Professional Learning Community (PLC),8/ is composed of all teachers in a specific grade level and subject area. During a PLC meeting, its members may discuss lesson planning, joint tests or assessments for each unit, goals, and students’ accomplishments. The PLC leader (or one of its members) is required to document attendance and the content of the discussions to Booker’s administrator. The PLC meeting times are established during the planning week at Booker and attendance is required. In the event a teacher is off-campus during the regularly scheduled PLC meeting time, their absence may be excused. The Student Information System (SIS) maintains students’ schedules, contact information for students and their parents or guardians, and other pertinent student information. The SIS is controlled through user name and password protection, and all the information contained in the SIS is not available to teachers. Gradebook is an electronic system by which teachers are to input students’ grades (assignments, projects, tests and exams) on a regular basis. Parents can access their student’s grades via the internet (including a telephone application) to monitor the student’s progress in each class. Booker’s expectation is that grades will be inputted on a regular basis, preferably within a week of the completion of the assignment or test. Once all the grades are entered, Gradebook calculates mid- term or final grades for the students. During the planning week teachers are provided time to set up their Gradebook, and a standardized schedule of when the mid-quarter and quarter grades are to be completed. The teachers are reminded of these deadlines throughout the year. If a teacher fails to enter the mid-quarter or quarter grades by the stated deadline, the system locks the teacher out, and the grades must be handwritten. Additionally, Gradebook is used by Booker (and other schools) to take student attendance. Taking attendance in the first five days of each school year is critical because those attendance numbers are used to determine the appropriate funding for Booker (and other schools in the school system). In order to access Gradebook, each teacher is assigned a confidential “A” number and password. Grades are to be entered by teachers, not paraprofessionals or volunteers. When there are two teachers in a classroom, such as the inclusion room at Booker, the main teacher is responsible for inputting the grades. Each night, information from the Gradebook (the grades posted that day) is uploaded to the SIS. A performance improvement plan (PIP) is basically an action plan to assist an underachieving teacher to succeed. The administrator who supervises the teacher provides coaching and criticism in an effort to improve the teacher’s performance. The CBA provided for progressive discipline. Turning to Article XXV of the CBA, entitled “Disciplinary Actions,” the pertinent parts state: Scope of Article This article covers actions involving oral or written warnings, written reprimand, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. Disciplinary action may not be taken against a teacher except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. All facts pertaining to a disciplinary action shall be developed as promptly as possible. Actions under this Article shall be promptly initiated after all the facts have been made known to the official responsible for taking the action. * * * A teacher against whom disciplinary action is to be taken may appeal the proposed action through the grievance procedure. A teacher against whom action is to be taken under this Article shall have the right to review all of the information relied upon to support the proposed action and shall be given a copy upon request. The Union shall be provided with a copy of all correspondents that is related to the action of the teacher the Union is representing. The teacher and his/her representative shall be afforded a reasonable amount of time to prepare and present appropriate responses to the proposed actions under this Article, through Step One of the Grievance Process. This amount of time is to be mutually agreed upon by the parties. * * * Previous charges or actions that have been brought forth by the administrative may be cited against the teacher if these previous acts are reasonably related to the existing charge. All previous charges or actions must have been shared with the teacher. The discipline, dismissal, demotion, and suspension of any teacher shall be for just cause. Where just cause warrants such action(s), a teacher may be demoted, suspended, or dismissed upon recommendation of the immediate supervisor to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the district or other flagrant violation, progressive discipline shall be administered as follows: Verbal reprimand. (Written notation placed in site file.) Written reprimand filed in personnel and site files. Suspension with or without pay. Dismissal. * * * K. During the pendency of an investigation into an allegation of wrongdoing on the part of a teacher, the teacher may be temporarily reassigned only if the charges, if proven to be true, could lead to the teacher’s termination or suspension or if the teacher’s conduct poses a threat to any individual’s safety. Booker’s administrators Frost, Dorn, and Jenkins, corroborated the collaborative or triangulation leadership style they utilized at Booker. If one administrator learned of a situation, all three administrators were involved in the investigation and determination of any necessary corrective measures. All three Booker administrators try to coach underperforming teachers through informal counseling or verbal assistance, and memoranda of instructions, both of which are not considered disciplinary actions. In most instances, when a teacher is apprised of a concern, the verbal assistance is sufficient to correct the concern. When the verbal assistance or memoranda of instructions are ineffective, the administrators use progressive discipline. Respondent was verbally counseled at different times by AP Dorn and AP Jenkins of the need to take attendance and/or timely input grades. In October 2012 and February 2014, Respondent received a Memorandum of Instruction from AP Jenkins. The October memo highlighted the need for Respondent to take attendance each day, “within the first fifteen minutes” for each class. The February memo advised Respondent to enter her grades “weekly for parents to access and monitor.” DISCIPLINE AT ISSUE A Memorandum of Understanding (MOU or agreement), dated October 29, 2015, was executed by Respondent, Barry Dubin, executive director of the SC/TA, and Deputy Superintendent Lempe. This MOU resolved three outstanding disciplinary actions (one recommendation for a suspension, and two recommendations for employment termination) against Respondent. The contents of the MOU provided: With regard to the grievance filed on behalf of Ms. Judy Conover a Teacher currently assigned to Booker Middle School, the undersigned parties do hereby agree to the following terms: The Board agrees to withdraw its two termination actions pending against Ms. Conover. Ms. Conover agrees to serve a three (3) day unpaid suspension. Should Ms. Conover fail to execute this Memorandum and elect to challenge the proposed suspension, this suspension will be withdrawn and the matter to be decided by either an arbitrator or DOAH hearing officer will be the matter of all pending discipline including the two pending terminations. Ms. Conover agrees to remain on assistance (PIP) until such time as her teacher Evaluation Score is within the Effective range.[9/] The parties agree that by executing this Memorandum, this brings all matters pertaining to presently proposed disciplinary actions and grievances to a close. Ms. Conover understands that the next step of progressive discipline called for under the terms of the Instructional Bargaining Unit Agreement should there be a further transgression of the rules could be termination of her employment. Prior to her executing the MOU, Respondent returned to Booker for the 2015-2016 school year as a social studies teacher. Principal Frost welcomed her back to school during the teacher’s planning week in mid-August 2015. Principal Frost continued to supervise Respondent’s PIP progress.10/ Shortly after the students returned for 2015-2016 school year, AP Dorn reminded Respondent to take attendance. In mid-September 2015, while conducting a random review of grades, AP Dorn emailed Respondent about the lack of grades for all of her classes, and that her Gradebook had not been set up. In that email, AP Dorn asked Respondent to see him. Respondent did not do so. Just before the mid-quarter grade deadline, Respondent input grades back to August 28, 2015, the end of the first week of classes. Respondent was notified of a Weingarten meeting scheduled for September 30, 2015. Based meeting was rescheduled for and held on November 9, 2015. During the Weingarten meeting, Respondent did not recall receiving or responding to AP Dorn’s email about her grades and gradebook. Respondent acknowledged her understanding of “the need to get in grades” and that the administration had previously spoken with her about entering grades. However, Respondent did not furnish any facts other than non-answers. A second Weingarten meeting was also held on November 9, 2015. The second Weingarten meeting sought information about Respondent sharing her “A” number and password with a paraprofessional who worked with her. Respondent admitted that she gave her “A” number and password to the paraprofessional, who then input grades into Gradebook. Respondent served the agreed three-day suspension in December 2015. On February 22, 2016, Superintendent White issued a certified letter to Respondent. This letter provided that Respondent had been: [I]nsubordinate in performing your assigned duties as they relate to accurately recording and the placing of student grades in the student information system. [W]e have concluded you have committed the following offenses among others: misconduct in office, willful neglect of duties and incompetency. Therefore, . . . I have just cause to terminate your employment with the Sarasota County School Board. This February letter was the result of the two Weingarten hearings that were held on November 9, 2015. On March 8, 2016, the regularly scheduled PLC meeting for the 6th grade social studies teachers was held. Respondent did not attend the meeting. Although Respondent was on campus that day, and initially told the PLC leader that she would be late, she did not attend. Respondent was notified of a Weingarten meeting scheduled for March 24, 2016. This meeting was rescheduled to April 6, 2016, to accommodate Respondent’s request for representation to be present. The meeting was rescheduled again and held on April 12, 2016. The Weingarten meeting was to determine whether Respondent attended the March 8 PLC meeting, her reason(s) for missing the PLC meeting, and what Respondent may have discussed with her PLC members regarding how administration determined Respondent was not at that PLC meeting. Prior to attending the Weingarten meeting, Respondent telephoned her PLC leader, Ms. Scherzer, and asked who had informed the administration of Respondent’s absence from the PLC meeting. Ms. Scherzer sensed that Respondent was upset that the administration knew Respondent had missed the meeting. Respondent’s demeanor was less than cordial toward Ms. Scherzer. Of the 16 questions posed to her during the April 12 Weingarten meeting, Respondent answered three: 1) her current position; 2) her duty day at Booker; and 3) her knowledge that there was a PLC meeting on March 8, 2016. The remaining Weingarten questions provided Respondent with the opportunity to explain her PLC absence, yet she declined to answer the questions, except to say she didn’t feel comfortable answering them without representation. There was no testimony that she advised Booker’s administration at that time, that she was represented by a representative or an attorney. Respondent’s testimony that she was upset that her paraprofessional had been called to the front office, and that no one bothered to question Respondent about her absence from the PLC meeting, is not accurate. Respondent was afforded the opportunity to provide answers and choose not to do so. On April 26, 2016, Superintendent White issued another certified letter to Respondent. This letter provided that Respondent had been: [I]nsubordinate in performing your assigned duties and exercising professional judgement and integrity. [W]e have concluded you have committed the following offenses among others: misconduct in office, willful neglect of duties and incompetency. Therefore, . . . I have just cause to terminate your employment with the Sarasota County School Board. This April letter was the result of the Weingarten hearing that was held on April 12, 2016. Deputy Superintendent Lempe’s job is to run the business operation of Petitioner and he is involved with the grievance process as the “formal level one grievance authority.” He was directly involved with the MOU negotiations, and drafting of the “last chance agreement.” As outlined in the CBA, Petitioner utilizes a four-step progressive discipline structure. One of Deputy Superintendent Lempe’s duties involves the grievance process as the “formal level one grievance authority.” He was directly involved with the MOU negotiations, drafting of the last chance agreement, and referred to this last chance agreement “as step five in our four- step progressive disciplinary [sic] process.” At the hearing, Respondent again acknowledged her understanding of the MOU provision: “that the next step of progressive discipline called for under the terms of the Instructional Bargaining Unit Agreement should there be a further transgression of the rules could be termination of her employment.” RESPONDENT’S PRIOR DISCIPLINARY HISTORY There was ample testimonial and documentary evidence presented regarding Respondent’s disciplinary history. The following is a summary of the evidence regarding Respondent’s disciplinary history: February 24, 2014: Respondent was given a verbal reprimand11/ for her use of disparaging comments and behaviors toward students in her class. Respondent did not grieve this action. April 8, 2014: Respondent was given a written reprimand12/ for an incident that affected Booker’s FTE (full-time employees) survey, which directly related to Booker’s funding for employees, and another colleague’s VAMS (value added model system) score. Respondent inappropriately retained a student in her class when the student had been administratively transferred to and was on another teacher’s rooster. Respondent did not grieve this action. October 29, 2014: Superintendent White notified Respondent that, acting on Principal Frost’s recommendation, Superintendent White would recommend to the school board that Respondent be suspended for three days without pay. Respondent had been insubordinate, used inappropriate language, and had inappropriate interactions with students. December 1, 2014: Principal Frost recommended Respondent’s employment be terminated. Respondent refused to allow a student back in the classroom after the student had completed a suspension period. April 6, 2015: Principal Frost placed Respondent on “administrative leave pending an internal investigation.” A substitute teacher had found Respondent’s handwritten note, which contained derogatory and offensive language regarding certain students in her class(es). Principal Frost had also entered Respondent’s classroom, observed Respondent on the phone, and heard Respondent use obscenities that could be heard by students. Following the Weingarten meeting on this matter, Respondent was reassigned to the Landings, the School Board’s administrative offices, during the course of the investigation. On April 7, 2015, Superintendent White notified Respondent that, acting on Principal Frost’s recommendation, Superintendent White would recommend to the School Board that Respondent’s employment be terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner terminate Respondent's employment as a classroom teacher for Sarasota County School Board. DONE AND ENTERED this 5th day of January, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2017.
