Findings Of Fact Each of the Petitioners is a school teacher at Rosenwald Middle School in Bay County, Panama City, Florida. Celestine Cherry has a total of twenty-four years of teaching experience, all of which have been in the Bay County school system. She has taught home economics and physical education at Rosenwald Middle School for the last nine of those years. Ida Conner has had twenty which have been in Bay County. She began at Rosenwald teaching language arts and U.S. history in 1988. Albert Harris has had fourteen years of teaching experience, all but one of which have been in Bay County. He has a BS degree in biology and is certified to teach science to grades seven through twelve. Grace Bryan has had twenty time of the hearing, she had been teaching at Rosenwald for fifteen years. She is an ESE teacher who is certified in the area of mental retardtion. Carol Love became the assistant principal at Rosenwald in 1989 and was promoted to principal of Rosenwald in 1990. During the 1989-90 school year, Love performed teacher evaluations of the four Petitioners and rated each as unsatisfactory. It is these unsatisfactory evaluations which the Petitioners allege were the result of racial discrimination. Love taught for eighteen years at all levels and has been an administrator since 1986. She holds a Masters Degree in Education and had served as assistant principal for three years at Rutherford High School prior to her assignment to Rosenwald. Jack Simonson was the superintendent of the Bay County schools from November 22, 1988, to November 16, 1992. The Bay County School Board is the entity ultimately responsible for the operation of the schools of that county and is the Petitioners' employer. One of Simonson's major campaign promises in seeking election as superintendent was to rigorously evaluate school administrators and employees. After his election, he regularly reminded the administrators of his desire that they conduct accurate evaluations. During his term as superintendent, Simonson strictly pursued the evaluation of district administrators. This policy resulted in the non-renewal of four white administrators, who either returned to the classroom or left the school system. He reduced one black administrator from principal to assistant principal. No black administrators were returned to the classroom or non-renewed. Except for his demand for rigorous evaluations, Simonson took no part in the 1989-90 annual evaluations of the Petitioners. When Carol Love began as assistant principal at Rosenwald in 1989, she worked for Eli Campbell, the principal. The other assistant principal was Lynn Stryker. Campbell is black and Stryker is white. The Bay County School District uses the Florida Performance Measurement System (FPMS), which is a Florida Department of Education approved method for teacher evaluation. Love is a certified FPMS evaluator. The FPMS identifies effective and ineffective teacher behaviors. The evaluator's responsibility is to observe whether or not the teacher exhibits these behaviors during the periods of observation. The actual observations are noted on a summative form and are then transferred to the evaluation form. A tallying of the observations determines whether or not the teacher receives a satisfactory or unsatisfactory evaluation. The FPMS evaluation instrument predetermines which behaviors are effective and which are ineffective. These decisions are not made by the evaluator. The evaluator merely notes the behaviors observed. Bay County teachers are all given in includes copies of the evaluation instruments. The teachers are therefore aware, at the beginning of each school year, of the behavior which will be observed, and whether or not they are effective or ineffective under the FPMS. For the 1989-90 evaluations, Campbell assigned one teachers to himself and one previously taught with Karl Elliott, who is white, and Conner, who is black, she felt uncomfortable in evaluating these two teachers, and therefore requested Love do their annual evaluations. In addition, the two assistant principals thought it best to keep departments together for the purpose of evaluation. It was agreed that Bryan and Laticia Washington, both of whom are black, would be assigned to Love, so that she would then be evaluating the entire EMH Department. All of these proposed changes in evaluations were discussed with Mr. Campbell at the administrators' regular Monday morning meeting and he gave his approval for these changes to be made. In addition to the unsatisfactory evaluations of the Petitioners, Love also gave unsatisfactory evaluations in 1989-90 to Karl Elliott, Fran Walters, Wayne Davidson, and Charles Clark, all of whom are white. Two black teachers, Ms. Washington and Ms. Smith, received satisfactory evaluations from Love for that same evaluation period. Campbell signed all of the evaluations and improvement notices given to the Petitioners in their annual evaluation in 1989-90. It was not until some time later that he raised some procedural objections to the improvement notices. None of these procedural objections are at issue in this matter. For the 1989-90 school year, Simonson assigned Assistant Superintendent Glenda Hamby to evaluate Campbell. Prior to the beginning of the 1989-90 school year, Simonson determined that teacher evaluations at Rosenwald had not been appropriately conducted for the 1988-89 school year. By a memo dated August 1, 1989, Simonson gave specific directions to Campbell regarding Campbell's performance and the expectations regarding Campbell's administration of Rosenwald for the 1989-90 school year. Campbell clearly was on notice that big improvements were expected or else Campbell would be removed as principal of Rosenwald. Rather than making a genuine effort to improve his administration at Rosenwald, Campbell instead embarked on a campaign of public challenges to Simonson, agitated the faculty and the black community to help him keep his position as principal, failed to acknowledge deficiencies in his performance, and publicly alleged that his problems were the result of racism. Campbell was unhappy that Love had been assigned to Rosenwald and his relationship with her was markedly uncooperative. Campbell publicly aired his allegations of racism, going so far as to discuss them on television. Hamby's unsatisfactory evaluation of Campbell was the final factor that resulted in his removal as principal at Rosenwald and his reassignment within the Bay County School District. Love's evaluations of the Petitioners for the 1989-90 school year were consistent with the requirements of the FPMS system. She conducted several classroom observations of each Petitioner and based the teacher assessments, professional development plans and improvement notices on the observations. Cherry received an overall assessment of unsatisfactory based on deficiencies in the areas of Instructional Organization and Development and Communication: Verbal and Nonverbal. A professional development plan was given which further identified the specific goals and strategies for correcting the deficiencies. Finally, improvement notices were given that specifically defined the unsatisfactory performance, the improvement desired and the assistance to be provided to the teacher for achieving that improvement. Cherry was unsatisfactory for her use of incorrect English in the classroom, inadequate verbal and nonverbal communication skills, inadequate instructional organization and development, and inappropriate and/or lack of supervision in class. She refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Instead, Cherry took the position that the evaluations were incorrect and were based on racism. In May, 1990, Love went to Cherry's class in response to a complaint from a teacher and a student. She discovered that the student's were engaged in writing and turning in to Cherry letters directed to Love concerning Cherry's unsatisfactory evaluation and her quality of teaching. Love sent Cherry from the room and conducted an investigation of the incident. As a result, Cherry received two letters of reprimand for these actions in her classroom. While Cherry did grieve these two letters of reprimand, the grievances were denied after binding arbitration. Cherry has received unsatisfactory evaluations from Love in each school year since the 1989-90 school year. Cherry continues to believe that the evaluations and reprimands are the result of racism. To support this belief, Cherry also cites to an incident during a school picture when Love told her to sit on the ground, a time when Love told Cherry not to read her newspaper during faculty meetings, and an occasion when Love required Cherry to get to her class room in a timely fashion. In fact, the great weight of evidence is contrary to Cherry's allegations of racism and no racial content in these incidents has been shown. Cherry maintains that the deficiencies noted in the evaulations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Cherry's evaluations were based and in comparing those observations with Cherry's demeanor as a witness at hearing, it is found that some of the unsatisfactory observations regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Cherry did not use grammatically correct English, was at times vague and rambling, maintained a hostile posture, and was verbally hostile and caustic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Conner received an overall evaluation of unsatisfactory with areas of deficiency in Instruction Organization and Development, Knowledge/Presentation of Subject Matter, and Communication: Verbal and Nonverbal. Conner also received a Professional Development Plan with goals and strategies for remediating the deficiencies and three improvement notices which set forth a description of the unsatisfactory performance, improvement desired, and assistance to be provided to assist Conner in improving the unsatisfactory performance areas. Conner was unsatisfactory for verbal and nonverbal communication; for failure to begin instruction promptly, handle materials efficiently, maintain academic focus, conduct beginning and ending review, question effectively, recognize and amplify responses, and give appropriate praise; and for her inability to use English correctly. Conner also refused to accept the validity of the criticisms and failed to carry out any of the strategies for improvement. Conner took the position that the evaluations were incorrect and were based on racism. Conner has received unsatisfactory evaluations from Love in each school year since 1989-90. The inadequacies remained the same. Because of her failure to remediate these deficiencies, Conner was removed from teaching language arts and history and was reassigned to teach alternative education for the 1990-91 school year. Conner suggests that her charge of racism is supported by several incidents. Conner asserts that Love took money from her alternative education budget to buy computers to go in other classrooms. This is simply not so. Conner also believes that Love's racist motivation resulted in omission of an award for Conner in September 1990, in interception of a note that Conner sent by way of a student, in the failure to invite Conner to a school literary luncheon in January, 1993, and in the failure to invite Conner to an in program on Macintosh computers in December, 1992. The evidence is to the contrary in each of these incidents. No evidence of racial content or motivation has been presented in any of these incidents. Conner also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Conner's evaluations were based and in comparing those observations with Conner's demeanor as a witness at hearing, it is found that some of the unsatisfactory behaviors regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Conner did not use grammatically correct English, mispronounced basic words, and was at times loud, hostile, and sarcastic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Harris received an overall evaluation of unsatisfactory for the 1989- 90 school year. Deficiencies were noted in the areas of Instructional Organization and Development, Communication: Verbal and Nonverbal, and Personal Qualities. As with the other Petitioners, a professional development plan and improvement notices were provided. Harris was unsatisfactory for his inability to question effectively, to recognize and amplify responses, to give appropriate praise and to express enthusiasm and interest verbally and through body behavior. He was also frequently tardy to his classes thus leaving students unsupervised and he needed improvement in classroom behavior management. As did Cherry and Conner, Harris refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Harris also believed that the unsatisfactory evaluation was the product of racism. Harris complained that he could not effectively teach science from a regular classroom as he had done since 1987. At the beginning of the 1990-91 school year, Love assigned Harris to a science room, which gave him better access to the science closet for equipment and a demonstration table, running water, and an outside access door. Harris' teaching did not improve and he has been evaluated as unsatisfactory in every subsequent year. He was finally reassigned to teach alternative education. To support his claim that these unsatisfactory evaluations are the result of racial discrimination, Harris cites to two incidents in which he thought Love was rude and abrasive. One incident occurred when Love chided Harris in the hallway about being late for his class; the other occurred in the gymnasium just before an assembly when Love told Harris to "move it" and to "get those kids in line." No evidence was offered to show a racially discriminatory motivation for these incidents. Harris also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In examining the Summative Observation Instruments and in comparing those observations with Harris' demeanor as a witness at hearing, it is found the some of those same unsatisfactory behaviors were evident in the hearing. Specifically, Harris spoke in a low monotone, showing no enthusiasm or interest. He was lethargic, made no eye contact, and had a flat affect. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Bryan received an overall unsatisfactory evaluation for the 1989-90 school year, with deficiencies noted in Instructional Organization and Development, Communication: Verbal and Nonverbal, and Management of Student Conduct. Bryan was given a Professional Development Plan and improvement notices. She also believes that the unsatisfactory evaluation was the result of a racial motivation, but she, unlike the other Petitioners, took advantage to the suggested strategies for improvement by reviewing tapes and research, exploring new methods, practicing those improved behaviors, and attending a class. Bryan's efforts to improve were successful and she has not received another unsatisfactory evaluation from Love. Bryan tendered no competent evidence to show a racially discriminatory motivation for the unsatisfactory rating given in 1989-90. The improvement notices given to the Petitioners required "Improvement will be demonstrated by October 1, 90." The stated consequences if improvements were not made was "Progressive discipline which could lead to dismissal." No disciplinary actions have been taken against the Petitioners at any time since the initial evaluations. Love has consistently reproved both black and white teachers for being late to class. In dealing with the faculty, staff and students of Rosenwald, Love is direct, firm, aggressive, and at times, abrasive, regardless of the race of the party with whom she is dealing. It is not unusual for her to call out instructions to teachers or students in the common areas of the campus. The assistant principals under Love are Stryker and Linwood Barnes. Barnes is black. Both have observed Love's interactions with students and faculty on a daily basis. Neither have ever observed Love to treat black students or teachers in a manner different than that with which she treats white students and faculty. Petitioners assert that Love acknowledged her prejudice to Bronkelly Porter, a black student at Rosenwald. In fact, the incident cited occurred after Campbell had rallied students, teachers and the black community in an effort to retain his job. Because of Campbell's accusations against Love, she was regularly harassed by students. The event in question occurred in the cafeteria when she was challenged by Porter, a student with whom she had had problems in the past. Bronkelly yelled out to Love a question about whether she was prejudiced. Love spontaneously and sarcastically said "Yeah, right, Bronkelly, I am." While it is recognized that Love, in an off used a poor choice of words, this statement is not taken to be probative evidence of racial prejudice on the part of Love. Love also made certain statements while counseling Michelle Ward regarding her discipline problems. Specifically, Love told Ward that "if she'd hang around with her own kind then she would not get in so much trouble." The statement was not made in reference to the race of any individual, but instead was intended to get Ward to reconsider the group she was running with in an attempt to decrease Ward's discipline problems. The greater weight of the probative and material evidence establishes that Love at no time took any discriminatory action against the Petitioners on account of their race. Further, there is even less evidence of racial discrimination on the part of Simonson or the Bay County School Board. Petitioners have simply failed to prove their case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying and dismissing the claims for relief filed by Albert Harris, Celestine Cherry, Grace D. Bryan and Ida Conner. DONE and ENTERED this 1st day of June, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 1st day of June, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 92-1698, 92-1699, 92-1700, and 92-2304 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7(6); 9(7); 15(18); and 17(13). Proposed findings of fact 8, 10, 16, 21-23, 26-32, and 37-39 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 11-14, 20, 25, and 33 are irrelevant. Proposed findings of fact 18, 19, 24, and 34-36 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(10); 3(6&11); 4(12); 5(13); 6(15); 7(23); 14(39); 15(35); 16(34); 18(42); 20(39); 22(40); and 24 & 25(14). Proposed findings of fact 8-13, 17, 21, 23, 28, and 29 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 19, 26, and 27 are irrelevant. Proposed finding of fact 30 is unnecessary. COPIES FURNISHED: Leslie Holland Attorney at Law 924 North Gadsden Street Tallahassee, Florida 32303 Franklin Harrison Attorney at Law 304 Magnolia Avenue Panama City, Florida 32402 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149
The Issue The issue in this case is whether a high-school assistant principal made inappropriate remarks to two female students on campus during school hours, and then later harassed one of them, thereby entitling the district school board to suspend the administrator for 30 workdays without pay.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Anthony C. Brooks ("Brooks") had been employed as either a teacher or administrator in the Miami-Dade County Public School System for approximately 23 years. At all times relevant to this case, Brooks was an assistant principal at Miami Jackson Senior High School, where his primary responsibility was discipline. The operative contract of employment between Brooks and the School Board required Brooks to "observe and enforce faithfully the state and federal laws, rules, regulations, and School Board Rules insofar as such laws, rules, regulations, and policies are applicable to the position of employment." Pursuant to the contract, Brooks agreed "to become familiar and comply with state and federal laws, rules, regulations and policies of the School Board and of the Department of Education for which [he] w[ould] be held accountable and subject to[.]" The agreement entitled the School Board to suspend or dismiss Brooks for just cause including "the failure to fulfill the obligations under this Contract." The Alleged Inappropriate Remarks The School Board alleges that on February 12, 2004, Brooks told M. D., a female student, that she should consider becoming a model, and that he would take pictures of her at the beach. The School Board alleges further that, the same day, Brooks separately encouraged another female student, F. J., to think about modeling. The evidence presented at hearing failed persuasively to substantiate these charges. The findings that follow in this section, based on evidence that is in substantial conflict, depict the likeliest scenario derivable from the instant record,1 though the undersigned's confidence in the accuracy of some aspects of this historical narrative is relatively limited.2 On the morning of February 12, 2004, a security monitor called Brooks to a classroom where some students were creating a disturbance. Upon his arrival, the teacher pointed out to Brooks the four students who had been causing problems. Brooks asked them to step outside. One of the four was M. D. Brooks told the students, in effect, to straighten up. In the course of lecturing the students, Brooks said to M. D., "You could be a model or something like that." Brooks was not attempting to proposition M. D. His remark was intended to boost her self-esteem and encourage M. D. to set higher standards of personal behavior for herself. Later that day, Brooks ran into M. D. outside the cafeteria. M. D. was talking to a security monitor, and Brooks overheard her say, "Mr. Brooks said I could be a model." The security monitor loudly and rudely scoffed at that idea. Thereafter, Brooks took M. D. aside, to the doorway of the SCSI (indoor suspension) room, and warned her not to discuss her personal business with everyone. Sometime later (perhaps the same day), Brooks was walking in the cafeteria, and F. J., a friend of M. D.'s, stepped on his foot. F. J. continued on her way without pausing and sat down at a table outside the SCSI room. Brooks walked over to her and invited an apology. F. J. declined. Brooks informed her that he would "model" good manners for her and proceeded to deliver an apology. Then, he left. Soon M. D. and F. J. reported to their cheerleading coach that Brooks had expressed interest in taking them to the beach for a photo shoot. The coach passed this allegation along to the administration, which in turn called the school police and the State Attorney's Office. The prosecutor declined to press criminal charges against Brooks; the Office of Professional Standards ("OPS") requested a personnel investigation. Detective Pedro Valdes conducted the investigation. He interviewed M. D., F. J., Brooks, and Trust Counselor Patricia Manson (who disclaimed personal knowledge of the events in dispute). The detective evidently did not believe (or at least gave little weight to) Brooks's denial of wrongdoing, for he determined that the students' statements were sufficiently credible to support the conclusion that Brooks had violated a School Board rule prohibiting improper employee/student relationships. The detective's report announcing that this charge had been "substantiated" was released in July 2004. Having effectively been found guilty by the detective, Brooks was summoned to a conference-for-record ("CFR"), which was held on August 11, 2004. There, Brooks was given an opportunity to deny the charge (but not to confront M. D. and J., whose statements comprised the "evidence" against him). He failed to persuade the administrators that the detective had reached the wrong conclusion. The administrators issued several directives to Brooks, including the following: Refrain from contacting anyone involved in this investigation at any time. Refrain from inappropriate contact and/or comments with students. The Alleged Harassment On August 25, 2004, F. J. came to school dressed inappropriately, in a short skirt and tank top. At the beginning of second or third period, a security monitor named Frantzy Pojo noticed that F. J. was in violation of the dress code and attempted to remove her from class. The teacher refused to let F. J. leave with the security monitor. Faced with the teacher's obstructiveness, Mr. Pojo called Brooks, the assistant principal in charge of discipline whose portfolio included dress code enforcement. Mr. Brooks came to the classroom and spoke with the teacher. He asked that the teacher instruct F. J. to put on a jacket to cover up. The teacher——and F. J.——complied. The very next day, Mr. Pojo spotted F. J. and saw that she was, once again, not dressed appropriately. Mr. Pojo called Brooks to handle the situation. Brooks found F. J. in the library and agreed that she was in violation of the dress code. He observed that two or three other girls were also dressed inappropriately. Mr. Pojo and Brooks escorted these girls to the SCSI room and left them there. Brooks instructed the teacher-in-charge not to suspend the students but rather to let them call their parents and request that appropriate clothes be brought to school. F. J. called her mother and complained that Brooks was harassing her. F. J.'s mother became angry and arranged to meet with the principal, Deborah Love, that afternoon. When F. J., her mother, and Ms. Love met as scheduled, F. J. accused Brooks of having followed her to classes and singled her out unfairly for discipline in connection with the dress code violations. At Ms. Love's request, F. J. submitted written statements concerning the events of August 25 and August 26, 2004.3 Ms. Love believed F. J. and apparently had heard enough. Without investigating F. J.'s allegations or even asking Brooks to respond to them, Ms. Love prepared a memorandum, dated August 27, 2004, in which she charged Brooks with insubordination. Specifically, Ms. Love alleged that Brooks had violated the directive, given at the recent CFR, to refrain from contacting anyone involved in the investigation stemming from the allegation that Brooks had made inappropriate remarks to M. D. and F. J. On or about August 27, 2004, Ms. Love ordered Brooks not to return to campus but instead to report to an alternate worksite pending further action on the charges against him. At its regular meeting on December 15, 2004, the School Board voted to accept the recommendation of OPS that Brooks be suspended without pay for 30 workdays. Ultimate Factual Determinations Brooks's conduct was not shown to have been outside the bounds of accepted standards of right and wrong. He is therefore not guilty of immorality, as that offense is defined in Florida Administrative Code Rule 6B-4.009(2). Brooks did not fail to make a reasonable protective effort to guard either M. D. or F. J. against a harmful condition; had he neglected such duty, Brooks could have been disciplined for misconduct in office. Brooks did not intentionally expose either M. D. or F. J. to unnecessary embarrassment or disparagement; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not harass or discriminate against M. D. or F. J. on the basis of any improper consideration, such as race, color, or religion; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not exploit a relationship with either M. D. or F. J. for personal gain or advantage; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not constantly or continually refuse intentionally to obey a direct and reasonable order, which willful defiance, had he shown it, would have constituted "gross insubordination" under Florida Administrative Code Rule 6B- 4.009(4). Brooks did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Brooks did not violate School Board Rule 6Gx13-4-1.09, which prohibits unacceptable relationships and/or communications with students. Accordingly, it is determined that Brooks is not guilty of the charges that the School Board has brought against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Brooks without pay and (b) awarding Brooks back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate. DONE AND ENTERED this 17th day of October, 2005, 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 October, 2005.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent should be properly discharged from employment with the Duval County School District in accordance with the Duval County Teacher Tenure Act, 21197 Laws of Florida (1991) (Act), including the issue of whether she has received two consecutive unsatisfactory yearly evaluations as a teacher.
Findings Of Fact The Respondent was a certified teacher employed by the Petitioner Duval County School Board at all times pertinent hereto. The governing authority herein is the Act. Ms. Jacqueline Y. Davis was the principal during the academic year 2002-2003 at Whitehouse Elementary School. She was the Respondent's supervising principal during that year. Principal Davis determined, after observations and other gathering of information, that Ms. Neeley's performance as a teacher was deficient. Among the deficiencies, she found were the following: Respondent failed to prepare report cards. Respondent improperly calculated students' grade point averages. Respondent failed to prepare Academic Improvement Plans for students. Respondent failed to timely complete pre-planning checklists, professional development plans, and class schedules. Respondent showed age-improper materials to her students. Respondent failed to clearly state the lesson's objective at the beginning of her lessons. Respondent exhibited unsatisfactory classroom management techniques, including failure to follow school-wide disciplinary policies, failure to keep students on-task, and failure to maintain order in her classroom. Respondent failed to communicate basic concepts clearly to the children. Respondent failed to review basic concepts with the children to ensure understanding of the material. Respondent failed to call parents back upon request. Respondent exhibited use of an intimidating, loud tone with students. Respondent failed to provide requested information to parents regarding student progress. Respondent failed to send graded papers home for parents' review. Respondent failed to collect homework after being assigned. Respondent failed to maintain a neat and orderly classroom. Respondent failed to properly record grades in a grade book, an official record that must be maintained by the teacher and the school. On at least two occasions, parents contacted Principal Davis and requested that their child be removed from Ms. Neeley's class due to Ms. Neeley's incompetence as a teacher. The Respondent exhibited consistent and chronic tardiness. The Respondent exhibited numerous absences during the school year. These deficiencies were communicated to Ms. Neeley, which lead to the eventual implementation of a "success plan," listing specific categories in which Ms. Neeley needed instruction and needed to make improvement. Principal Davis assigned a success team to Ms. Neeley when it became evident that her performance as a teacher was unsatisfactory. Principal Davis observed the Respondent's classroom performance on October 3, 2002, November 19, 2002, and January 21, 2003. On each of those occasions, she found Ms. Neeley's performance as a teacher to be unsatisfactory. Following each observation, Principal Davis communicated her findings orally and in writing to Ms. Neeley. On January 30, 2003, Principal Davis held a meeting to discuss the success plan with Ms. Neeley and to introduce her to the success team members who would assist in providing specific in-service instruction and assistance for Ms. Neeley. Ms. Neeley, however, failed to attend that meeting. The meeting was re-scheduled for February 3, 2003, and again Ms. Neeley failed to attend the meeting. The meeting was re-scheduled for February 5, 2003, and again Ms. Neeley did not attend. On February 10, 2003, Principal Davis observed Ms. Neeley's teaching and again found her performance as a teacher to be unsatisfactory. Again, Principal Davis communicated her findings orally and in writing to Ms. Neeley. On February 26, 2003, another success team meeting was scheduled, but Ms. Neeley did not attend. On March 20, 2003, Principal Davis again observed Ms. Neeley's classroom performance and again found it to be unsatisfactory and that she did not demonstrate adequate required improvement. Because of Ms. Neeley's continued inability to improve, despite assistance of her success team members and the specific in-service assistance and instruction they provided, she received an unsatisfactory annual evaluation for the 2002-2003 academic year. Thereafter, the Respondent was assigned to Ortega Elementary School for the 2003-2004 school year. Principal Cynthia Thompson was her supervisor at Ortega. Almost immediately, Principal Thompson became aware of Ms. Neeley's unsatisfactory performance as an instructor. Among other things, she noted that: Ms. Neeley was absent from school without arranging for a substitute teacher. Did not prepare lesson plans. Misspelled words on the board and charts in her classroom. Provided incorrect definitions for words on the board. Was not able to convey to her students their goals for the class period. Was not able to maintain a consistent grade book for her students. Failed to attend scheduled conferences with parents. Was unable to explain basic concepts to the children. Was unable to maintain classroom discipline and control. On October 30, 2003, Principal Thompson formally evaluated Ms. Neeley in her classroom, and found her performance to be unsatisfactory. Principal Thompson discussed the unsatisfactory areas with Ms. Neeley both orally and in writing. Principal Thompson then initiated a formal success plan and formed a success team, including a standards coach and a district coach to help Ms. Neeley in those areas she needed improvement in, and to provide specific in-service instruction for Ms. Neeley. The first meeting of the success team was scheduled for November 3, 2003, but Ms. Neeley failed to attend. The meeting was re-scheduled for November 5, 2003, and on that date, Principal Thompson covered every area of competency in which Ms. Neeley needed improvement. She asked Ms. Neeley to name a success team member of her own choosing; however, Ms. Neeley failed to name any person whom she wanted to be part of the success team. On December 17, 2003, another success team meeting was scheduled, but again Ms. Neeley failed to attend. Following the Christmas vacation, Ms. Neeley did not return to the school for approximately three weeks and did not explain her absence. On March 3, 2004, Principal Thompson conducted her final evaluation of Ms. Neeley and found that Ms. Neeley's performance in the classroom was still unsatisfactory and did not demonstrate the required improvement. Because of Ms. Neeley's continued inability to improve, despite the assistance of her success team members and the specific in- service assistance and instruction they provided, she received an unsatisfactory annual evaluation for the 2003-2004 academic year.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Duval County School Board terminating the Respondent's employment as a tenured teacher for the Duval County School District. DONE AND ENTERED this 4th day of March, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 4th day of March, 2005. COPIES FURNISHED: John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Andres Rojas, Esquire City of Jacksonville City Hall, St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207
The Issue Whether Respondent's continuing contract of employment with the Petitioner should be terminated for incompetency or for gross insubordination and willful neglect of duty.
Findings Of Fact At all times pertinent to this proceeding, the Respondent has been employed by Petitioner as an elementary school classroom teacher pursuant to a continuing contract of employment. Respondent is 57 years of age and has been a classroom teacher for a total of 29 years. She began working for Petitioner during the 1975-76 school year and has worked under a continuing contract since August 1980. Prior to that time, she was a classroom teacher in Winter Park, Florida. In 1980, Respondent's principal observed that Respondent was habitually tardy at the work site and had difficulty accepting criticism. During the 1983-84 school year, Respondent's principal found Respondent to be deficient in classroom management, student-teacher relationships, instructional techniques, and supportive characteristics. Efforts to have Respondent correct these deficiencies were unsuccessful. A prescription of assigned activities was developed in an effort to help Respondent to correct these deficiencies. Respondent was required to attend a teacher education course in classroom management to obtain ideas on how to better manage her class. Respondent failed to complete that course. She also failed to follow administrative directives that she arrive at school on time and that she maintain anecdotal records for students. Respondent's poor teaching performance and insubordinate behavior in failing to follow directives led Respondent's principal to recommend that her employment be terminated. No action was taken on that recommendation. There was no evidence as to Respondent's job performance between the 1983-84 school year and the 1991-92 school year. From 1991 through 1993, Respondent was assigned to teach a second grade class at Palm Springs North Elementary (Palm Springs). Dawn Hurns was the Respondent's principal at Palm Springs and Raquel Montoya was her assistant principal. Respondent frequently took her class to lunch earlier than scheduled and picked her class up from lunch after the period had expired. Ms. Montoya directed Respondent to adhere to her lunch schedule. Respondent failed to comply with that directive. On February 6, 1992, Ms. Montoya advised Respondent that her continued failure to adhere to administrative directives would result in formal disciplinary action being taken against her. During the 1992-93 school year, Ms. Hurns observed Respondent's performance and noted deficiencies pertaining to record keeping, attendance, tardiness, and organizational skills. After formally observing Respondent's deficient classroom performance, Ms. Hurns met with Respondent and gave her an opportunity to work on her deficiencies. In subsequent observations, both Ms. Hurns and Ms. Montoya found Respondent's performance to be deficient. In an attempt to remedy her unacceptable performance in the classroom, Respondent was provided prescriptive activities designed to improve her classroom management. On November 2, 1992, Ms. Hurns issued Respondent a memorandum addressing her chronic tardiness to school and her failure to notify the school of her expected tardiness in violation of her professional responsibilities. As a result of frequent tardiness, Respondent's students were often left unattended on the basketball court where they assembled before school began. Ms. Hurns often had to escort Respondent's students to their classroom in the absence of the Respondent. Ms. Hurns held a "Conference for the Record" (CFR) with Respondent on December 10, 1992, to address her unacceptable performance and to notify her that continued unacceptable performance would yield an unacceptable annual evaluation. Ms. Hurns also offered Respondent assistance in correcting her deficiencies, including a referral to the Petitioner's Employee Assistance Program (EAP). Although two meetings were scheduled for Respondent at the EAP, Respondent did not attend either meeting and did not take advantage of the EAP. By December 21, 1992, Respondent had received two unacceptable observations, which yielded an unacceptable summative assessment as established by Petitioner's Teacher Assessment and Development System (TADS). 2/ On January 13, 1993, Ms. Hurns completed a TADS summative assessment form that found Respondent's classroom performance unacceptable in three out of seven categories. The first category was "Knowledge of Subject Matter" with the observed deficiency being ineffective presentation of the subject matter. The second category was "Teacher-Student Relationships" with the observed deficiency being the failure to attempt to systematically involve all students in class activities. The third category was "Assessment Techniques" with the observed deficiency being the failure to properly record grades for students. Ms. Hurns observed Respondent's grade books and discovered that, except for one or two grades in reading, there were no grades or other assessment of the students' work over a period of nine weeks. Respondent was directed to follow the prescribed grading policy, which required a teacher to have at lease one grade per week for each subject area. It was impossible to adequately assess students' work with such few grades or with no grades at all. In addition to the foregoing, Respondent continued to be absent or tardy without excuse. On January 14, 1993, Ms. Hurns held a CFR with Respondent to discuss Respondent's lack of compliance with her professional responsibilities, her irregular attendance, and her frequent tardiness. At the CFR, Respondent was directed to notify an administrator of her intent to be absent or tardy to school, to provide lesson plans for her substitutes, and to provide grades for her students. By memorandum dated February 17, 1993, after a prolonged absence by Respondent, Ms. Hurns advised Respondent of her continuing failure to complete her prescribed activities, and her continuing lack of attendance. Ms. Hurns directed Respondent to either take a leave of absence and notify the school when she expected to return or to resign. On March 8, 1993, Ms. Montoya notified Respondent of her continued disregard for administrative directives. After a parent requested to see proof of her daughter's lack of academic progress in Respondent's classroom and complained of Respondent's refusal to assist the parent in improving her child's performance, Respondent was directed by Ms. Montoya to provide the parent with a daily progress report on the student's performance. Respondent failed to comply with this directive. On March 11, 1993, Ms. Hurns formally observed Respondent's classroom performance and noted that Respondent had not complied with School Board rules, labor contract provisions, and school site rules. Respondent did not maintain accurate student records pertaining to grades for her students, she had not completed her prescriptive activities, and she continued to be absent on a frequent basis. Ms. Hurns held another CFR with Respondent on March 11, 1993, and told her that her continuing failure to comply with the administrative directives given January 14, 1993, constituted gross insubordination. As a result of Respondent having obtained two unacceptable summative assessments, Ms. Hurns requested that Petitioner send to Palm Springs a trained observer to conduct an observation of the Respondent's performance. In response to that request, Norma Bossard, a Language Arts supervisor who had been trained as a TADS observer, was sent by Petitioner to observe the Respondent. Ms. Hurns was present when Ms. Bossard conducted her formal observation of Respondent's classroom performance. Both Ms. Hurns and Ms. Bossard found Respondent's performance to be unacceptable in the following categories: "Preparation and Planning," "Knowledge of the Subject Matter," "Techniques of Instruction," and "Assessment Techniques". During the external observation, Respondent gave a lesson on spelling that lasted approximately an hour longer than it should have. Respondent also failed to give her students a pretest to determine whether the spelling lesson was even necessary. The external review by Ms. Bossard was consistent with the observations made by Ms. Hurns as to deficiencies in the Respondent's job performance. Ms. Bossard concluded that Respondent was wasting the time of her students. Ms. Bossard observed that Respondent appeared to be very wide-eyed and disoriented. On April 19, 1993, a CFR was held with Respondent at the Petitioner's Office of Professional Standards to address her unacceptable performance in the classroom, her insubordination in the form of her continued noncompliance with directives relating to her assigned prescriptive activities, and her excessive absences and chronic tardiness. At this CFR, Respondent was again directed to comply with previous administrative directives, and was informed that such compliance had become a condition of her continued employment. By the end of the 1992-93 school year, Respondent had been absent at least 59 days and had been tardy on at least 31 occasions. Despite being specifically told to do so, Respondent frequently failed to call the school and inform school administrators that she would either be absent or tardy. Although Respondent was chronically absent from the work site, she failed to provide lesson plans for substitute teachers. Respondent's persistent absenteeism, failure to provide lesson plans, and lack of assessment of students' work had a detrimental impact on the students assigned to her classroom. As a result of Respondent's continued unacceptable classroom performance, her failure to remediate her deficiencies and her failure to comply with administrative directives, Respondent received an unacceptable annual evaluation by Ms. Hurns. Ms. Hurns submitted a recommendation that Respondent's employment with the Petitioner be terminated. Ms. Hurns had intended to hold a CFR with Respondent to address her unacceptable annual evaluation, but Respondent was absent from school for an extended period of time and the CFR was not held. On July 7, 1993, Petitioner suspended Respondent's employment on the grounds of gross insubordination and incompetency and instituted these proceedings to terminate her continuing contract. Petitioner established that there was a continuing refusal to comply with administrative directives by Respondent and that she failed to abide by procedures for maintaining adequate grading of the work of her students, did not provide appropriate lesson plans, and failed to take advantage of the prescriptive activities assigned for her performance improvement. Respondent's considerable and excessive absences from the classroom and her failure to provide lesson plans and properly grade students' work resulted in a failure to communicate with and relate to her students to such an extent that Respondent failed to provide her students with a minimum educational experience. Despite the fact that Respondent was given ample opportunities to correct her behavior, she constantly and intentionally refused to obey direct orders to contact administrators when she was going to be absent or tardy, to provide lesson plans for her substitutes, and to maintain grades for her students. Ms. Hurns and the other administrators involved in evaluating Respondent's performance, took reasonable measures to communicate directly with Respondent about her classroom deficiencies and her attendance. At the formal hearing, Respondent testified that she became confused and disoriented and conceded that she had difficulty working. Respondent introduced evidence in an attempt to establish that her poor job performance was caused by medical problems. Under the Respondent's health care system, Respondent was required to obtain a referral for health care services from her primary physician who was, at the times pertinent hereto, Dr. Olive Chung-James. Dr. Chung-James saw Respondent several times starting in February 1993, for various symptoms and illnesses. In May 1993, Dr. Chung-James, who had been treating Respondent for respiratory problems and vomiting, recommended that Respondent seek psychological counselling because she thought the Respondent was stressed out. After the suspension of her employment in July 1993, Respondent met by coincidence a certified psychologist named Lani Kaskel. Respondent called Dr. Kaskel several times before she was able to arrange an appointment. Because Respondent had not been referred to Dr. Kaskel by Dr. Chung-James, the Respondent's health insurance did not pay for her visit to Dr. Kaskel. When Dr. Kaskel examined the Respondent, the Respondent was in a weak condition, somewhat disoriented, and clearly depressed. Respondent was seeking help and appeared overwhelmed. Dr. Kaskel suggested to Respondent that she might have an organic feature to the depression she was experiencing and referred her to Luis Escovar, a clinical psychologist who had been approved by Respondent's insurance plan. Respondent was referred to Dr. Kenneth Fischer, who is board certified in neurology by the American Board of Psychiatry and Neurology. Dr. Fischer's records reflects that Respondent presented herself with a history of personality disorder and headaches. Dr. Fischer conducted a series of tests to determine if there was a physical cause for the headaches she was experiencing, including a Magnetic Resonance Imaging (MRI) test, which was abnormal. The MRI revealed an area of the brain with decreased density which was interpreted by the consulting radiologist to be a low-grade tumor. Following his examination of the Respondent, Dr. Fischer was of the opinion that Respondent had either an ischemic process stroke or a brain tumor. His tests were inconclusive, and he could not testify that Respondent's poor performance and her failure to follow directives were attributable to organic causes. Respondent testified that during the 1992-93 school year she got behind in her work and she had trouble finishing her work and the prescriptions mandated by the school administrators. She testified that she did not willfully fail to meet the performance expectations, but that she could not do so because she was ill. Dr. Luis Escovar, a psychologist who treated the Respondent and who performed a series of psychological testing, expressed the opinion that on February 14, 1994, the Respondent was physically and mentally able to return to her employment as a classroom teacher. Respondent asserts that Respondent's poor classroom performance was due to an illness and that she should have been placed on sick leave. Respondent's assertion is rejected for two reasons. First, the medical testimony is speculative and does not establish that Respondent's poor job performance and failure to follow directives were caused by a stroke or by a brain tumor. Second, while Respondent testified that she sought sick leave, she offered no evidence as to whom this request was made, the date the request was made, the duration of the leave requested, the manner in which the leave was requested, or any other circumstances of the request. In light of the many offers of assistance that were made to the Respondent, which she repeatedly declined, it is found that Respondent did not establish that she made a proper request for sick leave that was refused by the administrators of Palm Springs. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order which adopts the findings of fact contained herein and which terminates the Respondent's continuing contract of employment. DONE AND ENTERED this 28th day of July 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July 1994.
The Issue The issue in this case is whether the two Respondents, or either of them, should be assigned to the Petitioner's school program.
Findings Of Fact During the 1989/90 school year, Michel Alvarez and his brother, Maikel Alvarez, were both students at American Senior High School in Dade County, Florida. Michel was in the ninth grade and Maikel was in the tenth grade. During the 1989/90 school year, Michel and Maikel Alvarez were students in the industrial arts class of a teacher named Morton Bernstein. On May 1, 1990, during the change of classes after second period, Michel Alvarez approached another student in his second period industrial arts class, Benny Rodriguez, and asked why the latter had been pointing at him. A verbal dispute ensued as to whether there had been any pointing and, if so, what anyone was going to do about it. Thereupon, Michel tackled Benny around the waist with enough force to knock Benny to the floor. Both boys fell to the floor, Benny beneath on his back, Michel above, facing Benny and holding onto him. They struggled on the ground. As they struggled, a large crowd of other students quickly gathered. During the course of the struggle, Benny Rodriguez was kicked or stomped several times. As a result of the blows he received during the struggle, Benny Rodriguez suffered a broken nose and several bruised ribs. 1/ Maikel Alvarez was nearby when he was informed that his brother was in trouble. Maikel pushed his way through the crowd and worked his way towards the middle. Maikel pulled his brother off of Benny Rodriguez and Maikel and Michel Alvarez moved away from the crowd of students. Maikel and Michel Alvarez both went to their respective third period classes. During third period, both of them were called to the Principal's office. At about the same time that Maikel Alvarez went to help his brother, a teacher named Morton Bernstein became aware of the crowd and the struggle and went to break it up. When Bernstein got to the scene of the fracas, the struggle was over and Benny Rodriguez was on the floor, obviously injured. Bernstein assisted Benny and called the school security office. A school security officer accompanied Benny to the main office. Donald Hoecherl, an assistant principal, was present when the security officer brought Benny to the office. Hoecherl put Benny in a room and asked if he was okay. Benny was still bleeding but was coherent. Hoecherl questioned Benny to find out what happened. He then summoned Michel and Maikel to the office where he questioned them. He also called the parents of the students involved, the police, and the school's special investigative unit. Hoecherl had the students write down what happened after they had given him a verbal account. Benny was released to his parent. He was taken to his doctor who then sent him to the hospital. He remained hospitalized for two days and had an operation for the fracture to his nose. Mrs. Alvarez arrived and Hoecherl explained, through an interpreter, what had happened based on the account he had gotten from Bernstein and the students. During the discussion with Mrs. Alvarez and her sons, Maikel appeared to have a poor attitude and he did not appear to be taking what had happened seriously. Mrs. Alvarez told Maikel to straighten up in his chair. She then slapped him. Maikel pushed his mother against the wall. Hoecherl and the police officer who had been called to the school had to restrain Maikel from further physical confrontation toward his mother. Maikel was placed in handcuffs. Hoecherl told Mrs. Alvarez that he was suspending both Michel and Maikel for ten days and recommending an expulsion with a waiver to opportunity school. He made certain that School Board rules and procedures for according the Alvarezes their due process rights were followed. Hoecherl prepared and mailed home the Notice of Suspension forms for Maikel and Michel which narrated the reasons for the disciplinary actions and the right to a school level hearing. Michel's Notice of Suspension form indicated that the suspension was for battery and kicking another student. Maikel's Notice of Suspension form indicated that the action was being taken for battery on a student and parent. Both forms indicated that these rule infractions were Group III violations. The School District's Code of Student Conduct provides that Group III violations warrant expulsion from school. Bernstein had both Michel and Maikel as students in his industrial arts classes. Michel required more attention than the rest of the students. Bernstein described Michel's behavior as disruptive of the regular program and also indicated that Michel's behavior created safety concerns because of the use of power tools in his class. Michel was not passing Bernstein's course because of excessive absences and poor effort. Maikel did little or no work in Bernstein's class. He sat around and talked to friends and did not complete projects. His absences were excessive and he was not passing. Carol McKenny taught Michel math. Michel was disruptive, absent excessively, and was making no effort. He required more attention than her other students, which made it difficult to teach. She talked to Michel and to Mrs. Alvarez about her concerns in an attempt to help him, yet this produced no noticeable improvements in his behavior, attendance, or effort. James McKiernan taught Maikel biology. Maikel was failing this subject because he was making no effort and was frequently absent. McKiernan spoke with Maikel and Mrs Alvarez, but Maikel did not improve. Henry Adams was Michel's and Maikel's guidance counselor. He talked to both students during the year in an attempt to help them. He discussed their chronic absences which were in excess of the state mandatory attendance requirements. He discussed the relationship of attendance to grades. He discussed their behavior in class. He talked to Mrs. Alvarez about their absences and poor progress in school. Adams, who is knowledgeable of the programs offered by the district's opportunity schools, is of the opinion that both students would benefit from such placement because of the smaller class sizes, more structured environment, and increased counseling services. Hoecherl conducted a review of both students' school records files prior to making his final recommendation to the Assistant Superintendent for Alternative Education. His review included grade reports, ability test scores, discipline reports, and attendance information. Michel has average ability and was capable of making B's and C's; however, he failed six of eight courses during the year. Even had he not been suspended on May 1, 1990, he would not have been academically successful because of his grades prior to the last marking period. Maikel has average to slightly below average ability, but was capable of average work in the courses he was taking; however, he failed seven of nine courses during the year. Even had he not been suspended on May 1, 1990, he would not have been academically successful because of his grades prior to the last marking period. Maikel had previously been suspended for five days for fighting. This was a Group III expellable offense. Maikel also had been assigned to several Saturday schools in an attempt to help him remediate the work he had missed when he cut classes on approximately 20 occasions. Saturday school is a District- approved method for helping a student improve his academic performance through a tutorial program. American High School had provided both Michel and Maikel with a variety of student services, including counseling by Adams, Saturday school for Maikel, teacher conferences, and parental contact by the administration. Despite the school's efforts, both students were not successful in the regular program at American High School. An opportunity school assignment would assist Michel and Maikel because it would provide greater structure, smaller class sizes and increased student services. This educational alternative program would afford both students an opportunity to become more successful in school. Maikel is currently enrolled in the opportunity school. He is doing well in his classes and has improved his attendance.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Dade County School Board enter a Final Order in these consolidated cases concluding that Michel Alvarez and Maikel Alvarez are properly assigned to Douglas MacArthur Senior School-North, an opportunity school located in Dade County, Florida. DONE AND ENTERED at Tallahassee, Leon County Florida, this 11th day of December, 1990. MICHAEL M. PARRISH, 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 11th day of December, 1990.
The Issue The issue is whether Petitioner properly determined that Respondent should be discharged from employment as a tenured teacher based on his professional incompetence.
Findings Of Fact At all times pertinent to this case, Petitioner employed Respondent as a certified tenured teacher. Respondent has 28 years of experience teaching mathematics. Michael Kemp became principal at Englewood High School (EHS) during the 2002/2003 school year. Respondent was a mathematics teacher at EHS for the 2002/2003 and 2003/2004 school terms. EHS has approximately 2,050 students. It is unique in that it serves as Petitioner's secondary center for a program known as "English for Speakers of Other Languages (ESOL)." Approximately 80 percent of the students at EHS score below a Level 3 (below standard) on the Florida Comprehensive Assessment Test (FCAT). In the 2002/2003 school year, EHS implemented a standards-based curriculum for the first time. EHS teachers, including Respondent, received training relative to new student performance standards. The teachers also received training in the use of a new mini-lesson plan format for 90-minute blocks of instruction in content areas. During the 2002/2003 academic year, Petitioner implemented a new college preparatory mathematics (CPM) curriculum and a new reading strategy for all content areas. Respondent, along with other EHS teachers, received training in the new math curriculum and reading strategies. Respondent did not transition well to the new way of teaching. He did not adjust his teaching style to accommodate a "block" schedule, which required 90-minutes of instruction for each class period. Mr. Kemp evaluated Respondent for the 2002/2003 school year. Mr. Kemp determined that Respondent's ability to plan and deliver instruction, Competency A on the annual evaluation form and the "Classroom Observation Instrument" (COI), was unsatisfactory. However, Mr. Kemp concluded that Respondent's overall performance for the 2002/2003 school year was satisfactory. For the 2003/2004 school year, EHS initiated a sheltered academic content teaching model. As a result of the new model, many ESOL students exited the core academic program and attended special ESOL classes with designated teachers in academic areas such as language arts, mathematics, and social studies. For the 2003/2004 school year, Respondent was not a sheltered content teacher. Therefore, Respondent's classes contained some ESOL students but not as great a percentage as in 2002/2003. A high student-failure rate was common at EHS for the 2003/2004 school year. That year, approximately two-thirds of Respondent's students previously had failed their required math classes and were repeating the courses. Parental complaints against teachers are normal. The complaints are not always valid. However, when the 2003/2004 school year commenced, Mr. Kemp became concerned about the number of parents who wanted their children removed from Respondent's classes. Some of the parents made the requests as soon as their children were assigned to Respondent's classes. Other parents requested reassignment of their children to other math classes as the year progressed. On November 7, 2003, a student in one of Respondent's classes became very disruptive. Respondent attempted to get the student to settle down. When his efforts were unsuccessful, Respondent directed a verbal obscenity to the student in front of other students while class was in session. Specifically, Respondent told the student to "get the f--- out" of the classroom. On November 14, 2003, Mr. Kemp had a conversation with Respondent about his unsatisfactory classroom performance. In a memorandum dated November 17, 2003, Mr. Kemp advised Respondent that a success plan would be developed and a support team identified to assist him. On December 3, 2003, Mr. Kemp observed Respondent teaching a math class. Mr. Kemp determined that Respondent did not demonstrate satisfactory teaching behaviors. Regarding Respondent's classroom management, Mr. Kemp's observations included the following: (a) Respondent did not control the classroom; (b) Students were not on task during the warm-up activity; (c) Students engaged in conversations, which were not related to the task at hand; (d) There were no apparent expectations for classroom behavior; (e) Respondent tolerated disrespectful talk from students; and (f) Respondent did not control classroom dialogue and discussions. Regarding Respondent's instructional delivery, Mr. Kemp's observations included, but are not limited to, the following: (a) Respondent did not connect the purpose of the lesson with its content; (b) Respondent lectured from the front of the class and did not vary his instructional delivery; (c) Many students were not on task; (d) Respondent continued the lesson despite statements of frustration and lack of understanding from students; (e) Respondent demonstrated content knowledge and mastery of material, but he did not successfully transfer content to students or communicate with them; (f) The lesson was not motivating; (g) Students were not engaged and ignored the lecture; (h) Except for two students who answered questions, the class was either lost or not engaged; (i) Some students requested other students to explain or teach them an assigned task; (j) Respondent circulated among the students but he had no organization as to what was being checked; and (k) Respondent was unaware that students were working on other assignments unrelated to the class work. In a memorandum dated December 4, 2003, Mr. Kemp notified Respondent that a conference had been scheduled for December 10, 2003. The purpose of the meeting was to initiate Respondent's success plan. On December 8, 2003, Mr. Kemp observed Respondent teach another math class. Mr. Kemp concluded that Respondent did not demonstrate satisfactory teaching behaviors. Mr. Kemp's observations included the following: (a) Respondent needed assistance with appropriate lesson planning for a block schedule; (b) Respondent relied too much on a lecture format with no connection between the content of the lesson and its purpose; (c) Respondent had adequate content knowledge but he was ineffective in transferring that knowledge to the students; (d) Respondent had difficulty keeping the students engaged and on task; and (e) Respondent had little control over classroom dialogue. On December 10, 2003, Respondent met with his success team. After the meeting, Respondent was given an opportunity to provide additional strategies and suggestions for improvement to the success plan. Respondent did not take advantage of this opportunity. Respondent's 2003/2004 success plan contained specific goals, objectives and tasks in the following areas: (a) Plans and delivers effective instruction; (b) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) Evaluates the instructional needs of students; (d) Communicates with parents; and (e) Promotes student growth and performance. The success plan identified certain members of the success team to work with Respondent on each area of professional development. The plan provided for weekly meetings with the success team members between January 5, 2004, and March 30, 2004. The success plan required Respondent to attend professional development cluster meetings for off-site continuing education in the following subject areas: (a) Standards Based Education; (b) Rituals and Routines; and (c) Effective Communication. The success plan provided opportunity for on-site continuing education and professional development. For example, the plan required Respondent to read and summarize certain professional literature such as the following: (a) Two math chapters in Best Practices; and (b) Modules related discipline and communication in CHAMPS Foundation. Additionally, Respondent's plan required him to view a video tape related to effective interpersonal communications with students and explain in writing how he planned to implement communication strategies in his classes. Most important, the plan required Respondent to observe his math colleagues twice a month. The success plan required Respondent to develop weekly lesson plans. These lesson plans had to include mini-lesson plans for each class at least once in each daily lesson. The mini-lesson plans included FCAT warm-ups, opening, practice, and closure. The success plan required other on-going activities including, but not limited to, the following: (a) Preparing a written script and implementing appropriate questioning strategies using Bloom's Taxonomy; (b) Preparing a written script of appropriate questions for use when monitoring and probing for solutions with cooperative groups; (c) Preparing a written summary on learning modalities; (d) Preparing a written list of strategies to meet all classroom exceptionalities and learning styles; (e) providing students with written individual corrective feedback; (f) Posting dates for remediation, retesting, or revision of work; (g) Establishing and applying published classroom routines; (h) Posting classroom rules; (i) Creating and maintaining an Absentee Assignment Notebook; (j) Publishing and enforcing a procedure for recording and reporting tardies; (k) Maintaining a notebook of handouts for student access; (l) Publishing and implementing a routine for lesson closure and class dismissal; (m) Maintaining student data records in the "Success by Design" notebook; (n) Communicating with parents about unsatisfactory student performance and course recovery opportunities, using two methods and keeping a log and copies of any written communication; and (o) Creating a daily journal of professional reflections relative to improving student rapport. The success team members observed Respondent's classes and reviewed his written assignments to determine whether he was meeting the requirements of his success plan. The team members provided Respondent with verbal and written feedback about his progress or lack thereof. The success team met as a group on February 10, 2004. On March 10, 2004, Mr. Kemp made a final observation of Respondent's teaching performance. Mr. Kemp concluded that Respondent was attempting to establish a rapport with his students. However, Respondent's performance was inadequate in the following ways: (a) He needed to implement strategies to engage the students; (b) He needed assistance with lesson plans; and (c) He needed additional strategies for classroom management. Mr. Kemp met with Respondent on March 12, 2004. At the meeting, Mr. Kemp advised Respondent that he had not successfully completed the success plan. The annual evaluation that Mr. Kemp and Respondent signed at the meeting indicates that Respondent's performance was unsatisfactory in the following areas: (a) Competency A--plans and delivers effective instruction; (b) Competency C--Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (c) Competency G--promotes student growth and performance. According to the evaluation, Respondent's overall performance for the 2003/2004 school year was unsatisfactory. As requested by Respondent, Petitioner assigned Respondent to a teaching position at La Villa School of Arts (La Villa) for the 2004/2005 school term. Connie Skinner was La Villa's principal and Jeffery Hutchman was head of the math department at La Villa. Mr. Hutchman made several attempts to contact Respondent during the summer before the 2004/2005 school year commenced. Mr. Hutchman intended to invite Respondent to a middle-school mathematics workshop. Respondent never received Mr. Hutchman's messages and therefore did not attend the workshop. At La Villa, Respondent did not have an assigned classroom. Instead, Respondent was a "traveling" teacher who changed classrooms each period. On September 3, 2004, Ms. Skinner observed Respondent teach a math class for the first time. Ms. Skinner had some positive and negative comments about her observations. Among other things, Ms. Skinner concluded that Respondent circulated appropriately among the students, quickly stopped disrespect by one student, and had good questions from the class at the end of the lesson. She made the following suggestions: (a) Respondent needed to speed up the mini-lesson; (b) Respondent needed to set a time limit for student work to reduce the number of students who were not engaged or slow to start; and (c) Respondent needed to get students to the board. EHS sent La Villa a copy of Respondent's 2003/2004 success plan. On September 3, 2004, the success team at La Villa decided to use a modified version of the 2003/2004 success plan until Ms. Skinner and the La Villa success team had an opportunity to observe Respondent and develop a new success plan for the 2004/2005 school year. On October 11, 2004, Ms. Skinner made an unplanned observation in Respondent's class. The purpose of the visit was not to evaluate Respondent, but to gain additional information for the development of the new success plan. During the visit, Ms. Skinner noted, among other things, that Respondent's voice registered disgust with students for not using notes. On October 20, 2004, Ms. Skinner observed Respondent teach a math class, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner noted the following: (a) There was a great deal of confusion in a group assignment; (b) Respondent did not gain student attention at the start of the lesson; and (c) Respondent made statements showing his disdain for students and his lack of class discipline. Ms. Skinner concluded that Respondent's performance was unsatisfactory. On October 21, 2004, the success team at La Villa presented Respondent with a new success plan. The plan included specific goals and objectives to effect improvement in Respondent's ability to plan and deliver instruction, to demonstrate effective classroom management skills, to show sensitivity to student needs, to demonstrate abilities to evaluate students' instructional needs, to communicate with parents, and to promote student growth and performance. The 2004/2005 success plan required Respondent to attend training classes in "Connected Math." It also required him to attend workshops in instructional strategies and classroom management as well as other on-site and off-site continuing education programs. The 2004/2005 success plan specified that success team members would assist Respondent by explaining and demonstrating classroom strategies. Additionally, the success team members were required to observe Respondent in the classroom and provide him with feedback. Ms. Skinner observed Respondent on November 17, 2004. Among other comments, Ms. Skinner noted that Respondent's students were either not engaged or asked questions unrelated to the subject of the lesson. Ms. Skinner also concluded as follows: (a) Respondent's lesson did not include a mini lesson; (b) The content of the students' notebooks were poorly arranged and inconsistent; and (c) The students' homework folders were mostly empty and contained no teacher commentary. Ms. Skinner observed Respondent on November 24, 2004, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner determined that Respondent told the class to "shhhh" over 30 times. For this and other reasons, Ms. Skinner concluded that Respondent had not demonstrated satisfactory performance. On January 20, 2005, Ms. Skinner used the COI and the Professional Behaviors Instrument (PBI) to evaluate Respondent's classroom performance. These evaluations indicated that Respondent had improved in some areas such as clarity of instruction and interaction with students, resulting in a more engaged class. However, his overall performance was unsatisfactory. On March 10, 2005, Ms. Skinner used the COI to evaluate Respondent's teaching behaviors. Ms. Skinner observed the following: (a) Respondent presented material that was hard to read; (b) Respondent handled questions poorly; (c) The pace of the lesson seemed very slow; (d) Respondent failed to praise a student for a correct answer; and (e) Respondent's tone of voice carries disdain for students. Ms. Skinner concluded that Respondent's teaching behaviors were not satisfactory. On March 11, 2005, Ms. Skinner completed Respondent's annual evaluation. She concluded that his performance was unsatisfactory in the following areas: (a) Competency A, Plans and delivers effective instruction; (b) Competency D, Shows sensitivity to student needs by maintaining a positive school environment; (c) Competency E, Evaluates instructional needs of students; and (d) Promotes student growth and performance. Respondent's overall evaluation indicated that his professional growth was unsatisfactory. As to Compentency A, persuasive evidence indicates that Respondent's delivery was not clear and explicit. His students did not understand the lesson objectives. His written communications included misspelling and typos. As to Competency D, the record shows that Respondent failed to provide his students with positive reinforcement. Instead, his tone of voice carried disdain when interacting with his students. As to Competency E, Respondent had an unusually high failure rate. This shows that Respondent's instruction did not meet the needs of his students. As to Competency G, Respondent did not provide for individual student needs during his classes. On March 15, 2005, Ms. Skinner and Respondent discussed his 2004/2005 success plan. Ms. Skinner advised Respondent that he had not successfully completed the plan. After each observation/evaluation, Ms. Skinner discussed her findings with Respondent. She advised Respondent of strategies for improving his teaching behaviors. While there was some improvement in the middle of the 2004/2005 school term, by the end of the year there was a reversion in Respondent's professional growth. Ms. Skinner stated that "all of the strategies for standards-based education that we had worked on and helped him to understand, we thought went by the wayside." Regarding Competency A and Competency G, Respondent was unable to improve, despite the assistance of his success teams and the specific in-service training they provided. Respondent's was unable to maintain a satisfactory level of performance for Competency D and Competency E. He made improvement in only one area, Competency C. Overall, Respondent's professional growth was unsatisfactory for consecutive annual evaluations separated by a year of in-service training to correct his deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order, terminating the Respondent's employment as a tenured teacher. DONE AND ENTERED this 18th day of November, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th of November, 2005. COPIES FURNISHED: Adres Rojas, Esquire City of Jacksonville City Hall, St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph J. Wise, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue The issues are whether Respondent violated Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6(3)(e), Florida Administrative Code, and if so, what discipline should be imposed.
Findings Of Fact Respondent is licensed to teach emotionally handicapped children in the elementary schools of Florida. She holds Florida teaching certificate number 696889 which is valid through June 30, 1998. At all times material to this proceeding, Respondent was employed by the Volusia County School Board as a teacher of emotionally handicapped children in a self-contained classroom at New Smyrna Middle School. Prior to November 13, 1995, Respondent had no prior disciplinary history. The 1995-96 school year was Respondent's first year as a teacher at New Smyrna Middle School. Her previous teaching experience consisted of serving as a resource teacher. In that circumstance the students went to Respondent's class for a portion of the school day for instruction in certain academic areas. In August of 1995, Respondent requested a conference with the assistant principal, Sue Wolter. One of the items that Respondent wanted to discuss was the procedure she should follow in case a student had a weapon in the classroom. Ms. Wolter instructed Respondent that she should press the buzzer in the classroom three times. When the office staff receives this signal, they know there is a severe problem in the classroom. When a teacher presses the buzzer a light turns on beside the room number. Ms. Wolter also told Respondent that she could use the school intercom and say "Code 3" to alert the office about an emergency situation without letting the class know that she was calling for help. Lastly, Ms. Wolter advised Respondent to send her teaching assistant to the office for assistance. Respondent used these methods to summon help to her classroom on numerous occasions prior to the incident at issue here. In November of 1995, Respondent's class consisted of 12 sixth-grade students. The students' chronological ages varied from 11-to-14 years of age. Respondent's class consisted of students with "varying exceptionalities." Many of the students were dually diagnosed as having psychological and emotional disorders as well as mental retardation. The students' I.Q.'s were exceptionally low. Respondent's students were impulsive, volatile, and often exhibited poor judgment. They had difficulty at times distinguishing between right and wrong. Therefore, it was essential for Respondent to exercise appropriate classroom control at all times. Respondent had a difficult time maintaining discipline in the class. Students were frequently out of their seats or leaving the classroom without permission. Due to the chaotic classroom environment, several different teaching assistants were assigned to Respondent's classroom prior to November 13, 1995. On November 13, 1995, Ms. Linda Baker was Respondent's teaching assistant. Respondent and Ms. Baker did not have a successful working relationship. Ms. Baker felt that Respondent was a poor classroom disciplinarian. Ms. Baker also resented what she perceived as Respondent's condescending attitude. Respondent, on the other hand, resented Ms. Baker's admitted refusal to follow instructions which, at times, amounted to blatant insubordination. As a result of their communication problems, Respondent often wrote notes to Ms. Baker setting forth her classroom duties instead of speaking to her directly. Lavagus Brown, Michael Binder, and Klara Mills were students in Respondent's classroom on the morning of November 13, 1995. Klara Mills was the only girl in the class. As class began that morning, Lavagus Brown told Respondent that Klara had something in her bag that the teacher should know about. Next, Michael Binder told Respondent that Klara had a knife in her bag. Ms. Baker was sitting in the back of the room. She also heard from the children that Klara had a knife. Respondent wrote a note to Ms. Baker and took it to her in the back of the classroom. Respondent asked Ms. Baker to take the note to the office and get an administrator. Respondent did not reveal the contents of the note or explain to Ms. Baker why it was necessary for an administrator to come to the classroom immediately. Ms. Baker took the note and left the classroom. She returned later without an administrator. When questioned by Respondent, Ms. Baker told Respondent that she had delivered the note to the office. Respondent still did not discuss the seriousness of the situation with Ms. Baker. Respondent asked Klara to get her things together so that they could go to the office. Klara took her backpack purse and left the room with Respondent. She did not take her bookbag with her. Ms. Baker stayed in the classroom with the remaining students. She began taking the boys down the hall to the restroom. In order to get to the main office, Respondent and Klara had to walk out of one building, down the main walkway past a second building, and into the second entrance of a third building. Respondent did not attempt to retrieve Klara's backpack purse during the walk through the campus. When Respondent and Klara arrived at the office, Jasmine Gutierrez, a teacher's aide, was waiting in the outer office to see Ms. Wolter, who was in her office with the door partially closed. Cheryl Tucker, one of two secretaries, was also in the outer office. Ms. Tucker was busy answering the phone and writing passes for students. While she was waiting for Ms. Wolter, Ms. Jasmine Gutierrez helped Ms. Tucker write passes for students so they could go to class. Respondent and Klara stood in a corner of the office where they had an argument. Klara denied that she had a knife, claiming that she only had a toy in her bookbag, which was still in the classroom. Klara wanted to go back to the classroom. Respondent wanted Klara to give an object to Respondent or someone that Klara trusted. Respondent asked Ms. Tucker if Ms. Wolter was in the office. Ms. Tucker responded in the negative. Respondent then asked Ms. Tucker to watch Klara while she looked for an administrator. Respondent did not see anyone in Ms. Wolter's office through the partially opened door. Respondent walked toward the office workroom to check her mailbox. Klara was still in the office when Respondent walked back toward the office and around a corner to go to the clinic. Respondent thought that Ms. Wolter might be in the clinic helping the nurse. Unable to locate Ms. Wolter in the clinic, Respondent returned to the office. Ms. Tucker was no longer in the outer office. Ms. Debra Gutierrez, the main secretary, was at her desk next to the office door which was slowly closing. Klara was not in the office. Learning that Klara had returned to class, Respondent left the office without telling anyone in the office that Klara possibly had a knife in her possession. Respondent caught up with Klara before she re-entered the classroom. Respondent told Klara to go to her desk and gather all of her things, including her backpack purse and bookbag, because they needed to return to the office. When Respondent entered the classroom, Ms. Baker was sitting at her place in the back of the room. Respondent immediately began to deal with a student who was in the time-out room, screaming and yelling. Respondent attempted to calm the student down. The time-out room is a small closet with a desk where students can go when they want to work undisturbed. Respondent also used the room for students who were behaving inappropriately and needed time to cool off before returning to class. At times, Respondent would put herself in the time-out room when she felt she was losing patience with the children. While Respondent was in the time-out room with the other student, Ms. Baker took Klara to the restroom. In the hallway, Ms. Baker asked Klara if she had a knife. Klara denied having a knife. As Ms. Baker and Klara entered the classroom, other students began asking Klara about her knife. Klara did not respond to their comments. When Ms. Baker and Klara came back into the classroom, Respondent was standing in the doorway of the time-out room with the door partially closed. From that vantage point, Respondent could talk to the student who was upset and watch Klara who was sitting at her desk. Ms. Baker sat at her place in the back of the room for a few minutes. Then she went to the office where she located Elaine Haskins and Lenny Carr, campus advisors, advising them that Klara possibly had a weapon in the classroom. Ms. Haskins used her walkie-talkie to advise Ms. Wolter that she and Mr. Carr were proceeding with Ms. Baker to Respondent's room because there was a problem. When Ms. Haskins, Mr. Carr, and Ms. Baker arrived at Respondent's classroom, Klara was working quietly at her desk. Ms. Haskins entered the room and told Klara to get all of her things and accompany her to the office. Mr. Carr and Ms. Baker stayed in the hall. At this time, Respondent was still in the time-out room with the other student. Ms. Haskins walked to the time-out room and knocked on the partially-open door. Ms. Haskins advised Respondent that she was taking Klara to the office. Respondent did not advise Ms. Haskins that Klara possibly had a knife. Mr. Carr escorted Ms. Haskins and Klara back to the office. On the way, Ms. Haskins radioed Ms. Wolter to tell her that they were taking Klara to the office. Ms. Haskins told Ms. Wolter that Klara possibly had a weapon in her bag. The school resource officer met the campus advisors and Klara in Ms. Wolter's office. Klara admitted to Ms. Wolter that she had a knife in her bookbag. As Klara emptied her bag on Ms. Wolter's desk, she took out a large hunting knife. The knife was approximately eight and three-quarter inches in length when the retractable blade was extended. The blade alone was four inches long. Subsequently, Ms. Haskins went back to Respondent's classroom to tell her that Klara would not be coming back to class. There is no persuasive evidence of the following admissions by Respondent: (a) to Ms. Haskins that she knew Klara had a knife and "just hadn't responded on that" and (b) to Ms. Baker that she (Respondent) was too busy to handle the situation with Klara and the knife. About one week after the incident involving Klara, Respondent and Ms. Baker had a major disagreement. Ms. Baker was removed as the teaching assistant in Respondent's classroom. Respondent knew from the beginning that she had a potentially dangerous situation in her classroom. The potential for violence created an extremely unsafe environment for all the children involved, including Klara. The Volusia County School District's Student Code of Conduct states that possession of a weapon is a major offense which requires a recommendation of expulsion. Pending a decision on expulsion, a student will be suspended and lose all extracurricular privileges. Respondent was familiar with the Student Code of Conduct. However, the Volusia County School District has no written policy explaining the proper procedure a teacher should follow in searching a student when confronted with actual knowledge or a reasonable suspicion that the student has possession of a concealed weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Petitioner's teaching certificate for two weeks and imposing two years of probation. DONE AND ENTERED this 16th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1997. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver and Associates, P.A. Post Office Box 10825 Tallahassee, Florida 32302-2865 Paul Kwilecki, Esquire 433 Silver Beach Avenue, Suite 104 Daytona Beach, Florida 32176 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Jerry Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a high school teacher assigned to Miami Norland Senior High School. Respondent holds a continuing contract. Respondent began teaching for the Dade County Public Schools during the 1968-69 school year. During that school year, the annual evaluation form utilized by Petitioner provided that a score of below 3.5 indicated unsatisfactory work. During that, his first year of teaching, Respondent received a score of 3.2 on his annual evaluation. For the next 15 years thereafter, Respondent was rated as being acceptable on his annual evaluations for each and every year. During the 1984 summer session, an incident occurred between Respondent and one of his students. As a result of Petitioner's investigation into the allegation that Respondent had committed a battery on that student, conferences were held between Respondent and administrative personnel. Respondent requested a leave of absence for the 1984-85 school year due to personal reasons, and his request for leave of absence was granted. Respondent was required, however, to undergo a psychological evaluation prior to returning to his duties as a classroom teacher. During that school year while Respondent was on leave of absence, he was evaluated by Dr. Gail D. Wainger, a psychiatrist to whom he was referred by Petitioner. Respondent thereafter saw Dr. Albert C. Jaslow, a private psychiatrist, on two occasions. Dr. Jaslow submitted two reports which contained, inter alia, a recommendation that Respondent be transferred to a different school. Dr. Wainger reviewed Dr. Jaslow's reports and her own earlier report and, on May 21, 1985, submitted a report to Petitioner stating, inter alia, that there was no barrier to Respondent's being reinstated into active teaching. Based upon that evaluation, Petitioner permitted Respondent to return to the same teaching position previously held by him for the 1985-86 school year. At the conclusion of that school year, Respondent was rated as being acceptable on his annual evaluation. Respondent again received acceptable annual evaluations for the following two years, i.e., the 1986-87 and the 1987- 88 school years. On his annual evaluation for the 1988-89 school year Respondent was rated as being unacceptable in the area of classroom management, one of the six categories of classroom performance. Pursuant to the rules governing the TADS evaluation system, a rating of unacceptable in any of the categories covered by the annual evaluation instrument requires an overall rating of unacceptable. On his annual evaluation for the 1989-90 school year Respondent was rated as being acceptable in all six categories of classroom performance, including the area of classroom management. It was specifically noted on his annual evaluation form that Respondent had performed satisfactorily during both of the official observations made of his classroom performance. However, Respondent was rated as unacceptable in the non-classroom category entitled professional responsibility. That rating of unacceptable in that one category required that Respondent's overall rating be unacceptable. The basis for the unacceptable rating in the area of professional responsibility involved the determination that Respondent had been disrespectful to students on two separate occasions. On April 16, 1990, one of Respondent's students called another of his students who had an unusual skin pigmentation condition "two-toned." Respondent immediately told the offending student, "do not call the girl two-toned." A conference for the record was conducted with Respondent on April 30, 1990, and Respondent was given a supervisory referral to the Employee Assistance Program. During the week of May 7, 1990, one of Respondent's students was being verbally abusive to the other students, and Respondent told him to stop. That student thereupon began being verbally abusive toward Respondent and using profanity. Respondent then said to that student, "you should talk. You look like Mr. Spock from Star Trek." A conference for the record was conducted with Respondent, and he was issued a formal reprimand. The summary of the conference for the record dated June 1, 1990, prepared by the principal of Miami Norland Senior High School states that the student involved has physically-deformed ears. On his annual evaluation for the 1990-91 school year Respondent was rated as being unacceptable in the areas of classroom management, techniques of instruction, and professional responsibility. Accordingly, he received an overall evaluation of unacceptable. During the 1990-91 school year there were no reported incidents of Respondent allegedly making disrespectful remarks to students. That basis for being rated unacceptable in the area of professional responsibility during the prior academic year was cured. The rating of unacceptable in the area of classroom management was based upon a number of observations of Respondent during the school year wherein the observers noted a lack of control in the classroom, Respondent's failure or inability to re-direct students who were off-task, Respondent's failure or inability to enforce classroom rules, and Respondent's failure or inability to deal with students who were tardy in coming to his class. As to his techniques of instruction, observers during that school year noted that Respondent was teaching from sub-standard books (without noting whether that was a matter within Respondent's control), that the students were confused by Respondent's directions on several occasions, that the students did not understand the lessons being taught, and that on several occasions Respondent made errors in math when writing examples on the board. Some of the observers also noted that Respondent spent too much time on some of the lessons that he was teaching. Numerous prescriptions were given to Respondent during that school year to improve his instruction and to manage his classroom, such as reading sections of the TADS manual and observing other teachers. Respondent complied with each and every prescription given to him. As to being unacceptable in the area of professional responsibility, Respondent failed to properly maintain student folders reflecting their work to justify grades being given to the students, and there were errors in Respondent's gradebook. It also became apparent that Respondent was not making parental contact for students that were performing unsatisfactorily. By March of the 1990-91 school year Respondent was directed in writing to make parental contact as required by Dade County Public School policy. By memorandum dated June 3, 1991, Respondent was notified that he was required to produce within 48 hours a complete up-to-date gradebook, a parent contact log substantiating parent contacts for the entire school year, and all student folders substantiating Respondent's gradebook. He was advised that if he did not do so, he would receive an unsatisfactory rating in the area of professional responsibility. The principal and assistant principal understood the directive to mean that Respondent must produce those documents by noon on June 6, and Respondent understood the directive to mean that he was to produce the documents on June 6. At noon, the principal was not available to Respondent. Respondent did produce many of the documents later that day. There was, of course, no parental log for the entire year since one did not exist. At the end of the 1990-91 school year a recommendation for dismissal was made. Based upon that recommendation, the School Board of Dade County, Florida, suspended Respondent from his employment effective at the close of the workday on July 25, 1991, for incompetency and gross insubordination. In 1984 Respondent filed a grievance against Assistant Principal Wessel and Principal Fowler at Miami Norland Senior High School. The subject of the grievance was that Assistant Principal Wessel had in a loud voice and in a demeaning manner criticized Respondent's lesson plans in front of other teachers, staff and students. The grievance was also filed against Principal Fowler to enlist his assistance in making Wessel refrain from repeated conduct of that nature. The Union considered the grievance to be valid and processed it through the grievance procedures. Thereafter, Respondent was advised by Fowler and Wessel that he had made a big mistake and he would be sorry for having filed that grievance. Respondent began to believe that he had lost the support of the administration and that his job was in jeopardy. When Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year he was moved to a classroom directly across from the main office. Respondent considered that action to be demeaning. He still achieved acceptable evaluations for that year and the following year. During the next school year, in the middle of February, the administration moved Respondent to an old metal shop room and gave his classroom to a new teacher. He still achieved an acceptable annual evaluation that year. For the following school year the administrators assigned Respondent to teach five low-level math classes using five different classrooms. For the last three years of his teaching career, the ones during which he received unacceptable ratings in different categories, Respondent was required to teach all low-level math classes. Although administrative personnel testified that some teachers like low-level classes, Respondent repeatedly made it clear that he did not want that assignment. Further, there is a specific contract provision between the Dade County Schools and the teachers' union prohibiting teachers from being locked into low-level classes year after year, as Respondent was. During the last several years while Respondent was achieving unsatisfactory ratings in some categories, while he was being switched from classroom to classroom, and while he was being required to teach only low-level classes year after year, the administrative staff actively undermined Respondent's authority and demeaned him in front of students and other teachers. They told teachers and students that they were trying to get rid of Respondent and that Respondent was a bad teacher. When Respondent referred disruptive students to the office, the administrative staff laughed or simply refused to take any follow-up action. On one occasion when Respondent referred a student to the office for throwing an eraser at another student, an assistant principal told the misbehaving student that he should have thrown the eraser at Respondent instead. Respondent "lost face" around the school. It became known that the students could misbehave in Respondent's classes with impunity. Even the students understood that Respondent was assigned only the most difficult of students. Although there was a new principal at Miami Norland Senior High School during Respondent's last year of teaching, the new principal, coincidentally, had been the principal for the 1984 summer session at Parkway Junior High School where Respondent had been involved in an incident with a student prior to taking his year's leave of absence from teaching. Under the new principal's administration, Respondent was retained in his assignment of five low-level math classes and was moved to the classroom directly across from the office. No evidence was offered that the new principal understood that efforts had been made to keep Respondent's authority undermined and to make him quit. It is clear, however, that no steps were taken to stop or reverse the damage to Respondent's reputation and ability to teach. In response to Respondent's referral to the Employee Assistance Program, Respondent did make the contact required of him. In fact, there were numerous contacts between Respondent and the personnel involved in that program. Additionally, Respondent was seen by Dr. Goldin, a mental health professional, on four occasions between April and June of 1990. Between June and September of 1990, he also saw an associate of Dr. Goldin eight times in individual sessions and four times in joint sessions with his wife. Respondent repeatedly requested transfers from his teaching assignment at Miami Norland Senior High School. Some of the requests were made to his principals and some of them were sent to the Office of Professional Standards. From the time that Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year, he requested transfers each and every year. He requested a transfer at least twice during his last year of teaching. Some of the requests for transfer were hardship requests and others were normal requests. Additionally, both Dr. Jaslow in 1985 and Dr. Goldin in 1990 recommended to the Office of Professional Standards that Respondent be transferred to a different school. All requests for transfer were ignored. During the last years of Respondent's teaching career, in addition to the stress placed upon him by the administrative staff's efforts to undermine and ridicule him, he experienced additional stress as a result of his wife's serious illness. He told a number of the administrative staff about the problem at home. The difficulty under which that placed him was part of the reason for the referral to the Employee Assistance Program. During those last years, during conferences with administrative staff regarding his performance, Respondent exhibited anxiety and showed signs of stress. He accused the administration of undermining him and of treating him unfairly. He even attributed some of the problems he was experiencing in the classroom to the administrators. Their reaction to Respondent's accusations was to accuse Respondent of being paranoid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent without pay for the 1990-91 school year and reinstating him as a full-time classroom teacher thereafter at a school other than Miami Norland Senior High School. DONE and ENTERED this 27th day of January, 1992, 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 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4936 Petitioner's proposed findings of fact numbered 1, 4, 33, 35-37, 65, 67, 68, 72, and 74 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2, 3, 8, 11, 19, 32, 38, 58, 71, 75, and 77 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 5-7, 9, 10, 12-18, 20-31, 39-57, 59-64, 66, 69, 70, 73, and 76 have been rejected as being unnecessary in determining the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 34 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1, 4-11, 13, and 14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Copies furnished: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire 1450 N.E. Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue The main issues in this case are whether, as the district school board alleges, a teacher has given the district just cause to terminate his employment contract for incompetency, and, alternatively, whether the teacher failed to correct performance deficiencies during a 90-day probationary period, which would constitute separate grounds for dismissal if proven true.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all relevant times, Respondent Christopher Marshall ("Marshall") was employed as a math teacher in the Broward County school district, a position which he had held for some 15 years before this proceeding began. During that period, Marshall taught at a few different schools, the latest being McArthur High, where he worked for several years up to and including the 2013-14 school year. Marshall's teaching career, sad to say, has been mediocre. The greater weight of the evidence establishes that, at least as early as 2002, Marshall was identified by administrators and colleagues as a teacher of marginal ability. More than once over the years Marshall was placed on performance probation due to concerns about his unsatisfactory performance. Rather than terminate Marshall's employment, however, the district transferred Marshall from school to school, and somehow he managed to muddle through, doing enough to be rated "satisfactory" and avoid getting the sack. One of Marshall's defining characteristics has been the remarkably high percentages of Fs and Ds that his students consistently have earned, year in and year out. Frequently more than half of his students took home final grades lower than a C——and sometimes quite a bit more than 50 percent fell into this category. This was true across grade levels (Marshall taught grades nine through 12) and without regard to degrees of subject-matter difficulty (Marshall taught advanced as well as basic classes; he was not assigned only struggling students). It was not uncommon for Marshall to fail between one-quarter and one-third of his students. In the 2013-14 school year, for example, 31 percent of Marshall's Liberal Arts Math 2 students received a failing grade; 25 percent of his Math College Readiness students failed; and ten percent of his Algebra 2 students got Fs. This was consistent with a decade-long pattern. Needless to say, a teacher whose students in large numbers routinely get Ds or worse in his classes attracts attention from students, colleagues, parents, and administrators. In Marshall's case, students complained to other teachers——and to their parents. Parents, of course, complained to administrators and demanded that their children be placed in other classes. Often, to placate angry parents, Marshall's students were transferred, with the result that Marshall's classes were small, and other math teachers had to squeeze in additional students. Teachers complained about this. It must be acknowledged that poor grades are not necessarily a reflection of the teacher's ability or lack thereof. Certainly, as a general rule, each student bears substantial responsibility for his or her own grade, and no one should expect a teacher simply to hand out high marks that are unmerited and unearned. Sometimes, to be sure, an F or a D is as richly deserved as an A or a B. That said, the sheer persistence of Marshall's grade distribution under different conditions and through changing student populations implies that something other than resistance or indifference to learning, poor study habits, or lack of intellectual ability must be at work. The undersigned has combed the record for an explanation of his students' poor grades that might exonerate Marshall but can find none. There is no persuasive evidence, for example, that Marshall is a demanding teacher who sets the bar high for his students, administering tough but fair tests that are difficult for the unmotivated or unprepared to pass. To the contrary, Marshall had his students spend time on rote exercises, such as copying definitions and formulas from the textbook, which have little educational value. Nor did Marshall's students tend to excel in their next math classes. Rather, after being taught by Marshall, his students often had difficulty in their subsequent courses because they had not learned the prerequisite material. For years, administrators have tried to cajole or compel Marshall to reduce the number of students receiving Fs and Ds in his classes, not by the expedient of grade inflation, but by implementing different pedagogical techniques and strategies. Marshall, however, has ignored these importunings and directives, and nothing has changed. Marshall's apparent imperviousness to criticism has been an ongoing source of frustration to his colleagues and administrators. Marshall considers himself to be an "awesome" teacher, and therefore he concludes that anyone who has a different opinion——which unfortunately seems to be nearly everyone with whom he has worked——is either mistaken, lying, or treating him unfairly. This has led Marshall to file numerous grievances and complaints against his supervisors, none of which has been successful. He is not, however, confrontational, discourteous, or abusive in his workplace relationships. Rather, Marshall engages in passive-aggressive behavior. Faced with a demand or a directive, Marshall does not argue (although he might politely disagree); he simply does not comply. The greater weight of the evidence persuades the undersigned to find that the bad grades Marshall's students consistently have received are a symptom of Marshall's inability to teach. Although he knows his subject, Marshall lacks the skills necessary to impart his knowledge to his students, who consequently do not learn math in his classes. It is not that Marshall is deliberately trying not to succeed. He is not being insubordinate in this regard. He is simply not suited to the job of teaching high school math. In 2011, following a legislative directive then recently enacted, the school district adopted a teacher evaluation system known as the Broward Instructional Development and Growth Evaluation System ("BrIDGES"), which is based on Dr. Robert J. Marzano's strategies for educational effectiveness. When rating a teacher's classroom performance using BrIDGES, an evaluator inputs his or her observations into a database by filling out an electronic "iObservation" form. The iObservation tool contains 60 "elements," each of which represents a discrete strategy, action, or skill that a teacher might employ as appropriate: e.g., "Using Academic Games," "Identifying Critical Information," and "Displaying Objectivity and Control." The elements are organized under four separate "domains" as follows: Domain 1: Classroom Strategies and Behaviors (Elements 1-41) Domain 2: Planning and Preparing (Elements 42-49) Domain 3: Reflecting on Teaching (Elements 50-54) Domain 4: Collegiality and Professionalism (Elements 55-60). The 41 elements of Domain 1 are further subdivided into nine Design Questions, DQ1 through DQ9. On October 8, 2013, the school district and the Broward Teachers Union entered into a Memorandum of Understanding ("MOU") setting forth their agreements regarding the use of BrIDGES to evaluate teachers for 2013-14. Pursuant to the MOU, each classroom teacher was to receive at least three observations, including one formal (30 or more minutes), one informal (15-25 minutes), and one snapshot or walkthrough (3-10 minutes) observation. During an observation, the subject teacher receives a "datamark" (prescribed number of points) for each element that the evaluator chooses to rate. For 2013-14, the datamarks were as follows: Innovating (Highly Effective), 4 points; Applying (Effective), 3 points; Developing (Effective), 2.5 points; Beginning (Needs Improvement), 2 points; and Not Using (Unsatisfactory), 1 point. Each teacher was to receive at least 45 datamarks, comprising at least 25 datamarks in Domain 1 and 10 within Domains 2, 3, and/or 4. A weighted average of the datamarks assigned to a teacher's performance as recorded on the iObservation forms became the teacher's Instructional Practice Score ("IPS"). The IPS was equal to 0.68X plus 0.32Y, where X was the average of the teacher's Domain 1 datamarks and Y was the average of the teacher's datamarks for Domains 2, 3, and 4 combined. The IPS was reported as a number having three decimal digits, to the thousandths place. This created a false precision, for the calculated result could not possibly have been more precise than the number having the least number of significant figures in the equation, which would always be a one-digit integer (unless the teacher happened to receive strait 2.5s——possible, but unlikely, and not the case here). In other words, the numbers to the right of the decimal point in the teacher's IPS were mathematically insignificant, spurious digits, because the original data could not support a measurement beyond the precision of one significant figure. The IPS should have been (but was not) rounded to a single-digit integer to avoid reporting insignificant digits. For 2013-14, the BrIDGES Overall Evaluation Score equaled the sum of the teacher's IPS (weighted as 49%), Deliberate Practice score (weighted as 1.0%), and Student Growth score (weighted as 50%). Teachers at McArthur High (including Marshall) for whom no individual student data were available automatically received a Student Growth score of 3.0 for that school year, and all teachers (including Marshall) who completed a self-assessment received a Deliberate Practice score of 3.0. The Overall Evaluation Scale for 2013-14 was Highly Effective (3.450-4.000), Effective (2.500-3.449), Needs Improvement (2.000-2.499), and Unsatisfactory (1.000-1.999). As of February 4, 2014, Marshall had received eight observations: three formals, three informals, and two walkthroughs. He had received 56 datamarks in Domain 1 and five datamarks in Domains 2, 3, and 4. His weighted IPS, to that date, was 2.145 (but this computed score was precise to no more than one significant figure and therefore should be understood as a 2 after rounding off the spurious digits), or Needs Improvement. Pursuant to the MOU, once a teacher receives an average IPS of Needs Improvement or Unsatisfactory among other conditions that Marshall had met as of February 4, 2014, a Performance Development Plan ("PDP") may be written for that teacher. Accordingly, in early February 2014, a PDP was written for Marshall. As well, on February 12, 2014, the principal of McArthur High placed Marshall on performance probation for 90 calendar days, delivering to Marshall a notice of "less than effective performance" ostensibly pursuant to section 1012.34(4), Florida Statutes. The statute, however, authorizes 90-day performance probation only for a teacher whose performance is unsatisfactory, and Marshall's performance was not unsatisfactory; it was Needs Improvement. Needs Improvement is, to be sure, less than Effective performance, but it is better than Unsatisfactory. Indeed, none of the levels of performance besides Unsatisfactory denotes unsatisfactory performance and thus, logically, all teachers rated Highly Effective, Effective, or Needs Improvement fall within the range of satisfactory performance. In any event, between February 28 and May 7, 2014, Marshall received 12 more observations, which added 75 datamarks to his total in Domain 1 (making 131 in all) and six additional datamarks in Domains 2, 3, and 4 (for a grand total of 11). The iObservation forms for Marshall's last six observations, incidentally, are not in evidence. As of May 7, 2014, Marshall's IPS was 1.963. This number, by itself, would be Unsatisfactory on the Overall Evaluation Scale. Given, however, that the initial numerical data was captured (mostly) in single-digit integers, together with a handful of 2.5s, the decimal places are spurious in this result; there is no meaningful distinction between "1.963" (which is a textbook example of false precision) and "2" (which is what 1.963 should be rounded up to, to avoid the fallacy of overprecision). Thus, if the insignificant figures are ignored, Marshall's IPS, by itself, is actually Needs Improvement. But more important, Marshall's IPS was not his Overall Evaluation Score, and therefore it is improper and unfair to deem his performance Unsatisfactory on the Overall Performance Scale based on an IPS of 1.963 as the School Board wants to do. Marshall's Overall Evaluation Score, as calculated by the School Board, was 2.492 — Needs Improvement.1/ Again, Needs Improvement is less than Effective and clearly not ideal, but it is not Unsatisfactory. To the contrary, Needs Improvement is one of the levels of satisfactory performance. Going a step farther, if Marshall's IPS were rounded to 2, as it should be to eliminate the false precision, and his Overall Evaluation Score recalculated absent the spurious decimals, then his final score would be 2.51, which in turn should be rounded to 3 to avoid overprecision, but which equals Effective performance regardless. The point is, based on a final score of 2.492, Marshall's overall performance can as correctly be deemed Effective as Needs Improvement, for there is no real difference between 2.492 and 3 based on the original data used to make these calculations.2/ (To repeat for emphasis, computations cannot make the original data more precise.3/) Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Marshall is guilty of the offense of misconduct in office, which is defined in Florida Administrative Code Rule 6A-5.056(2).4/ The greater weight of the evidence establishes that Marshall is guilty of incompetency,5/ which is just cause for dismissal from employment. A preponderance of the evidence establishes that Marshall's performance as measured in accordance with the BrIDGES evaluation system was not Unsatisfactory during the 2013-14 school year. Therefore, the evidence does not support the termination of Marshall's employment contract pursuant to section 1012.34(4). The evidence does not support a determination that Marshall independently violated section 1012.53, apart from his incompetency, which affords a sufficient basis (as "just cause") for dismissal. The evidence does not support a determination that Marshall independently violated School Board Rule 4008(B), apart from his incompetency, which affords a sufficient basis (as "just cause") for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing Marshall from his employment as a teacher in the Broward County Public Schools for the just cause of incompetency as a result of inefficiency. DONE AND ENTERED this 24th day of March, 2016, 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 24th day of March, 2016.
