The Issue Whether just cause exists to terminate Respondent from employment with the Brevard County School Board.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools in Brevard County, Florida. This includes the power to discipline employees, such as teachers. § 4, Article IX, Fla. Const.; §§ 1001.42(5), 1012.22(1)(f), and 1012.33, Fla. Stat.1 Respondent is a classroom teacher, and as such, the terms and conditions of her employment are governed by the collective agreement between the School Board and The Brevard Federation of Teachers, Local 2098. Respondent has a Bachelor’s degree in exceptional education. On or about November 9, 2006, Respondent, pursuant to an annual contract, was hired by the School Board to provide services as a classroom teacher. Beginning in the 2009-2010 school year, Respondent continued her employment with the School Board pursuant to a professional services contract. During all times relevant to this proceeding, Respondent taught at Hoover Middle School, which is under the jurisdiction of the School Board. At the commencement of the 2014-2015 school year, Respondent taught exceptional education (ESE) students in a self-contained, supported-level class. At approximately the midway point of the 2014-2015 school year, Respondent began teaching a resource math class which was comprised entirely of ESE students. Beginning in the 2017-2018 school year, and continuing through the 2018-2019 school year, Respondent taught one resource math class for a single class-period of the day, and she co-taught, or “pushed-in,” for the other five instructional class periods. In both settings, Respondent taught math to ESE students. By correspondence dated March 26, 2019, Superintendent Mullins advised Respondent of the following: Pursuant to Florida Statute 1012.34, you are being recommended for termination of your Professional Services Contract due to unsatisfactory 1 All subsequent references to Florida Statutes will be to the 2018 codification, unless otherwise indicated. Performance …. The actions leading to this recommendation are as follows: On October 29, 2018, you were provided a 90-day notice advising of performance-related concerns based upon three years of unsatisfactory annual evaluations. Several performance review meetings were held with you, your union representative, and your school Principal to discuss your progress. A review of your past evaluations indicates several attempts at corrective activities through the use of District Peer Mentors and Resource Teachers. After the completion of the 90-day plan, adequate progress was not obtained and is grounds to sever the Professional Services Contract. The School Board uses an “Instructional Personnel Performance Appraisal System” (IPPAS) as a guide when evaluating a teacher’s performance. According to the IPPAS manual, classroom teachers are evaluated on a rubric which consists of five dimensions. The first dimension focuses on “instructional design and lesson planning.” The second dimension focuses on the “learning environment” created and fostered by the teacher. The third dimension focuses on “instructional delivery and facilitation.” The fourth dimension focuses on “assessment,” and the fifth dimension focuses on a teacher’s “professional responsibility and ethical conduct.” IPPAS is approved annually by the Florida Department of Education (FLDOE), and the School Board meets regularly with The Brevard Federation of Teachers, Local 2098, to address any issues concerning the evaluation process. Teachers and evaluators receive yearly training, which covers the various components of the evaluation process. Pursuant to IPPAS, and related statutory provisions, classroom teachers are evaluated annually. The overall score given to a teacher on the annual evaluation is determined by how a teacher scores in the areas of “Professional Practices Based on Florida’s Educator Accomplished Practices (Professional Practices),” and “Individual Accountability for Student Academic Performance Based on Identified Assessments (Student Performance).” The Professional Practices category accounts for 67 percent, and Student Performance accounts for the remaining 33 percent of a teacher’s annual evaluation score. For purposes of quantifying a teacher’s annual evaluation, IPPAS identifies the Professional Practices category as “Part 1 of the Summative Evaluation,” and the Student Performance category as “Part 2 of the Summative Evaluation.” Part 1 of the Summative Evaluation is completed in the spring of each school year and consists of the supervising principal’s annual evaluation of the teacher, the teacher’s self-assessment, and the collaboration and mutual accountability score. The evaluative components of Part 1 of the Summative Evaluation are comprised of the previously referenced “five dimensions.” Part 2 of the Summative Evaluation is determined based on student academic performance data (VAM score) as calculated by the FLDOE. VAM scores are released by FLDOE in the fall, and these scores reflect student performance for the preceding school year. Consequently, a teacher will not receive an overall annual evaluation score for the immediate preceding school year until the fall semester during which VAM scores are available. As a practical matter, this explains, in part, why the recommendation for termination letter sent to Respondent by Superintendent Mullins was issued on March 26, 2019.2 2015-2016 SCHOOL YEAR Respondent, on or about April 25, 2016, received Part 1 of her Summative Evaluation for the 2015-2016 school year. Respondent received a score of 27.71 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the category of “Needs Improvement.” On or about November 2, 2016, Respondent received Part 2 of her Summative Evaluation for the 2015-2016 school year. Respondent received a VAM score of 56.71 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2016-2017 SCHOOL YEAR Respondent, on or about April 5, 2017, received Part 1 of her Summative Evaluation for the 2016-2017 school year. Respondent received a score of 20.42 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about November 13, 2017, Respondent received Part 2 of her Summative Evaluation for the 2016-2017 school year. Respondent received a VAM score of 50.42 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2 VAM scores for the 2017-2018 school year were released on or about October 19, 2018. As discussed elsewhere herein, Respondent was placed on 90 days probation following the release of her VAM score. The timing of the release of the VAM score, coupled with the 90-day probationary period and related matters, account for the March 2019 date of Superintendent Mullin’s letter to Respondent. 2017-2018 SCHOOL YEAR Respondent, on or about May 3, 2018, received Part 1 of her Summative Evaluation for the 2017-2018 school year. Respondent received a score of 34.58 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about October 19, 2018, Respondent received Part 2 of her Summative Evaluation for the 2017-18 school year. Respondent received a VAM score of 64.58 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” A PLAN FOR ADDRESSING PROFESSIONAL DEFICIENCIES The School Board, in order to address Respondent’s professional deficiencies as identified during the relevant evaluation periods, provided support to Respondent through the utilization of Professional Development Assistance Plans (PDAPs). PDAPs are designed to provide a teacher with opportunities for professional development, which includes access to online resources, training activities and courses, and opportunities to work with School Board resource and peer mentor teachers. The School Board, acting through Respondent’s supervising administrators, agreed in the PDAPs to support Respondent’s professional growth and development as follows: By providing access to the “District Peer Mentor Teacher for collaboration on dimension 3.” By conducting “informal observations documented in ProGOE with feedback for improvement.” By providing “resources on utilizing formative assessment to check for understanding.” By providing “resources regarding implementing differentiated instruction.” By providing “resources on the utilization of Webb’s Depth of Knowledge.” By providing “exemplary sample lesson plans as a model … to follow.” By providing “pacing guide if needed.” By meeting every two weeks to review weekly lesson plans. By providing Respondent with “an exemplary teacher to observe, as well as a substitute [teacher] for class coverage during observation.” By providing a list of Professional Development courses on classroom management, as well as a substitute teacher to cover Respondent’s class while she attends the course. By providing “assistance and specific feedback from school based coaches.” By completing “informal observations on a bi- monthly basis, and provid[ing] feedback.” The evidence establishes that the School Board honored its commitment to Respondent as outlined in the respective PDAPs. 90 DAYS OF PROBATION, AND RECOMMENDATION FOR TERMINATION By correspondence dated October 29, 2018, the School Board advised Respondent of the following: In accordance with section 1012.34(4), F.S., this shall serve as the District’s notification of unsatisfactory performance. Please be advised that your Professional Service Contract for the 2018-19 academic year is on a probationary status for ninety (90) days. Your contract is being placed on probation due to your receiving an overall “Needs Improvement” rating on your last three (3) consecutive annual performance evaluations. See also section 1012.22, F.S. During the next ninety (90) days, you will be evaluated periodically. You will be apprised of any progress achieved in writing. You will work with the administration of your school to assist you in obtaining opportunities to help correct any noted deficiencies. After February 25, 2019, the ninetieth (90th) day, administration has fourteen (14) days to assess your progress. If no improvement is shown, administration will notify the Superintendent if you do not rate an overall Effective on the Summative Part 1 of your evaluation. Sincerely, Burt Clark, Principal Hoover Middle School Respondent, during her 90-day probationary period, continued to receive professional development services from the School Board, which included working with a peer mentor teacher, participating in CHAMPs training, receiving assistance from a math content specialist, and observing an exemplary math teacher. Burt Clark was the principal at the school where Respondent worked when she was placed on probation. As the principal, Mr. Clark served as Respondent’s supervisor and was responsible for evaluating her performance. During Respondent’s probationary period, Mr. Clark regularly met with Respondent and her union representative to discuss Respondent’s progress and offer assistance. In addition to meeting with Respondent, Mr. Clark also conducted one interim evaluation, four informal observation, and two formal observations of Respondent’s performance. Mr. Clark also conducted a number of “walk-throughs,” which provided additional insight into the status of Respondent’s professional development. While it is true that Mr. Clark’s observations of Respondent mainly occurred in the classroom where Respondent was the teacher of record, as opposed to Respondent’s work as a “push-in” teacher, Mr. Clark credibly testified that he had sufficient data to assess Respondent’s performance. Mr. Clark, at the end of the probationary period, determined that Respondent’s professional deficiencies remained, and on March 6, 2019, he made the following recommendation to Superintendent Mullins: Ms. Lisa Lemieux had an overall unsatisfactory performance appraisal. We have worked with her to try to improve her instructional strategies; but, it has not been successful in changing the behavior to better serve the students assigned to her. As defined in [section] 1012.34(4), [Florida Statutes], February 25, 2019, was the 90th day since the notification of her 90-day probation for this contract year and after demonstrating no improvement on the Summative Part 1, I have assessed that the performance deficiencies have not been corrected. I would recommend the termination of her employment with Brevard Public Schools. Burt Clark, Principal Hoover Middle School After receiving Mr. Clark’s recommendation to terminate Respondent’s employment, Superintendent Mullins reviewed Respondent’s last three years of evaluations, considered the extensive support and training provided to Respondent by the School Board, and concluded that termination of Respondent’s employment was warranted and justified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Brevard County enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 16th day of March, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2020. COPIES FURNISHED: Amy D. Envall, General Counsel Brevard County Public Schools 2700 Judge Fran Jamieson Way Viera, Florida 32940 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Howard Michael Waldman Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Dr. Mark Mullins, Superintendent School Board of Brevard County 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Matthew Mears, General Counsel Department of Education Turlington Building 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division) was the state agency in Florida responsible for licensing real estate brokers and salespersons and for the regulation of the real estate profession in this state. Respondent was licensed as a real estate broker, but his license had been suspended effective October 13, 1996 On May 17, 1994, after Respondent had requested but failed to appear at an informal hearing on his alleged misconduct, the Florida Real Estate Commission (Commission) issued a Final Order in which it ordered Respondent be reprimanded and pay a $500.00 administrative fine within thirty days of the filing of the order on pain of suspension of his broker's license until the fine was paid. In addition, the Commission placed Respondent's license on probation for one year with the requirement that, inter alia, he enroll in and satisfactorily complete a sixty hour post-licensure education course for brokers within one year of the filing of the order. Though in collateral communications to Petitioner's counsel, to an investigator, Ms. May, and to the prior Judge assigned in this matter, all of which are a part of the file in this case, Respondent claimed not to have received the Final Order in issue, Mr. James, another investigator for the Department of Business and Professional Regulation (Department), in his visit to Respondent's office on June 28, 1995, found a copy of the order in Respondent's office files. The prior misconduct by Respondent bears on the instant case only in so far as it supports the action taken with respect to it by the Commission. As it appears, Respondent failed to file his monthly escrow account reconciliation on the required form though he had received and had a copy of the required form in his file. He claims, in his correspondence, and there is no evidence to refute his claim, that because of his poor memory at the advanced age of eighty years, he forgot the new form had become required and continued to use the previously approved form he had used over his prior twenty-eight years in the real estate business. It appears that when that discrepancy was found by the former investigator, Ms. Mays, Respondent was issued a citation calling for a fine of $100.00 and 30 hours of continuing education, but considering that proposed penalty too severe for a "minor" offense resulting from a lapse of memory, especially when no loss was occasioned to any client, he rejected the citation and demanded a hearing. He then did not attend the informal hearing scheduled. Thereafter, the commission entered the Final Order alleged in the instant Administrative Complaint, the terms of which were described above. The required $500.00 administrative fine has not been paid nor has the required post-licensing education been completed. Respondent still contends the fine is too severe and because of his age and inability to drive at night, he is unable to take the required course. On June 28, 1995, Mr. James, an investigator for the Department, acting on a report that Respondent was continuing to operate his brokerage even though his license had been suspended, went to the Respondent's office located at 56 Harvard Street in Englewood, Florida. At that address Mr. James found Respondent operating two businesses from the same office. One was Englewood Realty and the other was a dry ice company. During the interview held on June 28, 1995, Respondent admitted he had received the Final Order but considered it unfair. Respondent also admitted he was actively engaged in the practice of real estate and wanted to keep the brokerage open until he could sell his own property, and "just in case something else came up." While Mr. James was at the Respondent's office, Respondent was visited by a female representative of an advertising publication who spoke with him about his advertisement for the sale of some real estate. Also during the visit, as James recalls, Respondent received at least one telephone call which seemed to relate to the sale of real property. In both cases, however, it appeared to Mr. James that Respondent was referring to his own property. James did not discover any reference to sales or dealing relating to property owned by anyone other than Respondent. James also reviewed Respondent's books for the brokerage and it appeared to him that Respondent was operating at a loss. Nonetheless, at no time did Respondent fail to identify himself as a real estate broker either to the advertising representative or in response to the telephone call. In light of Respondent's refusal to comply with the earlier suspension, his apparent unwillingness to cease operations as directed until it suited his purpose, and his unfavorable financial position as to the brokerage, the Petitioner recommends only that Respondent's license as a real estate broker be revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Real Estate Commission enter a Final Order in this case revoking Respondent's license as a real estate broker in Florida. RECOMMENDED this 2nd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1996. COPIES FURNISHED: Raymond J. McGinn Englewood Realty 56 Harvard Street Englewood, Florida 34223 Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue At issue is whether the Respondent committed the offenses set forth in the Administrative Complaint dated July 30, 2002, and if so, whether his employment should be terminated.
Findings Of Fact Mocombe has been employed by the School Board as a social studies teacher since 1997, when he graduated from Florida Atlantic University. He began his career substitute teaching at Sunrise Middle School (Sunrise), and later moved into a full-time position at Lauderhill Middle School (Lauderhill). In the years following graduation, while working as a teacher, Mocombe continued his studies at Florida Atlantic University and attained a master's degree and a Ph.D. He also received three formal reprimands, and a reputation as a person who could engage in adolescent behavior toward peers and insubordinate behavior to his principal without suffering any meaningful consequence. Mocombe calls himself a brilliant teacher, whose teaching philosophy is informed by his belief that "Revolution comes first. I'm a Marxist." Also a high priority for Mocombe is hedonism. Mocombe is known at Lauderhill as a "player," a term defined by one witness as "[S]omeone who has a lot of women and a lot of women [who] know about each other," a characterization which Mocombe embraces. Although married, Mocombe had a sexual relationship with a teaching colleague at Lauderhill by the name of Belinda Hope (Hope). He also was attracted to a first year teacher by the name of Kim Barnes (Barnes). Specifically, said he wanted to "get into her pants," during the 2000-2001 school year. Mocombe has no sense of boundaries in the workplace. He freely offers his opinions on religion, politics, and sex, some intended to be humorous, some not. Mocombe is aware of his need to be the center of attention and to shock people. He testified, "Even in school, I used to go walking around and said I was God just to get a reaction out of people." Most adults tread carefully, or not at all, around such deeply personal subjects. The training and ethics of the teaching profession emphasize respect for the dignity and worth of each individual, irrespective of his political and religious beliefs, or lack thereof. Teachers are educated to understand that sophomoric jokes about sex are not to be inflicted upon unwilling listeners. These lessons are reemphasized annually in sexual harassment training provided to all teachers employed by the School Board. Mocombe did not benefit from this training. He was known at Lauderhill for a constant stream of crude references to sex. He made no secret of his view that a woman's role is to have babies and serve men sexually. In addition, Mocombe would mock organized religion in the presence of colleagues who take their faith seriously. He often spoke of starting his own church, in which he would be known as Prophet Paul and the prerequisite for all women seeking to join the church would be to have his baby. Such comments, as well as his propensity to refer to women as "bitches" and "whores," were deeply offensive to some, but they kept silent. Lauderhill was an ideal environment for Mocombe. The atmosphere at the school is sexually charged to an extent inappropriate to the serious business of teaching children who are at a fragile stage of their own sexual development. Adolescent sexual banter consumes a great deal of time in and out of Lauderhill's teachers' lounge. At least in Mocombe's class, cursing and horseplay in the presence of the teacher-- even with the teacher--is acceptable. Unrebutted testimony placed an assistant principal in the main office discussing "sex, among other things," with Mocombe and other members of Lauderhill's staff in the main office at a time when at least one person not employed there could hear their discussion. Phillip Patton (Patton) was Mocombe's principal, first at Sunrise and later at Lauderhill. Patton's patience with Mocombe's behavior was seemingly boundless. In the lax atmosphere at Lauderhill, some of Mocombe's colleagues regarded his frequent references to sex, as well as to religion, politics, and the appearance of female colleagues, as harmless banter. Others, such as Marrisa Cooper (Cooper) who testified on Mocombe's behalf, felt that it was not the school's responsibility to deal with harassment; rather, the person at whom the harassment was directed should have the "balls" to deal with it. Cooper explained that it was understood at Lauderhill that Mocombe [believed] "that women are there to have children, which everyone always disagrees with statements because he always makes these general statements about women, and a lot of people take them as being belittling or degrading women. I don't take it personal because you are not talking to me, I know what I am made of and the way I am, so I never take them personally. But again, everybody maybe don't have the balls that I have." Others at Lauderhill were offended by Mocombe's conduct, but kept their silence, believing that Patton would not impose meaningful discipline on him. In fact, Patton's patience with Mocombe ran out only when Barnes and another teacher, Tracey Bryant (Bryant) put their complaints in writing, at which time Patton was required by School Board policies and procedures to forward the complaints for follow- up by trained investigators. The charges at issue here arise out of Mocombe's interaction with three individuals, student Hudson Mortimer (Mortimer), and the above-mentioned teachers Bryant and Barnes. Each situation is discussed separately in paragraphs 16 through 77, below. Hudson Mortimer: At the time of the incident alleged in the Administrative Complaint, Mortimer was a sixth grader at Lauderhill and a student of Mocombe's. Mortimer shares Mocombe's high opinion of himself as a teacher. Although Mortimer testified at the behest of the School Board, he volunteered, "I don't think he should get his license suspended." On October 11, 2001, Mocombe and Mortimer were "playing with each other." More particularly, Mortimer was "cracking" on his teacher, calling him "ugly and stuff." Mortimer's and Mocombe's accounts of the incident are consistent, and create a picture of two kids on the same level, playing together when they should be working. The incident began with Mortimer and Mocombe trading good natured insults, which included adolescent name-calling, using phrases such as "ugly-ass," while tossing whatever object was at hand at one another. Eventually Mocombe tossed a marking pen at Mortimer which hit the student over one eye, causing minor injury. The School Board contends that this incident constitutes the imposition of inappropriate discipline of sufficient severity to warrant termination. Pursuant to School Board rules and policies requiring that events which may give rise to litigation be documented, Patton, through a staff member, sent an accident report form to Mocombe for him to fill out. Mocombe refused, saying, "I'm not filling out anything, it was an accident. Patton wants to, he can fill it out himself." Patton took no disciplinary action against Mocombe for his refusal to comply with this routine and entirely appropriate request that he follow a reasonable School Board policy. This was not the first time, nor would it be the last, that Mocombe was given to understand that there would be no meaningful consequence to him for ignoring rules which he did not wish to follow. Tracey Bryant: Bryant is a 13-year teacher. Her complaint against Mocombe arises out of an incident which she characterizes as sexual harassment, and which occurred in the teachers' lounge at Lauderhill on April 5, 2001. At the time of the incident, Bryant was one of about a half dozen teachers present in the lounge. While conversing with a colleague, she was interrupted by Mocombe who asked, "Ms. Bryant are you pregnant?" Stunned, she coldly told him, "No." Referring to Bryant and to another teacher then present, Mocombe commented to the effect that their "butts were getting to be alike---hanging." Bryant quickly left the room. Here, as with the incident involving Mortimer, Mocombe and the alleged victim tell similar stories. Both agree that Mocombe was intending to be jocular in his interaction with them. But while Mocombe's alleged student victim supports the manner in which Mocombe interacts with him in general, and in particular is not offended by the allegedly inappropriate conduct set forth in the Administrative Complaint, Bryant felt "humiliated and disrespected" by Mocombe's comments about her size. In addition, Bryant was aware of Mocombe's history of making what she viewed as inappropriate comments about and to females. She had heard him make numerous comments she regarded as inappropriate in the workplace to Hope, a good friend of hers with whom Mocombe would eventually have an acrimonious break-up. When the offensive comment about Bryant's size was directed to her personally, she complained, in writing, to Patton. The conflict between Bryant and Mocombe continued at the hearing. At one point, Mocombe snickered during legal argument being made by the School Board attorney while Bryant was on the witness stand. Mocombe was provoked by a comment made to him by the School Board's attorney (who in turn was admonished to direct his comments to the tribunal, and not to parties or witnesses) and said of the School Board's charges against him, "I find it baffling and humorous, yes." Bryant immediately jumped in to say, "That's how he is, yes. No remorse or nothing." Bryant's reading of Mocombe's attitude is accurate. During his testimony, Mocombe supplied details of the incident which were not presented in the School Board's case, and which reflect a lack of understanding of why his conduct was so offensive. After having months to reflect on why Bryant brought these charges, Mocombe remains unembarrassed by his faux pas of assuming--and saying aloud to a roomful of colleagues--that Bryant's weight gain was due to pregnancy. He volunteered during his testimony that rather than drop the subject after Bryant made her displeasure clear, Mocombe persisted, discussing his exchange with Bryant about Bryant's weight with another colleague, Vicki Drane. While not denying the substance of Bryant's account of the incident in the teachers' lounge, Mocombe argues that Bryant is out to get him because of his break-up with Hope. However, neither Mocombe nor any of his witnesses offered any type of corroboration in support of his assertion that Bryant and others conspired to avenge his spurned lover by getting him fired. After carefully observing Bryant's demeanor under oath, and considering the entire record, the undersigned finds no evidence to suggest that Bryant's testimony was untruthful, or that her complaint was motivated by anything other than her own distress at Mocombe's callous behavior in calling attention to her weight gain, behavior which hurt and embarrassed her in front of her colleagues. Kim Barnes: Barnes met Mocombe in the office at Lauderhill, where she was being interviewed for what would become her first teaching job. As previously noted, the School Board provides annual training to its employees regarding sexual harassment and other types of conduct inappropriate in the workplace. But Barnes' first contact with Lauderhill employees in their main office, where the administrative staff, including the principal, have their offices, suggested an atmosphere inconsistent with what is to be expected in a well managed place of learning. Mocombe acknowledges that he wanted to "impress" Barnes in order to "get into her pants." This is his account of his first meeting with Barnes in the school office: The first -- the very first interaction I had with Ms. Barnes were the beginning of the last school year. We were in teacher planning. She came in for an interview and we were all in the student office discussing sex among other things. Q. Who was we? A. Ms. Cooper, Ms. Mayo, who was the office manager, the assistant principal at that time, Mr. King, myself, and Ms. Barnes. And I made the reference about I want six children. My actual reference was my goal is to have as many little Mocombes running around so I can start my own revolution, take over the world, my own Marxist revolution and indoctrinate them. And she made the reference that she wanted to have five children. I thought hey, we could work out if that's the case. (Transcript page 276, lines 2-19). In hindsight, it was a mistake for Barnes to tell Mocombe the number of children she might like to have. The above-mentioned defense witness, Cooper, was an office worker at Lauderhill and was present and participated in the discussion of "sex among other things." Cooper, knowing of Mocombe's obsession with sex, deemed that Barnes, having joined the discussion to the extent of remarking that she would like to have five children, had granted consent for Mocombe to make sexual advances. Barnes' account of the conversation is slightly different. She recalls telling Mocombe she might like to have five children in response to a direct question by him. Perhaps she voluntarily "made the reference," as Mocombe recalls. This is the type of minor discrepancy to be expected from witnesses asked to recall the details of an event which took place months ago. What is important is that Mocombe did not then and does not now see why the comments which he freely admits making are utterly inappropriate to the time and place where he made them. Although Cooper considers herself a friend of Mocombe, in giving testimony on his behalf, she volunteered that on the day of the Barnes' job interview, Cooper commented to Barnes that Mocombe was "no good." Counsel for Respondent did not suggest what issue this testimony goes to, but the testimony offered on Mocombe's behalf, taken together, suggests a belief by Mocombe and his friends that Barnes was on notice that as a "player," Mocombe was unable to relate to professional women in a professional way, and that he was not expected to do so by his colleagues or supervisors. Barnes was hired and began work at Lauderhill in the fall of the 2000-2001 school year. In the beginning, Mocombe confined his comments to Barnes to acknowledging her presence, usually in terms of her looks, such as, "Hi, sexy." Over time, the comments became more graphic. Mocombe would remark on the size of Barnes' breasts, her "phat (pretty hot and tender) ass" and would state his desire to have sex with her in stunningly offensive terms. In November 2000, Barnes expressed her distress about Mocombe's conduct to Reginald Edwards (Edwards), a substitute teacher who also works as a Baptist pastor. Edwards reported Barnes' concerns to principal Patton. Patton did nothing to follow up. Barnes also expressed her distress to her assigned teaching mentor, Arnetta Davis (Davis). Davis advised her that Mocombe was well known for this type of conduct, and recommended that she try to "nip it in the bud." Barnes is not an aggressive personality, but she tried to make Mocombe understand that she did not appreciate his comments. Mocombe was not deterred. Her efforts to nip Mocombe's conduct in the bud having failed, Barnes conferred again with Davis. Davis confirmed what Barnes had come to suspect: Mocombe conducted himself in this manner because he had been doing so for as long as he had been teaching, with no more than a wrist slap ever imposed. Barnes came to hold a reasonable belief that, in Davis' words, "apparently everyone knew about it, [Mocombe's inappropriate behavior] it was just how he was, and everyone just basically looked a blind eye about it." Davis could not provide Barnes with any assurance that if she complained to Patton, Mocombe would experience any meaningful consequence. Worse, Davis confirmed Barnes' fear that she, Barnes, might be deemed a troublemaker and be "blackballed" if she complained. Barnes was in no position to be blackballed. At the time she began her employment at Lauderhill, she had not yet received her permanent teacher's certificate. Moreover, she needed a summer teaching job and believed she was not likely to get one by being a "troublemaker." Based upon Davis' advice, and her own observation that Mocombe's constant sex talk was part of the landscape at Lauderhill, Barnes reasonably feared that Mocombe would continue to be protected by Patton, and that her own career might be seriously impaired if she sought to avail herself of School Board policies and procedures designed to provide employees recourse from sexual and other types of harassment. Davis' advice to Barnes was reasonable. Davis had witnessed Mocombe conduct himself in an unprofessional and disruptive manner at faculty meetings with no apparent consequences. Interestingly, at least by the time of the hearing, Mocombe's perception of his relationship with Patton differs from the perception shared by most of Lauderhill's professional staff. Mocombe came to feel that Patton would go out of his way to write [Mocombe] up for anything which Patton believed to be a challenge to his authority. But the totality of the evidence suggests that at all times material to this case, the belief widely held by Lauderhill staff that Patton's patience with Mocombe was practically unlimited, is closer to the truth. By March of 2001, Mocombe's conduct toward Barnes had escalated. One day, Barnes came in to the teachers' lounge to check mail. About a half dozen teachers were present. Mocombe freely--indeed proudly--described this incident: he said, for all to hear, "I can't stand up because my dick is hard, or I'm hard." Davis was coming to believe that she could no longer ethically ignore Mocombe's conduct toward Barnes. Around the time Bryant made her written complaint to Patton, Davis went to Patton on Barnes' behalf. Patton in turn went to Barnes and told her that she had to put her complaints about Mocombe into writing if anything was to be done. Barnes did so. By way of defense, Mocombe suggests that Barnes was the aggressor, pursuing him to consummate a physical relationship. Mocombe says he chose not to have sex with Barnes. This excerpt from Mocombe's testimony fairly summarizes his theory of the case: The same reason she was inquiring of Mr. Edwards about me, and she found out about my dealings with women. I turned her down, all right. If that's what you want to ask, we didn't have sex because I didn't want to have sex. Q. She wanted sex but you didn't? A. I didn't say that. I just said we didn't have sex. I chose not to have sex. I didn't say -- Q. Did you ask her? A. We came close a couple of times in the classroom. Q. To have sex with her? A. That's what you want. Yeah, we did. We came close a couple of times in the classroom. Every day for 20 to 25 days in the classroom with this woman, and you think -- maybe you [sic] blind. Yeah, I'm a good looking man. You must be out of your mind. (Transcript page 310, lines 6-24). Mocombe also claimed, with reference to Barnes, "This girl hugged me every morning in the lounge" and that on at least five occasions she voluntarily engaged with him in activities which, if done by teenagers, would be called "making out." Mocombe never attempted to reconcile this testimony with his admission that he wanted to "get into [Barnes'] pants." Moreover, there are numerous ways in which the colorful incidents recounted by Mocombe, if they occurred, could be corroborated. For example, Mocombe claims he said to Barnes in the presence of two teachers, one of whom testified at the hearing, that he confronted Barnes after learning she had filed a complaint. As he described the scene, "I was like, hell, no. I didn't do anything to this heifer. I was like just Friday you were kissing me." Leaving aside the use of Mocombe's highly derogatory term "heifer," had Mocombe said such a thing in the heat of this particular moment, it surely would have made an impression upon Barnes and the other witnesses. Yet none of them was questioned about it. Rather, Mocombe expects the trier of fact to accept his version because, as he put it, "Come on now. Hey, I'm a good looking man. Not only that, I'm intelligent too I don't know what [sic]. So she is ridiculous. But you know what, she got that off. They set me up. It's good. I like that." Upon receipt of the written complaints from Bryant and Barnes, Patton, in accordance with School Board procedure, informed Mocombe of the charges and instructed him not to contact either complainant. According to Patton, Mocombe's response to the accusations was nonchalant. In fact, Mocombe was enraged. He ignored Patton's no-contact directive and approached both Barnes and Bryant in an effort to convince them to drop their complaints. This is how Mocombe described the scenes when he made his unauthorized approaches to Barnes and Bryant: "You know what the fuck, I'm sorry whatever [sic], just cancel this shit. . . . And then I went over to Tracey Bryant, and I was like what, you were having a bad day. I was asking you are you pregnant. She was like, yeah, she was having a bad day. Ms. Russell asked me to apologize. I like apologized. And that was it. That was it. And Ms. Bryant said she was going to drop it, and then that was it. " Elsewhere in his testimony, Mocombe described the post-complaint encounter with Barnes in more detail: ". I walked to her classroom . . . I was like what the fuck is your problem. Are you a psycho. What's the [sic] fuck. You know what, I actually said you are a fucking nut bag. What the hell is this. She was like---she sat on the desk. She got on the desk and was like I'm afraid of you Mocombe. I was like what the fuck is wrong with you. I am like are you a psycho. I am like are you psychotic." Because Mocombe is not charged with insubordination or any other infraction based upon his disregard of the instruction that he not communicate with Barnes and Bryant, ordinarily testimony about these communications would be irrelevant and inadmissible. But, Mocombe did not object to testimony about these communications from School Board witnesses, and was eager to talk about these encounters himself. Mocombe appears to view his accounts of these incidents as exculpatory. To the contrary, if Barnes had ever pursued a sexual relationship with Mocombe, one would expect that his tirade about her complaint would have taken a very different form. Mocombe's testimony on cross-examination provides additional insight into Mocombe's sense of entitlement to disregard basic standards of civility and respect towards colleagues, and to view any attractive co-worker as a potential sex partner. This passage, which summarizes Mocombe's view of the charges against him, is instructive on that point, and also contains an additional admission that he was seeking to have sex with Barnes: Can you get to the real issue here? I don't believe Mortimer is the actual issue here. The actual issue is regarding Kim Barnes and Tracey Bryant. Simply add that on to show some kind of -- that I'm an ineffective teacher. I'm a brilliant teacher. Even Patton will admit to that fact, and nothing here has anything to do with my ability to teach. Because I'll be frank, I'm a brilliant teacher, I'm 27 years old. Continue. Q. Thank you. Let's then go on to the major issue. The heifer as you described Ms. Barnes, you were just seeking to have sex with her; is that right? A. For the most part, yes. (Transcript page 295, lines 11-24). On this and several other occasions during his testimony, Mocombe stated, "I'm 27," in contexts which suggested that in his view, his youth exempts him from standards of conduct which apply to older people. The law makes no such distinction. The common thread which runs through the testimony of witnesses for both sides is that Mocombe believes his youth, good looks and personality exempt him from the constraints of middle class morality, to the extent that it demands that teachers exhibit basic respect for all persons, whether or not, in the teacher's opinion, such respect is deserved. Mocombe is a young man of obvious intelligence and charisma, and Patton did him a disservice in turning a blind eye to his refusal to conform his conduct to the requirements of the standards of his profession. Even at the hearing, Mocombe was unable to control his desire to articulate, in crude terms, his contempt for those he disrespects. This exchange from Mocombe's cross-examination is illustrative: Q. All right. And you also touched her body parts; is that correct? A. Sure. Don't you touch your wife? (Transcript page 298, lines 6-8). Asked at the hearing if he acted inappropriately toward Barnes, Mocombe replied, "According to her I did. No, I honestly don't think so, no. I thought it was in jest. . . . I thought it was just we were something. I didn't just fall off the turnip truck for Christ's sake. I have a Ph.D. in philosophy. Anyway. No, I don't feel I acted inappropriately to Ms. Barnes." Mocombe has had months to think about it, but he continues to adhere to the belief that he is entitled to give free rein to his hedonistic impulses, and to express them in the crudest possible terms. Based upon the undersigned's careful observation of the parties and witnesses under oath, and throughout the hearing, and after careful consideration of the record as a whole, the suggestion by Mocombe and his witnesses that Barnes pursued Mocombe and was a willing participant in make-out sessions with him is expressly rejected. Neither has Mocombe proven a conspiracy by the friends of his former lover to destroy Mocombe's career. Even if School Board witnesses are motivated in whole or part by affection for Hope, and there was no competent evidence to support this view, the question of whether Mocombe may be lawfully terminated must be determined with reference to his conduct, and not the joy, or lack thereof, which witnesses may feel at the outcome. Prior disciplinary history: There is a theme which runs through the incidents which give rise to Mocombe's current difficulties. The common denominator is immaturity. Mocombe does not have an adult understanding of how his behavior offends contemporary standards of appropriate workplace behavior, and the corrosive impact of his coarse language and preoccupation with sex upon the professional environment which the public has a right to expect in its schools. In his short teaching career, he has received three reprimands, all relating to incidents in which he was unable to follow well known rules of acceptable workplace communication. Mocombe received his first reprimand while still a substitute teacher at Sunrise, where Patton was principal. He was reprimanded for using inappropriate language in the presence of students. The reprimand, dated January 5, 1999, included a directive requiring him to enroll in a teacher training class. On April 11, 2000, Mocombe was reprimanded for unprofessional and profane comments made toward his former lover, Hope. Mocombe's tirade occurred in Patton's presence. Mocombe screamed at Hope such comments as, "Fuck you, you bitch--yeah I fucked you, you ain't nothing but a damn whore; you're nothing but a good fuck; I am gonna put my foot up your ass." The letter of reprimand regarding this incident cited Rule 6B-1.006 which requires that educators refrain from engaging in "harassment or discriminatory conduct which unreasonably interferes with an individual's performance or professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. " The letter specifically warned that further misconduct of any nature could result in termination of employment. On January 10, 2001, Mocombe received a letter of reprimand for sending a chain letter to all of his teaching colleagues at Lauderhill in violation of well-established school board policy prohibiting the use of the in-house email system for communications unrelated to work. Mocombe's testimony revealed a complete lack of understanding that he has done anything wrong. Instead, he believes he is being "railroaded" in these proceedings. Based upon his prior disciplinary history, and the manner in which his defense was conducted, the conclusion is inescapable that if reinstated, Mocombe would continue to exhibit, during working hours, his passion for "revolution, education, and hedonism" in whatever manner he pleases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order discharging Mocombe from further employment in the Broward County Public Schools. DONE AND ENTERED this 14th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings 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 this 14th day of March, 2003. COPIES FURNISHED: Robert F. McKee, Esquire Kelly & McKee 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316-1924 Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issues in this matter are as follows: (a) whether Petitioner followed all procedural requirements before deciding to terminate Respondent's employment as a teacher; and whether Petitioner properly determined that Respondent's employment as a teacher should be terminated.
Findings Of Fact In 1985, Respondent received her Florida Teacher Certification, qualifying her to teach elementary education, Grades 1-6. She continues to hold that certification. Respondent worked as a substitute teacher in Petitioner's elementary, middle, and high schools for 13 years before she was hired as a full-time teacher in 1998. Thereafter, Respondent taught the following classes at the following schools: (a) from 1999–2003, “literacy” and language arts to sixth and seventh graders at Paxon Middle School; from 2003-2004, third graders at John E. Ford Elementary; from 2004-2006, first graders at Lake Lucina Elementary (Lake Lucina); (d) from 2006-2007, first graders at Arlington Heights Elementary (Arlington Heights); and (e) from 2007-2008, fourth graders at Sabal Palm Elementary (Sabal Palm). Throughout her tenure as a full-time teacher, school principals evaluated Respondent's performance on an annual basis. During school years 2006-2007 and 2007-2008, Petitioner used the Teacher Assessment System (“TAS”) as the primary method to evaluate Respondent's teaching ability. The TAS measures teaching performance based on nine different “Competencies.” These Competencies, listed in the 2006-2007 and 2007-2008 versions of the TAS include the following: (a) Promotes student growth and performance; (b) Evaluates instructional needs of students; (c) Plans and delivers effective instruction; (d) Shows knowledge of subject matter; (e) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (f) Shows sensitivity to student needs by maintaining a positive school environment; (g) Communicates with parents; (h) Pursues professional growth; and (i) Demonstrates professional behaviors. Under the TAS, a school administrator (usually the principal) evaluates teachers based on three scheduled classroom observations. During the observations, the principal uses the Teacher Assessment Instrument (“TAI”) to collect data and identify “indicators” associated with each Competency. In evaluating a teacher’s overall performance, principals may also consider informal, unannounced observations. The Classroom Observation Instrument (“COI”) is an earlier version of the TAI. The COI contains the same Competencies as the TAI, though they appear in different order. The “Evaluation of Professional Growth of Teacher” is a summative evaluation form used during the final annual evaluation conference. The form reflects the teacher’s final rating as to each Competency and the principal’s overall performance rating for the school year. The TAS procedures provide as follows in pertinent part: TAS Procedures-Principal/Supervisor PLEASE NOTE: One purpose of the TAS is to assist the employee to improve performance. Performance problems are best addressed early. If an informal observation or classroom visit indicates possible performance problems then the principal should immediately arrange to initiate a formal classroom observation using the TAI. Conduct an initial orientation for all instructional employees to be evaluated by the TAS. This should occur during pre- planning and include at minimum, 1) an overview of the forms and procedures, 2) a description of the competencies and their indicators, and 3) your schedule for observation activities. Pre-arrange with the employee at least one instructional session to be formally observed. Conduct a pre-observation conference with the employee. Discuss with the employee information regarding the lesson plan, targeted students and methodology. A pre-observation conference must occur. Conduct the observation using the TAI. All competency indicators that are observed during this observation will be checked on the TAI. Complete the TAI for all competencies/indicators not completed during the classroom observation. After the instrument has been completed, review and rate the data, and prepare the report to share with the employee. Within five (5) working days, schedule and conduct a post-observation conference with the employee to provide feedback. During the post-observation conference, review the TAI with the employee. Identify any problematic areas. At this time, schedule a conference to develop a success plan for employees who potentially may receive an overall unsatisfactory evaluation. This action must take place within two (2) weeks of the post conference but prior to February 1. During this time, a letter of Potential Unsatisfactory Evaluation must be given to the employee. Close the conference by signing all appropriate documents and securing the employee's signature of receipt. Follow the time line provided in the manual to ensure compliance with the reappointment process and to ensure due process for the employee. If a teacher demonstrates deficient performance under any Competency, a "Success Plan" is written in collaboration with the teacher. The Success Plan identifies areas of weakness by Competency, sets out objectives, and provides timelines to meet the objectives. A Success Plan Team includes the teacher, school administrators, colleagues that have expertise in the relevant subject matter, “resource” teachers or “coaches,” and, at times, a teachers’ union representative. According to the TAS, personnel decisions will be appropriate if the timeline and the following steps are followed: Notify the employee in clear and simple written communication(s) regarding your specific performance expectation as identified by the competency indicators on the TAI. Explain to the employee in oral and written detail the deficiency(ies) from the previously stated expectation(s). (Be specific by noting the time factors, place, circumstances, principal observations). Arrange with and/or for the employee to receive appropriate training or other assistance as needed in order to improve the deficiency(ies) noted on the TAS Success Plan. Record in writing any offers of help. Time any communication(s) to the employee so there is sufficient opportunity for the employee to correct deficiencies. The Success Plan Team (including the identified employee) must meet frequently to review the status of the implementation of the plan and the employee’s progress. While teaching first graders at Lake Lucina, Respondent elected to transfer to Arlington Heights in school year 2006-2007. Robert L. Snyder was, and still is, the principal of Arlington Heights. Upon meeting Respondent, Mr. Snyder considered Respondent as a pleasant and likeable person. However, because Respondent received an unsatisfactory evaluation the prior year, Mr. Snyder arranged for the development of a Success Plan for Respondent. With Respondent's input, the Success Plan Team drafted a Success Plan to be implemented at Arlington Heights. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. It was finalized and signed by Ms. Hunt in October 2006. The Success Plan Team included experienced teaching coaches. The coaches modeled instruction in Respondent's class on several occasions. Mr. Snyder conducted three formal observations and observed Respondent’s teaching performance informally on several occasions. During his visits to the classroom, Mr. Snyder would see students doing worksheets amounting to “busy work” which had no apparent connection to instruction or evaluation. Mr. Snyder kept personal notes documenting Respondent's tardiness to school on several occasions. He also noted her tardiness to workshops and in-service programs, including an in-service program focused on a reading assessment system for first graders known as Developmental Reading Assessment (DRA). On or about January 30, 2008, Mr. Snyder intended to deliver a letter to Respondent, advising her that she was at risk to receive an unsatisfactory evaluation for the year. When he went to Respondent's classroom, Mr. Snyder discovered that Petitioner was absent and had left no plans for the substitute teacher. The school policy required teachers to have three days of substitute plans in case of an unexpected absence. While Mr. Snyder assisted in the development of plans for the substitute teacher, he observed incomplete and blank DRA data collection forms. The forms did not indicate the students' levels of reading ability or the strategies put in place to enhance areas of weakness. Mr. Snyder also observed the teaching assistant doing work which should have been done by Respondent, such as grading papers. When Respondent submitted her lesson plans to Mr. Snyder, he observed that Respondent was not actually teaching the lesson plans to her class. Mr. Snyder also noted a lack of grades in Respondent's grade book. Mr. Snyder brought these concerns to Respondent's attention verbally and in writing. Throughout the school year, Respondent had a full-time paraprofessional/teacher’s assistant (“TA”) in her classroom. Mr. Snyder observed tensions between Respondent and her TA, as well as a second TA. The working relationship between Respondent and her TA deteriorated through the year. On one occasion, Respondent left her class of first graders completely unattended by an adult for twenty minutes. Mr. Snyder knew Respondent was in the office working on the computer when he saw Respondent's unsupervised students. On another occasion, Mr. Snyder saw Respondent who appeared to be videotaping students in a common hallway. The school did not have parental permission to videotape some of the students in another teacher's class. Mr. Snyder retrieved the videotape and discarded it. Respondent did not attend certain conferences with Mr. Snyder (including at least one formal pre-observation conference). Additionally, it was difficult to conduct meetings with the Success Plan Team because Respondent always insisted that an outside union representative instead of the building representative attend the meetings with her. Scheduled meetings with Respondent were delayed or cancelled on a number of occasions because an outside union representative was not available. Mr. Snyder formally observed Respondent and completed TIAs on December 15, 2006, February 6, 2007 and March 14, 2007. Mr. Snyder had a conference with Respondent before and after each formal observation to discuss the TIAs. Respondent signed each TIA. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 15, 2007. Reflecting the findings on the TIAs, the annual evaluation showed unsatisfactory performance in the following Competencies: Promoting Student Growth and Performance; Planning and Delivering Effective Instruction; and Demonstrates Professional Behaviors. The evaluation also showed a “Needs Improvement” rating in the following Competencies: Evaluates Instructional Needs of Students; Utilizes Appropriate Classroom Management; and Parent Communications. Respondent received and signed the annual evaluation. In school year 2007-2008, Respondent elected to transfer to Sabal Palm. At the new school, Respondent taught reading, writing and science to a fourth-grade class. Respondent's co-teacher, Kim Stancil, taught math and social studies. There were approximately 26 students in the class. The principal at Sabal Palm was, and still is, Mary Mickel. Because Respondent received an unsatisfactory evaluation the prior year, Ms. Mickel initiated a Success Plan for Respondent. Respondent signed a final copy of the plan on December 11, 2007. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. The Success Plan Team consisted of Ms. Mickel, other teachers, a “standards coach," and a “reading coach.” Ms. Stancil retired on October 29, 2007. A new co- teacher, Christie Callison, began teaching in January 2008. Ms. Mickel became concerned when Respondent failed to attend grade-level meetings. After receiving encouragement from Ms. Mickel, Respondent began attending the meetings but did not actively participate. Ms. Mickel had several parents call to complain about how Respondent treated their children or how their children were doing in Respondent's class. Ms. Mickel participated in at least one parent/teacher conference to resolve a parent's concerns. Ms. Mickel visited Respondent's classroom from time to time throughout the school year. Ms. Mickel conducted four formal evaluations of Respondent's performance. The formal observations took place on the following dates: September 13, 2007; November 19, 2007; January 28, 2008; and March 5, 2008. Ms. Mickel provided Respondent with advanced notice of the formal observations. Ms. Mickel had a conference with Ms. Hunt before and after the observations. During the formal observations, Ms. Mickel used the COI instrument to document indicators of performance under the nine Competencies. Respondent does not challenge Ms. Mickel's use of the COIs versus the TIAs. Ms. Mickel observed Respondent using materials and teaching subjects that were not age-appropriate for fourth graders. For instance, Respondent based a lesson on a book typically used with 1st graders. Ms. Mickel discussed this with Respondent and commented on the subject in the COIs. As time passed, Ms. Mickel observed Respondent's continued failure to properly assess student performance and failure to tailor instruction to student needs. Respondent had opportunities to participate in grade- level training on a weekly basis. She was allowed to observe other teachers in her school without having to take personal time. Respondent's coaches came into her class, prepared a lesson plan with her, and modeled the instruction. According to Ms. Callison, Respondent refused to collaborate with planning and instruction. Respondent did not want, give or receive assistance from her co-teacher. Respondent typically did not provide direct instruction to the students. Instead, Respondent gave the students “busy work” via worksheets that had nothing to do with the required curriculum. Respondent openly classified students by ability, using terms such as “middle group” and “low group.” Respondent would then have students grade each others’ papers and report the grades out loud to Respondent in class. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 14, 2008. Reflecting the findings on the COIs, the annual evaluation showed unsatisfactory performance under the following Competencies: Evaluates Instructional Needs of Students and Plans and Delivers Effective Instruction. Respondent obtained a “Needs Improvement” rating in the following Competencies: Promotes Student Growth and Performance; Communicates with Parents; and Demonstrates Professional Behaviors. Respondent received and signed the annual evaluation. Respondent testified that teaching fourth grade is particularly challenging compared to teaching other grade levels. According to Respondent, fourth-grade is difficult to teach because students must take the Florida Comprehensive Assessment Test (FCAT) in math, reading and writing. Although Respondent was without a co-teacher for a portion of the 2007-2008 school term, she is certified to teach all fourth-grade subjects. More importantly, Respondent has had experience teaching reading and writing to sixth and seventh- grade students, some of whom were working at the fourth-grade level. Respondent worked with and was evaluated by seven different principals throughout the last eight years of her employment. During those eight years, Respondent's summative evaluations showed her performance as follows: (a) eight consecutive years with unsatisfactory performance in the Parent Communication Competency; (b) five consecutive years with unsatisfactory performance in the Student Growth and Performance Competency; (c) five consecutive years with unsatisfactory performance in the Planning and Delivery of Instruction Competency; (d) four consecutive years with unsatisfactory performance in the Evaluation of Student Needs Competency.
