The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the application of policy and practice by: establishing routines and procedures for the use of materials and the physical movement of students. formulating appropriate standards for student behavior identifying inappropriate behavior and employing appropriate techniques for correction. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 28th day of December, 2000.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including Carol City Senior High School (Carol City). At all times material to the instant case, Mary Henry has been the principal of Carol City and James Meehan has been an assistant principal at the school. At all times material to the instant case, Respondent was a language arts teacher at Carol City holding an annual contract. Respondent began teaching at Carol City in September of 1997. She remained at the school until February of 2000. In accordance with the School Board's Teacher Assessment and Development System (TADS), which it developed in concert with the United Teachers of Dade, the collective bargaining representative of the School Board's teachers, school principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe required remedial activities designed to improve the teacher's performance. The categories of classroom performance that are assessed are "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," "teacher-student relationships," and "assessment techniques." Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. TADS was modified following the 1997 session of the Florida Legislature to provide for a 90-day "performance probation period" for annual contract and professional service contract teachers determined to be performing unsatisfactorily. The modification was set forth in a Memorandum of Understanding between the School Board and the United Teachers of Dade, which provided, in pertinent part, as follows: Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days conduct a conference-for-the-record which address: results of the observation/assessment, or Category VII infraction, stipulations of the Performance Probation (90 calendar days, excluding school holidays and vacations), which begins upon the employee's receipt of the written plan of assistance (prescription), the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time, future required observations/assessments, and possible employment actions. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation. The annual evaluation decision will be based upon the result of the last observation/assessment . . . . Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent.- Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board continue or terminate his or her employment contract. If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing. . . . On October 21, 1999, Respondent was formally observed in her classroom by James Meehan, an assistant principal at Carol City and a certified TADS observer. Mr. Meehan rated Respondent deficient in "preparation and planning" (Category I.B.2.); "knowledge of subject matter" (Category II.A.2.); "classroom management" (Categories III. B.2. and 4. and III.C.1. and 4.); and "techniques of instruction" (Categories IV.H.1. and 2.). These unsatisfactory ratings were justified. Following Mr. Meehan's October 21, 1999, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (First Report). The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson plan prepared by the instructor was not followed. The stated objective in the lesson plan was: "Student will demonstrate test taking skills and ability to visualize descriptive language; FCAT worksheet (reading comprehension)." The activities used to accomplish these objectives were stated as follows: "Test on literature; pictures of a descriptive passage with language being discussed included; reading comprehension worksheets." The actual lesson consisted of: (1) quiz on run-on sentences; (2) the introduction of the elements of a short story by the instructor; (3) the reading of an essay which the instructor mistakenly identified as a short story; and (4) students' written responses to "Questions for Study and Discussion," after the reading of the essay. There was no demonstration by students of their ability to visualize descriptive language, no FCAT reading comprehension worksheet, and no literature test." PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairman, on each Friday, for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.A.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor attempted to teach the elements of a short story by applying them to a work by Maya Angelou which is described in the handout given to students, as a "self-contained section from her first autobiography," and later on as an "essay" in the "Questions for Study and Discussion." The instructor continuously referred to this literary work as a short story; however, it is a work of non-fiction. The instructor erroneously applied the elements of a short story such as exposition complication, conflict, climax, and denouement to this non- fiction literature. This work was an example of a descriptive essay, not a short story. PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairperson, on each Friday, for review and discussion, prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.A.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not utilize non-verbal techniques to redirect off-task learners. Off-task behavior was frequent and persistent throughout the class period. Of the 30 students present, 20 were off-task for significant period[s] of time. Students in A1, B1, C2, C4, D1, D2, G1, and G4 slept some 20 minutes or more. The students in F1 and F2 continuously passed notes to one another while the student in E4 read a sports catalog for at least 30 minutes. At one point, the students in A4 and G3 walked to the front of the room in back of the instructor, exchanged notes, and returned to their seats. The student in B5 combed the hair of the student in B4 and afterwards massaged his hands. The student in A1, when not sleeping, played with her hair. Other students stared into space or otherwise wasted time. The instructor never attempted to use non-verbal techniques such as eye contact, silence, clapping, or proximity to redirect these off-task behaviors. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, designated by the assessor, to record how he/she has successfully used non-verbal techniques to deal with off-task student behavior. The instructor will type a summary of the interview and develop a plan, incorporating some of the suggestions, to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Julia Fehr, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Often times during the period, 50 to 70 percent of the students were off-task. Students were engaged in activities not associated with the lesson. They daydreamed, drew pictures, wrote notes, slept, or were distracted in other ways. The instructor made an attempt to verbally redirect some students who were off-task; however, they were not revisited and the off-task behavior continued when the instructor directed her attention elsewhere. The student in E4 was told to put his catalog away. He then put his head down on his desk instead. He was not revisited. The students in A1 and F1 were told to do their work and move their desks closer to the front of the room. When they did so, they continued their off-task behavior, F1 by throwing papers across the room into the garbage pail and gyrating to imaginary music, A1 by continuously getting up from her desk and fiddling with her hair. Neither student was revisited. Verbal and non- verbal techniques to maintain the attention of redirected learners were not employed by this instructor. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, to record how he/she has successfully use[d] verbal and non- verbal techniques to maintain the attention of redirected learners. The instructor will type a summary of this interview and develop a plan, incorporating some of the suggestions presented, to reduce the frequency of recurring off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably resigned to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior had not been established or were not clear to learners. Of the 30 students present, 14 arrived late. None of these students was asked for an explanation. The only reaction from the instructor was, "Do you see how aggravating this is?" When students had to sharpen pencils, they left their seats and walked across the room. Four students were observed leaving their seats to sharpen pencils while the instructor was lecturing or reading to the class. When disposing of garbage, several students threw their papers across the room. The student in F1 and another student in row G played basketball with balled up paper and the trash can. When responding to questions, students would blurt out answers. There was no systematic method established for asking or answering questions. At the end of the period, before the bell, 11 students left their seats and began walking around the room. One student left his seat and walked across desks to get to the side of the room. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, for suggestions on how to deal with inappropriate student behavior during class. She will type a summary of each interview. The material will be submitted to Mr. Meehan for review and discussion. Mr. Meehan and Pamela Salkey, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly or appropriately by this instructor. During the quiz, students in A3, A4, and F1 continuously looked at other students' papers, while students in A5 and B4 conversed. These behaviors continued without the instructor identifying or responding to the students involved. At another point during the lesson, the student in B5 yelled, "I don't give a fuck," loud enough to be heard across the room. There was no response from the instructor. The magnitude and frequency of talking that occurred during the lesson made it extremely difficult for students to hear what the teacher was saying and for students to complete their assignments. During the last 35 minutes of the class when students were assigned to respond to 4 questions dealing with the reading selection, only 8 of 30 students completed the assignment, 12 handed in no paper at all, while 7 did 1 or 2 of the questions. PRESCRIPTION PLAN ACTIVITIES The instructor will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a reward system to promote and maintain appropriate student behavior in class. The instructor will submit the plan to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan, Ms. Howard, and Ms. Theodora Woltch, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Areas of confusion were not identified before learners asked questions. During the quiz on run-on sentences, students were confused as to what to do. Many students were puzzled as to why they could not use coordinating conjunctions or another method of connecting run-on sentences, rather than being restricted to writing two separate sentences as instructed by the teacher. Confusion was exacerbated by an explanation on the reverse side of the test which stated, "In fact, it is often better to join them than to put them into separate sentences." When students asked if they could use another method, the instructor said they could not, but would not be incorrect if they did. Students remained puzzled as to what was acceptable. These potential areas of confusion with the run-on sentence should have been anticipated by the instructor, but were not. PRESCRIPTION PLAN ACTIVITIES The instructor will construct detailed lesson plans each week and discuss potential areas of confusion with her department chairperson on the Friday prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help Respondent improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION When students were assigned to write the answers to "Questions for Study and Discussion," several students asked if they could work in groups. The instructor responded that they could work in pairs. She then changed her mind and said they had to work individually. Afterwards, she again said they could work in pairs. Students were puzzled as to what to do. Students were further confused by what question they were assigned. Initially, the instructor assigned question 1, then 2 through 5, and later on told a student, "Do number 2 and I'll be happy." Again, many students were confused. When the instructor assigned students to grade each other's quiz papers, students did not understand what was correct, what was minus 5, and what was minus 10. The student in F3 stated that he was confused and the student in E3 claimed, "I don't understand." The instructor made no attempt to clarify these misunderstandings. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor chosen by the assessor, regarding how he/she approaches the organization [of] his/her lessons on a daily, weekly, and long term basis. The instructor will type a summary of this interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.2. On October 28, 1999, Ms. Henry held a conference- for-the-record with Respondent to discuss the contents of the First Report, a copy of which was provided to Respondent. Also present were Mr. Meehan and United Teachers of Dade representatives. An explanation of the deficiencies found by Mr. Meehan was given. In addition, Respondent was advised of the commencement (that day, October 28, 1999) of the 90-day "performance probation period" and warned that "failure to demonstrate remediation of [her] deficiencies may result in termination of [her] employment contract" and that failure to complete "prescription plan activities" by the November 22, 1999, deadline would "result in an unacceptable rating on the Professional Responsibilities Component of TADS." On November 17, 1999, Ms. Henry held another conference-for-the-record with Respondent. Also present were United Teachers of Dade representatives. The purpose of the conference was to discuss Ms. Henry's findings concerning an incident that had occurred in Respondent's classroom during her fifth period class on October 5, 1999. Ms. Henry had determined, based upon statements from students, that Respondent, during this fifth period class, had "inappropriately disciplined a student by grabbing her by the arm to remove her from the classroom." 1/ At the conference, Ms. Henry advised Respondent of the determination she had made and admonished Respondent accordingly. Among other things, she told Respondent that she should seek the assistance of an administrator or security monitor if she had a disruptive student in her classroom. The following day, November 18, 1999, Respondent received a letter of reprimand from Ms. Henry, which read as follows: On October 5, 1999, you inappropriately disciplined a student while instructing your language arts class. You violated Rule 6Gx12-5D-1.07- Corporal Punishment and 6Gx13-5D-1.08- Maintenance of Appropriate Student Behavior. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline are outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.07 and the Faculty Handbook- Item 9 - Classroom Management, Item 16- Corporal Punishment Policy, and Item 85- Supervision of Students. You are immediately directed to refrain from using any physical means to manage student behavior. Your are also immediately directed to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the above documents. The infraction, Case Number E-02750, was substantiated by students' statements. You are hereby officially reprimanded for violating your professional contractual responsibilities in that you grabbed the student's arm to remove her from class. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are hereby directed to implement approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. The reprimand was signed and dated (November 18, 1999) by Respondent. Respondent failed to complete the "prescription plan activities" set forth in the First Report by the November 22, 1999, deadline. On December 8, 1999, Respondent was formally observed in her classroom by Ms. Henry, who, like Mr. Meehan, is a certified TADS observer. Ms. Henry rated Respondent deficient in "knowledge of subject matter" (Categories II.B.2. and 3.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1.,3., and 4.); "techniques of instruction" (Categories IV.A.2. and 3. and F.1. and 3.); and "assessment techniques" (Categories VI.A.2., 3., and 4. and B.2. and 3.). These unsatisfactory ratings were justified. Following Ms. Henry's December 8, 1999, observation, she completed a "record of observed deficiencies/prescription for performance improvement" (Second Report), a copy of which was provided to Respondent. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.2., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The sequence of information presented was not logical. The teacher's lesson for the entire two hour block involved a test on vocabulary words, a bell shaped curve drawn on the chalkboard with the words "exposition," "climax" and "resatution (resolution)" around it, and an FCAT assignment for students to answer questions from pages 48, 49, and 50. Before one activity was completed, the teacher moved on to the next and then back again. This vacillation between activities was continuous throughout the lesson. At no point did the teacher attempt to establish a connection between elements of the lesson. There was no meaningful framework established by the teacher in which students could relate one component of the lesson with another. PRESCRIPTION PLAN ACTIVITIES The teacher will observe Ms Hayes' class during period 4 and summarize the instructional activities, techniques and strategies used by the teacher. The teacher must submit her observation in typed form to Ms. Henry, the principal. Elois Hayes, a language arts instructor at Carol City, and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to help to improve her performance in Category II.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.3, and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher failed to select or incorporate important dimensions and applications of the subject to make the lesson meaningful to learners. Without preparation or warning the teacher began to call loudly four words to students to write down. After much student confusion about the vocabulary words, the teacher then drew a bell shaped curve on the board and asked students to read a story and write down the exposition, climax, and resolution. Shortly after assigning this activity, the teacher wrote another assignment on the board and instructed students to answer questions from the assigned pages. The classroom activities required only copying answers and writing responses to questions on paper. At no time did the teacher provide examples or explanations nor did she attempt to engage the students in any meaningful or relevant activities. The lesson presented by the teacher demonstrates limited knowledge by the teacher in selecting activities that required higher order thinking skills such as reasoning, synthesis, comparison, or evaluation. PRESCRIPTION PLAN ACTIVITIES The teacher must plan and present lessons on different cognitive levels beginning with information that is knowledge based and extends to the highest level which is evaluation. All lessons should be introduced, presented on two or more cognitive levels and summarized by the teacher. The teacher must prepare appropriate lesson plans which must be submitted and discussed with Ms. Henry, the principal. Ms. Henry was listed in the Second Report as a "recommended resource" Respondent could draw upon to improve her performance in Category II.B.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.4., and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Subject matter was not presented at more than one cognitive level. The entire lesson was presented on the knowledge level. The instructional activities were limited to copying from the chalkboard. To entice students to copy or write assignment, the teacher instructed the class that each student would get three A's for the assignments. There were no other techniques used to encourage higher order thinking skills. PRESCRIPTION PLAN ACTIVITIES The teacher must meet with her department chairperson and media specialist to review lesson plan objectives, activities and supplemental materials that incorporate higher levels of reasoning in her lesson plans. The teacher must submit and discuss her lesson plans with Ms. Henry on a weekly basis. Ms. Henry, Ms. Howard, and Elaine VanNostrand, a media specialist at Carol City, were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.2., and directed Respondent to engage in and complete by January 6, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were constant unnecessary delays and disorderly behavior by both the teacher and students. The teacher began class by calling out vocabulary words during which time she stopped several times to threaten students about their behavior and about not taking the vocabulary test. She repeatedly told students, "Go to the office and get your class changed, if you don't want to be in here." Students talked loudly, moved freely around the classroom and yelled out answers to the vocabulary test. Approximately 9 to 12 students refused to do anything. Confusion resulted from the lack of clear directives being provided by the teacher. Time was wasted when the teacher argued with students, repeatedly yelled out the same vocabulary words to students, and passed out literature books to individual students who asked in confusion, "What words? What page? What are we doing? What story are we supposed to read? I don't know what you are talking about." So much time was wasted that the entire class became chaotic and neither teaching nor learning occurred. Approximately 65 to 75 minutes of instructional time was lost to unnecessary delays. PRESCRIPTION PLAN ACTIVITIES The instructor will invite her department chairperson to observe her class. During that time the visitor is to record the time the instructor spends on various activities while in class. Using the data, the instructor will then analyze her instruction on the basis of how much time she spends on instructional versus noninstructional activities. Once that information is known, the instructor will develop strategies to reduce her percentage of noninstructional time while in class. The instructor will type a summary of the results of this exercise. She will submit the material to Ms. Henry for review and discussion. Ms. Howard and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the allocated time period. The lesson attempted by the teacher ended at 1:40 p.m. while the students continued to do whatever they chose to do until 2:30 p.m., which was the time the class was scheduled to end. There was drumming and dancing, students playing church, students walking and socializing individually and in groups, hair combing, 4 to 5 students sleeping at various times and students who just took a break from misbehaving. Their teacher made no attempt to regain control of the classroom or to continue with the instructional activities. Instruction stopped 40 minutes before the scheduled end of the class. PRESCRIPTION PLAN ACTIVITIES The teacher must develop a seating chart for each class and use the seating chart to help maintain classroom management. The teacher must also make parental contacts and keep a log of all contacts made or attempted. The seating chart and parent contact log must be submitted to Ms. Henry for review and discussion. "Seating Chart," "Parental Contact Log," Student Service Staff," and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by January 8, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use non-verbal techniques to redirect off-task learners. Twenty-three students were present during the lesson. Of that number, 19 students in the classroom exhibited constant off-task behavior that lasted throughout the class period. Students were constantly observed walking around the classroom, drumming on desks, combing their hair, playing with the television, yelling, singing and dancing. The entire class was in a state of frenzy. The teacher did not use non-verbal techniques such as proximity, clapping or facial expressions, to redirect students to the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record the number of times she identifies and responds to off-task behavior. The teacher will also analyze her instruction and lesson plans to devise a strategy to significantly reduce the frequency of off-task behavior observed in her classroom. The teacher will submit her seating charts and strategy to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by January 4, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Constant and persistent off-task behavior was noted in this teacher's classroom. Students were observed talking, walking around the room, sleeping, singing, drumming on desks, dancing and playing with the television. Although the teacher yelled our commands and threats for behavior to cease, the behavior reappeared quickly once the teacher's attention was redirected to someone or something else. At 1:40 p.m. the teacher seemed defeated. She sat at her desk and attempted to address the assignments with students who were standing around her desk amidst total confusion. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will submit the seating charts with the recorded instances of misbehavior to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by January 13, 2000, the following "prescription plan activities" reasonably designed help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior were not established or clear to the students. Throughout the class period, 80% of the class were talking, walking around the room, yelling at other students or the teacher, singing, drumming on desks, dancing, combing hair, or turning on the television. The noise level was so high that the teacher had to yell to make a point. At one time the teacher walked over to the observer and said, "I guess you are happy. This is what happens when you bribe students in order to fire me." The teacher also advised students by stating, "Find a spot on the wall and talk to it and don't ask me anything." Other than yelling out commands to sit down, be quiet or threats to get out of the class, recurrent inappropriate behaviors were allowed to occur without consequences. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. The assertive discipline plan will be submitted to Ms. Henry for review and discussion prior to implementation. Ms. Henry and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.3., and directed Respondent to engage in and complete by January 10, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly by this teacher. Students were observed in various acts of off- task behaviors. The behaviors would sometimes persist until students became tired of that misbehavior and moved to another inappropriate behavior. The teacher appeared angry and overwhelmed with students' misbehavior. Off-task behavior was not dealt with quickly. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave and the resulting consequences imposed by the teacher. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The charts and the resulting analysis will be submitted to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by January 7, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this teacher. Students were observed throughout the class period engaging in inappropriate behaviors. In certain instances, the teacher responded in anger yelling out a command to sit down or stop talking. As soon as the teacher's attention was diverted to another off-task behavior or question, the behavior challenged earlier would return. No consequences were ever imposed by the teacher when she addressed any particular behavior. PRESCRIPTION PLAN ACTIVITIES Using outside resources, the teacher will identify and describe, at least two additional behavior management techniques which have been shown to be effective in the classroom. Using the information obtained, the teacher will devise a written plan to significantly reduce the frequency of inappropriate behavior in [her] classes. The teacher will submit this information to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.2., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructional methods employed by this teacher were not appropriate for the needs and abilities of the learners in the classroom. The teacher began the class by saying, "You are going to have a vocabulary test." Students were confused as to what vocabulary test they were to take, while some students stated that, "You never assigned us any words to study." After much confusion, the teacher yelled out four vocabulary words for students to write down. While students were copying vocabulary words from each other, the teacher hurriedly drew a bell curve on the chalkboard, wrote three words around the bell curve and asked students to find a sentence in the story that related to each of these words. Again, students informed the teacher that the class had not read the story. The teacher continued with this assignment by asking students to get a literature book. The teacher then began to vacillate between the vocabulary words and the bell curve relating to the story. Later, in the class period, the teacher wrote another assignment on the chalkboard which required students to answer question from the FCAT booklet. Students became frustrated, inattentive and disengaged with the lesson. PRESCRIPTION PLAN ACTIVITIES The lesson plans will reflect at least (3) different methods of delivering each lesson. The teacher will review the plans and methods with Mrs. Howard and Ms. Henry prior to their delivery. Ms. Henry and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The only materials used by the teacher were the chalkboard, textbook and FCAT workbooks. Supplemental materials such as handouts, computer assisted instruction, textbook glossary of words or dictionary and/or sticky notes were not employed to bring variety to the lesson and stimulate students' interest. The off-task behaviors manifested by students were the consequences of the teacher's failure to use a variety of materials. The instructor's limited use of basic curriculum materials was not appropriate for the needs and abilities of the learners in this class. PRESCRIPTION PLAN ACTIVITIES The instructor will meet with her department chairperson and the director of the Media Center in order to obtain assistance in finding supplementary materials that may assist her in her endeavors to instruct her English classes. The instructor will list the materials available and develop a plan to utilize some of these materials in her classes. The instructor will submit a copy of the list and the plan to Ms. Henry. The instructor will discuss the plan with Ms. Henry prior to implementation. Brenda Harrell, a media specialist at Carol City, Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.1., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not establish the necessary background for the lesson. She began the lesson by calling out vocabulary words. A majority of the students informed the teacher that they had not been assigned any vocabulary words for study. The next assignment required students to use a short story to respond in writing to the three words (exposition, climax and resolution) written around the bell shaped curve on the chalkboard. The teacher insisted the students had read the story. Students likewise indicated that they had not read the story because of an incident relating to the teacher's stolen purse on the day they should have read the story. Next, the teacher placed another assignment on the chalkboard from the FCAT booklet. It was apparent from the students' responses that there was no background or prerequisites for the lesson nor did the teacher facilitate students' understanding of the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher must prepare lesson plans that require more than student centered activities involving reading, writing, and copying answers from a textbook. The teacher must prepare lesson plans that are teacher/student centered and provide for the various levels of cognitive learning. She must also include activities that will motivate students to participate in the lesson. The lesson plans must be submitted to Ms. Henry prior to their implementation. "Lesson Plans," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.1 The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.3., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher presented three different lesson components which were not appropriately sequenced during the class period. She began the lesson with four vocabulary words which [were] not related to any lesson. It appeared that the sole purpose of this exercise was to give the students a test. The next assignment was for students to find a sentence in the story that related to words written around a bell curve. Several students asked, "What story?" Other students informed the teacher that they never got to read the story because of her stolen purse. The teacher ignored the students' comments and proceeded with the assignment amidst confusion. In the last assignment, students were instructed to answer questions on certain pages from the FCAT booklet. Because of the lack of appropriate sequencing in the lesson components, students were unable to understand the lesson presented. PRESCRIPTION PLAN ACTIVITIES The teacher will include in her lesson plans the sequence in which the components of the lesson will be presented. The teacher will also include in her lesson plans at least three (3) different methods of delivering each lesson. The lesson plans will be submitted to Ms. Henry for review and discussion prior to implementation. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not solicit responses or demonstrations from students. Students were asked only to write their responses to vocabulary words, to write sentences [with] words listed on the bell shape[d] curve and to write answers to question[s] from the FCAT booklet. At no time did the instructor ask students for a verbal response nor did she ask them if they understood the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will solicit informal responses from individual students as well as assessing students in a group. The teacher must also assess student demonstrations of the instructional objectives. This assessment must be properly labeled and dated in the gradebook. A weekly review will be made by Ms. Henry. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Multiple levels of learning were not monitored. The teacher did not appear to monitor any level of learning. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least two (2) class activities each week that require[] multiple levels of assessment of students' performance. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION A review of the teachers' gradebook and students' folders revealed only two to five teacher graded assignments. There was no documented nor observed activities in which students evaluated their own or each others' performance. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least one (1) class activity each week that requires students to assess their own classwork or the classwork of another student. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use a variety of assessment techniques to assess students' performance. A review of the gradebook revealed that only two to four grades had been recorded since the beginning of the school year. A review of students' folders revealed only two to three papers filed with dates [of] September, 1999. During the observation period, students were only required by the teacher to provide written responses to assignments. Most students did not complete the assignments. Of the 23 students present only 3 submitted papers for the FCAT assignment while 6 did so for the reading assignment and 17 for the vocabulary quiz. The teacher made no attempt to assess students' progress other than collecting papers at the end of the class. There was no evidence in the gradebook or student folders of unit tests, projects, homework, etc. PRESCRIPTION PLAN ACTIVITIES The teacher will present to Ms. Henry on a weekly basis her gradebook and sampling of students' folders showing classwork and the teacher's assessment of that classwork. The teacher must also properly label grades in the gradebook according to the assignment and date. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete "weekly on Friday," from January 3, 2000, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were no summative assessments reflected in students' folders nor in the teacher's gradebook for the period of August 31 through December 8, 1999. There were only two to four grades recorded for her five classes during the above period. There were no unit test[s] with a variety of test items. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a unit test which will include the following: 20 multiple choice question[s] 10 matching items 5 fill in the blank items 2 essay questions Submit to principal for review prior to testing of students. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. Respondent failed to timely complete the "prescription plan activities" set forth in the Second Report. On January 19, 2000, Ms. Henry presented Respondent with a memorandum advising Respondent that she was being "granted 24 hours to complete" these activities and that "[f]ailure to comply w[ould] result in disciplinary action." On January 25, 2000, Respondent was again formally observed in her classroom by Mr. Meehan. Mr. Meehan rated Respondent deficient in "preparation and planning" (Categories I.A.1. and 2. and B.1. and 2.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1. and 4.); "techniques of instruction" (Categories IV.B.1.,2., and 3.); and "assessment techniques" (Categories VI.A.1., 2., and 4 and B.2. and 3.). These unsatisfactory ratings were justified. Following Mr. Meehan's January 25, 2000, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (Third Report). The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have written lesson plans for the lesson presented. She did not have a stated objective, a homework assignment, activities or a means of monitoring student progress. PRESCRIPTION PLAN ACTIVITIES The instructor will develop weekly lesson plans containing objectives, activities, homework, and a means of monitoring student progress. She will submit the plans to Mr. Meehan for review and discussion on each Friday prior to their implementation. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The objectives of the lesson were not based on nor did they go beyond the Competency Based Curriculum or the Sunshine State Standards. Since there was no written lesson plan and learning outcomes were not communicated to students, it was difficult to decipher what the instructor was attempting to accomplish. When preparing to distribute a handout to students at the beginning of the period, she stated, "These are the wrong ones." She distributed them anyway. Since there weren't enough copies, she said, "You'll just have to share. Students worked on these handouts for approximately one hour. She then sent two students to leave the room to get workbooks. Without explanation, she assigned page forty-one. Students worked on this assignment for approximately thirty minutes. Neither of these assignments was reviewed nor evaluated. Students were given free time for the remainder of the period. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare detailed lesson plans with objectives based on the Competency Curriculum and the Sunshine State Standards. She will review these plans with Ms. Howard, Language Arts Chairperson, on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson presented by the instructor did not fill the allotted time with prepared content and instructional activities related to objectives. The first hour of the period was consumed on a vocabulary puzzle. The next thirty minutes were spent on a spontaneous assignment given from page forty-one of a workbook. Neither assignment was reviewed. The remainder of the period was given as free time. PRESCRIPTION PLAN ACTIVITIES When preparing her weekly lesson plans, the instructor will divide the time allotted for each period into thirty minute intervals. She will them state the specific activities that will take place within each of these intervals. She will discuss these timelines with Ms. Ann Howard on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION In the absence of a lesson plan, the instructor distributed puzzles and gave an assignment from a workbook. The remaining portion of the class was assigned as free time. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard, regarding how to best utilize the time allotted in block scheduling to plan her classes. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the class period. The instructor stated that she wanted to close the period by allowing students to watch thirty minutes of television but could not because Mr. Meehan was in the room. She assigned free time instead. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding how to utilize the final thirty minutes of a two hour block to enhance student learning. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Woltch was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category III.A.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use non-verbal techniques to correct off-task behavior that was evident throughout the class period. Many of the twenty-eight students in attendance were off-task for significant periods of time. During the portion of the class when students were given classwork, three students in rows B and C read Spider Man comics, while the two students in the front of row A worked on unrelated assignments. Two students in the last seats of the middle rows of the classroom slept in each other's arms. A student in front of them drew on the arms of the student next to him. Another student in the middle of row B slept and one in the front of row C played the drums on his desk. During the entire two hour block, students left their seats to walk around the room, talk, and play. The off-task behavior was so extensive that the instructor accused the observer of collaborating with students to cause distractions. A student named Torrey stated, "Mr. Meehan, Ms. Abril thinks we're down." The student in front of row A told the instructor, "They don't do that." The instructor never attempted to return students to task by the use of non-verbal techniques such as eye contact, clapping, silence or proximity. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Julie Fehr's class to see how she uses non- verbal techniques to deal with off-task behavior in her classes. She will then discuss with Ms. Fehr the techniques observed. The instructor will type a summary of her discussion and submit it to Mr. Meehan for review. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use techniques to maintain the attention of learners who were redirected. At times during the period more than thirty-three percent of the students were off-task. Students were engaged in activities not associated with the lesson. They talked, sang, slept, and worked on unrelated assignments. The instructor attempted to verbally redirect some students, but their off-task behavior was not revisited and therefore resumed when the instructor turned her attention elsewhere. One young man in row B was corrected for using a Game Boy. He began to read a comic instead. His off-task behavior was not revisited and continued uninterrupted. He proceeded to share his comics with those around him. A young man named Torrey was told to get back to his seat after walking to the side of the room to see his reflection in a mirror. When he returned to his seat, he began to sing. His off-task behavior was never revisited. Verbal and non-verbal techniques to maintain the attention of redirected learners were not evident in this instructor's classroom. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Theodora Woltch's class to observe how she deals with off-task student behavior. The instructor will prepare a typed summary of this observation and develop a plan to incorporate some of the strategies she learned to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review prior to implementation. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The inappropriate behavior manifested by students throughout the class period indicated that expectations about behavior were not made clear to learners. When seeking clarification about the puzzle assignments, students repeatedly blurted out questions without raising their hands. No standardized procedures were established for students to turn in their assignments. Some walked to the front of the room while others passed their papers to students in front of them or beside them. Students left their seats at will to walk around the room or open the classroom doors. With five minutes remaining in the period all of the students, except one, left their seats to go to the door. Some pushed the door open while others tried to close it. These inappropriate behaviors indicated that expectations about behavior had not been communicated previously. PRESCRIPTION PLAN ACTIVITIES The instructor will establish a set o[f] rules regarding appropriate student behavior and classroom procedures. She will type these rules and discuss them with Mr. Meehan before posting them around her classroom. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this instructor. Of the twenty-eight students present in the classroom more than 50 percent walked in late, thereby disturbing students attempting to do the puzzle assignment. Nothing was said by the instructor. Neither the students in rows B and C who began singing, "I'm a Soul Man," nor the students in row A who began singing an unidentified song, were given consequences as a result of their misbehavior. The instructor made no attempt to subdue or control the constant buzz created by students talking and yelling to each other across the room. Most of the students present contributed to this noise which lasted the entire two hour period. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. In addition, the teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The teacher will submit this information to Mr. Meehan for review and discussion. The "Assertive Discipline Handbook" and Mr. Meehan were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about weaknesses in their performance. The assignments for the class period were a puzzle and page forty-one of the "Buckle Down" workbook. These assignments were neither reviewed nor corrected during the class period. Since the instructor failed to monitor the performance of students as a group or individually, she was not able to provide feedback regarding inadequacies in their work. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback regarding their inadequacies. She will type a summary of the interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about strengths in their performance. The instructor failed to monitor the performance of the students on any of the assignments during this class period. She was therefore unable to acknowledge good work and adequate performance. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback about their good work. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION No suggestions for improving student performance were made by the instructor during the class period. The instructor neither orally reviewed the answers to the assignments nor individually corrected student work. Consequently, she could not make suggestions for improving student performance and an opportunity for enhancing student learning was lost. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard about how learning is enhanced when suggestions for improvement are specific to the learner and the learning task, and when they are communicated in a way that encourages continued effort. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION During this two hour class period there was no formal or informal examination of pupil work by the instructor. She made no attempt to periodically assess student progress by moving about the room making appropriate observations and asking pertinent questions. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding making informal assessments of student work by moving about the room and asking probing questions. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not solicit responses or demonstrations from pupils relative to instructional objectives. She did not ask questions that reflected lesson content nor did she require students to demonstrate what they learned. There were no informal assessment techniques used by the instructor during this class period. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding various ways to informally assess student work by having them demonstrate what they have learned during the class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have students evaluate their own and/or each other's performance. She did not request that learner's work together on checking each other's work or that pupils check their own responses against answers in the book or on the chalkboard. There was no assessment of student learning and progress made during this lesson. PRESCRIPTION PLAN ACTIVITIES The instructor will discuss with Ms. Ann Howard, Language Arts Chairperson, the advantages of having students grade their own work or each other's assignments during a class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION An examination of student folders revealed no evidence that more than one kind of assessment was made during the second quarter. Formative assessments such as a library classwork assignment and one quiz were found in some folders but there was no indication that any summative assessment was made during the second nine week grading period. PRESCRIPTION PLAN ACTIVITIES The instructor will read an article from an educational textbook or journal regarding formative and summative assessments. She will type a summary of this article and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Harrell were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Student folders did not indicate that adequate and sufficient summative assessments were made by the instructor during the second nine week grading period. There was no evidence of a summative assessment that included essay questions or performance tasks which are required of students to pass the FCAT examination. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Julie Fehr regarding types of essay questions and performance tasks that should be included in ninth grade English assessments. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. On January 27, 2000, Ms. Henry held a conference- for-the-record with Respondent to discuss Respondent's failure to complete the "prescription plan activities" set forth in the First and Second Reports. Also present were Craig Speziale, an assistant principal at Carol City, and United Teachers of Dade representatives. At the conference, Ms. Henry reviewed the First and Second Reports with Respondent and admonished her for not completing the "prescription plan activities" set forth in these reports, which, she informed Respondent, she considered to constitute insubordination for which Respondent would receive an unsatisfactory rating in the seventh TADS category, professional responsibility. Ms. Henry subsequently completed a "record of observed deficiencies/prescription for performance improvement" (Fourth Report), in which she rated Respondent deficient in Category VII.B. based upon her "fail[ure] to comply with prescriptive activities and timeliness as outlined in the [First and Second Reports]" and directed her to complete all of these "prescriptive activities" no later than February 16, 2000. A copy of the Fourth Report was provided to Respondent on January 31, 2000. On that same day, January 31, 2000, Mr. Meehan directed Respondent to report for a "post-observation conference" to discuss the Third Report. Respondent refused to go. Respondent was formally observed in her classroom for a final time on February 18, 2000. This observation was conducted by Ms. Henry. Ms. Henry justifiably found Respondent to be deficient in "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," and "assessment techniques." Because Respondent's 90-day "performance probation period" had expired without Respondent having corrected her performance deficiencies, and Ms. Henry therefore intended to recommend Respondent's termination, the report that Ms. Henry completed following the observation (Final Report) did not contain any additional "prescription plan activities" for Respondent to complete. The "prescription plan activities" described in the First, Second, and Third Reports were not completed by Respondent. On February 19, 2000, the day following Ms. Henry's formal observation of Respondent, Respondent was absent from school. Respondent telephoned the school to notify the administration of her absence, stating that she had injured her ankle and foot on February 17, 2000, and that she did not intend to return to work until after she had been seen by a doctor. Respondent never returned to work. (She did go to Carol City, however, on February 25, 2000, to pick up her pay check. During this visit, Respondent was asked to sign the Final Report, as well as a written recommendation for her termination that Ms. Henry had prepared and sent to the regional and district offices on or about February 22, 2000. Respondent refused to sign these documents.) By letter dated February 24, 2000, the Superintendent of Schools advised Petitioner that, pursuant to Section 231.29, Florida Statutes, he was recommending that the School Board, at its March 15, 2000, meeting "terminate her employment contract as a teacher, effective at the close of the workday, March 15, 2000 . . . because [she had] failed to satisfactorily correct identified performance deficiencies during [her] 90-Calendar Day Performance Probation and [because of her] gross insubordination." In his letter, the Superintendent further informed Respondent that she could contest his recommendation by requesting, within 15 days of her receipt of the notice, a hearing on the matter. Respondent requested such a hearing. Respondent was suspended without pay pending the outcome of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the ground set forth in Count I of the Notice of Specific Charges ("Unsatisfactory Performance"). DONE AND ENTERED this 8th day of September, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 8th day of September, 2000.
The Issue Whether Respondent's termination of employment as a teacher should be upheld.
Findings Of Fact Since 1990, Cabrera has taught elementary school Spanish within the school district of Miami-Dade County, Florida. Cabrera began her career with Petitioner as a substitute teacher. In 1993 she was offered the first of several permanent postings. She has been assigned to Bel-Aire from 1996 to the date of her termination. At all times during which Cabrera has been so employed, teachers in the Miami-Dade County school system were evaluated annually pursuant to the Teacher Assessment and Development System ("TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and the United Teachers of Dade ("UTD"). The same TADS evaluation procedures are used for all grade levels, subject areas, and teachers. TADS purports to objectively measure 67 minimal behaviors necessary for teaching. TADS includes in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. TADS observations and ratings are performed by school supervisory personnel. TADS observers are trained and certified. The observer records deficiencies noted during the observation period, if any. In addition, the observer provides a so-called "prescription," or plan, for performance improvement in each of the areas in which deficiencies are noted. A post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response. Under the School Board's contract with the UTD, the teacher is required to comply with the prescription plan, performing all activities specified in the prescription and meeting the deadlines set forth. Miami-Dade County's TADS assessment system was implemented to fulfill the legislative mandate of Section 231.29, Florida Statutes. The statute requires the superintendent of each of Florida's school districts to establish procedures for assessing, on an annual basis, the performance of all instructional personnel employed by the district. At all times material to this case, TADS was used to evaluate Cabrera's performance. Miami-Dade County's TADS procedures include all of the statutorily required elements, and Cabrera received the benefit of each of the statutory requirements, including notice in writing of each deficiency observed; assistance and recommendations designed to help correct those deficiencies; and a reasonable period of time in which to correct deficiencies. As a result of certain amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedure to comply with new statutory requirements. Under the amended procedures, a meeting known as a conference for the record ("CFR") initiates a 90 calendar-day performance probation period. From the beginning of her employment at Bel-Aire through and including the 1998-99 school year, Cabrera's TADS evaluations were satisfactory. Notwithstanding her annual passing TADS scores, the evidence establishes that dealing with classroom discipline had never been Cabrera’s strong suit. Yet, for reasons not revealed in the record, Cabrera had never been in fear for her job, nor had her deficiencies in managing classroom discipline previously bothered administrators enough to cause them to take meaningful action to assist her, or get her out of the classroom. In the summer school session of 2000, Cabrera ran into especially difficult discipline problems from at least two students, and was dissatisfied with the level of support she received from her principal, Melvin Dennis (Dennis), in dealing with those students. Cabrera took the extraordinary step of going outside the school chain-of-command to complain to the central administration about what she perceived to be a lack of appropriate disciplinary support at the school level. On January 8, 2001, Cabrera received the first of that year’s formal TADS evaluations. The observer was assistant principal Dr. Barbara Moller (Moller). At that time, Moller found Cabrera’s performance unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, and assessment techniques. More specifically, Moller found, among other things, that Cabrera’s lesson plans did not include a method for monitoring student progress; that she failed to maintain student’s attention and to redirect those students who were “off-task”; that Cabrera failed to provide instructional materials that were appropriate for her students; and that Cabrera failed to provide formal assessments of her students’ progress. A timely post-observation CFR was held to discuss the results of the January observation. At that time, Cabrera was advised that due to her unsatisfactory performance, she would be placed on a 90 calendar-day performance probation period. Also during the conference for the record, Respondent was given suggestions on how to improve her performance and correct her deficiencies in the form of written prescriptive activities appropriate to the noted deficiencies. The assistance provided to Cabrera included, but was not limited to: reviewing her lessons plans with the assistant principal; working with the Bilingual Department chairperson to formulate acceptable lesson plans; developing a behavior modification plan with the assistance of two fellow teachers and the school district’s instructional supervisor for bilingual education; and providing instructional materials, assessment devices, and commercially prepared tests. Also during the CFR, Cabrera was advised that at the conclusion of the 90 calendar-day performance probation period, a determination would be made as to whether the performance deficiencies identified during the probationary period have been satisfactorily corrected and that a recommendation by the school principal would be made to the Superintendent of Schools, which could lead to the termination of Respondent’s employment contract if performance deficiencies were not corrected. On February 22, 2001, a second TADS observation was conducted by Principal Dennis. At that time, Dennis deemed Cabrera’s performance unacceptable in the categories of classroom management, techniques of instruction, and assessment techniques. Dennis observed, among other things, that Cabrera’s class was disorganized. Students were not all in their seats and working within the type of orderly routine expected in a properly managed classroom. Cabrera continued to lack control over her class, as demonstrated by the fact that students were off task and Cabrera was unable to redirect them. Behavior problems may well have been exacerbated by her continued deficiency in techniques of instruction. Rather than tailor materials and instructional techniques to the differing needs of the students, Cabrera was observed to be deficient in this category because she used a rote style of presentation that was not appropriate to all students. In addition, Cabrera failed at this observation to use appropriate assessment techniques to determine how much of the lesson was being absorbed by students. As a result of Cabrera’s continuing unsatisfactory classroom performance, on February 28, 2001, Cabrera was again given formal written notice that she had been placed on a 90 calendar-day performance probation status. She was further informed that, due to her unsatisfactory performance, her professional service contract may not be renewed and that her performance would continue to be monitored throughout her probationary period. On March 1, 2001, a post-observation conference was held with Cabrera to address the deficiencies noted in the formal classroom observation. At this time, Cabrera was again presented with a written prescription and a performance improvement plan in order to assist in correcting her deficiencies. In an effort to further assist Cabrera, on March 9, 2001, Dennis requested that the school district’s instructional supervisor for bilingual education visit Cabrera at the school for the purpose of assisting her in improving her performance deficiencies. The school principal also provided the assistance of staff members and teachers to help Cabrera in planning her lessons, developing a positive reinforcement and rewards system and on setting up her classroom in order to provide students with a positive learning environment. In a further effort to provide assistance, Cabrera was referred to the school district’s Employee Assistance Program (EAP). Cabrera was not required to take advantage of the EAP, and she did not do so. By spring, the strain of the probationary status was taking a visible toll on Cabrera, and the relationship between her and the Bel-Aire administration was fast becoming untenable. On March 27, 2001, Cabrera took her entire class to the main office to complain that she could not begin her lesson because her students did not have pencils. This childish bit of theater was met with an equally silly straight-faced memorandum issued to Cabrera advising that her responsibility for preparation and planning included assisting her students with having the appropriate supplies for class. Two days later, Cabrera was again formally observed in the classroom by Moller. During the formal classroom observation conducted on March 29, 2001, Moller found Cabrera’s performance unacceptable in the categories of classroom management, techniques of instruction, and in teacher-student relationships. Moller documented that Cabrera ignored or was unaware of her students’ inappropriate and disruptive behavior, that she did not provide feedback to students regarding the expected behavior in the classroom, and that she did not sequence the components of her lesson properly. On April 12, 2001, a post-observation conference was held with Cabrera to address the deficiencies noted in the March formal classroom observation. At this time she was again presented a written prescription and a performance improvement plan in order to assist in correcting her deficiencies. On April 18, 2001, the school district’s instructional supervisor for bilingual education met with Cabrera to assist her in correcting her performance deficiencies and offered Cabrera numerous suggestions on how to improve her classroom teaching performance. On May 3, 2001, Cabrera was again formally observed in the classroom by Principal Dennis. At that time, Dennis rated Cabrera’s performance unacceptable in the categories of classroom management and in techniques of instruction. Since a deficiency in even one TADS category, if not corrected within the 90-day period, requires termination, the fact that Cabrera had corrected two areas of deficiency identified in her January evaluation was not enough to save her job. Cabrera believes that she is being unfairly criticized for being unable to manage the behavior of students who, she claims, are beyond the ability of any teacher to manage. In her view, the students who disrupted her classroom “needed professional help, not from a teacher, but from someone else.” Cabrera testified, quite sincerely, that she did the best she could in terms of trying to fulfill her responsibility to create a orderly classroom in which learning could take place. She contends that the decision to place her on prescription in 2001 was an ambush. The evidence did establish that Petitioner’s knowledge of Cabrera’s shortcomings as a disciplinarian were well known at Bel-Aire long before the administration acted upon that knowledge. Cabrera argues that had she been given assistance, inside or outside the TADS process, long before she was, she could have improved her performance and saved her job. This argument requires the fact-finder to engage in impermissible speculation. While the evidence established that Cabrera was motivated to keep her job, complied with all recommended prescriptive activities and, in two out of the four categories in which she was determined by TADS observers to be deficient, had been able to elevate her performance to a passable level within the 90-day compliance period, it is impossible to know whether she could have remedied her deficiencies in the area of classroom discipline had she been forced to try years earlier. If Petitioner was inclined to overlook Cabrera's deficient classroom management prior to last year, Cabrera was similarly inclined to overlook unacceptable behavior in her students when it first manifested itself. In both cases, the willingness to accept sub-standard behavior worked to the detriment of all concerned. The most damaging testimony regarding Cabrera’s classroom management problems came not from School Board witnesses, but from Cabrera herself. She testified that it was her practice to give misbehaving children one or two months to “let them adjust. . . . Maybe they are not used to me. It’s an unfamiliar face. So I wait. Then, when I see that I get to the point where I just can’t take it . . . then that’s when I take action and I start writing referrals and start calling parents.” By that time, the evidence established, it was too late for Cabrera to exercise control over students whom she had allowed to ignore her. As a result of Cabrera’s unsatisfactory performance, on May 3, 2001, Dennis notified the Superintendent of Schools that Cabrera had not satisfactorily corrected her performance deficiencies during her 90 calendar-day performance probation period and recommended that Cabrera's employment be terminated. On May 16, 2001, the School Board acted upon the Superintendent's recommendation and terminated Cabrera's employment contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Cabrera's employment and denying her claim for reinstatement. DONE AND ENTERED this 3rd day of January, 2002, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2002. COPIES FURNISHED: Leslie A. Meek, Esquire United Teachers of Dade 2200 Biscayne Boulevard Miami, Florida, 33137 Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Merritt R. Steirheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Annie Jackson, currently Principal of Golden Glades Elementary, also served in that capacity during Elijah McCray's 6th grade experience there during the regular 1984-1985 school year. On December 10, 1984, Mrs. Jackson personally removed Elijah from the lunch room for shooting paper at other students. He was reprimanded after a conference and sent to an alternative eating place for a month. On March 5, 1985 the classroom teacher referred Elijah to Mrs. Jackson for disruptive behavior, running around, not working and splashing water. He was removed from class and received a conference with Mrs. Jackson. Mrs. Jackson called the parents the next day and reported the situation. On March 27, 1985 he was referred to Mrs. Jackson for laughing at his teacher and being defiant. On March 28, 1985 he was assigned 3 days outside detention by Mrs. Jackson because he had refused to serve assigned detention. On April 2, 1985, which was the day Elijah was due to return, Mrs. Jackson wrote his parents because he had again been referred to the office and defied the authority of the teacher referring him by not carrying the referral to Mrs. Jackson's office. He was referred to the school counselor by Mrs. Jackson. There was a subsequent 5 day suspension for disruptive behavior scheduled to begin on April 15, 1985. At 5:00 P.M. on that day, Mrs. Jackson personally conducted a teacher/parent/ student/administrator conference to discuss the April 15, 1985/ suspension. Present in place of the parents were Mr. and Mrs. Taylor, Elijah's grandparents. The teacher made known to the grandparents that she did not want Elijah back in her class because he would throw items and deny it and frequently disrupt the class by spitting in the classroom or by leaving the classroom to spit. The grandparents made known to the teacher, and to Mrs. Jackson that a sinus condition of Elijah's required him to spit frequently and Mrs. Jackson apparently engineered some rapport between the teacher and Elijah upon this information so that the planned 5 days suspension was rescinded by Mrs. Jackson. Mrs. Taylor testified that she was present at this meeting but felt she had not participated because she had left most of the talking to Mr. Taylor and Mrs. Jackson, but upon Mrs. Jackson's and Mrs. Taylor's testimony together it is specifically found that this parent contact did occur. On April 17, 1985, Mrs. Jackson referred Elijah to the school counselor because of a report from his classroom teacher that Elijah had said he would "swing his old gun" at her. While this language by the teacher is technically hearsay outside the admission exception, information on the report was recorded contemporaneously by Mrs. Jackson in the school records and regardless of what was actually said to the teacher, Mrs. Jackson personally observed the distraught behavior of the teacher in reaction to whatever threat had been made by Elijah. Mrs. Jackson called school security as a result. The investigation of the incident by Mrs. Jackson and the security investigator revealed that the teacher had been told by other students that Elijah had shot a relative of theirs but that he had in fact never done so. Elijah was warned that it is serious to make threats to teachers. On April 22, 1985 Mrs. Jackson received a formal written request from the classroom teacher requesting Elijah's removal from her class. Much of Mrs. Jackson's testimony suggests that the persistent disruptive behavior was that of the classroom teacher who referred Elijah for what she perceived as threats. This teacher was not present to testify. Elijah was returned to class by Mrs. Jackson over the teacher's objections with a final warning concerning making threats. A parent/teacher/student/ administrator conference was held to apprise the parents that this was a last chance. It may be that Mrs. Taylor was not present for this conference, but Mrs. Jackson indicates at least one adult was present on behalf of the child. On April 25, 1985, Elijah was returned to class. On April 30, 1985, Mrs. Jackson requested Officer Harris of Operation Pro Volunteer Listener to confer with Elijah about the seriousness of making threats. On May 1, 1985, Mrs. Jackson investigated a report that Elijah had threatened two girls (Mirland Joseph and Lesley Compton) in his class with a knife. The girls gave statements which Mrs. Jackson synopsized as stating that they thought they had been threatened with a knife by Elijah. The statements are not signed. The incident as reported in the statements composed by the principal are by themselves hearsay and that hearsay is not confirmed or corroborated by a statement made by Elijah directly to Mrs. Jackson that he had showed the girls the point of a nail file attached to a man's pocket toenail clippers and was "just joking with it." Mrs. Jackson received a broken pair of blunt toenail clippers from Elijah at the time of this admission and a xerox copy of the nailclippers was admitted in evidence as a true and correct copy of the implement. Because of the presence of the nailclippers, which Mrs. Jackson characterized as a "pointed object", Mrs. Jackson initiated transfer of Elijah to an alternative education program. She felt this was a lesser alternative to expulsion. Expulsion would otherwise be required by School Board policy in the presence of a "weapon." Mrs. Taylor testified that she had heard one of the girls who had given statements to Mrs. Jackson or perhaps a third girl named "Alexandra" say they had made up the May 1, 1985 incident. Mrs. Taylor stated Elijah and his sister had told her the night before the May 1, 1985 incident that the two girls or Elizabeth Carpenter was going to "start a problem for him the next day" or "going to fight him" the next day. There is no record evidence of failing grades, truancies, or unexcused absences for Elijah.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Elijah McCray to the appropriate grade level in a regular school program with a different classroom teacher than previously assigned. DONE and ORDERED this 30th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire Law Offices McCrary, Valentine & Mays P.A. 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mrs. Sylvia Taylor 2971 N. W. 165 Street Opa Locka, Florida 33054 Madelyn P. Schere, Esquire 1450 N. E. Second Avenue Miami, Florida Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the Respondent's professional services employment contract should be terminated for the reasons set forth in the Petitioner's letter to the Respondent dated October 1, 2002, and in the Notice of Specific Charges of Unsatisfactory Performance dated October 25, 2002.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is the entity authorized to operate the public schools in the Miami-Dade County school district and to provide for the appointment, compensation, promotion, suspension, and dismissal of employees of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (2001). At the times material to this proceeding, Ms. Stern was employed as a teacher with the School Board under a professional services contract. Ms. Stern is a member of the United Teachers of Dade ("UTD"), and the terms of her employment with the School Board are governed by the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Ms. Stern first received her teaching certificate in 1952, and she began teaching in the Miami-Dade County public school system in 1987. The 2000-2001 school year was her first year teaching at Campbell Drive Elementary, and she was assigned to teach a regular second grade class. Campbell Drive Elementary was rated a "D" level school at the times material to this proceeding. Teacher Assessment and Development System. The Teacher Assessment and Development System ("TADS") had, prior to the 2001-2002 school year, been used in the Miami- Dade County public school system for 15 years to evaluate teachers employed by the School Board. The Joint Committee on Standards for Educational Evaluation ("Joint Committee") decided in 1996 that TADS should be replaced with a new evaluation system.2 As a result, the Professional Assessment and Comprehensive Evaluation System ("PACES") was developed and has been in use in the Miami-Dade County public school system since the beginning of the 2001-2002 school year. As will be discussed in more detail below, the observations and evaluations at issue herein were all performed using TADS. TADS is a performance-based evaluation instrument, which includes sixty-eight specific teacher behaviors that should be performed in the classroom. The TADS evaluation procedures set forth in the UTD Contract and established by the Joint Committee required that formal Classroom Assessment observations be performed, that any observed performance deficiencies be noted, and that professional growth opportunities be provided to teachers with noted deficiencies. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-Calendar Day Performance Probation period for teachers with professional service contracts. A Memorandum of Understanding was executed by representatives of the Miami-Dade County public school system and the UTD to implement procedures for the new system. Pursuant to the procedures adopted in the Memorandum of Understanding, the 90-Calendar Day Performance Probation period is commenced the day after a conference-for- the-record is held with the teacher to advise him or her of classroom performance deficiencies. At least two observations must be conducted during the 90-Calendar Day Performance Probation period, and the teacher must be provided assistance through prescription plan activities and through referrals to resource persons for further assistance. At the conclusion of the 90-Calendar Day Performance Probation period, a confirmatory observation is conducted to determine if the performance deficiencies have been corrected. Prescription plan activities have the status of administrative directives.3 The principal of Campbell Drive Elementary at the times pertinent to these proceedings was Betty Thomas, and the assistant principal was Claudia Brown. Both were trained to observe and evaluate teachers using TADS. Ms. Stern was first observed at Campbell Drive Elementary on October 10, 2001, by Ms. Brown. Ms. Stern received an overall acceptable rating on the CAI (Classroom Assessment Instrument) Post-Observation Report, as well as acceptable ratings on each of the six TADS rating categories. February 5, 2001, observation. Ms. Thomas conducted her first formal observation of Ms. Stern's classroom performance on February 5, 2002,4 when she observed Ms. Stern's second grade math class from 12:30 p.m. until 1:35 p.m. Ms. Thomas completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Thomas rated Ms. Stern's classroom performance acceptable in the categories of Preparation and Planning, Knowledge of Subject Matter, Teacher-Student Relationships, and Assessment Techniques. Ms. Thomas rated Ms. Stern's classroom performance unacceptable in the categories of Classroom Management and Techniques of Instruction. Specifically, Ms. Thomas rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, during the observation, instructional time was lost while Ms. Stern sharpened pencils for several students and wandered around the room without giving instruction to the students and that instructional time was lost when Ms. Stern told the students to put their heads on their desks approximately minutes before they were to leave the classroom for Spanish and Physical Education classes. Ms. Thomas rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students who were off-task and behaving inappropriately. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern ignored or failed to respond when two students yelled at one another during a test, when students talked and played with pencils during a lesson, when two students left the room and returned, when two students hit one another, and when a student crawled on the floor. Ms. Thomas rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, when virtually everyone in the class was talking, Ms. Stern asked those students who were talking to raise their hands; Ms. Stern praised the students who raised their hands for their honesty but did nothing to cause the students to stop talking. Ms. Thomas also noted several instances in which Ms. Stern responded to students with remarks that were either ineffectual or not to the point. Ms. Thomas rated Ms. Stern deficient in indicator III.C.1. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide the students with clear expectations regarding appropriate behavior. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that no class rules were posted in the classroom and that Ms. Stern did not refer to any class rules. Ms. Thomas also noted that, while students were being sent to the board to work math problems, 75 percent of the students in the class were talking and several students were wandering around the room, all without correction from Ms. Stern. Ms. Thomas rated Ms. Stern deficient in indicators III.C.3. and 4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to respond quickly or appropriately to students who acted inappropriately or interfered with the work of others. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not respond, and actually ignored, most of the students' inappropriate behaviors, which included a student dancing around the back of the room, students laughing and playing with a hat, students loudly asking how to do the assignment, and students yelling to one another. Ms. Thomas rated Ms. Stern deficient in indicators IV.G.3. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to emphasize potential areas of difficulty, specifically with respect to the math problems involving "regrouping," by either verbal or non-verbal clues. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern failed to assist a student who had difficulty with a math problem at the board.5 Ms. Thomas rated Ms. Stern deficient in indicators IV.H.1. and 2. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to clarify areas of potential confusion or to clarify areas of confusion after it became obvious that the students did not understand the assigned math problems involving "regrouping." Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern wrote problems on the board and directed the students to solve them without providing any explanation. When several students asked Ms. Stern how to do the problems, she told them she would go over it later, but she did not do so during the math lesson. It was Ms. Thomas's general impression during her February 5, 2002, observation, that Ms. Stern was unable to manage the students in her class. There were many disruptions in the classroom that distracted the students and made it difficult for them to learn. Ms. Thomas estimates that approximately 90 percent of the students in the class were off-task at some point during the observation. On February 20, 2001, Ms. Thomas held a Conference- for-the-Record with Ms. Stern.6 Also present at the conference were Ms. Brown, as well as Ms. Marcos and Ms. Rolle, Ms. Stern's union representatives. During the conference, Ms. Thomas discussed the February 5, 2001, observation with Ms. Stern, and they discussed the prescription plan activities that Ms. Thomas had developed to assist Ms. Stern in correcting the deficiencies identified in the Record of Observed Deficiencies/Prescription for Performance Improvement and the timelines for completion of the prescription plan activities. It was agreed that Ms. Stern would complete all of the prescription plan activities by March 15, 2001. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers that were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. The Summary of the Conference-for-the-Record and Prescription dated February 20, 2001, reflects that Ms. Stern was advised during the conference that her 90-Calendar Day Performance Probation period would commence the day after the conference, on February 21, 2001. Ms. Stern was also advised by Ms. Thomas that, after the conclusion of the probation period, she would determine whether Ms. Stern had corrected the cited deficiencies during the probation period and would make a recommendation to the Superintendent at the conclusion of the probation period that could lead to the termination of Ms. Stern's employment. On February 20, 2001, Ms. Stern signed the CAI Post-Observation Report, the Record of Observed Deficiencies/Prescription for Performance Improvement, and the Summary of the Conference-for-the-Record and Prescription, thereby indicating that she had seen and received a copy of these documents. Ms. Stern completed approximately 80 percent of the prescription plan activities in the February 5, 2001, Record of Observed Deficiencies/Prescription for Performance Improvement by the March 15, 2001, deadline. March 16, 2001, observation. Ms. Brown, the assistant principal at Campbell Drive Elementary, conducted a formal observation of Ms. Stern's classroom performance on March 16, 2001, when she observed Ms. Stern's second grade language arts class from 9:00 a.m. until 10:45 a.m. Ms. Brown's impression was that Ms. Stern was agitated and angry that day and was unable to control the class or to teach adequately. Ms. Brown completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Brown rated Ms. Stern's classroom performance acceptable in the categories of Knowledge of Subject Matter, Teacher-Student Relationships, and Assessment Techniques. Ms. Brown rated Ms. Stern's classroom performance unacceptable in the categories of Preparation and Planning, Classroom Management, and Techniques of Instruction. The TADS Monitoring Committee reviewed the Record of Observed Deficiencies/Prescription for Performance Improvement and gave Ms. Stern credit for indicators IV.F.1., 2., and 3.; this change resulted in Ms. Stern's being rated acceptable in the category of Techniques of Instruction. Specifically, Ms. Brown rated Ms. Stern deficient in indicator I.A.1. of the Preparation and Planning category on the CAI Post-Observation Report because Ms. Stern failed to include in her lesson plan assessment tools, homework, materials, and most of the lesson's objectives and activities. Ms. Brown rated Ms. Stern deficient in indicator I.B.1. of the Classroom Management category on the CAI Post-Observation Report because Ms. Stern failed to prepare content and instructional activities to fill the allotted classroom time. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, although the language arts block of instruction was scheduled from 9:00 a.m. to 11:00 a.m., Ms. Stern instructed the students to put their heads on their desks at 10:40 a.m., terminating the language arts instruction. Ms. Brown rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report because, throughout the observation period, Ms. Stern allowed unnecessary delays during instruction and transitions. The notes Ms. Brown included in the Record of Observed Deficiencies/Prescription for Performance Improvement reflect that Ms. Stern spent approximately 20 minutes of the language arts period making comments to the students about the quality of their work and attempting to get their attention. As reported by Ms. Brown: The teacher called out one comment and direction after the other, such as "I don't hear anything from table 4. excuse me, I just said your tables not talking. you did a beautiful job. thank you, Yrline, did you hear me?" "Salami, one, two, three, four. Now take your paper . . . everybody's eyes up here! Salami! Denise, table 1, your eyes up here, table 1, 2, 3, 4. Take your paper . . . Christian, Okoya, Desiree, Stanley, take your paper . . . excuse me." "Salame" is an acronym for "Stop and look at me," and its use is recommended as a technique for quieting students. Ms. Stern did not apply the technique correctly, however, because she talked very quickly and did not wait to give the students a chance to quiet down. Ms. Brown rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that students were talking and calling out to one another, making noises, and getting out of their seats while Ms. Stern read a story. Ms. Brown also noted that Ms. Stern told students to raise their hands, then accepted answers from students who had not raised their hands, and failed to correct a student who was out of his seat and sitting with a student who had been separated from the group for being disruptive. Ms. Brown rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that a student that Ms. Stern had separated from the class for being disruptive was allowed to spend 20 minutes building a house with word cards; that a student spent 15 minutes with his chin on his desk doing nothing without Ms. Stern's redirecting him, and, although she said she would return to help him, she did not do so; and that, in several instances, Ms. Stern either failed to correct students who were behaving inappropriately or ignored students when they failed to respond to her directions. Ms. Brown rated Ms. Stern deficient in indicator III.C.1. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to make her expectations regarding appropriate behavior clear to the students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, although Ms. Stern told students to raise their hands to answer questions, she accepted answers called out by students who did not raise their hands and failed to call on students who had raised their hands; that Ms. Stern re-enforced inappropriate behavior by telling a student that he was doing well when he was not working but was turned around in his seat talking to a student behind him; and that, although class rules were posted in the classroom, Ms. Stern did not refer to them. Ms. Brown rated Ms. Stern deficient in indicators III.C.3. and 4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to identify and deal quickly and appropriately with students who interacted with others inappropriately and interfered with the work of others. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern either did not notice, or ignored, students' inappropriate behavior, which included a student doing work in another student's phonetic workbook; students talking and making noises while Ms. Stern was talking or reading; students laughing at another student, who had been sent to the corner and responded to Ms. Stern's direction to get up by standing up and turning around and around. Ms. Brown also noted that Ms. Stern did not state the consequences for students who were continuously told to stop calling out or were continuously told to sit down. Ms. Brown rated Ms. Stern deficient in indicator IV.F.4. of the Classroom Management category on the CAI Post-Observation Report because, as noted in the Record of Observed Deficiencies/Prescription for Performance Improvement, during the observation, Ms. Stern failed to refer back to the objective of the lesson, to relate one part of the lesson to other parts of the lesson, and to summarize the lesson and apply it to past or future lessons.7 A conference was held on March 23, 2001, with Ms. Stern, Ms. Thomas, and Ms. Brown in attendance. No written summary of the conference was prepared, but Ms. Stern signed the CAI Post-Observation Report and the Record of Observed Deficiencies/Prescription for Performance Improvement on March 23, 2001, acknowledging that she had seen and received a copy of the documents. At the March 23, 2001, conference, Ms. Thomas, Ms. Brown, and Ms. Stern discussed the results of the March 16, 2001, observation and the prescription plan activities that Ms. Brown had developed to assist Ms. Stern in correcting the deficiencies identified in the Record of Observed Deficiencies/Prescription for Performance Improvement, as well as the timelines for completion of the prescription plan activities. It was agreed that Ms. Stern would complete all of the prescription plan activities by April 20, 2001. The April 20, 2001, deadline was extended until May 18, 2001, because of Ms. Stern's absences, as discussed below. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers that were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. May 17, 2001, Conference-for-the-Record. In a memorandum dated May 7, 2001, and directed to Dr. Thomasina O'Donnell, a District Director in the School Board's Office of Professional Standards, Ms. Thomas requested that Dr. O'Donnell take control of the "re-entry" of Ms. Stern. Ms. Thomas asked for Dr. O'Donnell's intervention because Ms. Stern had been absent a total of 22 personal and sick days and because Ms. Stern was on 90-Calendar Day Performance Probation. As a result of Ms. Thomas's request, Dr. O'Donnell sent a memorandum dated May 7, 2001, to Ms. Stern telling her that she needed to contact the Office of Professional Standards before she returned to work so that a clearance conference could be scheduled. The clearance conference was held on May 16, 2001, at the Office of Professional Standards. Dr. O'Donnell, Ms. Thomas, Clemencia Waddell, Director of Region VI, and Dia Falco, Ms. Stern's UTD representative, attended the conference. As reflected in the Summary of the Conference-for-the-Record, the purpose of the conference was to address Ms. Stern's performance assessments, her attendance, and her medical fitness to perform her duties and to review Ms. Stern's record and her future employment status with the Miami-Dade County public school system. As of May 15, 2001, Ms. Stern had used more sick time than she had accrued, and Dr. O'Donnell advised her that her absences, which consisted of 21.5 sick and personal days and 1/2 days of unauthorized leave without pay, were considered excessive. Ms. Stern's performance evaluations were also discussed at the conference, and it was noted that she had been provided prescription plan activities to assist her in correcting the deficiencies identified in the March 16, 2001, observation report, which activities were to have been completed by April 20, 2001. Ms. Stern had not provided the required materials to Ms. Thomas or Ms. Brown, but, because she was absent beginning on April 18, 2001, Ms. Stern was directed to provide all of the required materials for the prescription plan activities to Ms. Thomas by the end of the workday on May 18, 2001. Ms. Stern was advised that the failure to provide these materials within the time specified would be considered a deficiency in Category VII, which is the Professional Responsibilities category of TADS, and that she would be placed on a Category VII prescription. Several directives were included in the Summary of the Conference-for-the-Record, and Ms. Stern was advised that she was cleared to return to work on May 17, 2001. May 22, 2001, observation. Ms. Brown conducted a formal observation of Ms. Stern's classroom performance on May 22, 2001, when she observed Ms. Stern's second grade language arts class from 9:00 a.m. until 11:00 a.m. Ms. Brown's overall impression was that Ms. Stern 's performance was worse than it was during the observation on March 16, 2001. Ms. Brown completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Brown rated Ms. Stern's classroom performance acceptable in the categories of Teacher-Student Relationships and Assessment Techniques. Ms. Brown rated Ms. Stern's classroom performance unacceptable in the categories of Preparation and Planning, Knowledge of Subject Matter, Classroom Management, and Techniques of Instruction. Specifically, Ms. Brown rated Ms. Stern deficient in indicator I.B.1. of the Preparation and Planning category on the CAI Post-Observation Report because Ms. Stern had failed to plan content and instructional activities to fill the classroom time allotted for the language arts block. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern took the students to the library at 10:30 a.m., but had completed her planned classroom activities at 9:55 a.m. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to present information in a meaningful or orderly manner. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that "[t]he sequence of the ideas did not flow into one another. The teacher asked questions and talked about whatever came to her mind, . . ." Ms. Brown also noted that there was no logical sequence of activities or framework established for the activities. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to tell the students the most important topics in the lesson or various applications of the topics introduced in the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not tell the students what they would be doing and did not relate the lesson to the students' experiences. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to present information using analysis or comparisons. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not ask open-ended questions, that she limited her questions to those that were simple and basic, and that she failed to challenge the students beyond one cognitive level. Ms. Brown rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report. The notes Ms. Brown included in the Record of Observed Deficiencies/Prescription for Performance Improvement reflect that Ms. Stern wasted 12 minutes of instruction time because of delays attributable to her repeatedly consulting her lesson plan during class and failing to use student helpers to pass out papers to the class, causing the students to wait without instruction until she passed out all of the papers. Ms. Brown rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not notice or noticed but chose not to re-direct a student who was making a paper airplane and rearranging his desk and the inside of his book bag for a period of 15 minutes and that Ms. Stern did not speak to a student who, for a period of 10 minutes, sat with her knees to her chest. Ms. Brown also noted that Ms. Stern thanked two students for no apparent reason. Ms. Brown rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not notice for two minutes that a student had slid his chair halfway across the room to place it beside that of another student and that, when she noticed, she merely told the student to sit down. Ms. Brown also noted that a student fell asleep at 9:45 a.m.; after about 10 minutes, Ms. Stern noticed the student, asked if he had stayed up late the night before, and left him to sleep until he awoke at 10:25 a.m. Ms. Brown rated Ms. Stern deficient in indicator of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to make her expectations regarding appropriate behavior clear to the students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern told the students that she "love[d] the way everyone is talking at once but it doesn't help" and that Ms. Stern continued to accept answers from students who called out, accepting more answers from these students than from the students who raised their hands. Ms. Brown rated Ms. Stern deficient in indicator of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide the students with appropriate and correct verbal feedback regarding specific behaviors. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern ignored two students who had their hands up for several minutes and accepted answers called out by other students. Ms. Brown also noted that Ms. Stern praised the class for working well together when the activity was an activity that each student worked on alone. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to give the students necessary background about their activities. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not tell the students the ideas or skills they were to learn from the two stories that she read to them, one about a bear with a toothache and one about an octopus; she merely told the students that she was going to read a book. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to tell the students how each activity related to the other activities. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not emphasize the important topics in the two stories or link the topics in the stories to future activities. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to sequence activities and failed to point out any logic to the order in which she presented components of the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern went from one activity to the next without having an apparent goal or order to the lesson. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide closure to the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not summarize, recapitulate, or apply any of the concepts in the lesson to any past or future lessons. Ms. Brown rated Ms. Stern deficient in indicator IV.H.2. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to clarify the students' confusion. Ms. Brown relates in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern asked a student a question about an octopus; when the student answered, "The end of one of the octopus' tails is the mouth," Ms. Stern's only response was "OK. I don’t quite understand but OK." Ms. Brown also noted that Ms. Stern passed out word cards to the students but never told them what to do with the cards. Ms. Brown rated Ms. Stern deficient in indicator IV.H.4. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to answer quietly the questions of individual students but would address the entire class when answering the questions of one or two students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern interrupted the entire class several times to answer the questions of two students, with the result that the class did not have enough quiet time to read and complete the activity. A Conference-for-the-Record was held on May 23, 2001, which was attended by Ms. Thomas, Ms. Brown, and Ms. Stern.8 During the conference, the deficiencies noted by Ms. Brown during her observation on May 22, 2001, were discussed, as well as the prescription plan activities that Ms. Stern was to complete to assist her in correcting the deficiencies. The timeline for completion of the prescription plan activities was also discussed, and it was agreed that Ms. Stern would complete all the prescription plan activities by June 13, 2001. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers who were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. Ms. Stern's failure to complete the prescription plan activities included in the March 16, 2001, observation by the May 18, 2001, deadline was also discussed at the May 23, 2001, Conference-for-the-Record. The Summary of the Conference-for- the-Record reflects that Ms. Brown went over with Ms. Stern the prescription plan activities that were not completed. As a result of her failure to complete the prescription plan activities, Ms. Thomas placed Ms. Stern on prescription for Category VII, the TADS Professional Responsibilities category. Ms. Stern had been advised at the May 17, 2001, Conference-for- the-Record at the Office of Professional Standards that a Category VII prescription would be the consequence if she failed to complete the prescription plan activities by the May 18, 2001, deadline. Ms. Stern ultimately completed the prescription plan activities in the March 16, 2001, Record of Observed Deficiencies/Prescription for Performance Improvement, although Ms. Brown had a difficult time determining that Ms. Stern completed all of the activities because the materials she submitted to Ms. Brown were very disorganized. Ms. Stern also turned in by the June 13, 2001, deadline all of the written materials required in the prescription plan activities assigned as a result of the May 22, 2001, observation. She did not, however, turn in her weekly lesson plans to Ms. Brown prior to implementing them, as she had been instructed; rather, she turned in her lesson plans late, and, near the end of the 2000-2001 school year, she did not turn in any lesson plans. September 13, 2001, Confirmatory Observation. In a letter to Ms. Stern dated April 26, 2001, Dr. O'Donnell acknowledged having received a request for medical leave from Ms. Stern for the period extending from April 18, 2001, through May 4, 2001. In the letter, Dr. O'Donnell clarified for Ms. Stern the School Board's position with respect to the impact of her absences on the calculation of the days remaining in her 90-Calendar Day Performance Probation period. Dr. O'Donnell confirmed in the letter that Ms. Stern's probation period began on February 21, 2001, and that the prescription plan activities arising out of the March 16, 2001, observation were due to be completed on April 20, 2001. Dr. O'Donnell further advised Ms. Stern that the first 10 days of absence were included in the calculation of the 90 calendar days of the probation period and that, accordingly, the end of her probation period would be extended from May 31, 2001, to June 6, 2001, both of which dates fell within the final 10 days of the school year. Dr. O'Donnell acknowledged in the April 26, 2001, letter that, normally, no observations were performed during the first and final 10 days of a school year, but she advised Ms. Stern that her 90-day probation period must be concluded by June 16, 2001, because the Miami-Dade County public school system was to change from TADS to PACES for teacher performance evaluations, effective at the beginning of the 2001-2002 school year. Accordingly, Dr. O'Donnell put Ms. Stern on notice in the April 26, 2001, letter that her confirmatory observation would take place after her 90-Calendar Day Performance Probation period ended on June 6, 2001. In a letter dated May 9, 2001, Ms. Falco, on behalf of the UTD, advised Dr. O'Donnell that, first, she had misstated the rule regarding the treatment of absences. According to Ms. Falco, the UTD Contract provided that the first 10 days of absence were not to be counted in calculating the 90 days. Nonetheless, Dr. O'Donnell's calculation of June 6, 2001, as the last day of Ms. Stern's probation period was correct. Ms. Falco also took issue with Dr. O'Donnell's decision to complete Ms. Stern's probationary period on June 16, 2001, and she advised Dr. O'Donnell that the then-current observation procedures prohibited any formal observations during the first and final 10 days of the school year and that the UTD would appeal any formal observation of Ms. Stern conducted during the final 10 days of the 2000-2001 school year. Finally, Ms. Falco advised Dr. O'Donnell that the Joint Committee had not yet determined how to treat teachers whose probation periods carried over into the 2001-2002 school year, when teachers were to be evaluated under PACES. The Joint Committee considered Ms. Stern's case individually and decided that Ms. Stern's confirmatory observation was to be conducted using TADS rather than PACES. Ms. Stern was not disadvantaged by having this observation conducted under TADS because it is easier for a teacher to get an acceptable evaluation under TADS than under PACES. In accordance with the position taken by the UTD and because Ms. Stern could not be observed during the first 10 days of the 2001-2002 school year, the end of Ms. Stern's 90-Calendar Day Performance Probation period was finally determined to be September 10, 2001. On September 13, 2001, Ms. Thomas conducted a formal observation of Ms. Stern's classroom performance when she observed Ms. Stern teach a second grade math class from 1:30 p.m. to 2:30 p.m. This observation was the required confirmatory observation conducted to determine whether Ms. Stern had corrected the performance deficiencies identified in the February 5, 2001, March 16, 2001, and May 22, 2001, observations. Ms. Thomas completed a CAI Post-Observation Report in which she reported that she found Ms. Stern's classroom performance unacceptable in all five categories of TADS, Preparation and Planning, Knowledge of Subject Matter, Classroom Management, Techniques of Instruction, Teacher-Student Relationships, and Assessment Techniques. Ms. Thomas based her determination that Ms. Stern's classroom performance was unacceptable on several factors. During the September 13, 2001, observation, Ms. Thomas noted that Ms. Stern was not teaching the lesson identified on her lesson plan; one of the students repeatedly threw paper across the room into a garbage can without re-direction by Ms. Stern; students were talking to one another and moving around the room during the entire lesson, to the extent that it was difficult for Ms. Thomas to hear Ms. Stern; Ms. Stern did not remind students who were misbehaving of the class rules; Ms. Stern appeared not to notice a student crawling around on the floor; Ms. Stern told students to raise their hands, but she did not call on the students who did so; and Ms. Stern had only two grades for the students in her grade book at a point in the school year when she should have had two grades listed for each student for each week of school in each the five subjects she taught in her second grade class, or over 40 grades. Recommendation for termination. On September 17, 2001, Ms. Thomas notified Ms. Stern that she had failed to comply with the Category VII prescription imposed on May 23, 2001, because she had failed to turn in any lesson plans during the first weeks of the 2001-2002 school year. On September 17, 2001, Ms. Thomas also presented to Ms. Stern for her signature a form that Ms. Thomas intended to submit to Dr. George M. Koonce, Regional Superintendent, containing Ms. Thomas's recommendation that Ms. Stern's employment contract be terminated because she had not satisfactorily corrected the noted performance deficiencies within the 90-Calendar Day Performance Probation period. Ms. Stern refused to sign the form to acknowledge that she was aware of the recommendation. Dr. Koonce indicated his approval of Ms. Thomas's recommendation and forwarded it to the Deputy Superintendent for Personnel and Management Services, who, in turn, forwarded the recommendation to the Superintendent of the Miami-Dade County Public Schools. In a letter dated October 1, 2001, the Superintendent notified Ms. Stern that he was recommending to the School Board that her employment contract be terminated at its October 24, 2001, meeting. Ms. Stern timely contested the recommendation, and this administrative proceeding commenced. Summary The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Stern failed to correct the deficiencies identified in her classroom performance within the 90-Calendar Day Performance Probation period, that School Board personnel adhered to the applicable evaluation procedures in assessing Ms. Stern's teaching performance and in reaching the decision to terminate her for unsatisfactory teaching performance, and that the School Board adhered to all statutory timeframes. Throughout the duration of Ms. Stern's 90-Calendar Day Performance Probation period, Ms. Thomas and Ms. Brown offered Ms. Stern assistance to help her correct the deficiencies in her classroom performance. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that, although Ms. Stern completed many of the prescription plan activities identified in the Record of Observed Deficiencies/Prescription for Performance Improvement for the observations of February 5, March 16, and May 22, 2001, she was unable or unwilling to implement in the classroom the techniques and lessons included in the prescription plan activities and failed to correct the deficiencies in her classroom performance. In her testimony, Ms. Stern did not dispute any of the facts included by Ms. Thomas and Ms. Brown in the Record of Observed Deficiencies/Prescription for Performance Improvement for the formal observations of February 5, March 16, and May 22, 2001. Rather, Ms. Stern presented in her testimony justifications for and explanations of her classroom performance during the formal observations. This testimony has been considered and found insufficient to rebut the evidence of unsatisfactory performance presented by the School Board: Ms. Stern's second grade class was composed of students of varying abilities and ethnic backgrounds, but so were all of the second grade classes at Campbell Drive Elementary. Ms. Stern's classroom may not have provided an optimum environment for teaching, but the shortcomings of the physical and technological facilities provided to Ms. Stern do not justify the noted deficiencies in her teaching and classroom skills. Finally, Ms. Stern's laissez-faire attitude regarding the inappropriate behavior of her students is difficult to reconcile with her obligation as a teacher to maintain a classroom environment in which opportunities for learning are maximized.9
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order terminating the professional services contract of Joanne T. Stern. DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 31st day of October, 2002.
The Issue The issue is whether Petitioner may terminate the professional service contract of Respondent due to a failure to correct performance deficiencies during the 90-calendar-day probationary period.
Findings Of Fact Respondent entered the teaching profession after working 17 years as a bartender. She earned her undergraduate degree in education--specifically, learning disabilities and varying exceptionalities--and obtained her first teaching job at Gulfstream Elementary School in 1995. For her first eight years at Gulfstream, Respondent taught a physically impaired class. These are small classes of less than ten students with health or medical disabilities. Many of the students cannot walk or talk. With a paraprofessional and sometimes a fulltime aid, Respondent taught substantially the same students from year to year. The focus of much of the instruction was upon daily living skills, such as reading the signs on restrooms and businesses. In 1996, Respondent developed inoperable Stage IV nasopharyngeal carcinoma. Eight months of radiation therapy scarred Respondent's airway. When Respondent returned to school after a five-month leave of absence, she, like many of her students, wore a feeding tube and relied on a vocal amplification device. Respondent made the most of these characteristics that she now shared with some of her students, encouraging them to overcome their disabilities as she was doing. In the physically impaired class, Respondent taught most of the students on a one-on-one basis. Rarely did she have to address the entire class as part of classroom instruction. For this reason, Respondent was little handicapped by her speech difficulties, which arose due to the cancer treatment. Even today, loud speech is nearly impossible for Respondent, who, to generate speech, must press against her throat to produce a gaspy speech that requires close attention to understand. A new principal arrived at Gulfstream for the 2002-03 school year. The new principal, who had previously been an assistant principal for eight years and a teacher for nine years, found Respondent's performance unsatisfactory in several respects. Respondent was often late arriving to school and failed to perform her duties on the bus ramp. Respondent often left her paraprofessional alone with the physically impaired class. To monitor the behavior of the child, Respondent sometimes brought her high-school aged daughter to school without permission. Overall, the principal found that Respondent seemed unenthusiastic about teaching. Believing that Respondent might have been depressed, the principal referred Respondent to the Employee Assistance Program. Thinking that a change in assignment might rekindle Respondent's enthusiasm for her job, for the 2003-04 school year, the principal switched the assignments of Respondent and another teacher, so that the other teacher would teach Respondent's physically impaired class, and Respondent would teach a varying exceptionalities class. Neither teacher had requested a new assignment. Respondent's varying exceptionalities class began the 2003-04 school year with 14 students. Eventually, the principal reduced the class to nine students. Respondent had the help of only a part-time paraprofessional. The wide range of cognitive abilities of the students meant that some students could only identify their names in print, and some students could read and write. Students in the varying exceptionalities class were in several classifications, such as educably mentally handicapped, traumatic brain injury, and autistic. By sometime in October 2003, the assistant principal had twice observed Respondent teaching her class. The assistant principal had concerns about Respondent's classroom management and recordkeeping. The assessments and evaluations in this case are based on the Petitioner's Professional Assessment and Comprehensive Evaluation System (PACES). In conjunction with the statutory 90-calendar-day probationary period, as discussed in the Conclusions of Law, the PACES assessments follow a format. A PACES-trained evaluator conducts an initial observation not of record. If the teacher fails to meet standards, the evaluator goes over the findings with the teacher, offers a Professional Growth Team to provide assistance in eliminating any deficiencies, and advises that she will conduct another evaluation in a month. If the teacher meets standards on the second evaluation, which is known as the first observation of record, the teacher reverts to the normal evaluation scheme applicable to all teachers, and the first negative observation is essentially discarded. If the teacher fails to meet standards on the first observation of record, she is placed on performance probation for 90 days. The evaluator conducts a Conference for the Record and gives the teacher a Professional Improvement Plan (PIP). During the probationary period, the evaluator conducts other observations, and, at the end of the period, the evaluator conducts a final observation. If the teacher still fails to meet standards, then the evaluator conducts a confirmatory observation within 14 days after the end of the probationary period. If the teacher still fails to meet standards, the principal may recommend termination to the Superintendent. PACES assessments cover six domains: Planning for Teaching and Learning (Domain I), Managing the Learning Environment (Domain II), Teacher/Learner Relationships (Domain III), Enhancing and Enabling Learning (Domain IV), Enabling Thinking (Domain V), and Classroom-Based Assessments of Learning (Domain VI). Each of these domains comprises three to five components, for which the evaluator determines whether the teacher meets standards. If the evaluator determines that the teacher fails to meet standards as to a component, the evaluator circles a listed indicator, so that the teacher may readily identify authoritative sources of information, such as the PACES binder provided to each teacher or videotapes in the District office, that will assist her in curing a particular deficiency. The assistant principal conducted the initial observation not of record on October 14, 2003. She determined that Respondent failed to meet standards for 18 of the 21 components. Respondent met standards only in Components III.A, IV.C, and VI.A. Respectively, these are Interpersonal Relations, which is the teacher's respect for the students; Resources for Learning, which is the teacher's use of teaching aids and learning materials; and Monitoring Engagement and/or Involvement in Learning, which is the teacher's monitoring of the student's engagement during learning tasks. Among the more significant deficiencies reflected in the October 14 evaluation are that Respondent lacked lesson plans and failed to manage the learning environment. To help with these and other deficiencies, the assistant principal offered Respondent a Professional Growth Team and referred her to her PACES binder, which would describe each deficient item and suggest strategies to eliminate each deficiency. For her part, Respondent had tried to deal with her new assignment by grouping the children, where appropriate, by cognitive ability. In September or October, she was able to send one student to regular education. On November 5, 2003, the assistant principal returned to perform the first observation of record. She found Respondent reading a Thanksgiving story to the eight students who were present in her class. Respondent would read one sentence and ask a question about it. By using this approach, Respondent took one hour to read a story that should have taken five minutes to read. Each time that she stopped and asked a question about the preceding sentence, Respondent undermined the continuity of the story. Also, all of her questions tested the students' memory; none of them required higher-order thinking, as would be required by questions asking how or why something happened. Despite these shortcomings in Respondent's teaching, the assistant principal determined that Respondent had met standards in all of Domains I, II, III, and VI. However, Respondent failed to meet standards in all components of Domains IV and V, including the one component in Domain IV for which she had previously met standards. However, Respondent performed considerably better in this observation than in the previous observation--meeting standards in 13 of 21 components as opposed to meeting standards in 3 of 21 components three weeks earlier. In the ensuing Conference for the Record, the assistant principal prepared a PIP for Respondent and again recommended that she take advantage of the Professional Growth Team for assistance in eliminating the deficiencies. Dated November 14, 2003, the PIP is a detailed documentation of each deficiency noted in the November 5 observation. The November 14 PIP describes what Respondent did or did not do, as to each deficiency. The PIP also contains specific recommendations to eliminate each deficiency. The number of deficiencies is misleading, at least as an indicator of the scope of the teaching that was subject to the evaluation. The Thanksgiving story, described above, spawned all eight of the observed deficiencies. Respondent's reliance exclusively upon simple recall questions yielded five deficiencies. (One of these deficiencies also relies on Respondent's failure to correct a child who replied to the question of what sound that turkeys make, by answering, "quack, quack." Absent more context, it is possible that Respondent's failure to correct this answer was an attempt not to reward attention-getting behavior.) One of the remaining three deficiencies criticizes Respondent for introducing the Thanksgiving story with an open-ended question, "This is November. What do you think happens in November?" Another deficiency, which focuses on the one-sentence, one-question approach of Respondent to the story, faults Respondent for omitting hands-on activities. The last deficiency notes that Respondent held up a small piece of paper showing the months of the year, but she failed to post the paper for the children to see. (This deficiency implies that Respondent's classroom lacks a posted calendar.) The detail of the November 5 PACES evaluation and November 14 PIP are undermined by the oddly narrow factual basis upon which they rest. Intended as a comprehensive statement of the deficiencies of an experienced teacher, these documents reveal that Petitioner has placed Respondent on probation because of an awkward reading of a Thanksgiving story to eight students over a period of about one hour. On December 11, 2003, the principal performed an observation. The principal found that Respondent met standards in Domains I, II, III, V, and VI, but not in three components of Domain IV: Initial Motivation to Learn, Teaching Methods and Learning Tasks, and Clarification of Content/Learning Tasks. Respectively, these components involve the identification of the learning objective, the use of logically sequenced teaching methods and learning tasks, and the use of different words or examples when clarification is required. The two components within Domain IV for which Respondent met standards are: Resources for Learning and Knowledge of Content and Pedagogy. The former component involves the use of learning materials to accommodate the range of individual differences among learners, and the latter component involves the creation of an opportunity to allow different learners to learn at different cognitive levels. The basis of the deficiencies was in Respondent's presentation of another story, Little Miss Muffet, although, this time, the problems centered more around her lead-in and follow-up activities. The PIP, dated December 17, 2003, which the principal prepared, notes that the pace of a writing activity worksheet was too slow for four of 11 students, who sat with nothing to do for ten minutes while waiting for their peers to finish; Respondent failed to correct a student who answered the question, "what are you afraid of," with "sock" (perhaps the same child who had said that turkeys quack); Respondent failed to correct a student who said that a paper was missing words when it was missing only letters; and Respondent failed to identify tasks associated with the story that would challenge all of the students, although Respondent used two worksheets-- one with missing words (presumably for the higher-functioning group) and one with missing letters (presumable for the lower- functioning group). On February 4, 2004, the assistant principal performed the next observation. She found that Respondent met standards in Domains I and III. She found that Respondent failed to meet standards in Components II.D, III.A, IV.A, IV.B, and VI.B. Respectively, these are Managing Environment in Learning, Interpersonal Relations, Initial Motivation to Learning, Teaching Methods and Learning Tasks, and Informal Assessment. During this observation, Respondent read a story on how to build a house. The reading level of the story was at least third-grade, but the students were in kindergarten and first grade. For 40 minutes, Respondent used actual house blueprints as a visual aid. As another visual aid, Respondent used blocks to depict a house, but she lacked sufficient blocks to finish the project. The story took one hour when it should have taken ten minutes. Consequently, students were out of their seats and trying to find something to do. On February 10, the assistant principal prepared a PIP. Although the contents of this PIP were not dissimilar to the contents of the previous PIPs, one new deficiency was Component III.A, Interpersonal Relations. The notes in the February 10 PIP state: "One learner was ridiculed by the teacher making remarks about her behavior to the classroom paraprofessional. Her remarks included, 'She's totally off the wall' and 'She has been horrendous today.' She also said to other learners not paying attention, 'I'm not going to talk to the air' and 'I'm waiting in case you didn't notice.'" The comments to the individual student were sarcastic and derogatory. In general, the principal found Respondent to be more enthusiastic in the 2003-04 school year than she had been in the previous school year. Respondent showed an improved attitude, but her classroom remained disorganized. Respondent had received considerable assistance from her Professional Growth Team, but the principal concluded that Respondent had still failed to meet standards. From Respondent's perspective, she felt that the principal had prejudged her and was running through the 90-calendar-day probationary period as an empty exercise. Respondent became increasingly nervous, as she repeatedly tried, and failed, to please the principal and assistant principal. At one point during the 90 days, Respondent restated her desire for a transfer, as she had made such a request the prior summer when she had learned of her new assignment, but the principal refused to give the request any consideration or determine if a transfer were feasible. At least once during the 90 days, Respondent's union representative asked the principal to transfer Respondent, but the principal refused, again without giving the request any consideration. In the meantime, Respondent's difficulties in the varying exceptionalities classroom were exacerbated by the removal, by October 2003, of her voice amplification system. On March 2, 2004, the principal, having determined that the 90 calendar days had expired, performed what she believed was the confirmatory observation. She found that Respondent failed to meet standards in eight components in Domains I, II, IV, and VI. Two days later, the principal informed Respondent that she would be recommending that the Superintendent terminate Respondent's professional service contract. Unfortunately, the principal had miscalculated the 90 days. Learning of this error, the principal discarded the March 2 evaluation and performed a new confirmatory observation on March 14 and again found that Respondent failed to meet standards. Two weeks later, Respondent failed to meet standards in six components in Domains II, IV, and V. Only three of the six deficiencies covered the same components in the March 2 observation: Components II.D, II.E, and IV.D, which are, respectively, Managing Engagement in Learning, Monitoring and Maintaining Learner Behavior, and Knowledge of Content and Pedagogy. In general, these were deficiencies at the start of the 90-day probationary period, but were eliminated during the 90-day probationary period, only to return again at the end. Following the March 14 confirmatory observation, the principal recommended that the Superintendent terminate the professional service contract of Respondent. On March 19, 2004, the Superintendent advised Respondent that he was going to recommend to Petitioner that it terminate her contract, and, on April 14, 2004, Petitioner did so. A recurring issue in this case is what is meant by failing to meet standards and, more importantly, unsatisfactory performance. Based on the testimony of Petitioner's witnesses, Petitioner contends that the failure to meet any single component within any of the domains of PACES is the failure to meet standards, and a failure to meet standards is invariably unsatisfactory performance, sufficient to place a teacher on 90- calendar-day performance probation or, if already on performance probation, sufficient to terminate a professional service contract. However, the PACES form does not so indicate, nor do Petitioner's online rules, of which the Administrative Law Judge has taken official notice. Petitioner has failed to prove what is an unsatisfactory performance under the PACES evaluation system. Absent the adoption of a rule to this effect, the isolated omission of a teacher, during a single observation, to provide suggestions to improve learning (Component VI.C) or to start a class or lesson precisely on time (Component II.A) would not constitute unsatisfactory performance, at least for the purpose of initiating the 90-calendar-day probationary period or terminating the professional service contract of a teacher already on performance probation. In this case, undermining the observations of the principal and assistant principal, especially where they appear to be based on discrete failures by Respondent, are the facts that neither supervisor has any significant training in exceptional student education, the principal has no experience teaching in exceptional student education, and the assistant principal has limited experience in teaching exceptional student education. By granting Petitioner's Motion for Official Recognition, the Administrative Law Judge acknowledges that, by letter dated September 24, 2001, the Florida Department of Education has approved PACES. (The identification of PACES is missing from the letter, but the Administrative Law Judge accepts the representation of Petitioner's counsel that PACES was the subject of this letter.) However, this letter approves PACES on its face, not as applied, and may have been based on more than two-page PACES evaluation form. The present record contains only the two-page form and testimony, unsupported by any documentation, that a single deficiency means that a teacher fails to meet standards and may be placed on probation, if the deficiency arises when the teacher is not on probation, or may be terminated, if the deficiency, even if different from the one that initiated probation, is present at the confirmatory observation. The record does not document the extent to which Respondent was in attendance at school during her 90-calendar- day probationary period. By her count, Respondent missed seven or eight workdays due to illness. Petitioner's calculation does not account for these missed days, and, if it had, the second confirmatory observation was premature too. The record contains some evidence of student achievement. As noted above, one student was transferred early in the 2003-04 school year from Respondent's varying exceptionalities class to a regular education classroom, but the proximity of this event to the start of the school year suggests that the student was probably misclassified at the start of the year. The mother of another student testified that Respondent helped her daughter make considerable academic progress. The student had undergone a tracheotomy and, consequently, speech delay. While in Respondent's class, the student was eager to attend school and learned to write her name for the first time. For the first time in school, the student was progressing. When the mother learned that Respondent was being terminated, she tried to contact the principal, but the principal declined to see her, claiming it was a personnel matter and implying that a parent had no role in such matters. The record contains the individual education plans (IEPs) of nine students. Typically, IEPs are prepared in the spring of each year, and, prior to the preparation of the next year's IEP, the IEP team closes out the preceding IEP by marking the extent to which the student has achieved the goals of his IEP. The IEP team also indicates progress during the year with respect to specific goals. A mark of "1" means mastery of the goal, a "2" means "adequate progress made; anticipate meeting goal by IEP end," a "3" means "some progress made; anticipate meeting goal by IEP end," and a "4" means "insufficient progress made; do not anticipate meeting goal by IEP end." The last relevant marks for some of the IEPs were January 2004, but some of them bore marks for March 2004. For all of the IEPs, exclusive of physical or occupational therapy, with which Respondent was not substantially involved, 11 goals were marked 2, 39 goals were marked 3, and 15 goals were marked 4. Five of the nine students for whom Petitioner produced IEPs received a mark of 4 on at least one goal in his or her IEP. But 11 of the 15 4's went to two students: one had four 4's, one 3, and one 2; and the other had seven 4's, two 3's, and one One student had two 4's, but also six 3's. Another student had one 4 and six 3's, and the fifth student had one 4 and three 3's. Thus, only two of the nine students were not making satisfactory progress while Respondent was teaching the class.
Recommendation It is RECOMMENDED that Petitioner enter a final order rejecting the Superintendent's recommendation to terminate Respondent for unsatisfactory performance during the 2003-04 school year. DONE AND ENTERED this 26th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2004. COPIES FURNISHED: Dr. Randolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
The Issue Whether respondent's teaching contract should be renewed for school year 1995-96.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: Background In this proceeding, petitioner, Suwannee County School Board (Board), seeks to terminate respondent, Lallah P. Singh, a teacher, on the ground his classroom performance in school years 1993-94 and 1994-95 was unsatisfactory. In doing so, petitioner relies upon Section 231.36(3)(e), Florida Statutes, which authorizes a school board to terminate an employee with a professional services contract (PSC) when that employee has an unsatisfactory performance rating for two consecutive years. This proceeding represents the first occasion on which the Board has utilized the statute for a PSC teacher. Respondent, who has been employed in the Suwannee County school system since December 1977, is certified as a teacher in the areas of biology and mathematics for grades 6-12. A native of India, he holds the equivalent degree of a doctor in veterinary medicine from a university in that country. He has also obtained a master's degree in veterinary science in this country and is certified as an education specialist in mathematics. Until school year 1993-94, respondent was employed in a variety of positions, including a regular classroom teacher (1977-86), a home study teacher (1987-89), and an alternate education teacher (1990-92). During school year 1993-94, respondent was assigned to the Branford Pre K-12 School in Branford, Florida where he taught the in-school suspension (ISS) class. That class is made up of high school level students suspended from their regular classes for disciplinary reasons. The assignment required that respondent maintain discipline and assist students with work assigned by their regular teachers. Based on observations conducted by his principal during the school year, respondent received an unsatisfactory evaluation for his classroom performance. He was notified of these deficiencies in writing and was told that such deficiencies must be corrected by the end of the following school year, or else he would face possible non-renewal of his contract. For school year 1994-95, respondent was reassigned to an ISS classroom four periods per day but was also required to teach a general science class one period per day. During that year, respondent was observed by his principal in the general science class on four occasions to determine if the deficiencies noted in the prior year had been remediated. While most of the earlier deficiencies were eventually corrected, respondent was still unsatisfactory in one performance area noted in the prior year, as well as two other areas, and his performance was accordingly deemed to be unsatisfactory. On May 15, 1995, he was notified that his contract would not be renewed. By letter dated May 19, 1995, respondent requested a hearing to contest the Board's action. Although Section 231.36(3)(e)4.b., Florida Statutes, requires that the hearing be scheduled within 45 days of receipt of the written appeal, the parties have waived this requirement by requesting hearing dates beyond that timeframe. As clarified by his counsel, respondent generally contends the Board erred in the termination process by (a) providing him untimely and insufficient notice, (b) performing an inadequate evaluation, and (c) offering him inadequate assistance to correct his deficiencies. He asks for reinstatement of his professional services contract, as well as back pay. Events Leading up to School Year 1993-94 Around 1982, the legislature amended Section 231.36(3), Florida Statutes, to create a professional services contract under which teachers could be employed. Prior to that time, teachers not on annual contract status were employed under what was known as a continuing contract. Both a PSC and a continuing contract are considered a form of tenure for public school employees. After the new law became effective, teachers employed under a continuing contract were given the option to convert to a PSC. The advantage to a PSC is that if a teacher is cited for unsatisfactory performance in a given year, he or she has the following year in which to remediate those deficiencies. If the deficiencies are not remediated in the second year, a school board can change the teacher to annual contract status and decline to renew the teacher's contract. This procedure contrasts with the continuing contract process which, after an unsatisfactory rating is given but is not remediated by the teacher, allows a school board to change the teacher to annual contract status and not renew the contract at the end of any given year. In school year 1991-92, respondent was still employed under a continuing contract. When he received an unsatisfactory evaluation, and was threatened with the possibility of being changed to an annual contract and not renewed, he consulted with a teacher's union field representative, Richard E. Layer, on his procedural and substantive rights. During their discussions, the two talked about whether respondent should remain on a continuing contract or switch to a PSC. According to Layer, he explained to respondent "how the statute (governing a PSC) worked," advised him that a PSC offered more job security than a continuing contract, and recommended respondent switch to a PSC since this would give him two years in which to correct any deficiencies that might occur in the future. Layer added that after their conversation, respondent "knew exactly what the (PSC) provided." Based on Layer's advice, in April 1992 respondent requested that he be converted to a PSC. This was done for school year 1992-93, and he remained in that status until his contract was terminated in May 1995. The Evaluation Process Generally When evaluating classroom performance in both school years 1993-94 and 1994-95, the Board used standard evaluation forms developed by representatives of the Board and teacher's union. The evaluation, which must be performed at least once a year for teachers having a PSC, is conducted by the teacher's immediate supervisor, who in this case was the school principal, Melvin McMullen. McMullen had assumed that position during the latter part of school year 1992-93, had received special training for conducting evaluations, and was required to perform evaluations for over fifty teachers in both school years 1993-94 and 1994-95. The evaluation process for a teacher on a PSC consists of at least one classroom evaluation during a given school year. The results of the first evaluation are recorded by the evaluator on an assessment form. Within five days after the observation, a principal-teacher conference must be held for the purpose of reviewing the outcome of the observation. At that meeting, the teacher must sign the form, which includes a written admonition that "(f)ailure to correct the area(s) marked unacceptable may lead to your dismissal or non- renewal." Subsequent evaluations during the year, if any, are also recorded by the evaluator on an assessment form. For all evaluations, the teacher is given an acceptable ("A") or unacceptable ("U") rating for each evaluated area. Although the assessment forms used herein changed in some minor respects from school year 1993-94 to school year 1994-95, their substance was essentially the same. Each assessment form for a classroom teacher contains six overall performance standards, including planning, teaching procedures, classroom managment, presentation and knowledge of subject matter, assessment techniques and personal characteristics and professional responsibilities. Under the performance standards are found a total of twelve "indicators." Finally, within the indicators are found a "checklist of observable teaching behaviors," consisting of twenty-seven behaviors, each requiring a rating of "U" or "A." If any teaching behavior is given a "U," the indicator likewise requires a rating of "U." If an indicator is marked "U," the performance standard is also scored unacceptable. A total score is then assigned to the teacher, with one point given for each indicator with an "A," and the highest score being twelve. Anything less than a twelve is considered unsatisfactory and, if not corrected, may result in the teacher's dismissal. If the first observation of a PSC teacher results in an unsuccessful rating in any area, a "level-one" assistance plan is instituted by the principal, which consists of a principal-teacher conference to discuss the deficient areas, suggestions on how to correct the deficiencies, and a timeframe to correct the substandard performance. If insufficient progress has been made by the end of the timeframe, at the option of the assessor, the level-one assistance process can be repeated or a "level-two" assistance plan can begin. The latter level of assistance generally mirrors the assistance given during level-one but the assessor must also notify the superintendent that level-two has been initiated. If the deficiencies are still not corrected by the end of the school year, the superintendent is notified, and the teacher is again placed on notice that he must correct those deficiencies during the following school year or suffer the risk of being reverted to an annual contract status and not being renewed. Finally, during the subsequent school year, the same observations are conducted, and level-one and two assistance plans are implemented if deficiencies are observed. If remediation does not occur by the end of the second school year, the superintendent has the authority to recommend that the school board decline to renew the teacher's contract. School year 1993-94 Respondent was first evaluated by principal McMullen on February 23, 1994. He received a total credit of 10 out of 12 possible points. For the indicators "Recognizes and provides for individual differences" and "Demonstrates effective classroom facilitation and control," respondent received a "U." A conference was held by McMullen and respondent the same day, at which time respondent was given a form entitled "Related Work Performance Form (Appraisal III)." It contained not only an explanation of unacceptable areas and recommended procedure for correction, but also a notation that respondent had "2 weeks from today to demonstrate acceptable teacher corrective action." On March 14, 1994, respondent was again evaluated by principal McMullen. Although McMullen noted that "improvement" had occurred since the earlier evaluation, respondent received a credit of 11 out of 12 points. Indeed, he was still deficient in the area of "Demonstrates effective classroom facilitation and control." At a conference held the same day, respondent was given an explanation of his unacceptable area, a recommended procedure for correction, and the following timeframe for improvement: "2 weeks approximately from 3/14/94.". On March 15, 1994, respondent was given a lengthy list of resource materials available for use in correcting his deficiencies, including videos, journals and publications. In addition, he was given written instructions for use of the materials. Based on the unsatisfactory performance rating, principal McMullen sent the following letter to respondent on March 25, 1994: This letter is to notify you that you have demonstrated unsatisfactory performance on the Final Observation/Assessment Form (Appraisal I), with deficiencies noted in the folowing areas: Classroom Management Number 2: Maintains rules of conduct Number 3: Maintains instructional momentum These deficiencies must be corrected by April 1, 1995. I am requesting that your employ-ment be continued an additional year in order to provide you assistance. If you wish to discuss this matter with me further, please schedule an appointment through Mrs. Cannon. I look forward in continuing to work with you on classroom management issues. Respondent acknowledged receiving a copy of the letter the same day. On March 31, 1994, principal McMullen wrote the following letter to superintendent Blaylock: Dr. Lallah Singh has been notified of unsatis- factory performance on the Final Assessment Form with deficiencies noted in the following areas: Classroom Management Number 2: Maintains rules of conduct Number 3: Maintains instructional momentum I request that his employment be followed for an additional year to allow the opportunity to correct these deficiencies by April 1, 1995. Whether respondent received a copy of this letter is not of record. Although the March 14, 1994 evaluation was ostensibly used for personnel decisions that year, on May 6, 1994, a third formal assessment of respondent's classroom performance was conducted by principal McMullen. On that date, he received a credit of 11 out of 12 points. Even so, respondent was still deficient in "Classroom Management" and the related indicator based on unacceptable ratings given for the following observable teaching behaviors: "Maintains rules of conduct" and "Maintains instructional momentum." Thus, no matter whether the March or May evaluation was used, at the end of the first school year in question, respondent's only noted deficiency continued to be for classroom management and the related indicator, "Demonstrates effective classroom facilitation and control." On May 10, 1994, respondent and principal McMullen met to discuss respondent's latest assessment. Although McMullen noted that respondent had made "progress in meeting recommended procedures to help correct areas of concern," he noted that his level of improvement was "still not acceptable" and that respondent must continue the earlier suggestions for improving his performance. The two agreed to meet during the next school year's pre-planning period to discuss a plan of improvement for that year. This was embodied in a letter sent by McMullen to respondent on May 11, 1994. Sometime after receiving this notification, respondent contacted his local teacher's union representative, Willie Veal, Jr., for advice and assistance. On April 21, 1994, acting on the superintendent's recommendation, the Board reemployed respondent for the following year and placed him in a status known as "Professional Services Contract continuation (2nd year)," which is the Board's terminology for the "subsequent year" described in section 231.36(3)(e). Respondent did not receive a copy of this action. On June 7, 1994, however, respondent received a letter from the superintendent advising that the Board had approved him for a PSC for school year 1994-95. School year 1994-95 On August 19, 1994, respondent, union representative Veal, and principal McMullen met to discuss respondent's teaching status for the 1994-95 school year. At that meeting, respondent learned he would be reassigned to ISS but would also be required to teach general science one period per day. Although respondent says general science was not his strongest suit, which was mathematics, it was a subject within his certified area of biology. He also understood that his contract was subject to being non-renewed if he did not correct his deficiencies during the school year. This was confirmed by witness Veal. The following letter was given to respondent on August 29, 1994, to memorialize the substance of the meeting: Thank you for meeting with me while Mr. Veal had a moment last Friday (August 19th., 1994) to generally discuss plans for teaching improvement for the 1994-95 school year. As we discussed, I believe the opportunity to teach a General Science class and Mr. Brown spending two periods a days (sic) with I.S.S. students (doing Drop-Out Prevention counseling) will be two positive techniques to aid improvement as noted on the Appraisal II Form from last year. You and I will meet again soon, to review matters particular to unacceptable areas noted on the May 6th., 1994 Observation/ Assessment. We will then outline other suggestions, techniques and/or personnel that might assist this teacher improve- ment process. On November 15, 1994, respondent was sent the following letter by principal McMullen: As we discussed at our 8/25/94 (sic) meeting, and briefly the other day, we need to meet this coming week to discuss items noted on the Appraisal II Form. We will review the items which were unacceptable on the 5/6/94 Observation/Assessment Form. Can a meeting between you and I be set up for Tuesday afternoon, about 2:30 in your room? Please let me know. Pursuant to this letter, a meeting was held on November 20, 1994. During the meeting, principal McMullen further discussed respondent's deficient areas in the prior year and suggested ways to improve them. He also recommended that informal observations be made in an effort to prepare respondent for his formal observations during the following months. While respondent contends this assistance was begun too late in the school year to be of any meaningful value, it was rendered more than four months before the final evaluation on March 29, 1995. Then, too, respondent's most persistent problem continued to be in the area of classroom management, for which assistance to remedy that problem had been offered throughout the previous year. On December 12, 1994, principal McMullen conducted the first of four observations of respondent's performance in his general science classroom. That classroom, rather than the ISS class, was chosen out of fairness to respondent in order to assess him in a controlled classroom environment. On that day, respondent received a score of 7 out of 12 possible points. More specifically, he received an unacceptable rating for the following indicators: "Uses instructional materials effectively," "Displays skills in making assignments," "Recognizes and provides for individual differences," "Demonstrates effective classroom facilitation and control," and "Presents subject matter effectively." The following day, or December 13, 1994, petitioner was placed in the level-two assistance process. He was given a detailed explanation of unacceptable areas of performance observed at the December 12 evaluation and a lengthy list of suggestions on how to correct each of those deficiencies. Late on the morning of the same day, or December 13, 1994, principal McMullen walked by the building in which respondent taught and "noticed (him) sleeping at (his) desk" with his shoes off and leaning back in his chair. There were four students in his classroom at the time. Respondent was given a letter confirming this incident and told that if he had a medical reason which caused him to sleep to provide the principal with a doctor's note by December 16, 1994. Respondent provided a letter from his doctor the following day in which the physician listed four medications being taken by respondent, none of which would cause him to sleep. However, the physician noted that respondent "occasionally" took an over the counter cough syrup "that may cause drowsiness." Whether respondent was taking a cough syrup that day is not of record. This incident is relevant to the charge that respondent did not properly manage his classroom. On January 24, 1995, principal McMullen again performed an assessment of respondent's classroom performance. On this occasion, respondent received a score of 10 out of a possible 12 points. He received unacceptable ratings for the following indicators: "Demonstrates effective classroom facilitation and control" and "Presents subject matter effectively." On January 27, 1995, and pursuant to the level-two assistance program, respondent was again given a written, detailed explanation of his unacceptable areas and a list of recommended procedures for correction. He was told that he would be reevaluated on or about February 17, 1995. Finally, respondent was given the following written notice: Failure to satisfactorily correct all area(s) of unacceptable performance within the expected timeframe may result in returning the teacher holding a CC/PSC contract to annual contract status. If area(s) of unacc- eptable performance are not satisfactorily corrected during the second year, the teacher may be recommended for non-renewal. On February 21, 1995, another classroom observation was conducted by principal McMullen. That day, respondent received a score of 10 out of 12 possible points. Respondent again received unacceptable ratings for the following indicators: "Demonstrates effective classroom facilitation and control" and "Presents subject matter effectively." At a conference the same date, respondent was advised in writing that the following administrative assistance would be rendered: "Arrange conference time with fellow teachers/administrators, help secure resource materials and arrange for time to visit (illegible), etc." Respondent was also told that "(b)y April 5th (approximately six weeks), 1995 all observed/assessed areas should be scored acceptable." In addition, respondent was given a more detailed explanation of his unacceptable areas and recommended procedures for correction of those areas. On March 13, 1995, principal McMullen acknowledged receipt of certain corrective measures which respondent proposed to use at his next observation. These corrective measures were considered by principal McMullen at the next observation. A final observation of respondent occurred on March 29, 1995. Respondent received three unacceptable ratings which resulted in a score of 9 out of 12 points. On that occasion, he received unacceptable ratings for the following indicators: "Uses appropriate motivating techniques," "Demonstrates effective classroom facilitation and control," and "Presents subject matter effectively." The second noted indicator, "Demonstrates effective classroom facilitiation and control," was the same indicator for which respondent had received an unacceptable rating the prior year. On March 30, 1995, principal McMullen sent the following letter to respondent: This letter refers to our meeting today on your 3/29/95 Observation/Evaluation. Having gone over that with you, I wanted to highlight the fact that you still have three areas deficient in evaluation of your classroom teaching. These areas are noted on your evaluation form. Instructional recommendations are due to the Superintendent April 1, 1995. Due to this being the second year in the process to correct noted deficiencies and those continue, I have no choice but to recommend non-renewal at that time. Respondent acknowledged receiving a copy of the letter the same date. On March 31, 1995, principal McMullen notified the superintendent by letter that he could not recommend respondent for the 1995-96 school year term given his failure to correct the deficiencies. The superintendent accordingly recommended to the school board on April 21, 1995, that respondent not be rehired for the following school year. The recommendation was accepted by the school board at its April 25, 1995 meeting. On May 15, 1995, the superintendent advised respondent by letter that his contract was not being renewed for the following school year. This notice prompted respondent to request a formal hearing to contest the school board's proposed action. Was There Adequate Notice, Evaluation and Assistance? Notice Respondent contends that the school board erred by giving him inadequate and untimely notice of its actions. At the same time, respondent asserts that he was unaware of the consequences of the unsatisfactory performance ratings in school year 1993-94. He claims that, before the middle of school year 1994-95, no one ever specifically told him that his employment status was in jeopardy if his deficiences were not corrected by the following school year. Respondent's contention that he was unaware of the consequences of the 1993-94 unsatisfactory rating is not deemed to be credible. As early as 1992, respondent was given an explanation on how section 231.36(3)(e) "worked" by a field representative of the teacher's union, and according to the representative, "knew exactly what the law provided." Based on that advice, he switched from a continuing contract to a PSC since he had been told that this would give him two years to correct deficiencies before his employment could be terminated. Beginning in the summer of 1994, he was also represented by the president of the Suwannee County teacher's union, Willie Veal, Jr. At a meeting with Veal and principal McMullen in August 1994, respondent was told that he must correct his deficiencies before the end of the school year or face non- renewal. In addition, respondent had been through a similar evaluation process several years earlier. In 1992, he received an unsatisfactory performance rating and was told that unless the deficiencies were corrected, his contract might be terminated. In that case, however, the deficiencies were corrected, and he retained his tenure under a PSC. Finally, each of the many assessment forms that respondent signed during this process specifically noted that his "(f)ailure to correct the area(s) marked unacceptable may lead to (his) dismissal or non-renewal." Therefore, the totality of the evidence belies respondent's contention that he did not understand that this could happen. Statutory requirements The school board did not strictly follow all requirements of the law in terminating respondent. For example, the law requires that the superintendent provide the teacher in writing "no later than 6 weeks prior to the end of the postschool conference school period, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment." In this case, respondent received this notice from his principal, rather than the superintendent. However, such notice was sufficient to inform respondent of the gravity of the situation. In the subsequent year, or school year 1994-95, the same notice must again be provided to the employee "no later than 6 weeks prior to the close of the postschool conference period." In this case, the notice was given by the superintendent, but this occurred less than "6 weeks prior to the postschool conference period." Although several errors in procedure occurred during the termination process, they were not so serious as to impair the fairness of this proceeding, or to cause prejudice to respondent in the defense of this case. Therefore, the errors in procedure are deemed to be harmless. Evaluation and Assistance The statute also calls for the employee to be "provided assistance and inservice training opportunities to help correct the noted performance deficiencies." However, the specific type of assistance and opportunties to be afforded a teacher is not statutorily defined. Respondent contends that such assistance and opportunities were never provided. Beginning with his first evaluation in February 1994, respondent was given assistance in the form of specific suggestions on how to correct the deficiencies. Also, numerous principal-teacher conferences were held to discuss the observation findings. After the March 14, 1994 evaluation, respondent was given a lengthy list of videos, journals and publications to use in an effort to correct his deficiencies. He was also given written instructions for the use of the materials. At the beginning of school year 1994-95, respondent had a pre-school meeting with both his principal and union representative concerning this matter. He also met with the principal on November 20, 1994, and the two discussed "other suggestions, techniques and/or personnel that might assist (his) teacher improvement process." Following an evaluation on December 12, 1994, respondent was given a detailed explanation of unacceptable areas of performance and a lengthy list of suggestions on how to correct those deficiencies. After another evaluation on February 21, 1995, respondent was again given advice on how to correct his deficiencies before the next evaluation. Although respondent says he took this advice to heart, and did all of the things suggested by his principal, he was still unable to obtain an acceptable rating. The Board, however, cannot be faulted for respondent's continued inability to correct the cited deficiencies. Through his expert, respondent contended that the evaluation and assistance process was not adequate. In reaching this conclusion, the expert relied upon her experience in the States of Georgia and Texas, as well as Dade and Seminole Counties, Florida. She did not, however, have any teacher remediation experience in small, rural counties such as Suwannee. The expert pointed out that a peer teacher did not assist the principal in performing the evaluations and making subsequent recommendations on how to correct the deficiencies. But there is no requirement that more than one person conduct the evaluation, and respondent (and his union representative) did not request that someone other than principal McMullen perform the observation. The expert further contended the Board should have assigned a peer teacher to assist respondent throughout this process. She also recommended that the Board send him to various seminars relating to his deficient areas. Again, however, there is no statutory requirement that a school board provide this type of assistance, especially when other forms of assistance and opportunities being given the teacher are adequate. Finally, the criticism that the Board did not adequately formalize its planned assistance measures into a written document is deemed to be unavailing. Because the assistance and opportunties provided respondent were adequate, the Board met its statutory obligation to provide "assistance and inservice training opportunities to help correct the noted performance deficiencies." Summary After being evaluated in a fair and impartial manner, and receiving timely and adequate notice of his deficiencies, as well as adequate assistance and opportunities to correct those flaws, respondent did not remediate a noted performance standard and related indicator during two consecutive school years. Therefore, the Board could properly change respondent's contract status from PSC to annual at the end of school year 1994-95 and decline to renew his contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order terminating respondent from employment by not renewing his 1995-96 contract. DONE AND ENTERED this 4th day of January, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 4th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2988 Respondent: 1-3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 2 and 3. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 1. Partially accepted in finding of fact 10. 9-12. Partially accepted in finding of fact 11. Partially accepted in finding of fact 10. Rejected as being unnecessary. 15-17. Partially accepted in finding of fact 12. 18-19. Rejected as being unnecessary. 20-21. Partially accepted in finding of fact 44. 22-35. Partially accepted in findings of fact 13-20. 36-56. Partially accepted in findings of fact 21-34. 57-67. Partially accepted in findings of fact 40-46. 68-71. Partially accepted in findings of fact 35-37. 72-73. Partially accepted in finding of fact 39. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: J. Victor Africano, Esquire P. O. Box 1450 Live Oak, Florida 32060-1450 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, Florida 32399-1700 Charles F. Blaylock, Jr. Superintendent Suwannee County School Board 224 West Parshley Street Live Oak, Florida 32060-2396 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract for approximately 15 years. He has a bachelor's degree and a master's degree in the area of education. During the 1988-89 school year Respondent was assigned as a teacher to Highland Oaks Middle School. Danielle Fisher was a student in Respondent's fifth period math class. On May 8, 1989, during math class, Dantelle Fisher became involved in a loud argument with one of her friends over which of the two girls was the owner of a "fucking lipstick." Fisher, who was also eating candy, kept proclaiming to the other girl, "Fuck you. It's mine." Fisher's argument disrupted Respondent's math class and the class next door. Respondent directed Fisher to be quiet, and Fisher refused. Respondent directed her again to be quiet, and again she refused. Respondent directed her to leave the room, and she refused. Respondent again directed her to leave the room, and she yelled at him "Fuck you. Screw you, asshole." Fisher continued yelling profanities, and Respondent went over to where she was sitting. He took her left arm to guide her out of her seat, and she resisted, refusing to move. He then exerted a small amount of force, pulling her up from her seat. Respondent gave her her books and her purse and led her by her left arm to the open classroom door, instructing her to report to the office. Respondent then closed the classroom boor. Fisher then opened the classroom door and screamed at Respondent, "Fuck you. I'm going to get you fired." She then yelled to her classmates, "Everybody, remember this." She then showed them her left arm which at that moment showed finger prints, i.e., the impression of where Respondent's fingers had been on her arm. She then left. By the time that Fisher reached the principal's office, she had red welts and scratches on her right arm. Respondent had not touched Fisher on her right arm. Fisher was not humiliated or embarrassed by the incident. She had been removed from Respondent's classroom on previous occasions for disruptive conduct and had been removed from her social studies class on a previous occasion for banging on the wall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing the Specific Notice of Charges filed against Respondent and reinstating Respondent to his position as a classroom teacher with full back pay from the date of his suspension to the date of hid reinstatement. DONE and ENTERED this 30th day of April, 1990, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990. APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 89-6345 Petitioner's proposed findings of fact numbered 1 and 6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact lumbered 2 and 3 have been rejected as being irrelevant to the issues under consideration in this proceeding. Petitioner's proposed finding of fact numbered 4 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 5 and 7-12 have been rejected as not being supported by the weight of the credible evidence in this proceeding. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 5 and 6 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact: numbered 1-4 and both numbers 7 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. COPIES FURNISHED: William DuFresne, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Dr. Paul W. Bell, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues in this case are: (1) Whether Petitioner's allegations regarding Respondent schoolteacher's purported performance deficiencies are, in fact, true, thereby justifying Petitioner's placing Respondent on statutory performance probation; (2) If the first question is answered in the affirmative, then, Whether Respondent satisfactorily corrected the specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3)(d), Florida Statutes; and (3) Whether Respondent's employment should be continued or terminated.
Findings Of Fact Material Historical Facts At all times material to this case, Respondent Samuel K. Young ("Young") was a teacher in the Palm Beach County School District ("District"). From 1993 until July 2003, when Respondent Palm Beach County School Board ("Board") suspended him without pay, Young taught English at the Alexander W. Dreyfoos, Jr. School of the Arts ("Dreyfoos"), a magnet high school for students interested in an arts-centered education. In August or early September of 2001, shortly after the beginning of the 2001-02 school year, one of the Assistant Principals at Dreyfoos, Tanya Daniel, began routinely to observe Young, on an "informal" basis, while he was teaching his classes. These unscheduled, informal observations were triggered by students' complaints, of which Ms. Daniel, as Young's immediate supervisor, had been the recipient or been made aware. As time passed, the informal observations became increasingly formal. On October 25, 2001, Ms. Daniel conducted a formal evaluation of Young, using the Summative Observation Instrument, which is a tool that was developed for the Florida Department of Education's Florida Performance Measurement System. Another Assistant Principal, Leo Barrett, also started formally observing Young's classes. By early December 2001, Ms. Daniel had come to the conclusion that Young was not performing his teaching responsibilities in a satisfactory manner. Specifically, Ms. Daniel believed that Young was deficient in the areas of classroom management; presentation and organization; planning; student assessment; obedience to policies and procedures; and maintenance of the learning environment. Two points are especially notable about Ms. Daniel's negative assessment of Young. First, she placed considerable reliance on student feedback. Indeed, Ms. Daniel invited and encouraged Young's students to report to her on how he was doing in the classroom. Second, she did not rely upon student performance as measured, in accordance with Section 1008.22, Florida Statutes, by state and/or local assessments. On January 8, 2002, as a result of Ms. Daniel's evaluation, the Principal of Dreyfoos, Ellen Van Arsdale, placed Young on school-level performance probation pursuant to the procedures spelled out in the Classroom Teacher Assessment System (CTAS) Evaluation Handbook (the "CTAS"). (Under the Collective Bargaining Agreement Between the District and the Palm Beach County Classroom Teachers Association, effective July 1, 2002 to June 30, 2005 (the "Union Contract"), the District is required to conduct formal evaluations of teachers "in keeping with" the 1999 CTAS.) The CTAS provides that a teacher whose performance is found deficient must be afforded at least 30 calendar days to improve his performance to a satisfactory level. During that time, the teacher must be given "school-site assistance" to help him correct the identified performance deficiencies. Accordingly, a 30-day School-Site Assistance Plan was developed for Young and put into effect on January 8, 2002. The school-level performance probation that began in January 2002 constituted a new phase in the evaluation process. The purpose of the first phase, which lasted about three months (from September through December 2001), purportedly was to determine whether Young's performance was satisfactory or not. Thus, the first-phase evaluators should not have assumed at the outset that Young's performance was satisfactory or unsatisfactory. In contrast, during the second phase, the evaluators worked from the initial premise that Young's performance was, in fact, unsatisfactory, in the several areas noted by Ms. Daniel. The focus, therefore, was on whether Young was improving sufficiently to correct deficiencies that were assumed to exist. Throughout the school-level probationary period, a number of evaluators reviewed Young's performance. Ms. Van Arsdale conducted several evaluations, and Mr. Barrett performed at least one. Another was conducted by Dr. Lisa Troute, a Curriculum Specialist with the District. Others, too, were involved. None of the evaluators questioned the conclusion, which was based largely on Ms. Daniel's opinions, that Young's performance actually was deficient. Ms. Daniel did not observe Young's classroom performance during this second phase, evidently in consequence of Young's having voiced some concerns about her impartiality. Ms. Daniel remained an important participant in the process, however, and she continued actively to solicit students' opinions about Young's competence. On February 20, 2002, she interviewed at least three of Young's students, making handwritten notes (which are in evidence) to memorialize their respective assessments. Ms. Daniel asked one student to rate Young's performance on a scale from 1 to 10, with 1 being "poor" and 10 being "great"; the student gave Young a 3.5. There is no evidence that Ms. Daniel elicited the opinions of a random, representative sample of Young's students——or instead, for example, polled only the known malcontents. There is also no persuasive evidence that Ms. Daniel ever did anything but accept the students' mostly unfavorable opinions uncritically. What the evidence does establish is that Ms. Daniel put great weight on the students' opinions——so much so that the students she spoke with effectively became Young's evaluators themselves. The school-level probationary period was extended well beyond 30 days, and ended up lasting until the end of the 2001- 02 school year. By letter dated May 17, 2002, Ms. Van Arsdale informed the Superintendent that Young's performance remained unsatisfactory after 91 days of school-site assistance. Specifically, it was Ms. Van Arsdale's opinion that Young's performance was deficient in the following six areas, each of which is a designated "indicator" of competence under the CTAS: Management of Student Conduct; Presentation of Subject Matter; Learning Environment; Planning; Assessment; and Policies/Procedures/Ethics. Ms. Van Arsdale asked the Superintendent to place Young on statutory performance probation for 90 days, pursuant to Sections 231.29 and 231.36, Florida Statutes (2001). The assessment procedure used to evaluate Young during the school-level probation was not primarily based on the performance of students as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statutes. In fact, the evaluators placed no meaningful weight on student performance, so measured. Nevertheless, the Superintendent acceded to Ms. Van Arsdale's request. By letter dated May 20, 2002, the Superintendent notified Young that he would be placed on performance probation for 90 calendar days. The statutory performance probation——a distinct, third phase of the evaluation process——commenced in August 2002, at the beginning of the 2002-03 school year. On August 22, 2002, Young was given a Professional Development Plan, which called for the provision of assistance, as well as ongoing evaluations, through November 2002, when a final evaluation would be issued passing judgment on whether he had——or had not——corrected the alleged performance deficiencies. The statutory performance probation unfolded largely as had the school-level performance probation. Young was, again, observed and critiqued by a number of evaluators. Of the written evaluations in evidence, the most balanced is a report dated September 22, 2002, which Dr. Troute prepared concerning her observation of Young on September 10, 2002. Based on this contemporaneous report, the undersigned is persuaded that Dr. Trout then believed Young was a "satisfactory" teacher who could, with additional effort, be a "good" teacher. Others were less charitable, however, including Ms. Van Arsdale, who prepared Young's final evaluation based on her November 5, 2002, observation of his class. On the CTAS's evaluation form, Ms. Van Arsdale gave Young a rating of "concern" on five separate "indicators" of competence: Management of Student Conduct; Presentation of Subject Matter; Learning Environment; Planning; and Assessment. This resulted in an overall evaluation of "unsatisfactory." The assessment procedure used to evaluate Young while he was on statutory performance probation was not primarily based on the performance of students as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statutes. Indeed, once again, the evaluators placed no meaningful weight on student performance, so measured. By letter dated November 6, 2002, Ms. Van Arsdale notified the Superintendent that, in her opinion, Young had failed to correct performance deficiencies and therefore should be fired. The Superintendent agreed, and by letter dated November 14, 2002, informed Young that he would recommend to the Board that Young's employment be terminated. The Board later accepted the Superintendent's recommendation, and Young was suspended without pay, effective on or about July 16, 2003, pending his discharge. The CTAS A. Teachers who are evaluated under the CTAS are rated on 15 categories of qualities or abilities, which are referred to collectively as "indicators." Each indicator, such as, e.g., Management of Student Conduct, is best understood not as a single ability, but rather as a label for a skill-set, that is, a collection of qualities, abilities, or skills. The indicators are divided into two classes called "performance areas." The performance areas are: "A. Teaching and Learning" and "B. Professional Responsibilities." There are eight indicators under Teaching and Learning and seven under Professional Responsibilities. The CTAS uses a two-point rating scale. The only grades used for scoring a teacher on the 15 indicators are "acceptable" and "concern." The section of the CTAS's evaluation form where the grades are recorded is reproduced below, with the ratings from Ms. Van Arsdale's final evaluation of Young, dated November 6, 2002, added to show how the form is used in practice: A. TEACHING AND LEARNING ACCEPTABLE CONCERN 1. Management of Student Conduct X 2. Human Development and Learning X 3. Presentation of Subject Matter X 4. Communication X 5. Knowledge of Subject Matter X 6. Learning and Environment X 7. Planning X 8. Assessment X B. PROFESSIONAL RESPONSIBILITIES ACCEPTABLE CONCERN 9. Technology X 10. Record Keeping X 11. Continuous Improvement X 12. Working Relationships with Coworkers X 13. Working Relationships with Parents X 14. Policies/Procedures/Ethics X 15. Duties as Assigned by the School Administration X The teacher's overall evaluation rating of "satisfactory" or "unsatisfactory" depends entirely upon the combination of ratings awarded on the 15 indicators. The following combinations require an overall evaluation of "unsatisfactory": NUMBER OF CONCERNS SECTION A SECTION B 3 0 2 1 1 3 0 4 As can be seen, the indicators under Section A carry greater relative weight in the overall evaluation than those under Section B. Because Young received five "concerns" on his final evaluation, the CTAS dictated that he be given an overall "unsatisfactory" rating. In rating the various indicators, evaluators are supposed to consider numerous "performance criteria." The CTAS defines the "performance criteria" as "examples of descriptors which define the indicators." To be more precise, the performance criteria are specific behaviors, acts, and practices that the teacher should be performing as an outward manifestation of the teacher's command or mastery of the respective skill-sets known as indicators. Various performance criteria are set out in the CTAS as "bullet points" under each of the indicators. The first bullet point under the first indicator (Management of Student Conduct), for example, is: "[The teacher] specifies and explains rules of conduct and provides for practice of rules when appropriate." For each of the indicators, the CTAS further provides a set of "data collection sources." The CTAS defines the term "data collection sources" as "examples of multiple data sources used to determine a rating of 'acceptable' or 'concern.'" In other words, the data collection sources are lists of "evidence" that can be examined to determine whether, and perhaps how well, the teacher is performing the prescribed performance criteria. For example, the data collection sources for the indicator Planning are: observation reports; lesson plans; conference notes; assessment data; instructional materials; and written reports. B. As we have seen already, the CTAS defines the terms "satisfactory" and "unsatisfactory" in a completely objective fashion. It does so by specifying the rating combinations that will result in an overall evaluation of "unsatisfactory." Thus, anyone who knows the number of "concerns" that a teacher has received in Sections A and B can apply the formula and assign the overall grade; this ministerial function requires neither discretion nor judgment. What does demand discretion and judgment is rating the teacher's command or mastery of the respective indicators as either "concern" or "acceptable." This rating function requires that qualitative determinations be made at two distinct levels. First, for every indicator (skill-set), the evaluator must decide how well the teacher is executing each of the several subsidiary performance criteria (behaviors). Then, based on how well the teacher is executing the subsidiary performance criteria (behaviors), the evaluator must render a judgment as to how well the teacher is doing with regard to the indicator (skill-set) that comprises those performance criteria. At both stages of the analysis, to arrive consistently at fair conclusions——that is, to obtain similar results with respect to similarly performing teachers most of the time——requires (a) that there be uniform standards to guide evaluators in making the requisite judgment calls and (b) that the same standards always be applied, to all teachers in all evaluations. Thus, it is important to know what standards, if any, the CTAS prescribes. To begin, some negative findings are in order. First, the indicators are not standards upon which to make a judgment. They are, rather, the qualities to be judged, using appropriate standards of decision. Second, the performance criteria are likewise not standards. They define or prescribe the relevant facts to which, jointly and severally, standards should be applied, so as to make a judgment regarding one indicator or another.1 To illustrate, the fact that a teacher is observed "reinforc[ing] appropriate social behavior" tells us nothing about how well he does this, much less about how well he has mastered Management of Student Conduct, which indicator comprises the referenced performance criterion. Rather, to make a qualitative judgment regarding the teacher's performance of this practice requires some test, some basis, for distinguishing between good and bad performances. Similarly, the ultimate fact that the teacher acceptably "reinforces appropriate social behavior" tells us relatively little, presumably, about whether the teacher's mastery of the indicator Management of Student Conduct is acceptable or not, for there are eleven other performance criteria to be considered also in respect of this particular indicator. To make a qualitative judgment regarding whether the teacher has demonstrated an acceptable command of the skill-set known as Management of Student Conduct requires some sort of standard, some yardstick for measuring the relative importance of the teacher's demonstrated expertise (or lack thereof)——as determined by the evaluator——in the execution of the various performance criteria. The only "standards" that the evidence in this case persuasively establishes are the terms "acceptable" and "concern." Superficially, these terms seem to possess some degree of objective content. On reflection, however, it should be seen that they do not, a point which will be examined in greater detail below. The undersigned, moreover, has searched the CTAS and the record in vain for an adequate definition of these terms. As far as the proof in this case goes, these terms are criteria without content, and as such can be used as cover for almost any decision an evaluator might want to make. C. It is desirable at this point to elaborate on why the terms "concern" and "acceptable," by themselves, are not standards that evaluators (or administrative law judges or courts) can consistently and fairly apply to teachers across- the-board. As a starting point, envisage a spectrum comprising every conceivable level or degree of teacher talent, ranging from, in the abstract, "worst imaginable" (or "perfectly awful") to "best imaginable" (or "perfectly excellent"). It makes no difference, for present purposes, how exactly "worst" and "best" might be defined. Rather, it is sufficient to say of the "worst" teacher, in regard to any imaginable attribute, that "none could be worse." Conversely, it need only be said of the "best" teacher, in regard to any imaginable attribute, that "none could be better." As should be obvious, these "worst" and "best" teachers are constructs that serve to define the terminal points at either end of the "talent-level spectrum" we are calling to mind. This talent-level spectrum can be depicted with a simple drawing, as follows: Worst ? ? Best It can now be observed that all teachers, everywhere, must fall somewhere on this talent-level spectrum, between the two poles as we have defined them. Of course, the precise point at which any given teacher should be placed on the spectrum, at any given time,2 is a matter about which reasonable people, in every instance, could disagree. But that is presently of no consequence. Turning next to the facts of this case, the question is posed: Where, on this spectrum of talent, should the mark separating "concern" from "acceptable" be placed? Given their ordinary meanings, the words themselves provide no guidance in this regard. Either of the following, for example, is consistent with the plain meaning of "concern" and "acceptable": Worst ? ? ? Best Concern Acceptable Worst ? ? ? Best Concern Acceptable It does not matter how the mark-point in either example might be defined. What matters is the relationship between the mark and the respective poles. As the mark moves closer to the "worst" terminal, the "concern" band becomes narrower, leaving more teachers on the "acceptable" side. Conversely, moving the mark towards the "best" terminal narrows the "acceptable" band, consigning more teachers to the "concern" category. In the instant case, there is no persuasive evidence on which the undersigned can base a finding as to where the mark should be placed. As a result, the undersigned cannot make de novo findings regarding whether Young's execution of the performance criteria was "acceptable" or not, or whether, ultimately, his command of the indicators in dispute was of "concern," as the Board has alleged. To do that, the undersigned would need to apply standards of his own devising. Whatever merit such standards might have, they would not be the standards used to judge other teachers, and hence it would be unfair to apply them to Young. Moreover, there is no persuasive evidence in this case as to where the several evaluators placed the mark when they assessed Young's performance.3 The undersigned therefore cannot find that the evaluators all used the same standards——cannot even infer that they did. Consequently, assuming it were proper to do so, the undersigned could not review whether the evaluators acted fairly and appropriately vis-à-vis Young or whether they reached a "correct" (i.e. legally sustainable) judgment regarding his teaching performance.4 Student Performance The 1999 CTAS that was used in evaluating Young had been developed in 1998 and approved by then-Commissioner Tom Gallagher in January 1999. By letter dated January 25, 1999, Commissioner Gallagher informed the District that its CTAS had received "Full Approval." The Commissioner further instructed the District: [I]t will not be necessary for you to resubmit the [CTAS] unless there are statutory changes which affect the requirements for district instructional performance appraisal systems or unless you substantively revise your system for other reasons. In the very next legislative session following this letter, the legislature substantially amended the statute governing the procedures and criteria for the assessment of instructional personnel, which at the time was Section 231.29, Florida Statutes (1999).5 See Ch. 99-398, § 57, Laws of Florida. These statutory changes, which will be examined more closely in the Conclusions of Law below, took effect on June 21, 1999. Id. at § 78. The thrust of the relevant amendment was to require that, in evaluating teacher performance, primary emphasis be placed on student performance, as measured by "state assessments" and "local assessments." These latter two terms were defined, at the time, in Section 229.57, Florida Statutes (2000). Section 229.57 was subsequently transferred to Section 1008.22, Florida Statutes (2003). The District never amended the CTAS to reflect the statutory changes. Not surprisingly, therefore, the CTAS puts little or no particular emphasis on student performance6 and makes no specific references (that the undersigned can locate) to state and local assessments within the statute's contemplation.7 Consequently, as was mentioned several times above, none of the assessment procedures used during Young's protracted evaluation was primarily based on student performance as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statues (2003). Equally if not more important, however, is the lack of persuasive (indeed any) evidence in the record regarding the performance of Young's students as measured by state and/or local assessments. Because of this, it is impossible for the undersigned to make de novo findings based primarily on student performance as to either (a) whether Young's execution of the performance criteria was "acceptable" or not, or (b) whether, ultimately, his command of the indicators in dispute was of "concern," as the Board has alleged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Young of all charges brought against him in this proceeding; (b) providing that Young be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Young back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 17th day of March, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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, 2004.
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
