The Issue Whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003),2 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(h), and 6B-1.006(4)(e), and, if so, what discipline should be imposed.
Findings Of Fact Hayes holds Florida Educator Certificate 769153 for teaching sociology, grades six through 12. His certificate was valid through June 30, 2004. At all times relevant to the allegations in the Administrative Complaint, Hayes was employed as a science teacher and, later, as a substitute teacher with the Polk County School District. During 1998, R.H. was a sixth-grade student at Fort Meade Middle-Senior High School. Hayes was her science teacher. While a student in Hayes' class, Hayes made inappropriate remarks to R.H. on a daily basis such as: "You're so pretty. You're so special. You don't know how special you are." Hayes asked R.H. if she had a boyfriend, and, when she told him that she did, he became upset and told R.H. that he was going to call her parents and tell them. He also wrote her a letter telling that she was too young and too pretty for the boyfriend. Hayes told her that she did not need a boyfriend and that the boy was a troublemaker. On a daily basis, Hayes would ask R.H. to run errands for him. He did not ask other students in R.H.'s class to run errands. Hayes would also try to keep R.H. after class. At times he would tell her that she needed to stay after class so that she could see how she was doing. R.H. maintained an "A" in his class, so there was really no need for her to stay after class. Hayes' special attention to R.H. embarrassed her, especially when other students would tease her about Hayes being her boyfriend. Hayes made her feel uncomfortable and distracted her in class. One day when Hayes asked her to stay after class, she confronted Hayes about his unwanted attentions and told him that his actions made her feel uncomfortable. He became angry with her and asked her to leave the classroom. After their confrontation, Hayes' attitude toward R.H. changed. He asked R.H. to stay after school again and told her that if she did not stay that he would give her a detention. During 1998, J.R. was a student in Hayes' sixth-grade science class at Fort Meade Middle-Senior High School. During the first six weeks of class, J.R. and Hayes had a normal teacher-student relationship. However, by the second six weeks of class, Hayes had begun to lean close to J.R. while she was at her desk. During class, he would play with her hair, take her hair scrunchies, and purposefully step on her feet. Hayes began to ask J.R. to stay after class. The first time that he asked her to stay he gave her a hall pass on the back of which he had written that he "really, really liked" her. He held her after class so that he could talk to her about non- school activities. For example, he would tell her that she was beautiful and that she was an angel. Hayes would ask her if she had any boyfriends and tell her that she did not need to mess with boys because they only wanted one thing. Because Hayes required her to stay after class, J.R. would miss her school bus. She missed her bus so many times because of Hayes that her mother threatened to discipline her if she missed the bus again. Hayes began to write letters to J.R. when she was in the sixth grade and continued to write to her for the next couple of years. At first his letters were written in third person. For example, he wrote: I saw your friend yesterday, he misses you sooooooooooo much! He's been waiting and waiting and waiting for the letters you promised him. He is sooooo crazy about and was soooooo happy that you made all A's. You make him so proud, He LOVES YOU 4-LIFE. As their relationship progressed, Hayes began to write in first person, professing his love for J.R. Hayes wrote that she could trust him, that he missed her, and that they were going to have a great future together, including beautiful children. He wrote to her that he was the best thing that had ever happened to her. His letters to J.R. contained other inappropriate remarks such as: "I'm 'crazy' about you because you drive me 'crazy' at times. I wake up at 2:30, 3:30, 4:30 AM thinking about you."; "You looked good on Friday. I hope you let your hair grow back (PLEASE, PLEASE) Those shorts you had on was [sic] toooooooo short. I can't believe they didn't make you change."; and "I can't stop staring at you, there's nothing in this world more beautiful than you!" When J.R. was in the seventh grade, Hayes promised to marry J.R., and they began a sexual relationship. Hayes would pick J.R. up and take her to his house, and sometimes they would have intimate relations at her home when her mother was not present. Their sexual relationship continued until J.R. was in the tenth grade. Unbeknownst to J.R.'s mother and without her permission, Hayes picked up J.R. in his car on May 21, 2002, and drove her to Brandon, in Hillsborough County, Florida. They had lunch, and J.R. had her nails done. On the way back to Polk County, where J.R. lived, they were stopped by a deputy sheriff. Hayes told J.R. to tell the deputy that they were just friends or he could get in trouble and go to jail. At first, Hayes told the deputy that he was dating J.R.'s mother, which was untrue. After the May 21, 2002, incident occurred, J.R.'s mother wrote Hayes and told him to refrain from contacting her daughter. However, Hayes continued to contact J.R. and continued a sexual relationship with her until September 2002. During their relationship, Hayes gave J.R. gifts, including mugs with candy, jewelry, clothes, and bath and body products. Based on the types of gifts, it is clear that the purpose of the gifts was to facilitate their romance. J.R. is embarrassed by her relationship with Hayes and feels that he took advantage of her. She was distracted by his behavior, which affected her ability to concentrate in school. Their relationship has hindered her ability to develop relationships with people her own age. During the 2000-2001 school year, A.B. was a ninth-grade student at Frostproof Middle-Senior High School, and Hayes was a substitute teacher at the school. A.B. had attended approximately five classes in which Hayes was substituting. A.B. played softball and volleyball at school. Hayes sent her e-mails two or three times about her athletic endeavors. A.B. felt that the e-mails were social and not school-related and thought it was "weird" that a teacher she did not really know was sending her e-mails. On Valentine's Day in February 2001, Hayes told A.B. that he had left a bag in a classroom for her and that he wanted her to pick it up. A.B. got the bag and it contained a pink candle with a heart on the top and a book entitled Kisses. The book contained pictures of people kissing. A.B. was embarrassed by the gift and thought that it was unusual for a teacher to give a student such a gift. Based on his gifts, she felt that he wanted to have a physical relationship with her. On the day that she received the gifts, she told her physical education teacher, Coach Bolin, that she had gotten the gifts, but that she could not tell who gave them to her. The next day she told Coach Bolin that Hayes had given the gifts to her. Coach Bolin reported the incident to the principal. After she reported the incident, Hayes did not return to substitute at Frostproof Middle-Senior High School and was removed from the list of approved substitute teachers at the school. Coach Bolin did not want to continue working with Hayes after the incident. She felt that it was completely inappropriate for Hayes to give A.B. the gifts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Delton B. Hayes violated Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a), (e), (h), and 6B-1.006(4)(e) and permanently revoking his educator certificate. DONE AND ENTERED this 12th day of November, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2004.
The Issue Whether Respondent, a school teacher with a professional services contract, committed the offenses set forth in the Petition for Dismissal and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by the Petitioner as a classroom teacher pursuant to a professional services contract. Respondent holds Florida teaching certificate number 626239, covering the areas of English and ESOL (English Second Other Language), valid through June 30, 1994. Respondent has been employed since August, 1987, as a teacher and basketball coach at Marathon High School in the Monroe County, Florida, School District, and he has held a professional services contract with Petitioner since the beginning of the 1990-91 school year. Respondent's wife is also a teacher at Marathon HighSchool. Robert G. Walker has been employed with the School District ofMonroe County for approximately twenty-six (26) years and has served as the Superintendent ofSchools of the School District of Monroe County, Florida, sinceJanuary 5, 1993. At all times pertinent to this proceeding Glynn Archer, Jr. was the Assistant Superintendent of Schools. Mr. Archer is an experienced educator who has extensive experience conducting investigations into allegations of misconduct. At all times pertinent to this proceeding Dr. Edward Deane was the Principal of Marathon High School and Ms. Jesse Hobbs was the Assistant Principal. 1990-91 SCHOOL YEAR: JENIFER RAFUSE Jenifer Rafuse attended Marathon High School from the ninth through the twelfth grades. Jenifer graduated with honors from Marathon High School at the end of the 1992-93 school year. Jenifer is a female who was born June 28, 1972. At the time of the formal hearing, Jenifer was eighteen years of age. During the 1990-1991 school year, Respondent taught a fifth period writing class at Marathon High School. Jenifer Rafuse, then fifteen (15) years old and a sophomore, was a student in that class. Jenifer experienced severe personal problems during her sophomore year. Her parents were experiencing financial difficulties and marital discord, which resulted in a dissolution of their marriage. Jenifer was also experiencing problems with her boyfriend. A few months into that school year, Respondent and Jenifer began talking personally and privately during the writing class. At first, these conversations were merely exchanges between a concerned teacher and a troubled student. Gradually, the relationship between Respondent and Jenifer changed from a student/teacher relationship to what Jenifer described as "friends". Respondent and Jenifer would frequently have these conversations about her boyfriend and her parents. The writing class was relatively small and the students would commonly be given time to work on their individual writing projects. It was during these times that Respondent and Jenifer would have personal discussions about her boyfriend and personal problems. Other students were present in the classroom when these discussions took place. Although these were not whispered conversations, the conversations were private between Respondent and Jenifer and were not intended to be overheard by the other students in the classroom. Respondent began asking Jenifer different types of questions about the two of them going out or doing things alone together. One day during class, Respondent approached Jenifer and asked her if she had ever been white-water rafting. After Jenifer replied that she had not, Respondent told her that he planned to go rafting in Gainesville, Florida, within the next couple of weeks and asked her if she would like to go with him. He told Jenifer that they could go and drink Margaritas so that he could get her drunk and take advantage of her. Jenifer understood this clearly to mean that Respondent wanted to have a sexual relationship with her. The conversation about Gainesville, Florida, and Respondent's sexual advance made Jenifer feel extremely uncomfortable, nervous, and scared. At about the same time during one of the conversations in the classroom, Respondent asked Jenifer if she would come to his house to baby-sit his small child. It was not unusual for Respondent or his wife to ask students to baby-sit for their son. Jenifer at first agreed to baby-sit for the Respondent and later became evasive because she was no longer comfortable with the Respondent. The Respondent asked her four or five times in the span of a week to come to his house to baby-sit. These repeated inquiries are not found to be harassment because Jenifer was being evasive, because there was no evidence that Respondent had an ulterior motive for asking her to baby-sit, and because there was no evidence that the Respondent knew that Jenifer did not want to baby-sit for his child. During this period that Respondent was attempting to learn whether Jenifer would baby-sit for him, he called Jenifer at her home and asked her again about baby-sitting. During this conversation, Respondent told Jenifer that if she was still having any problems, she could talk to him, "that they could go out and have a drink, or have a beer" and talk. This telephone conversation made Jenifer very uncomfortable and apprehensive about talking to Respondent in any context or being placed in a situation alone with him. She declined to ever baby-sit for him and felt that her relationship with the Respondent was no longer "friendly". As a result, she wanted to completely avoid Respondent, and began leaving school every day at lunchtime and not returning, so that she completely avoided seeing him or attending his class. Jenifer's mother, Debra Rafuse, received a call at home from Respondent, who was inquiring as to why Jenifer was not in school and whether she was okay. Later that day, Mrs. Rafuse received a call from Jesse Hobbs, Assistant Principal at Marathon High School. Ms. Hobbs informed Mrs. Rafuse that Jenifer had been missing classes. Mrs. Rafuse was understandably concerned and confronted Jenifer about skipping school when Jenifer came home. Jenifer told her mother that she had been attending classes in the morning, but leaving at lunchtime and not returning. When Mrs. Rafuse asked Jenifer why she was doing that, Jenifer broke down and started crying. She then told her mother that Respondent had made advances toward her, had asked her to go away to Gainesville, Florida, for the weekend with him, and had talked to her about giving her Margaritas so she would get drunk and he could take advantage of her. Jenifer also told her mother that Respondent had said that if she ever needed to talk to him, they could go out to dinner or have afew beers and discuss whatever was bothering her. Respondent also sent Jenifer a personal greeting card, assuring her that she could confide in him and that everything would work out. Respondent admitted to sending the card as a "pick me up". Jenifer was not offended by the card. The sending of the card, in and of itself, was not shown to be inappropriate. Mrs. Rafuse and her husband became outraged when they learned of Respondent's actions toward their daughter and immediately scheduled a meeting with Ms. Hobbs, the Assistant Principal. Initially present at that meeting were Mr. and Mrs. Rafuse, Jenifer, and Ms. Hobbs. Jenifer explained to Ms. Hobbs what had transpired over the past few months with Respondent. The four of them proceeded to Dr. Edward Deane's office, who was the Principal at Marathon High School at all times pertinent to this proceeding, where Jenifer related the circumstances again, this time to Dr. Deane. After Dr. Deane understood Jenifer's allegations, Respondent was called into the meeting. Dr. Deane explained to Respondent the nature of the charges Jenifer had made against him. Respondent looked down at the floor during the entire meeting. When asked by Dr. Deane what his response was Respondent simply stated that he had no comment. During the meeting, he never admitted or denied making the advances to Jenifer regarding a trip to Gainesville, Florida. Jenifer believed that the Respondent looked smug during this meeting, which she resented. Respondent apologized to Jenifer as he left the meeting. Respondent, after apologizing to Jenifer and her parents, stated that perhaps Jenifer had misunderstood him. At the formal hearing and in his post- hearing submittal, the Respondent asserts that Jenifer must have misunderstood him. Jenifer testified that she is certain that she did not misunderstand Respondent. This conflict in the evidence is resolved by finding, based on the greater weight of the evidence and after considering the credibility of the witnesses, that Respondent invited Jenifer to go to Gainesville, Florida, with him, that he invited her to drink Margaritas, and that he implied that he wanted to have a sexual relationship with Jenifer. It is further found that Respondent asked Jenifer out to drink beer if she wanted to talk to him about her problems. It is also found that Jenifer did not encourage or provoke Respondent's behavior towards her. Jenifer had no motive to fabricate her version of the events that occurred between herself and the Respondent and she had no interest in having Respondent's employment terminated. After Respondent left the meeting, Dr. Deane suggested to Jenifer's parents that she be taken out of Respondent's writing class, and his wife's English Honors class as well. Accordingly, her class schedule for the remainder of the school year changed. She was placed in a lower level English course and a business English course taught by other faculty members. Following this meeting, Respondent and Dr. Deane had a private meeting to discuss the situation. Dr. Deane discussed with Respondent the serious implications of Jenifer's allegations, such as the negative impact on his character and reputation, on his career as a teacher, and on his family. Respondent testified that he understood Dr. Deane's admonishment. Respondent understood that these or similar allegations could ruin his family life, his reputation in the community and his career. Dr. Deane testified that he was sure Respondent listened, acknowledged, understood, and clearly agreed that for whatever he might have done, Respondent was at that point in time implying that it was never going to happen again. Dr. Deane felt that whatever transgressions may have taken place, that his conversation with Respondent would prevent this kind of situation from ever happening again. Two years later, when Jenifer was in twelfth grade, she enrolled in a dual enrollment English course, which would allow her to receive both high school credits and college credits at the sametime. When she got to the class, however, she discovered that Respondent would be her teacher. After discussing the situation with her mother, she decided to stay in the course. Jenifer was aware that the course would be helpful in college, that no other teachers at Marathon High School taught the course, and that she was not presented with any viable alternatives for dual credit. Her mother felt that it would be acceptable if Jenifer thought she could handle it, because she was more mature at seventeen (17) than she had been at fifteen (15). Jenifer and Respondent got along without any problem during Jenifer's senior year at Marathon High School until Jenifer learned of Respondent's conduct with Melissa Creech. Jenifer gave Respondent a signed senior class photo of herself, as did many of the other seniors at Marathon High School. Jenifer wrote on the back of her picture that she enjoyed Respondent's class and that his class was a "blast". Jenifer considered Respondent to be a good teacher. Jenifer also signed Respondent's yearbook her senior year and again told him that she appreciated how much he taught her and helped to open her mind to creative writing. Jenifer's attitude toward Respondent changed again when she heard about Respondent's conduct with Melissa Creech. SCHOOL YEARS 1991-92 AND 1992-93: MELISSA CREECH Melissa Creech was a classmate of Jenifer's at Marathon High School and the two were acquaintances, although not good friends. Both girls attended Marathon High School from their freshman through their senior years, and both graduated in 1993. Respondent taught Melissa a journalism class during the 1991-92 school year when Melissa was a junior. Melissa described her early relationship with Respondent as a normal student/teacher relationship. During the course of the year, Melissa began to discuss with Respondent a young man she was interested in dating. These discussions occurred in class and became as frequent as three to four times per week. More than once during the course of the journalism class, Respondent asked Melissa when she was going to give him a try or a chance. Respondent also asked Melissa to baby-sit for him, but Melissa declined his requests. During the time that Respondent was Melissa's teacher, Melissa had a job at the drive-through window at the local McDonald's. Respondent would often appear at the drive-through while Melissa was working, sometimes with his wife and child, but more often than not he was alone. At least once while Melissa was working, Respondent initiated a conversation at the drive-through window wherein he told her he was counting down the days until she was eighteen (18) so that they could legally go out together. Melissa was not offended by Respondent's conduct during her junior year, and she made no complaint during her junior year about Respondent to her parents or to school officials. When Melissa became a senior she did not have any regular classes with Respondent as a teacher. Respondent would, however, serve as a substitute teacher from time to time for classes in which Melissa was a student. One day in June, 1993, very close to graduation, Respondent was acting as a substitute teacher for a class Melissa was in and he mentioned to her that he had a copy of the Keynoter newspaper that had her picture on the front page. He told her that he had an extra copy of the newspaper in his classroom and that she should come to his classroom to pick it up if she wanted it. When Melissa went to his classroom, there was nobody else in the room. She went over to his desk where Respondent had a calendar opened to the month of July. Respondent showed Melissa that he had already marked his calendar for a business trip to Orlando and mentioned that he was not taking his wife and child. He then asked Melissa what she was doing on those dates and whether she wanted to go to Disney World with him to "have some fun". Melissa clearly understood this comment to mean that Respondent wanted to have a sexual relationship with her. Furthermore, Respondent also asked Melissa whether she was going to have a car, because if she was, she could drive the two of them to Orlando. Melissa was scared and left the room. Melissa had not encouraged Respondent to make such advances toward her. On a later day, Respondent approached Melissa as she was leaving her second period class and asked her whether she had thought about it and whether she wanted to go to Disney World; she simply told him "No". After that conversation about going to Orlando, Melissa began avoiding Respondent because she was frightened of him and she did not want to see him. Whenever he would see her, he would ask her to come to his room to sign his yearbook, but she never went. Respondent asked at least one of her friends, Tanya Niblit, to have Melissa come to see him because he needed to talk to her. Respondent also asked Melissa at least twice in person to sign his yearbook. Melissa believed that Respondent was harassing her, but she did not tell her parents about Respondent's conduct because she was afraid of what they would do. Instead, she told her best friend, Miranda Grice, about it. Miranda Grice knew Jenifer Rafuse and she knew of the problems Jenifer had encountered with Respondent in her sophomore year. Miranda subsequently told Jenifer that Melissa was having some of the same problems that she had with Respondent and that she wanted Jenifer to talk to Melissa. Jenifer eventually did speak with Melissa about the situation while the two of them were at school. Melissa told her that Respondent had asked her to go away with him and that she was uncomfortable. While the two were talking, Respondent noticed them and called out to Melissa. Melissa pretended not to hear him and kept on walking. Melissa began shaking and crying and told Jenifer that she did not know what to do because Respondent would not leave her alone. Jenifer explained to her that it would be best if the school authorities were notified of the situation because nothing could be done if they were not. Jenifer eventually approached Ms. Hobbs, the Assistant Principal, and told her that Melissa was having the same problems she had with Respondent. Melissa was then called to Ms. Hobbs' office and asked to explain the situation in front of Jenifer, Ms. Hobbs and Ms. Matthews, the counselor. Melissa was very nervous and was trembling. She began crying when she started talking and cried for some time. Melissa stated that she was very frightened of Respondent and was adamant that she knew his advances were sexual in nature. After she was finished relating the facts in Ms. Hobbs' office, Melissa was sent back to her classroom. At that point, Ms. Matthews met privately with Ms. Hobbs and Dr. Deane, the principal, and discussed reporting Melissa's case to the Department of Health and Rehabilitative Services (HRS) as a possible sexual abuse case. Because Ms. Matthews suspected possible sexual abuse, she did call HRS on the Abuse Hot Line. However, an HRS counselor advised Ms. Matthews when she called that they could not investigate the case because Melissa was already eighteen (18) years old. Ms. Hobbs then called Mrs. Creech at work and asked her to come to the school. When she arrived, Melissa was called out of class and the group met in Dr. Deane's office, where Melissa again went over the incidents between Respondent and her for the benefit of Dr. Deane and her mother. When Melissa was finished telling her story, Dr. Deane called Respondent into the meeting. When Respondent arrived at the meeting, Dr. Deane asked Melissa to tell him what she had already told everyone else present. Dr. Deane at that point asked Respondent whether he had any response and Respondent stated that he had no comment. At that point, the conversation became very emotional and heated, and Mrs. Creech began to ask questions of Respondent. Mrs. Creech asked Respondent what motivation he had for asking her daughter to go to Disney World with him. His response was that he didn't mean anything by that. Respondent apologized to Mrs. Creech. Both Ms. Matthews, who had a good working relationship with Respondent, and Mrs. Creech understood Respondent's answer to be an admission of guilt. When Mrs. Creech asked Respondent a second time what could have motivated him to ask her daughter to go away with him, he just put his head down and declined to comment. The Respondent asserts that Melissa Creech had misunderstood him and that he never invited her to go to Orlando with him. The conflict in the evidence is resolved by finding that Respondent did invite Melissa to Disney World and that the invitation implied that he wanted to have a sexual relationship with her. Melissa had no motive to fabricate her version of the events that occurred between herself and the Respondent and she had no interest in having Respondent's employment terminated. Dr. Deane reported the incidents involving Jenifer and Melissa to the central school board office and recommended that Respondent's employment be terminated. The incidents involving Jenifer and Melissa were investigated on behalf of the School Board by Glynn Archer, the Assistant Superintendent of Schools. Thereafter, Mr. Archer submitted his investigative report and his recommendation to Robert G. Walker, the Superintendent of Schools. Mr. Walker thereafter recommended to the School Board that Respondent's employment pursuant to the professional services contract be terminated. At the time of the formal hearing, the Respondent had been suspended with pay by the School Board. Respondent's effectiveness as a teacher in the Monroe County School District has been impaired by this misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order which adopts the findings of fact and conclusions of law contained herein and which terminates Respondent's professional services contract. DONE AND ENTERED this 16th day of March 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 16th day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3795 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 42, and 51 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 8 are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are adopted in part by the Recommended Order. The proposed findings of fact in the last two sentences of paragraph 10 are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 24, 43, 44, 45, 46, 47, 48, 49, and 50 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph numbered 31 on page 13 of Petitioner's Proposed Recommended Order are adopted in material part by the Recommended Order. This paragraph is misnumbered. The proposed findings of fact in paragraphs 40, 41, and 53 are subordinate to the findings made. The proposed findings of fact in paragraph 52 are adopted in part by the Recommended Order or are subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings of fact in paragraphs 1, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 20, 21, 22, 24, 30, 32, and 37 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2, 4, 18, 19, 25, and 26 are subordinate to the findings made. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 3 pertaining to Jason Rafuse are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 are rejected as being contrary to the greater weight of the evidence and to the conclusions reached. The proposed findings of fact in paragraph 17 are adopted in part by the Recommended Order. There was no evidence that any other reason or problem contributed to her cutting class. The proposed findings of fact in paragraph 23 are adopted in part by the Recommended Order. The proposed finding as to Miranda's relationship to Jenifer's stepfather is rejected as being unsubstantiated by the record and unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 27, 34, and 35 are rejected as being unnecessary to the conclusions reached and, in part, as being unsubstantiated by the record. The proposed findings of fact in paragraphs 28, 29, and 31 are rejected as being unsubstantiated by the record. The proposed findings of fact in paragraphs 33, 36, and 38 are rejected as being unnecessary to the conclusions reached since it was not established that Mrs. Grice harbored any ill feelings towards the Respondent or that she influenced any of the witnesses in this proceeding. The proposed findings of fact in paragraph 39 are rejected as being unnecessary to the conclusions reached since the matter of penalty is at issue in this proceeding. The proposed findings are not relevant as aggravating or mitigating evidence. The proposed findings of fact in the first sentence of paragraph 40 are subordinate to the findings made. The proposed findings of fact in the remainder of paragraph 40 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraphs 41, 42, and 43 are rejected as being unnecessary to the conclusions reached and as being irrelevant to any matter at issue in these proceedings. COPIES FURNISHED: John D. Gronda, Esquire Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.a. Suite 3600 200 South Biscayne Boulevard Miami, Florida 33131-2338 Lorene C. Powell, Esquire Florida Education Associated/United 118 North Monroe Street Tallahassee, Florida 32399 Mr. Robert Walker, Superintendent Monroe County School Board Post Office Box 1788 Key West, Florida 33041-1788
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Pinellas county School Board, operated the primary and secondary public school system for Pinellas County, Florida. Respondent, Herbert Latimore, was employed by the Petitioner as a continuing contract teacher of physical education at Tyrone Middle School, a school operated by Petitioner. On August 25, 1993, very early in the school year, Respondent made a presentation to a group of sixth grade students in a physical education class. In prior years, Respondent had experienced a reluctance on the part of some students to take showers after physical education classes, and to forestall that problem, he indicated verbally that he did not want the boys to stand outside the showers looking at each other because, "...there were no faggots around here." He also told the students he expected compliance and that he did not want parents calling the administration about student shower misconduct because that created problems for him and would get him "pissed off." It is also alleged that in the course of his presentation he told a group of male students who were not paying attention that he spoke clearly and did not talk like a "nigger." Respondent, who is, himself, African-American, denies making that comment though, according to Mr. Valdes, the vice principal, Respondent admitted doing so to him in an interview the day after the alleged incident took place. It is found that Respondent did, in fact, use the word, "nigger" in his discussion with the students, but it can not be said, under the circumstances, that it was used in a racist or manner derogatory toward any student or group of students. One of the students in the Respondent's class to whom he made the comments complained of was Stephanie Zavadil, a young female who did not want to be in a physical education class in the first place and who was supposed to be in a music class instead. The incident took place the first day of school which was, coincidentally, the first day of middle school for the students in this particular class. After school that day, Stephanie, who was quite upset by the Respondent's use of the language alleged, told her mother what had happened and indicated she would rather go to summer school than be in Respondent's class. She also cried when recounting the story and indicated she was so afraid of Respondent, she would not appear to testify at hearing even under subpoena. Mrs. Zavadil, herself a high school teacher in the Pinellas County system, after discussing the matter with her husband, reported it to the school principal, Ms. Desmond. She also indicated she did not want her daughter in Respondent's class. There is no indication any other student or parent has indicated a similar objection, though as a result of the press' attendance at a School Board meeting at which this matter was discussed, an article appeared in the Clearwater edition of the St. Petersburg Times reporting the incident. Before she could call Respondent in to discuss the matter, Ms. Desmond was approached by him in the school cafeteria the following day. Ms. Desmond, who was on cafeteria duty at the time, told Respondent she would discuss the matter with him later, but he followed her to the side of the room, still trying to talk with her. When she finally had the quiet to talk with Respondent, she reported to him the substance of the complaint she had received from Mrs. Zavadil and told him that in her opinion his use of the words alleged was inappropriate and a demonstration of bad judgement. Respondent acknowledged he had used the words. Thereafter, the matter was reported to the office of the Superintendent of schools, where the matter was investigated by Mr. Barker who interviewed Stephanie and other students involved. He also spoke with Respondent who admitted the use of all words alleged except "nigger." Mr. Barker also reviewed Respondent's personnel file in which he found two prior disciplinary actions taken against Respondent. In 1982, Respondent was reprimanded for pushing a student, and in 1992, was again reprimanded for using poor judgement in making inappropriate statements in front of a student and the use of physical force with a student. On the basis of his investigation, Mr. Barker, utilizing the school board's unwritten progressive discipline policy, recommended that disciplinary action to include a suspension without pay for five days be imposed. His recommendation was based on his conclusion that Respondent's effectiveness as a teacher had been impaired by his use of the words alleged. Mr. Barker is of the opinion that teachers should comport themselves in a manner which causes students to look up to them. Here, Respondent's comments could affect the way students perceived him and also might frighten some students who, as a result, might not want to take classes from him. Respondent's use of the word "faggot", as alleged here, complicates the already existing problem schools have regarding the reluctance of some elementary and middle school children to dress out for physical education training. Mr. Barker's opinion regarding Respondent's effectiveness was reinforced by those of Dr. Hinesley, Ms. Desmond, and Mr. Valdes. Dr. Hinesley believes that teachers should be role models and Respondent's use of the language alleged was a violation of the Teacher Code of Conduct which could undermine public support for the educational process if left unpunished. Ms. Desmond agrees with the proposed suspension because of her belief that Respondent's language was both frightening to the students and inappropriate. Students and their families discuss what happens at the schools and if Respondent, because of his language, were to develop an unfavorable reputation within the community, it would make it difficult for him to establish credibility and would also impact the school's effectiveness in the community. Respondent does not contest his use of the terms "pissed-off" and "faggot" but claims he has heard them used many times by other teachers and had never been told by the principal or anyone else that they were bad words. He claims that had he considered the words to be inappropriate, he would not have used them. He also claims, and it is so found, that he did not call any student either a "faggot" or a "nigger", not did he claim to be "pissed-off" at any particular student. Respondent has three daughters and professes to love children, asserting he would never intentionally use bad language to hurt anyone. With regard to his alleged admissions to Ms. Desmond and Mr. Valdes, he claims neither one specifically asked him about his use of the words alleged. Mr. Barker did do so, however, and Respondent admitted to the use of "faggot" and "pissed-off." He has been a teacher for 18 years and during that time has never received a bad evaluation. He claims he has never been cautioned about his language, and the reprimand administered in 1992 relates more to the use of poor judgement in attempting to intimidate student rather than to the use of "inappropriate" language.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Herbert Latimore, be suspended from employment as a teacher with the Pinellas County School Board, without pay, for a period of five (5) days. RECOMMENDED this 15th day of April, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of April, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5748 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 13. Accepted and incorporated herein. 14. & 15. Not relevant to the issues herein. FOR THE RESPONDENT: ARGUMENT paragraphs, unnumbered, as treated in sequence. Not a Finding of Fact but a Conclusion of Law. Accepted and incorporated herein. & 4. Accepted as a correct comment on the state of the testimony. 5. & 6. Accepted as a correct comment on the state of the evidence. Accepted and incorporated herein. Not evidence but argument and statement of position. Accepted as an accurate recounting of Respondent's testimony. Accepted as an accurate comment on the evidence. Accepted as Respondent's position. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board 301 4th Street, Southwest Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 J. Howard Hinesley, Ed.D. Superintendent Pinellas County Schools 301 4th Street, Southwest Largo, Florida 34649-2942
The Issue Respondent is charged in a five-count Administrative Complaint with violations of Subsection 231.2615(1)(c), Florida Statutes (gross immorality or an act involving moral turpitude); Subsection 231.2615(1)(f), Florida Statutes (personal conduct which seriously reduces her effectiveness as an employee of the school board); Subsection 231.2615(1)(i), Florida Statutes (violation of the Principles of Professional Conduct for the Education Profession in Florida as prescribed by the State Board of Education); Rule 6B-1.006(3)(a), Florida Administrative Code (failure to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical safety), and Rule 6B-1.006(3)(e), Florida Administrative Code (intentionally exposing a student to unnecessary embarrassment or disparagement).
Findings Of Fact Respondent has continuously held Florida Educator's Certificate 734274, covering the area of English, since 1996. It is valid through June 30, 2006. Respondent was first employed by the Holmes County School District in November 2000 and served as a language arts teacher for seventh and eighth grades at Poplar Springs School for the remainder of the 2000-2001 School Year. During the 2000-2001 School Year, Respondent disciplined students in her seventh and eighth grade language arts (English) classes as more specifically described below. All instances of Respondent's discipline were employed in response to male students talking inappropriately or "cutting up" in her classroom so as to detract from the educational process. On one occasion, Respondent placed two pieces of masking tape over the mouth of student C.R. because he was talking in class. C.R. had the tape over his mouth for the remainder of the class period (approximately fifteen to twenty minutes). A science teacher saw C.R. in the hall, en route to his next class, and told him to take the tape off his mouth. Respondent placed masking tape over the mouth of student J.F. when he laughed out loud after being warned not to continue talking in class. J.F. had the tape over his mouth for approximately twenty minutes, until the bell rang to go to his next class. Respondent directed student T.J. to place tape on his own mouth after he had talked in class. The tape remained on his mouth until the end of the class period, or for approximately fifteen minutes. Respondent placed tape over the mouth of student W.W. because he was talking in class. W.W. had the tape over his mouth for the remainder of the class period, which ended approximately thirty minutes later. W.W. experienced difficulty breathing with the tape over his mouth, because he had a cold at the time and was having trouble breathing through his nose. Respondent placed masking tape over the mouth of student C.B. for talking in class. The tape remained on his mouth until the end of the class period, or approximately thirty minutes. All of the foregoing five students admitted that Respondent had warned them at least once not to continue talking, before she resorted to taping their mouths, but each of these students also was embarrassed as a result of sitting through the remainder of the class, surrounded by other students, while their mouths were taped. Also during the 2000-2001 School Year, Respondent required student C.R. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of three or four heavy dictionaries for approximately fifteen minutes. This method of punishment caused C.R. to experience physical distress in his back. Respondent also required student J.C. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of seven or eight heavy dictionaries, stacked to his chin, for approximately twenty minutes. This method of punishment caused J.C. to experience physical distress. His knees were buckling, and he was slumping against the wall. Respondent initially required student L.C. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of twelve dictionaries. However, because the books were stacked almost two feet higher than L.C.'s head, Respondent removed four of them from his arms. L.C. was then required to hold the remaining eight dictionaries for approximately fifteen to twenty minutes. Respondent also required student J.H. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of six or seven heavy dictionaries stacked up to his eyes, for approximately twenty minutes. Respondent required student E.M., who had talked out of turn early in the class period, to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of six or seven heavy dictionaries for approximately ten to fifteen minutes. At one point during this ordeal, Respondent came out of the classroom and felt E.M.'s forehead to see if he were sweating. When she found that he was not sweating, she returned to her classroom, leaving E.M. outside, still holding the dictionaries. Most students who testified indicated they were disciplined toward the end of a class period, and accordingly, their discipline was automatically ended by the change of classes' bell. However, the foregoing incident, when E.M. was disciplined with books, suggests that Respondent's theory concerning that type of discipline was that once a misbehaving student began to sweat, he had experienced enough punishment. A teacher saw E.M. in the hallway and went to fetch the Principal, Jerry Dixon. Mr. Dixon observed E.M. to be "in a strain," tired, and drooping. When Mr. Dixon discovered what was going on, he told E.M. to go back into Respondent's classroom and take the books with him. Each of the five students disciplined with books was embarrassed by the process, and the posture of holding the dictionaries caused most of them discomfort. After the incident with E.M., Mr. Dixon counseled with Respondent. He advised her that disciplining students as E.M. had been disciplined with the dictionaries was unacceptable and that if she felt future situations were bad enough to warrant punishment, she should send the misbehaving child to his office for him to administer appropriate discipline. In early April 2001, Respondent approached student T.W. at his desk, got down "in his face," and told him that if he did not behave, she would paddle him as hard as she had paddled student C.R., and that was "pretty damn hard." C.R. testified that Respondent had, in fact, actually paddled him, but apparently he was not intimidated or concerned over the paddling. Also, T.W. was not intimidated by Respondent's threat, because he smiled and laughed. However, T.W. was so concerned about Respondent's use of profanity that he approached Principal Dixon in the cafeteria that day and asked the principal if it were "right" for a teacher to curse at a student. Subsequently, in the principal's office, T.W. explained to Mr. Dixon the situation concerning Respondent's use of profanity. Principal Dixon also then learned for the first time that Respondent had been taping her students' mouths as a form of discipline. Mr. Dixon investigated further by talking with other students who verified all or some of T.W.'s account. Mr. Dixon testified that he also believed the incident of Respondent disciplining J.C. with dictionaries in the hallway (see Finding of Fact 11) had occurred after he had told Respondent not to use that procedure. On April 5, 2001, Mr. Dixon met with Respondent to discuss the allegations. In their meeting, Respondent admitted placing tape over students' mouths. She also admitted cursing at T.W. She told Mr. Dixon she had been mad and upset at the time. On April 10, 2001, Mr. Dixon issued Respondent a letter of reprimand for her conduct. In this letter he reminded her that he had, at the time of E.M.'s discipline, told her she was supposed to send students to the office for discipline, not undertake it herself. On June 6, 2001, Mr. Dixon notified Respondent that he would not recommend her reappointment for the 2001-2002 School Year. His decision to not recommend Respondent's appointment was based, at least in part, upon Respondent's admitted inappropriate discipline and use of profanity. There is no evidence Respondent's disciplinary method of causing students to hold heavy books while excluded from the classroom learning environment was effective in improving their behavior in the classroom. There is no evidence this disciplinary methodology was sanctioned by the School District, Principal Dixon, or any recognized educational text. Indeed, it was not sanctioned, and it is certain that the boys being disciplined were not being taught any curriculum while they were in the hallway. There is no evidence Respondent's method of taping her students' mouths shut and deliberately embarrassing them in the classroom before their peers was effective in teaching them to be quiet in class. There also is no evidence that this disciplinary methodology was sanctioned by the School District, the principal, or any recognized educational text. Indeed, the evidence is contrary. The disciplinary methods employed by Respondent were not approved or condoned by the Holmes County School Board or by the Poplar Springs School Administration. Her methods were inappropriate. Her inappropriate discipline and use of profanity with her Middle School students exposed them to unnecessary embarrassment and disparagement at a time in their development when they were particularly emotionally vulnerable. Her methods of discipline and use of profanity with her Middle School students seriously reduced her effectiveness as an employee of the Holmes County School Board. Respondent failed to take reasonable efforts to protect her students from conditions harmful to learning and/or to their mental health and/or physical safety by employing these inappropriate methods of discipline.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order which: Finds Respondent guilty of violating Subsections 231.2615(1)(f)and (i) and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code; Suspends Respondent's Educator's Certificate for a period of one year; Requires that, as a condition precedent to Respondent's re-employment as an educator in Florida following the suspension, Respondent submit to a psychological evaluation by a qualified provider as required by the Recovery Network Program; Requires that Respondent follow the recommended course of treatment, if any, resulting from her evaluation and that she provide written verification to the Department of her successful completion of the evaluation and/or treatment; and Provides that if Respondent is reemployed as an educator in Florida, she be placed on three years' probation, upon such terms as the Education Practices Commission deems appropriate, including but not limited to successful completion of a college level course in the area of classroom management. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2002. COPIES FURNISHED: Linda Crawford Post Office Box 573 Ashford, Alabama 36312-0573 J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent violated School Board Policies, and, if so, what penalty should be imposed.
Findings Of Fact At all relevant times to this matter, Respondent was employed as a science teacher in the Pinellas County School District and currently holds a professional service contract. She was hired as a teacher in September 1995, and worked at Lakewood High School for one school year. During the bulk of her career with the school district--August 1996 through December 2012--she worked at Largo Middle School teaching science. At the semester break, she was transferred to Countryside High School to finish out the 2012-2013 school year. She was assigned to teach anatomy and biology at Largo High School for the 2013-2014 school year and then transferred to Bay Point Middle School beginning with the 2014-2015 school year until she was placed on paid administrative leave on April 25, 2016. From at least 2011 forward, administrators, parents, and colleagues at three different schools, voiced repeated concerns regarding Respondent’s effectiveness as a teacher, including her failure to appropriately plan and deliver instruction; the lack of rigorous academic assignments; poorly organized lessons; failure to align learning targets and goals with activities and tasks; failure to differentiate instruction; failure to explain content; and failure to engage students. Complaints persisted regarding her failure or refusal to regularly grade student work and enter the grades into the student information system known as FOCUS; administer assessments; and otherwise properly manage the students in her classroom. Specific examples of her performance deficiencies, as well as repeated efforts to remediate her deficiencies through mentoring opportunities and professional development, were described in great detail at the two-day hearing and are summarized herein. Performance Issues While Teaching at Largo Middle School During the latter part of her time at Largo Middle School, administrators met with Snow to address performance concerns that existed regarding her instructional delivery, grading policies, and classroom management. Specifically, she met with administrators on October 25 and 31, 2011, to revise a “success plan,” and to discuss concerns from parents that grades were not being entered in a timely manner, mid-term progress reports not being sent home, failure to allow make-up assignments, and the issue of not enough grades being entered each marking period. They discussed developing a positive relationship with students and discontinuing the use of sarcasm during class, use of the Gradual Release Model for instructional delivery, the development of rubrics for grading student projects, and developing clear criteria for how grades would be earned. These concerns and expectations were memorialized in a disciplinary memorandum dated November 7, 2011, known as a “conference summary.” Another meeting was scheduled at Largo Middle School on April 6, 2012, to discuss “on-going issues that occurred last year and continue to occur in the 2011-2012 school year.” This meeting resulted in a letter of reprimand dated April 10, 2012, for insubordination because Respondent ignored directives to send home progress reports for students with a D or F grade; to enter student grades bi-weekly; and to allow students to make up assignments. The letter stated, in part: [D]ue to your act of insubordination in disregarding an administrative directive you are receiving this letter of reprimand. Also, by this letter of reprimand I am directing you to enter grades into the computer weekly or bi-weekly, send out progress reports at least three weeks before the end of a six week grading period and make every reasonable effort to support all students to achieve educational success. Failure to follow this directive will result in further disciplinary action. The Same Performance Standards Continue at Largo High School Following the disciplinary conferences noted above, Respondent spent a few more months at Largo Middle School, then served one semester at Countryside High School with no noted issues. Some of the same issues that plagued her at Largo Middle School, however, continued at her new school--Largo High School. For example, just four weeks into the 2013-2014 school year, Respondent was told by her supervising assistant principal, John Marina, that he was “getting feedback from parents that they don’t know what’s going on in [her] class.” He explained that parents need to see the grades so they can appropriately address their children at home. Another assistant principle notified her by e-mail that her seventh-period class had no grades entered, and two of her other classes only had two grades entered. The assistant principle reminded her of the expectation “that grades are posted weekly in FOCUS to assist students with tracking their progress, as well as parents being able to track what their students are doing.” A few days later, a parent’s complaint to the principal came to Marina’s attention. The parent advocated for her daughter’s “rights to be educated by a teacher that knows how to TEACH. . . . She is a junior, and the last two years are the most important. She deserves no less than a teacher that can provide her with the knowledge she seeks.” At the hearing, Marina recalled the meeting between the parent and Respondent. He testified that the student aspired to attend medical school and was frustrated that there was no rigor in Respondent’s anatomy class. He described the relationship between the student and Snow as “contentious” after the student said, “Hey, when are you going to teach, Mrs. Snow.” Ultimately, the parent obtained a doctor’s note authorizing the student to be removed from Respondent’s class. Even her colleagues complained to administrators. One teacher stated that Respondent “is either a really good actress, or she is inept completely.” The teacher described Respondent struggling to attach a copy of an exam to an e-mail so the teacher could print it for Snow. She said that Respondent had originally planned to have the anatomy students simply answer questions at the back of the book, but was urged by her colleague to create an exam. This caused Respondent to skip her assigned cafeteria duties to perform the task. Her colleague complained to the school administrators, stating, “I have observed that she has extremely poor planning and forethought and I believe she exists on campus for the purpose of seeking out possible excuses for her inability to perform her job duties. The more I interact with her, the more appalled that I am.” Marina developed a detailed success plan and both he and the principal met with Respondent to discuss their expectations regarding improved classroom management, use of formative assessments to differentiate instruction for students at various levels, use of standards-based benchmarks to drive instruction and measure student understanding of the curriculum, and entering grades into FOCUS. Basically, the success plan addressed the same deficiencies that were identified at Largo Middle School. Snow was offered support from experienced educators and took advantage of coaching provided by an instructional staff developer to help her with classroom management processes. According to Marina, Snow never accepted that her performance required improvement. Rather, “there was always an excuse,” and she routinely maintained that she was “an exceptional science teacher.” On April 30, 2014, Marina completed an annual appraisal of Respondent’s performance. The appraisal instrument for the 2013-2014 school year was described by Louis Cerreta (“Cerreta”), the district’s Director of Professional Development, as a “hybrid model,” because it consisted of behavior indicators from the Charlotte Danielson evaluation system and the Dr. Robert Marzano evaluation system, as well as a few indicators recommended by an appraisal advisory committee consisting of principals, assistant principals, union representatives, district administrators, and classroom teachers. The appraisal system was approved by the Pinellas County School Board, submitted to and approved by FLDOE for use as the instructional appraisal instrument, and Marina was appropriately trained to conduct the appraisal. The evaluation instrument consists of three components: the administrative review or “instructional practice” component; the deliberate practice, also called the “professional development” piece; and the student achievement component. Marina completed the Summative Evaluation (consisting of the first two components, but excluding student achievement data) on April 30, 2014, which resulted in a scaled score of 1 out of 4 available points on the administrative review and zero points for professional development. The student achievement score was based on the scores of students taking the biology EOC (student achievement) and resulted in Respondent receiving a score of 3 on a 4-point scale. Snow’s final evaluation resulted in a score of 1.685 or “needs improvement” under the statutory rating system. The administrative review incorporated and summarized observations made by Marina during visits to Snow’s classroom from January through April 2014. During these visits, Marina completed a “science implementation rubric” for each of the seven observations. He explained that each of the indicators on the rubric correlated to an indicator on the evaluation instrument, and he would either mark the indicator as “evident” or “not evident” depending on what he observed in the classroom. The Administrative Review reflected many of the same concerns addressed in Respondent’s success plans at Largo High School, as well as from her former school, Largo Middle School. For example, she received “unsatisfactory” ratings on each of the five indicators under “ability to assess instructional needs.” Marina commented: “This has been an ongoing issue this entire year. I mediated several parent meetings over the concern of accurate and up to date grades.” Under the section entitled “Plans and Delivers Instruction,” she received less than effective ratings on seven of the nine indicators. Here, Marina commented that her “lesson plans are more of a to-do list,” and while she had opportunities to “go into higher order thinking and increase the rigor of her classes,” she failed to do so. He also noted that she failed to abide by the directive to send tests and quizzes to the administration for review. Under the category entitled “Maintains a Student Centered Learning Environment,” Respondent scored less than effective on ten of the 11 indicators. Marina noted: “rules and procedures tend to fall into chaos on a daily basis, as administrators are frequently called to your room. Many times it is loud and there is a back and forth between teacher and student(s).” Marina testified that he gave Respondent a zero on the professional development section of the evaluation because she submitted the same form that she had submitted when she worked at Largo Middle School indicating that she taught comprehensive science to seventh graders when in fact her professional development goals should have accurately reflected the courses she taught at Largo High School. Marina stated: “not only was it the wrong [professional development form], but it was [delivered] in March” when they are due at the beginning of the school year. Professional Performance Deficiencies Continue at Bay Point Middle School Respondent was involuntarily transferred out of Largo High School at the conclusion of the 2013-2014 school year and resumed teaching middle school for the start of the 2014-2015 school year. The principal at Bay Point Middle School (“Bay Point”), Dr. Jason Shedrick (“Shedrick”), learned during the summer of 2014 that Respondent would be his new sixth-grade science teacher. He immediately reached out several times on the telephone to introduce himself. She proved to be unreceptive to his overtures and combative at every turn. When she did not return his calls, he contacted her former school, Largo High School, to gain some insights into her background and discovered she was on a success plan. He sent Respondent an e-mail to schedule a formal meeting to discuss his expectations, as well as the climate at Bay Point so that she could become successful at her new school. At an impromptu meeting, she told him she was not happy with her schedule because she only wanted to teach biology and advanced classes. He reminded her that middle schools do not have biology classes. She insisted she was a high school teacher and that any further meetings would have to include her union representative. They met again on August 15, 2014, and developed a sixteen-paragraph detailed success plan that addressed classroom management, instructional planning and delivery, grading and tracking student progress, notification to parents through contact logs and progress reports, and attendance and professional development. Shedrick testified that there was no ambiguity as to what he expected from Respondent. He said they spent three full hours working on the success plan because they hammered out each and every issue: We went through every single item on this plan. Ms. Snow went through every item on this plan. Her Union representative went through every item on this plan. We changed it several times to accommodate Ms. Snow for Professional Development, her doctors’ appointments before school, after school, whatever it entailed. Everything was laid out so there would be no misunderstanding about the plan. For the next two years, until she was placed on paid administrative leave on April 25, 2016, Respondent proved to be both unwilling and incapable of following directions and performing the most basic duties of a classroom teacher and fulfilling the expectations of her success plan. 2014-2015 Bay Point Lesson Plans Appropriately completing lesson plans and submitting them timely was a recurring problem for Respondent at Bay Point as it had been for her while assigned to previous schools. She had been provided the Bay Point template for lesson plans in her “first day packet” and the expectation for their submission had been reviewed as part of their marathon meeting on August 15, 2014, in connection with the success plan. Nevertheless, Respondent returned her first submission on handwritten notebook paper claiming that she was unable to save an attachment on her computer. Shortly thereafter, Respondent met with Dr. Elizabeth Tisdale (now “Chiles”), the sixth-grade assistant principal responsible for supervising Snow during the 2014-2015 school year. Chiles scheduled the meeting to review school-wide rules and processes with Respondent because she had missed a couple of days during pre-school when administrators typically review these expectations. Her lesson plans were late, so Chiles specifically reviewed this expectation again. Respondent’s excuse for not submitting them varied but included: no internet at home, computer malfunction, wrong lesson plan template, and an uncertainty as to required content. Throughout Respondent’s two-year tenure at Bay Point, Shedrick had to regularly remind her to correct her lesson plans and to submit them timely. Parent Contact and Progress Reports Respondent was expected to contact parents anytime a student was in jeopardy of receiving a grade less than a C. This was another expectation in her success plan, as was the expectation that parents receive a progress report in such cases. She fell short on this expectation and, in fact, expressed early on that she had no intention of calling parents, as required. Specifically, Chiles met with her on September 2, 2014, to discuss, among other matters, a parent’s concern that her straight-A student was receiving an F in Snow’s class. Chiles reminded Respondent that parents need to be contacted if their child has an F. Respondent outright refused, stating that “she would not call every parent.” On September 15, 2014, Shedrick asked Respondent to produce the progress reports that she had sent home for students receiving a D or F in her class. In response, Snow sent him copies of the computer gradebook that she had sent home to parents requesting that they sign and return. Shedrick was incensed that she had no concept of confidentiality and would send each parent a printout describing the grades of every other student in the class. Moreover, the gradebook printouts were not the progress reports he had requested. He explained: I didn’t receive the progress reports the way that I wanted. . . . I want to know what students were doing, what the assignment was, what the point value was, when it was due, when it was turned in. I wanted to see it before it went home because, then again, I have to answer to these parents at this time why was there not enough grades in the computer, why did my kid have an F, why did my kid have a D. So what I received from Ms. Snow wasn’t what I asked for. Several months later on February 12, 2015, Shedrick notified Respondent by e-mail that he wanted to see the progress reports for all students with a D or F in her class by February 18, 2015. On that date, Chiles spoke with Snow and followed up with a an e-mail requesting that she submit the progress reports no later than 4:00 p.m., that afternoon. At 4:19 p.m., Snow sent Shedrick an e-mail telling him that the progress reports would not be completed by 4:00 p.m. The excuses given included her usual claim that there was a computer problem, this time the internet was slow, but also that students were absent and, therefore, were still taking the test. Failure to Provide Weekly Academic Assessments and Assignments Respondent was expected to grade at least two academic- based assignments each week and record the grades in FOCUS so parents and students could monitor their progress. She blatantly refused to do so and claimed that she was not contractually required. According to Snow, she was only required to record one grade weekly. During a conversation in early September, Chiles reiterated that the expectation was two graded assignments, not one, but even if only one assignment were required, Snow missed the mark because it was the third week of school and she only had two grades recorded. By September 15, 2014, several weeks into the first grading period, Snow had recorded only four grades and one was for a review of the student code of conduct, not an academic- based grade. The walk-through feedback forms completed by Chiles noted this deficiency. On January 13, 2015, Chiles noted “currently zero (0) grades posted-starting new quarter (should have at least 2-4)”; on January 20, 2015, she noted again that zero grades had been posted and on February 23, 2015, she noted that four grades were posted and there should have been 18. Shedrick testified that it was “unacceptable” that by March 23, 2015, eight weeks into a nine-week grading period, after which students were supposed to receive their report cards, Snow had posted only four grades. Respondent also was expected, and repeatedly directed, to give the students a test which would enable her to measure the students’ progress and tailor her instruction accordingly. She gave her first and only test in February 2015, and that was only after several people in administration coaxed, prodded, and essentially wrote the assessment for her. Lack of Classroom Structure, Organization, and Management Several people noted that Respondent’s students were not engaged during class and that she needed help with classroom management. For example, during walk-throughs on September 8 and 15, 2014, Chiles told her she needed more engaging lessons and to circulate the classroom rather than sitting at her desk. Again, on January 13, 2015, Chiles noted lack of engagement, students not paying attention, “no flow of the lesson-transition nonexistent, unorganized structure,” and students not understanding the lesson. On January 20, 2015, Chiles and Michele Stewart (“Stewart”), an instructional staff developer, observed her classroom together and again noted lack of engagement, rigor, and understanding by the students. Chiles had a meeting with Snow on January 21, 2015, to review these issues. Snow did not respond to her suggestions for improvement, except to say that her planning period should not be interrupted and that the students do not understand the class “because of their levels.” Excessive referrals, sending students out of class into the hallway without assistance, and not addressing student needs were regular issues for Snow. In one instance, she assigned a student to the back of the room in a time-out chair and did not excuse him to use the restroom. The student wet himself causing him to be embarrassed and ridiculed by his peers. Snow told Chiles that she saw the boy’s hand slightly raised, but thought he was playing with the blinds. Shedrick testified that the boy’s parent called and came to the school to take the student home and that he “had to explain [to the parent] why the student sat in the back of the classroom and the teacher would not let him go to the bathroom.” Another time, Respondent left campus in the middle of the day without telling anyone. Her class of 22 students was left alone, unsupervised. Shedrick said he arrived in her room, and she was not there. Another teacher had to cover her class. He said he called her on the phone and was informed that she was sick or had a doctor’s appointment. As a result of this incident, coupled with the other recurring performance deficiencies, the superintendent suspended Snow for three days. Support, Training, and Professional Development at Bay Point Snow had multiple opportunities to correct her performance and improve her deficiencies through a variety of training opportunities and support provided to her. On most occasions, she refused to attend or otherwise participate. Many examples were given by the witnesses testifying on behalf of the school district. At the very beginning of the 2014-2015 school year, Respondent was expected to attend District Wide Training (“DWT”) for middle school science teachers. The DWT is the “big kick- off” for the upcoming school year, and the sessions consist of practices and initiatives that the science department expects to be implemented in the schools. Despite being specifically told that she needed to attend the middle school sessions to learn about revisions to the middle school curriculum, she instead chose to attend the high school science sessions. When asked why she did not attend these (which would have been relevant to her assignment as a middle school teacher), she told the principal that in her mind she was a high school science teacher. As is the case with all teachers new to the school, Respondent had a mentor assigned. Lara McElveen (“McElveen”) was the lead mentor at Bay Point and testified that she was a resource and was always available to help teachers navigate issues ranging from curriculum questions to technology. She held regular monthly meetings to discuss what was working for the teachers and what was not. While most teachers came to her when they needed help with the type of problems Snow experienced (lesson planning, progress reports, assignments, test preparation, FOCUS, etc.), Snow only sought her help occasionally and only for minor issues such as printing or copying assignments. McElveen testified that she tried to set up meetings to help with more substantive matters, but Snow complained that she had “too many meetings and that it was outside her contractual hours.” Four specific trainings were identified in the Success Plan negotiated between the principal, Respondent, and her union representative during their three-hour meeting on August 15, 2014. Specifically, she agreed to attend the following training sessions: Just in Time Unpacking & 5E Collaborative Planning on September 2, 2014; Content Enhancement Part 1 Unit Organizer on September 23, 2014; Data Driven Instruction & Analysis Gap Check In in January 2015; and Just in Time Boot Camp on February 3, 2015. Shedrick went out of his way to remove any barrier to her attendance. He made sure she was paid to attend the trainings by giving her a “TDE” (Temporary Duty Elsewhere). He personally coordinated the timing of the trainings with other appointments on her calendar, including her doctor’s appointments, and also sought out convenient locations for the different trainings so that she did not have to travel far. He set the first training scheduled for September 2, 2014, at a school located only five minutes away. She did not attend this training. Given the efforts that he went through to personally set up the trainings and personally reach out to the people conducting them, Shedrick testified that he was beyond disappointed and annoyed that she did not bother to attend. As a result, he wrote her a reprimand dated September 5, 2014, and directed her to follow the expectations in the success plan-- including attendance at the other trainings--in order to avoid future discipline. Despite her agreement as part of the success plan and the directive in the reprimand, she did not attend any of the four trainings. She never offered the principal an explanation for not attending, but simply told him that she did not attend. In early October 2014, administrators visiting Respondent’s classroom noted that she was two-to-three weeks behind in the pacing calendar establishing the dates by which certain subjects should be covered in her classroom. Shedrick worked with the middle school science specialist, Tom Doughty, to provide Snow assistance and get her back on pace. They assigned Stewart the task of working with Respondent. Stewart observed her class on October 8, 2014; met with her briefly to discuss a remediation plan; and scheduled another meeting the following week to follow through. At the scheduled meeting, Stewart brought the additional materials Snow had requested, but was unable to work personally with her because there was a collaborative planning session scheduled with all teachers. Stewart attended this training with Respondent. Afterward, she asked Snow to meet with her individually as planned, but Snow told her no, she was not contractually required to meet. Over the next couple of weeks, Stewart was at the school for five more days conducting trainings and available to assist the science teachers. Respondent appeared for one group-training on November 12, 2014, but no more. On one of the days (October 20, 2014), all of the science teachers came to meet with Stewart, except Snow. On another day (November 20, 2014), administrators asked Snow to meet with Stewart, but she never showed up and on the other two days, she called in sick. In addition to Snow falling behind in pacing, Doughty and others observed during classroom visits that Snow had “instructional pedagogy issues.” Shedrick again asked Doughty and his team to come in and provide direct support to Snow. Doughty observed her classroom on four occasions between January 13 and January 16, 2015, to see “what instructional strategies were used or lack thereof, what could have been used and were not employed or were not employed correctly.” The plan was to work in tandem with Stewart to provide professional development geared toward the specific areas where Snow struggled. Following the observations, he met with Snow, Shedrick, and Chiles to “debrief,” but Snow was openly resistant to his observations and suggestions. He said he tried to point out areas where her classroom management and practices needed to be refined, but she “cut me off at various points to argue with my observations.” For example, he suggested that a classic and fun activity for kids to learn the concept of balanced and unbalanced forces was a simple game of tug-of-war where they can experience what happens with forces on either side of a rope. Snow’s method for teaching this concept was to refer the kids to a picture of a satellite in their textbooks. Doughty told her that pointing the kids to a picture in a textbook “is not helping a student put an abstract concept to a concrete example.” In response, Snow “defensively interrupted [him] saying that she would never do that with her students and would stick with the picture of a satellite in a book.” He concluded that overall “Snow was very defensive and seemed not willing to accept feedback in order to improve her practice.” Snow was told repeatedly that assessments are necessary to measure a student’s understanding of the content taught. Also, Shedrick wanted to see any test she planned to give the kids. Despite these directives, Snow had not tested her students nor had she tried to create a test. Finally, on January 20, 2015, Snow sent Shedrick two documents for his approval which she presumably believed to be appropriate for testing her students. Noting that they appeared to be three-year-old worksheets, Shedrick forwarded the proposed assessments to Doughty for his review. Doughty first questioned why Snow would be testing certain subjects in late January--homeostasis and cells--when the pacing calendar called for the topic to be covered in the first week of October. He also noted that the sheet was straight out of the textbook. He observed that the second document was apparently pulled by Snow from a bank of questions designed several years earlier and was not appropriate to be given as a test to students. He also reminded Shedrick that Snow would benefit from attending a session at an upcoming DWT focused on proper classroom assessment design. As already noted, she did not attend the trainings which could have helped her do her job and, in particular, a training specifically designed to help her create a test. Next, Shedrick notified Snow that she was not to give the test she had proposed. In desperation, he asked Doughty and his science team to again work with Snow on creating a test. He testified that he had to ask for their help because Snow had not tested her students all year: I had to because we’re in December, January and the students haven’t been assessed. So how do you know what deficiencies they have? How do you know what standards to remediate? How do you know what they’re lacking? How do you know where to fill in the gaps? How do you know what to do as a teacher if you haven’t given a five-question quiz? How do you know what to do? When Shedrick informed Snow that the county science department would be setting up individualized training at Bay Point because she missed the professional development planned for all teachers (a DWT), she responded that “she did not have time for training because [she] was so busy.” He asked if it would be possible to set them up in the morning before school, during her planning period or after school, and she repeated that she was too busy and would never attend a training during her planning period. Finally, Snow agreed to attend a side-by•side training with Stewart so that Stewart could teach Snow, a veteran teacher with upwards of 23 years’ experience, how to write a test. Stewart and the district’s test bank did the bulk of the work, and eventually a test was created. Snow’s students were administered their first and only test on February 10, 2015. 2014-2015 Annual Evaluation at Bay Point On April 17, 2015, Chiles completed an annual appraisal of Snow’s performance. The appraisal instrument for this year was the “hybrid model” incorporating indicators from the Charlotte Danielson evaluation system and the Dr. Robert Marzano evaluation. Chiles completed a two-day training on the evaluation system. She passed a test on its use prior to evaluating teachers. The instructional practice portion of the evaluation, completed by Chiles, comprised 40 percent of the total score. Snow scored 1.364 points achieving an “unsatisfactory” rating. Snow did not score “effective” on any of the indicators. Chiles noted in the formal observation that: Ms. Snow demonstrates deficiencies in the area of delivery of instruction . . . she also struggles with time management in delivering instruction which causes students to be unclear on instruction and assignments. Many students are unable to articulate the learning goal or relate the learning goal to the lesson. Furthermore, many parts of the Gradual Release Model are not applied or observed. With regard to the assessment of instructional needs, Chiles noted that “little progress has been made.” “Tracking and monitoring data has not been exhibited, as well as using multiple assessments to assess the instructional needs of all students.” The student achievement portion of the evaluation counted for 50 percent of the overall score. Snow achieved 3.0 points for this portion. The remaining ten percent was based on professional development and Snow was given three out of ten available points. Respondent received only three points because she submitted a plan that did not match her duties. Again, she submitted an old form from the previous year when she worked at a high school. The form stated she was a biology teacher at Largo High School rather than a sixth-grade science teacher at Bay Point. Three points on a ten-point score was converted to a 1.2 on a four-point scale. Overall, Snow’s evaluation reflected a “needs improvement” rating with a final score of 2.166. 2015-2016 School Year at Bay Point Despite Snow’s poor performance, lack of cooperation and outright defiance the preceding year, Shedrick was optimistic that the 2015-2016 school year would be different. He testified that he was excited that Snow may have “turned a corner.” He testified that he was hopeful because over the summer Snow had shown some initiative and “went to a training without me asking her to.” Moreover, she actually approached him and shared the information, which was rare. He then scheduled a meeting with Snow to scale down her success plan and work on what was necessary to make her a successful science teacher. Shedrick’s optimism was misplaced and quickly faded. Snow was contentious and not receptive to the scaled-down success plan which contained many of the same expectations as the earlier one, i.e., two grades per week in FOCUS; at least one approved assessment each grading period; follow pacing guides; provide progress reports to students with D’s and F’s; contact parents; submit lesson plans; and attend classroom management training. She immediately objected to the expectation that she attend classroom management training stating that she already went to a training in July: “I’ve already been to that training and I am not going to any more training.” He tried to explain to her that the trainings are not all the same at which point it occurred to him that the only reason she attended training in the summer was probably to get a “trade day,” which amounted to a paid day off during the school year. He said, “I hope she didn’t go to that training just for the trade day. I hope she went to that training for students. Conclusion, trade day, because she would not go anymore [to additional trainings].” Not only did her performance and attitude fail to improve, it went downhill quickly from that point forward. Throughout the first semester of 2015, Shedrick and other administrators conducted numerous visits to Snow’s classroom and repeatedly notified her that she was behind the curriculum; her instruction was very low-level textbook work; she had not given the students a single assessment or even a quiz; she was not entering academic grades into FOCUS; she was not engaging the students or managing her classroom; and she had no plan to remediate the students who were falling behind. Shedrick testified that by December 2015, he was “at wits end.” He tried to schedule a conference with her prior to her formal observation but she would not meet with him. He tried repeatedly to re-schedule a meeting. Snow responded with a variety of excuses and objections and once marched into his office at the scheduled time simply stating, “I’m not meeting for your pre-conference,” and walked out. She did not complete the required pre•observation form, so Shedrick asked someone from the professional development department to go into the iObservation database and prepare the form for her. She never completed the form and never appeared for a pre-conference before the formal evaluation. Shedrick experienced the same difficulty with Snow in scheduling a formal observation. She objected that he did not give her enough notice; she did not have enough time; she had to test ESE and ESOL students; and other teachers do not have a formal observation mid-year. At one point he went to her classroom to discuss the observation (because she did not respond to his e-mails) and discovered that the kids were working on crossword puzzles. He said that if she was going to ignore his e-mails, “at least let me walk into [her] class and see [her] students highly engaged in some specification [sic] of some science labs, some dissection, and some hands-on lab learning for science. Imagine my dismay to walk in and see students working on crossword puzzles.” He conducted the formal observation on December 16, 2015, and for 55 minutes of the class period, the students worked on defining terms. He said this was typical of Snow’s lessons. “Bell work was defining terms. Classwork was defining terms . . . students would sit there and actually copy word for word verbatim or she would have them in the science consumer workbooks underline or she would regurgitate to them as to what to write next to whatever they underlined right next to it.” On the formal observation, Shedrick notes under “Establishing Classroom Routines”: [A]s I walked into the classroom you were moving around students from seat to seat and one student asked what are we doing and you replied “just wait.” You instructed the class to sharpen their pencil one by one and seven students ran to the pencil sharpener. Now students are sitting and waiting for you to begin the lesson. Two students are passing out books. Four minutes are gone and students are still waiting. Two students in the front row are passing out sheets of paper, now you have several students up doing various things at this time. Female students in the back are talking about the movies from the weekend. Ten minutes has gone before you address the class. You are trying to inform students of the Scale you created. Under the category entitled “Identifying Critical Content,” he wrote: Teacher reading terms that she asked students to define (define three terms) and students ask you to repeat and what page? No collaboration for this assignment . . . students are just defining terms out of the book and writing on paper . . . . At the beginning of the second semester, Shedrick’s frustration with Snow was palpable. He requested help from OPS, as well as the area superintendent, Robert Path, asking: How much longer must we continue with Snow? Anytime I request a meeting, she does not respond and doesn’t attend. This is defiant and disrespectful to start. How will I continue to run my campus as teachers hear she doesn’t attend my requested meetings, why should they. All this with no action which allows her to continue her behavior. On January 15, 2016, Shedrick sent Snow a letter telling her that she was on very thin ice but he was going to try once again to remediate her numerous deficiencies. After summarizing all of his efforts to meet with her to conduct a formal observation, as well as her responses, he stated: I have grave concerns over whether the very marginal instructional improvement that you made last year is sustained. You have never assessed your students so I have no information on that score, refused to show me the work that your students are performing so I do not have that information to review, refused to meet with me to finish a formal observation and have called in sick for several days avoiding this discussion. For that reason, I asked Mr. Doughty, the Middle School Science Specialist to observe your classroom, on Thursday, January 14th and this morning. I am very concerned about numerous things including the lack of science instruction taking place in your classroom, your classroom management and your conduct and attitude every time that I try to discuss these issues with you. Your continued refusal to do what I ask has seriously impeded the education of our students and they deserve better. I remain willing to work with you and sincerely hope that you choose to work with me toward preparing our students to meet the goals set for 6th grade science. I plan to meet with you to discuss all of these issues. Doughty again observed Snow’s class on January 14 and 15, 2016, and used his observations as a basis to develop yet another remediation plan. He observed that the activities were “low rigor-no connection made to learning target”; the pace of the lesson was not appropriate; there was “minimal student engagement” with students “off task” and “compliant” [sic, the context supports “non-compliant”]; and classroom management and discipline was not evident. Doughty helped design yet another remediation plan that was presented to Snow on January 20, 2016. He said: [W]e wanted to provide as much support and help to try to help her be the best teacher we could make her to be. So one of the things I suggested to Dr. Shedrick was, for example, Letter G [of the remediation plan] was stop using movies as a time filler, having appropriate topics and rigorous assignments that tied to it. Aware that much of what he had observed in the past was “textbook, textbook, textbook, writing in the textbook and . . . not a lot of hands-on engaging things,” he suggested Letter H of the plan, “performing labs that tied into the unit to bring on hands-on activities to give students ownership into their learning.” Doughty and Stewart spent several sessions with Snow during January and February 2016. On February 19, 2016, following an observation of her class, Doughty wrote to Snow commenting that the students were generally confused because the learning goal or the content she intended to teach, did not align to the task: The strategies used weren’t implemented correctly and did not achieve the desired effect. . . . Through my last two visits I have not seen effective implementation of the professional development Michele has provided on an individual basis. It is apparent we will need to revisit the topics from the previous 2 PO [personal observation] sessions. . . . At this point, Doughty felt his team’s efforts could be better utilized elsewhere, rather than continuing to work with Snow who was not cooperating. He contacted a number of people to tell them that “we’re not getting anywhere.” In an e-mail dated February 23, 2016, Doughty noted that “overall it is not going well” and “Michelle is very frustrated that her efforts are not yielding any results.” Insubordination, Incompetence, Performance Deficiencies, Willful Neglect of Duty Respondent is either incapable of performing the duties of a classroom teacher or simply unwilling to do so. Based upon the record, it is both. At times it seems that she is not willing to try because she does not have the skills necessary to perform her duties and, at other times, she is outright defiant claiming that she is not required to do what is asked of her. For two years at Bay Point, she has been directed to enter at least two academic standards-based grades per week in FOCUS and administer an assessment to the students. The assignments that she gave to students in no way could be construed as academic- based. The workbooks produced at hearing from students T.J. and M.T. contain pages with a few definitions, questions and answers copied out of the textbook, and “reflections” consisting of one to two sentences of what the student learned. One assignment is a “foldable” that the student cut out and pasted in the book, with definitions of cell parts written under the flap. In another assignment, the student cut out pictures of body parts and pasted them in the book partially labelling them. With all of the emphasis placed by the educators and administrators on STEM (science, technology, engineering, and math) and rigorous science instruction, Shedrick was appalled that Snow was teaching and assigning her students what he described as “baby work.” From the record and Snow’s testimony, there is little explanation as to when or how she graded these assignments. The students testified that they did not know the purpose of the assignments or how they were graded. Their parents did not know how she arrived at the grades and, when asked, she was not able to explain the grades to them. In addition to the low-level nature of the assignments in FOCUS, Shedrick objected to Snow giving a grade for a parent’s signature, bell work, notebook checks, reflections, and review of the code of student conduct. These were not academic grades, in his opinion. Parents also complained that they never knew where their child stood in the class because of the irregularity of Snow’s grading. Shedrick testified that parent complaints came in “fast and furious” because of Snow’s habit of “dumping” grades at the end of the marking period. John Frank (“Frank”), the OPS administrator, conducted an audit trail in FOCUS which enabled him to determine the dates that grades were entered and found that grades due earlier in the grading period were added a day or two before the end of the marking period, often drastically affecting a student’s grade with no warning or opportunity for the student to improve. For example, on March 14, 2016, FOCUS indicated Snow had entered six grades. Three days later she had entered four more grades for assignments that should have been added weeks prior. It is nearly inconceivable that entering two grades weekly could have been so difficult, especially for an experienced science teacher. For Snow, however, it was a constant uphill climb. When she met with Shedrick and, at times, with Valencia Walker, and later Frank, each told her “just put in two grades a week.” She said she did not have to. At the hearing, she claimed that she was “confused” when she was told the school district wanted two grades. She “preferred” to enter only one grade and reasoned that her assignments were so “intense” that one grade for her was really the equivalent of two grades for another teacher. Her lessons and assignments could in no way be deemed “intense.” At one point, she said she tried to put in two grades, but did not have time. Later, she said “my goal was to put in two grades a week. The reason why I wasn’t able to put in two grades a week at the end was because of the testing schedule and the pacing guide.” This explanation is almost nonsensical. As evident from her belief that her assignments were “intense,” Snow appears to have no insight into the lack of academic rigor in her classroom. At the hearing, she tried to explain the complexity involved for students to answer two questions in their textbooks on cells. She defended her extensive use of the textbook and instructional strategy of having the students read aloud from it on the basis that she had a lot of “special learners” who needed to learn to read. The record does not support her contention that her students needed “special” treatment due to learning disabilities or other special needs. Snow blames many of her deficiencies on the students’ misbehavior in her class. Testimony confirms that at times the class was loud and the students sometimes disrespectful. This is not uncommon when teaching middle school students. A parent called by Snow to testify characterized her observation as a class “out of control.” Snow, however, fails to recognize that her inability to deliver meaningful instruction caused, or at least substantially contributed to, the student behavioral issues. If the students were more engaged and assigned to more meaningful tasks, classroom decorum would have improved. Doughty summarized the correlation well when he testified, “The more low- rigor, the more textbook work . . . the more misbehavior I see happening. The more I see classrooms that engage students in fun, interactive . . . cool science, engaging science, the less misbehavior I see.” Snow attributes the misbehavior to the students, not her teaching methods or poor classroom management skills. She claimed that she was assigned “more than three fourths of the 6th grade SE/ESOL and 504 population . . . in addition, I have the majority of the lower level 6th graders.” Shedrick and the sixth-grade assistant principle, Jason Helbling, testified that the population of students in Snow’s class was no different than any other sixth-grade class. In fact, Helbling pulled the grades of the students Snow complained were nonperforming and found they received A’s, B’s, and C’s in their other classes. Snow’s testimony on this point is not credited. Helbling testified that he was called to Snow’s room much more frequently than any other teacher’s classroom in the school; in his words, as much as ten times more frequently. She had no interventions set up to redirect the students, but would instead call administrators to have those misbehaving or rowdy removed from class. She complained to Helbling that the students were terrible and not teachable. He counseled her to call home to the parent and “try to do other things than throw the student out of class and having them miss content.” Snow claimed she contacted parents but when Helbling called them himself, he learned that there had been no follow-up by Snow in the form of telephone calls. Helbling found that the students characterized by Snow as “rough,” “terrible,” and “not teachable” did not have the same problems in other teachers’ classes. He visited other classrooms to observe these students’ interaction with the teachers. The difference was that the other teachers had classroom management strategies and reached out to the students. Inexplicably, Snow did not even know the names of her students, something Helbling found inexcusable after several months of school. He testified, “If [by end of January] we don’t even know the names of our students, we have a problem, and a lot of that is linked to classroom management. How can you manage a classroom if you don’t know who your students are?” During a classroom visit on January 29, 2016, Helbling walked into a classroom in disarray. A chair was sitting on top of a desk; most of the students were talking; bell work took 21 minutes with no student actually working on bell work (“bell work” are brief assignments given at the start of class to warm up the students, settle them down, and prepare them for the day’s substantive lessons); five kids were lined up at the pencil sharpener; and Snow “sat at her desk the entire time that the observation took place.” Annual Evaluation at Bay Point for 2015-2016 School Year When the time came for the annual evaluation for the 2015-2016 school year, the district had fully integrated the Marzano appraisal system for use in all schools, which as noted above, is designed to grow a teacher’s practice. The comprehensive instrument is comprised of three components: the instructional practice, the deliberate practice, and the student growth score. The Instructional Practice portion counts for 56.67 percent of the evaluation and consists of four domains. Domain 1 is “Classroom Strategies and Behaviors” consisting of 41 instructional categories that happen in the classroom. Administrators conducted seven informal and two formal observations (mid-point and final) for completion of Domain 1. Domain 2 is “Planning and Preparing.” Domain 3 is “Reflecting on Teaching” and Domain 4 is “Collegiality and Professionalism.” Administrators also conducted nine walk-throughs which contributed to Domains 2-4. In each of the four domains, a teacher is rated based on a scale with the lowest being “not using” and the highest being “innovating.” The scores are tallied in the iObservation database. Snow received a score of 1 which is an “unsatisfactory” rating for the instructional practice portion. Her weaknesses in classroom management, instructional delivery and planning, and failure to cooperate were noted in many instances by her evaluator. The Deliberate Practice portion of the instrument counts for ten percent of the overall score. The rubric dictates that a teacher may receive a score of 1, 3, or 10. Teachers receive points, either 1, 3, or 10, depending on whether they submitted a professional development plan and then whether they implemented it. Snow received three out of ten points because she submitted a deliberate practice plan, but did not attend the required professional development. On a four-point scale, this translated into a score of 1.2. The Student Growth score is worth 33.3 percent of the overall score. Snow received a score of 3.0 on this section resulting in a final score on her evaluation of 1.69 or “needs improvement.” Cerreta testified that Snow is the only teacher in the district, out of more than seven thousand teachers, ever to have received three consecutive ratings of “needs improvement.” Cerreta confirmed that each of the evaluators for the 2013-2014 through 2015-2016 school years received training and were certified by the district to conduct an evaluation using the respective evaluation instruments. The administrators properly administered each of the evaluation instruments and Snow never challenged, through a grievance, the process followed by the administrators in conducting the evaluation. Cerreta’s office is responsible for submitting the appraisal systems to FLDOE for approval each year and confirmed that each of the respective systems described for the three-year period were submitted and approved by FLDOE. It bears noting and a brief discussion as to the integrity and character of Principal Shedrick and the other administrators who patiently worked with Respondent throughout her tenure with the Pinellas County School District and, especially, at Bay Point. It is rare to see a principal and district administrators who not only give a teacher the benefit of the doubt when it comes to her shortcomings, but go well above the call of duty to counsel; offer guidance at many levels; and utilize so many already overworked district personnel in an attempt to make one teacher not only a better educator, but successful in every way relating to her classroom and her students. Shedrick, his fellow administrators, and other teachers at Bay Point spent an inordinate amount of time working with one teacher, Snow, who not only rebuffed their efforts to make her successful, but seemed to resent their attempts to make her a more effective teacher. Only after constant failures by Snow in the classroom, and her apparent inability or lack of desire to improve or learn from all the advice and instruction given, did Shedrick reach his breaking point and move forward with the steps leading to Snow’s proposed termination. Less dedicated individuals would have pulled the plug far sooner, and Shedrick, along with all the administrators involved, should be commended for their patience and desire to make an experienced science teacher, a valuable commodity in the district, successful to the point where she could better further her students’ education in such a vital academic subject in today’s world. Based upon the extensive evidence and testimony, all these efforts were unappreciated and, ultimately, made in vain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 24th day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2017. COPIES FURNISHED: Laurie A. Dart, Esquire Office of General Counsel Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Dr. Michael A. Grego, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Except for the matters at issue, the Petitioner is full qualified for licensure as an agent and to obtain an agency license. The Petitioner served twenty (20) years in the US Army, retiring as a sergeant-major in 1973. His last ten (10) years in service were involved directly with work which the agency concedes is the equivalent of the work done by an employment clerk. The Petitioner, since retiring from the US Army, has been employed as a teacher/career counselor in the Detroit school system at the high school level. There he instructed high school ROTC six (6) to seven (7) hours per week. The remainder of his time was spent in counseling and duties associated with administration of the ROTC department of which he was head. The Petitioner has counseled more than 200 students regarding careers to include helping them fill out applications, helping to place them in programs, and encouraging them to develop job skills. He held this position until applying for this license. The petitioner also served for more than three (3) years immediately preceding his application on the Harper Woods School Board. As a member of the school board he had to approve the hiring, firing and granting of tenure to school board employees, and review negotiated contracts for employees of the school board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application of Ralph E. Young for an employment agency/agent license be granted. DONE and ORDERED this 21st day of December, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1979. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Ralph E. Young 2117 South East Erwin Road Port St. Lucie, Florida
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue The issued posed herein is whether or not the Respondent School Board of Dade County's reassignment of Petitioner/student, Valerie Patrice McDonald, from Miami Springs Junior High School to the Jan Mann Opportunity School North, should be upheld.
Findings Of Fact Valerie Patrice McDonald, Petitioner, is a student enrolled in the Dade County Public School System. Petitioner was enrolled in Miami springs Junior High School in August of 1978. Petitioner's guidance records indicates no serious behavioral problems and that her attendance at school is excellent. Her academic progress has been a steady B and C average since enrolling in the public school system. Petitioner was referred to the guidance office of Miami Springs Junior High School on numerous occasions during the 1978-1979 school year for various disciplinary problems. For example, on September 25, 1978, Petitioner was referred by her mathematics teacher for playing and not working in class. For this referral, she was counseled. Again, on October 25, 1978, she was referred by the social studies teacher for "being involved in a classroom disturbance with another student wherein pencils were broken, books were thrown out the window and the students began kicking each other. A parent conference was requested." On November 3, 1978, Petitioner was referred by the physical education teacher for "striking another student in the locker room for no apparent reason. Petitioner counseled and warned by principal." Again, on November 16, 1978, Petitioner was counseled for being loud and for refusing to remain quiet when requested. Petitioner was placed outside the classroom door by her English teacher. This pattern of disruptive behavior continued through March of 1979 when Petitioner was involved in a fire incident in the girl's physical education locker room. Based on this incident and the culmination of the prior behavioral problems, an administrative placement was requested by the school board for Petitioner to be assigned to the Opportunity School, which request was approved on April 3, 1979. Since that time, Petitioner has been attending the Jan Mann Opportunity School. Charles W. Bales, principal of Miami Springs Junior High School, testified that the assignment of Petitioner to the Opportunity School is beneficial inasmuch as it permits the student to utilize the benefits of smaller class settings, better individualized instruction; smaller class enrollments; better counselor to pupil ratio and basic educational program which enables a "disruptive" student to succeed in an individualized instructional setting. (TR 18-20) Testimony also reveals that the Opportunity School has a full-time visiting teacher who serves as the contact person for resolving any individual problems such as attendance or other behavioral problems for students at the Opportunity School. Ms. Helen Wilson, Petitioner's mother, requested that Principal Bales reassign Petitioner from three of her teachers due to matters which Ms. Wilson considered to be personal in nature. Principal Bales explained that there were approximately 1500 students at the school and that it was impossible for him to reassign students when personal differences of opinions exist between their teachers. Additionally, Principal Bales testified that students reassigned to the Opportunity School may request a transfer back to the regular school program following the close of the grading periods. Inasmuch as Petitioner has been attending the Jan Mann Opportunity School since March, 1979, it appears that she will be eligible for a reassignment to the regular school program provided that her grades, attendance, and behavioral pattern is such that she can function normally in the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's petition filed herein be dismissed. Additionally, it is requested that the Respondent give full consideration to Petitioner's request that she be reassigned to the regular school program when such a request is properly filed with the school board. RECOMMENDED this 27th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979. COPIES FURNISHED: Ms. Helen Wilson 3311 North West 52 Street Miami, Florida 33142 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building Miami, Florida 33132
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.
