The Issue Whether Respondent's employment with Petitioner should be terminated due to two years of unsatisfactory and unacceptable performance.
Findings Of Fact At all times relevant, the Respondent, Robert Nolan, Jr., was employed as a seventh and eighth grade math teacher at Rockway Middle School ("Rockway"). Nolan has been employed by the School Board as a math teacher since the 1987/88 school year. The School Board has adopted Rule 6Gx13-4A-1.21, V., which provides: Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, shall teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by the Rules of the State Department of Education. Article XI of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: Classroom teachers are required to develop weekly lesson plans which shall reflect one or more objectives, activities, homework assignments, and a way of monitoring student progress. Principals or supervising administrators may suggest, but not require, a particular format or organization. Only where a principal has documented deficiencies through classroom observation, using the Teacher Assessment and Development System (TADS), may a teacher be required to use a set form in preparation of lesson plans. Article XIII, Introduction, B., of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: The parties agree to the continuation of a developmental approach to improving teaching performance, using the TADS. In accordance with Florida Statutes, no disciplinary action shall be taken, based on incompetence in the absence of documentation and procedures required by TADS. Article XIII, Section 2, of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: Any teacher whose performance is assessed unacceptable in any observation category shall be entitled to a plan of professional growth practices which shall include reason- able timeframes for implementation. . . Teachers shall follow the growth practices required. Failure to implement required professional growth practices or to correct deficiencies for which professional growth was required shall constitute just cause for disciplinary action in accordance with the due process provisions in this Contract. Where an administrator has substantiated, through two formal observations, as stipulated above, that teaching is unaccep- table in any of the observation categories, DCPS may utilize diagnostic tests and assessment techniques to identify teaching weaknesses and strengths and to assist in selecting appropriate professional growth practices to improve teaching performance. . . Where teaching deficiencies are diagnosed as a result of tests or assessment techniques, DCPS shall require professional growth practices which shall be obligatory on the teacher. Respondent's employment history with the Petitioner includes numerous instances of unsatisfactory and deficient classroom performance reflecting an unwillingness or inability to fulfill his teaching duties and responsibilities. On June 2, 1993, Carole Abrams ("Abrams"), an assistant principal at Rockway at the time, reviewed Respondent's grade book and noticed that Respondent did not have complete grades for the four nine-week grading periods; Respondent was placed on notice that he was required to have a completed grade book by the end of the school year. Even though Respondent was directed to complete his grade book by the end of the school year and was offered assistance so that Respondent may complete his grade book, Respondent failed to complete his grade book as directed. On October 13, 1993, Abrams formally observed Respondent's classroom performance and found Respondent unacceptable in three categories of the Teacher Assessment and Development System ("TADS"): preparation and planning; knowledge of the subject matter; and techniques of instruction. At the time of the observation on October 13, 1993, Abrams concluded that Respondent was not following a particular lesson plan. When Abrams asked to see Respondent's lesson plans during the observation on October 13, 1993, Respondent produced lesson plans that were two years old and belonged to another teacher. During the October 13, 1993 observation, Respondent appeared confused, spent the entire lesson on one mathematical problem, was not able to demonstrate to his students how to complete the problem mathematically, and was unable to accurately answer students' questions regarding the math problem. Respondent was found unacceptable in the area of techniques of instruction due to his inability to answer students' questions, to demonstrate the mathematical process for arriving at the correct answer, or to address the necessary topics of the lesson that Respondent was attempting to give. As a result of Respondent's unacceptable classroom performance as demonstrated by the October 13, 1993 observation, Respondent was placed on prescription and was provided with assistance and activities for his performance improvement. Part of Respondent's prescription required that Respondent provide weekly lesson plans, but Respondent failed to do so, even after receiving memoranda from Abrams reminding Respondent of this requirement. On December 7, 1993, Respondent's classroom performance was observed by Patricia Duncan ("Duncan"), another assistant principal at Rockway; Duncan found Respondent unsatisfactory in the area of assessment techniques. Duncan found that Respondent's assessment of students' work was deficient because the grades in Respondent's grade book did not correlate with the days that class was in session, nor with work contained in the students' folders. During the December 7, 1993 observation, Duncan also noted that Respondent did not have the required work folders for some of the students listed in Respondent's classroom. In an effort to assist Respondent, Duncan provided Respondent with a prescription for Respondent's performance improvement which required that Respondent produce his grade book and student folders to Duncan for review and seek the assistance of the math department chairperson. On December 15, 1993, a mid-year Conference-for-the-Record ("CFR"), was held with Respondent and Jorge Sotolongo ("Sotolongo"), the principal of Rockway at the time, to address the results of Respondent's observations, Respondent's unsatisfactory performance, Respondent's failure to timely complete activities and assignments designed to help him reach an acceptable level of performance. At the CFR on December 15, 1993, Respondent was advised that if he had to remain on prescription, he would receive an unacceptable annual evaluation at the end of the 1993/94 school year. Although Respondent already had been reminded of the requirement that he complete his prescription, on February 4, 1994, Respondent again had to be notified of his failure to complete his activities and assignments as required by Respondent's prescription. On April 12, 1994, Sotolongo formally observed Respondent's classroom performance and found Respondent's performance unsatisfactory and unacceptable under TADS in: preparation and planning; and assessment techniques. During the observation on April 12, 1994, Sotolongo noted: that Respondent did not have lesson plans for the class Respondent was teaching; that Respondent's grade book showed that Respondent did not have the required two grades per week for each student; that Respondent had failed to note assignments contained in the students' work folders in his grade book; and that Respondent had failed to properly identify students in his grade book. Including the observation on April 12, 1994, Respondent had been formally observed four times during the 1993/94 school year, and Respondent's classroom performance had been found unacceptable in three out of the four observations. (An observation by Sotolongo on February 10, 1994, scored Respondent's performance as satisfactory.) Since Respondent had received three unacceptable observations during the 1993/94 school year, on May 5, 1994, Sotolongo requested that the School Board perform an external review of Respondent's classroom performance. On May 16, 1994, an external observation of Respondent's performance was conducted by: Billy Birnie, the School Board's Regional Director of Instructional Support; and the principal, Sotolongo. The external observation of Respondent's performance concluded with Respondent being rated, by both observers, unacceptable under TADS in: preparation and planning; knowledge of the subject matter; and assessment techniques. The Respondent questioned whether Birnie and Sotolongo improperly collaberated in completing their TADS observation reports on the observation on May 16, 1994. But both explained that their reports were completed separately, after which they conferred, as contemplated (and, indeed, required) by the TADS procedures. There was no evidence of any improprieties. During the external observation on May 16, 1994, Respondent failed to, and did not even attempt to, follow the lesson plans he had prepared for that day. In addition, the Respondent's lecture was not directed towards any of the objectives listed in Respondent's lesson plans, and Respondent was unable to properly present a lesson on the metric system. A review of Respondent's student work folders during the classroom observation on May 16, 1994, revealed that Respondent did not employ a variety of test formats as required by TADS; rather, Respondent used only those tests contained in the student textbook. As a result of Respondent's unsatisfactory performance and unacceptable observation of May 16, 1994, Respondent was provided with additional activities to assist him in improving his performance. Respondent failed to complete the required assignments and activities related to his unacceptable external observation of May 16, 1994. On June 8, 1994, a CFR was held with Respondent to address Respondent's continuing unsatisfactory performance, Respondent's failure to complete assigned activities, and Respondent's annual evaluation. In accordance with TADS, Respondent also was placed on prescription in the area of professional responsibility due to his failure to comply with directives regarding his assigned activities and his failure to complete the assigned activities. At the CFR on June 8, 1994, Respondent was informed that due to his unsatisfactory performance, he would stay on prescription for the remainder of the 1993/94 school year and that he would start the 1994/95 school year on prescription. By the end of the 1993/94 school year, Respondent had been formally observed five times and Respondent's performance had been rated unacceptable in four out of the five observations. On June 8, 1994, Respondent received an unacceptable annual evaluation for the 1993/94 school year, which reflected that Respondent had been rated unacceptable in: preparation and planning; knowledge of the subject matter; assessment techniques; and professional responsibility. On June 17, 1994, Respondent was notified by certified letter that, because he had received an unacceptable annual evaluation for the 1993/94 school year, Respondent was entitled to request a review of the evaluation. Respondent started the 1994/95 school year on prescription. On October 11, 1994, Respondent was again formally observed by Sotolongo and, in accordance with TADS, was found unacceptable in knowledge of the subject matter and techniques of instruction. During the observation on October 11, 1994, Respondent was unable to provide a correct answer to a mathematical word problem even after resorting to a calculator; the incorrect answer to the problem remained on the board for the duration of the class. Respondent also was found unacceptable in the area of techniques of instruction in the observation on October 11, 1994. Respondent failed to provide feedback to students who gave incorrect answers to the math problems being discussed. Respondent was prescribed activities to assist him in overcoming his deficiencies as identified in the classroom observation on October 11, 1994. He was directed to complete these activities by November 4, 1994. By November 22, 1994, Respondent still had not completed the activities. In a further effort to assist Respondent with his performance improvement, Respondent was referred to the School Board's Employee Assistance Program after Sotolongo learned that Respondent had been arrested for possession of cocaine. On December 1, 1994, almost a year after Duncan first formally observed Respondent's performance, Duncan again observed Respondent's classroom performance. Duncan found Respondent unacceptable and unsatisfactory under TADS in knowledge of the subject matter after Respondent was unable to correctly present a lesson involving graphs (instead giving inaccurate information to his students.) On December 7, 1994, a mid-year CFR was held between Respondent and Carmen Marinelli ("Marinelli"), the new principal at Rockway, to discuss Respondent's two unacceptable observations during the 1994/95 school year and Respondent's failure to complete the prescription plan activities assigned him, and to offer Respondent assistance in remediating his unsatisfactory performance. At the CFR on December 7, 1994, Respondent again was reminded that completion of his assigned activities was part of his professional responsibility, and Respondent was advised that if he did not remediate all of his deficiencies by April, 1995, his Professional Service Contract (PSC) would not be renewed. On February 13, 1995, Marinelli performed a formal observation of Respondent's classroom performance and, in accordance with TADS, found Respondent unsatisfactory in: preparation and planning; and knowledge of the subject matter. Respondent was again prescribed activities to assist him in overcoming the deficiencies identified in the classroom observation on February 13, 1995. During the observation on February 13, 1995, Marinelli noted that Respondent did not have lesson plans for his class and that Respondent was unable to correctly present a lesson which required the use of fractions. As a result of Respondent having been formally observed three times during the 1994/95 school year and because Respondent's performance had been rated unacceptable in all three observations, Marinelli requested another external observation. On March 27, 1995, Marinelli and Dr. Hector Hirigoyen, a regional mathematics coordinator, conducted an external observation of Respondent's classroom performance and found Respondent unsatisfactory in: preparation and planning; knowledge of the subject matter; and assessment techniques. During the observation on March 27, 1995, Respondent's lesson plans did not reflect any planned activities for his class, and Respondent's grade book did not contain any grades for a three-week period. Respondent also gave students incorrect information regarding a mathematics vocabulary lesson. After the observation on March 27, 1995, Respondent was prescribed still more activities to assist him in overcoming the deficiencies observed. He also was offered additional assistance from the district supervisor, assistant principal, or department chairperson. By letter dated March 28, 1995, Respondent was notified by the Superintendent of Schools that the deficiencies noted in Respondent's performance during the 1993/94 school year had not been corrected and that the Superintendent was recommending that Respondent not be issued a new PSC. Additionally, the Superintendent's letter of March 28, 1995, notified Respondent that assessment of Respondent's performance would continue for the remainder of Respondent's contract. On May 3, 1995, Marinelli held a CFR with Respondent to discuss the status of his prescription, to remind Respondent that if he remained on prescription he may not be reappointed, and to review Respondent's interim annual evaluation of unacceptable performance. On May 12, 1995, Martha Boden, an outside observer, conducted a formal observation of Respondent's classroom performance and found Respondent's techniques of instruction to be unsatisfactory. Boden cited Respondent's failure to allow students to answer questions and failure to determine whether students understood the lesson being given as the reasons for Respondent's unacceptable performance. During the observation on May 12, 1995, when the school year was close to ending, the outside observer also found that Respondent had only two grades per student in his grade book. On June 9, 1995, Marinelli held another CFR with Respondent to address Respondent's unsatisfactory performance during the 1994/95 school year and to advise Respondent that, since he had not remediated his deficiencies, he would receive an overall unacceptable annual evaluation, and that his PSC would not be renewed. On June 9, 1995, Respondent received an unacceptable annual evaluation for the 1994/95 school year in: preparation and planning; knowledge of the subject matter; techniques of instruction; and professional responsibility. The Respondent has argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of offense taken at his expression of "concern with the inadequacies of the textbooks that he was directed to use in his math classes." This argument is rejected. First, the Respondent's testimony on the textbook argument consisted of speculation that one assistant principal who evaluated him (Carole Abrams) might have taken offense when the Respondent went "over her head" and took direct action to have copies of textbooks delivered to the school. According to the Respondent's testimony, this argument would not apply to any of the other educators who observed the Respondent and judged his performance to be less than satisfactory. In addition, the Respondent did not testify that any offense was taken even by Abrams at the Respondent's insinuation that the textbooks were inadequate. There was no evidence that the textbooks were inadequate; rather, the evidence was that they were new and that the Respondent wanted to use his old textbooks because he was more accustomed to and comfortable with them. The Respondent also argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of envy on account of his successful application for grants from the School Board. Although this argument is based on testimony from the Respondent, that testimony is rejected. It is not found that any, much less all, of the educators who observed the Respondent and judged his performance to be less than satisfactory were envious of the Respondent's grants, or that any of their evaluations were affected by the Respondent's grant applications or grants. The Respondent also argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of TADS's inflexibility and inability to fairly evaluate the Respondent's performance under his grants. However, the Respondent's grants had no impact on lesson planning or grading, or on the evaluation of his performance in those areas under TADS. (Indeed, in response to criticism that he had no lesson plans, the Respondent produced another teacher's lesson plans from a time period that preceded the Respondent's grant by two years and claimed that he was following them. As for grading, the Respondent already had been cited under TADS for failing to maintain sufficient grades in his grade book during the 1991/1992 school year, which was before he started implementing his first grant.) As for teaching techniques, another area in which the Respondent consistently performed poorly, it is found that TADS was flexible enough to allow for a fair evaluation of the Respondent's performance under his grants. TADS was specifically formulated to allow for any type of effective teaching and for a variety of teaching methods, and the areas observed under the techniques of instruction category would not conflict with an individual teacher's teaching style or method. The problem was not that the Respondent was teaching under a grant; the problem was that he was not teaching well, grant or no grant. (Indeed, for most of the time the Respondent claimed to have been utilizing special teaching techniques under the grant to "teach down" to students in the "At Risk Program" to prevent them from dropping out, he testified that he actually was teaching mainstream students; the problem was the Respondent's inadequacies, not his students.) The Respondent also argued in his Proposed Recommended Order that he did not get the assistance to which he was entitled so as to improve his unsatisfactory performance. But the proof of the School Board's attempts to assist the Respondent was overwhelming. Indeed, in the face of the evidence, at final hearing, the Respondent testified to the exact opposite of what he then argued in his Proposed Recommended Order--he complained that he was given too much assistance, which hindered his attempts to improve his performance. 1/ Other arguments the Respondent attempted in the course of his testimony were not even argued in his Proposed Recommended Order. The Respondent testified that some of the people from whom he sought assistance seemed afraid to help, but he did not identify who these people were, and it is not found that anyone declined to help the Respondent out of fear of repercussions. He also testified that he was unable to take advantage of planning periods to prepare lesson plans because he was required to cover for other teachers who had to miss classes to coach softball, but softball season was in the spring and could not excuse the Respondent's failure to prepare lesson plans in the fall and winter. The Respondent also testified that he tried to avoid having to cover for teachers while he was on prescription and that the persistence of these teachers indicated that administrators had overridden the Respondent; but neither the teachers nor the admin- istrators were identified, and it is not found that any administrator required the Respondent to cover classes for those teachers while he was on prescription. The Respondent also testified that the grant required him to do extra work arranging field trips, leaving him less time for lesson planning, teaching and completing prescrip- tions; but, in the 1994/1995 school year, the Respondent used some of his grant money to hire a "para-professional" to help him.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Dade County enter the final order: (1) that Robert Nolan, Jr., not be issued a new Professional Service Contract; (2) that Robert Nolan, Jr., be dismissed as an employee of The School Board of Dade County, Florida; and (3) that Robert Nolan's suspension of April 12, 1995, be sustained and that he receive no back pay for the period of this suspension. RECOMMENDED this 24th day of October, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 24th day of October, 1996.
The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 30th day of December, 1996.
The Issue The issue to be resolved in this proceeding concerns whether the Leon County School District has just cause, as defined in Section 1012.34(3)(d), Florida Statutes (2006), to end the Respondent's tenured employment as a teacher, due to allegedly deficient performance.
Findings Of Fact The Respondent, Mr. Waters, has worked as a Special Education Teacher in Leon County for approximately 13 years. He most recently has worked in the field of Special Education at Oakridge Elementary School (Oakridge), starting in the school year 2001-2002 and ending in December 2005. Mr. Waters is married and has two children by a former wife, with whom he shares custody of his children. He has volunteered for 18 years as a Troop Leader for a troop of disabled Boy Scouts in Tallahassee. He has been recognized for those efforts by being the recipient of the Tallahassee Memorial Hospital Foundation's "everyday hero" award. He has also been a finalist for the Tallahassee area "volunteer of the year award" in 2005. When Mr. Waters was hired at Oakridge Elementary School he was interviewed by the head ESE teacher or "team leader", Donna George. He was chosen for the available position from three or four final applicants, based upon her favorable view of the qualities he could bring to the position, which she still believes to be the case. During the 2001-2002 school year the principal at Oakridge was Michelle Crosby. Ms. Hodgetta Huckaby was the Assistant Principal. Sometime during that school year Mr. Waters encountered a problem involving two of his students being engaged in an after school fight. He apparently referred the students for discipline to the Assistant Principal, Ms. Huckaby, and she sent the students back to his class. He disagreed with this disciplinary decision and appealed the matter to the principal, Ms. Crosby. Ms. Crosby resolved the disciplinary matter in favor of Mr. Waters' position. Ms. Huckaby thereupon called Mr. Waters to her office to upbraid him and express her anger at his having "gone over her head." After a heated exchange between the two she told the Respondent to "never come back into my office for any reason." Thereafter, for the remainder of his tenure at Oakridge their relationship was very strained, especially during the time Ms. Huckaby was Principal, which began at the beginning of the following year, the 2002-2003 school year, after Ms. Crosby left Oakridge and was replaced by Ms. Huckaby. In order to replace Ms. Huckaby's vacant former position as assistant principal, the District assigned Kim McFarland as the new assistant principal in the fall of 2002. Prior coming to the assistant principalship at Oakridge, Ms. McFarland had served as a fifth grade regular classroom teacher for 10 years in the District. She had no prior administrative experience and had no experience in Exceptional Student Education. Her degree field is in the area of elementary education. After the events at issue in this case, Ms. McFarland left Oakridge, on July 1, 2006, to become the assistant principal at Swiftcreek Middle School. Ms. Huckaby and Ms. McFarland jointly performed the annual evaluation of the Respondent for the 2002-2003 school year. They used the "Accomplished Teacher Performance Feed Back Summary Form." Mr. Waters's overall rating for that year was "at expectancy level." Ms. McFarland wrote several positive comments concerning his performance on that document, but he also received ratings of "below expectancy" in two areas, teacher performance improvement and professional development. Also, in the Spring of 2003, Ms. McFarland observed his class on or about April 23, 2003. She was positive about that evaluation and wrote Mr. Waters a note wherein she indicated that he had "presented a great lesson" and that his students were engaged and on task. She praised him for monitoring student behavior using a behavior management point system and found his room "exciting" because he displayed a great deal of students work on the walls. In the 2003-2004 school year, specifically in November 2003, Ms. McFarland informed Mr. Waters that his lesson plans were not adequate because he was failing to incorporate a new component which required that notations of student remedial reading levels be made, represented by "lower case" roman numerals. She required him to submit his lesson plans to be reviewed each Monday while he was seeking to improve his lesson plans. Thereafter, on April 26, 2004, Ms. McFarland notified the Respondent that he had satisfactorily complied with lesson plan requirements and no longer needed to submit lesson plans for review each Monday. She also emphasized in that letter of April 26, 2004, that he should adhere to his lesson plans, as prepared, in his teaching presentation to the extent possible, so that when administrators observed his room they would be able to determine exactly what he was performing at the time simply by looking at his lesson plan book. In the meantime, Mr. Waters was given an improvement notice on February 20, 2004, by Ms. McFarland. This was because of her concern that he was not fully cooperating with procedures and recommendations concerning behavior management; recommendations made by behavior management consultants on contract with the School Board. Those consultants were working with him and his emotionally handicapped (EH) student class at that time. During their meetings and contacts with Mr. Waters and his EH student class that year he had exhibited a good level of agreement and cooperation with their recommendations to him regarding changes in behavior management methodologies for his class, but the consultant, Dr. Adams, perceived that he was slow or reluctant to actually carry them out. Later in the spring of that school year, Dr. Adams took Mr. Waters on a tour at Kate Sullivan Elementary and another school, to observe how behavior management models or methodologies were employed in EH classes at those schools and which Dr. Adams opined he was later reluctant to implement in his own class. They communicated these concerns about his perceived intransigence in changing his behavioral management style or methodology to the administration at Oakridge, which resulted in the February 20, 2004, improvement notice from Ms. McFarland. Significantly, however, Ms. Haff, in her observations of the Respondent's performance during the following school year found that he had received the higher level of training in the "Champs program" concerning behavioral management, and had been and was successfully implementing it in his class and with his students to a great degree, although, of necessity, adapting it to the needs of his students and his role then as a resource teacher, rather than as a discrete EH classroom teacher during the following 2004-2005 school year. Ms. Huckaby changed his assignment from duty as a direct class EH teacher to that of "resource teacher" after the 2003-2004 school year. Mr. Waters had a meeting with Ms. McFarland on February 20, 2004, to discuss that improvement notice, and her concerns that he was not fully cooperating with the recommendations of the behavior management consultants in terms of not carrying out their recommendations. During the course of that meeting she stated, "You know its not me that’s behind this" implying to him that Ms. Huckaby was actually the instigator of the improvement notice concerning this subject matter. Apparently Mr. Waters contacted union officials for the Leon County Teachers Association (LCTA) complaining that the improvement notice was too general and did not specifically point out what must be done to correct the perceived problem. In response to those concerns, in part, Ms. McFarland issued a subsequent improvement notice on April 27, 2004, with a few more specific expectations and which updated the status of Mr. Waters's efforts to address the concerns raised in the February 20th revised improvement notice. Ms. McFarland observed Mr. Waters' class on March 11 and March 16 and did a "part A" teacher's assessment document for each observation. Mr. Waters was due to be evaluated using the Accomplished Teacher Summary Form for 2003-2004 and so the assessment part A form was not required to be completed for him. Nonetheless, Ms. McFarland told Mr. Waters that these were really informal observations and she was completing these observation forms in order to get some practice using them since it was her first year as an administrator, formally observing and evaluating teachers independent of Ms. Huckaby. The Respondent did not get a copy of these assessment part A documents until June of that year and did not get an opportunity to discuss them with Ms. McFarland. Ms. McFarland also completed the Accomplished Teacher Feedback Summary Form for the 2003-2004 school year. That form states that overall assessments must be satisfactory if all the required areas are completed. Ms. McFarland described Waters' performance unfavorably in the "comments" section of the form and gave him an overall performance rating of "below expectancy level." He received this Accomplished Teacher Summary Form rating document on or about September 22, 2004. During the month of October he inquired of Ms. McFarland, union officials, and school district officials concerning the meaning of his overall "below expectancy" rating for the 2003-2004 school year. Apparently an attorney for the school district informed him that the evaluation was considered satisfactory on the Accomplished Teachers Summary Form, unless school administrators produced an evaluation document that indicated an overall "needs improvement" rating. Ms. McFarland had informed him that the Accomplished Teacher document reflecting the below expectancy rating was his only official evaluation. Although Mr. Waters received confirmation that the use of the Accomplished Teachers Summary Form rendered his 2003-2004 evaluation to be automatically a satisfactory one, it is also clear that Ms. McFarland intended to give him the below expectancy rating and for some reason mistakenly used the wrong form and procedure. During October 2004 the Respondent met with Ms. Huckaby to discuss some matter unrelated to his performance rating. During the course of that meeting, at which only Ms. Huckaby and the Respondent were present, Ms. Huckaby became angry at the Respondent and engaged in a tirade, calling him "the worst teacher she had ever seen, as well as making other unprofessional comments." Mr. Waters then stated to the effect that he did not think he was such a bad teacher since he had consistently received satisfactory evaluations. Ms. Huckaby then indicated that she felt he had received a needs improvement evaluation for the 2003-2004 school year, to which Mr. Waters retorted that based upon the Accomplished Teachers Summary Form being used his evaluation was deemed to be satisfactory overall. Ms. Huckaby then angrily threatened him with an unsatisfactory evaluation for the upcoming 2004-2005 school year. Only a week or two elapsed after this meeting and comment by Ms. Huckaby when, at Ms. Huckaby's behest, Mr. Waters inclusion class was changed to a "pull-out reading group," meaning that he then had to work with a new reading curriculum and plan his own reading lessons using that curriculum instead of relying upon and carrying out the regular classroom teacher's daily lesson plan reading goals, which had been the program he had been instructed to perform previously. Ms. Eydie Sands was dispatched by Ms. Huckaby to observe Mr. Waters' reading class and made critical observations during follow-up meetings with Mr. Waters and Ms. Huckaby; the team-taught writing group jointly taught by Mr. Waters and Ms. Wacksman, which had worked well in rendering progress to the students in writing, was abruptly separated into two sections by Ms. Huckaby with no explanation or apparent reason; thereafter on approximately November 6, 2004, Ms. Huckaby gave Mr. Waters a lengthy letter of harsh criticism as to almost all aspects of his teaching performance and directed him to immediately comply with 13 directives contained in the letter. Additionally, Mr. Waters' 2004-2005 school year resource teacher schedule was changed five times, adding further confusion to an already difficult year, which started with a new classroom assignment. The new room was piled high with boxes of materials for many teachers and classrooms other than his own. This circumstance required him to spend his entire pre-planning time moving and clearing out his newly assigned room so that he could use it. Significant changes and requirements were imposed for lesson plans, student progress monitoring requirements, and the new A3 computerized IEP technology, as well as a substantially increased amount of related paperwork burdens placed upon all teachers at the school, including Mr. Waters, through Ms. Huckaby's policy directives. One directive in the November 6, 2004, letter from Ms. Huckaby required Mr. Waters to again submit weekly lesson plans to school administrators by 8:00 a.m. every Monday morning. The normal procedure provided for having lesson plans to be examined from time to time, after advance administration notice to the faculty of their lesson plan review dates. Despite lesson plan component changes made unilaterally by the administration in both the 2004-2005 and 2005-2006 school years which added several time-consuming, ill-defined requirements to the previous less formal structure for lesson plans, the Respondent's lesson plans during those years remained detailed and organized when compared to those of his fellow special education teachers who apparently were deemed to have performed this task appropriately. In carrying out this instruction Mr. Waters tried to obtain model lesson plans and to incorporate the new requirements into his plans. They were consistently unacceptable to Ms. Huckaby, however, and ultimately cited as one of the reasons for his termination recommendation. Similar, and even less detailed lesson plans of his colleagues that had been found acceptable, were not reviewed or remained the same even after administrators provided plan improvement instructions, without those teachers being subjected to discipline therefor. In an effort to comply with the directive concerning his lesson plans and because the new lesson plan components imposed were difficult to understand and reasonably apply, especially for an ESE teacher and students, Mr. Waters sought to obtain model plans and lesson plan advice, but received little or no meaningful help. His mentor teacher assigned for 2004-2005, Michelle Smith, did not respond to his request for samples of her lesson plans. The Oakridge administration gave him only limited excerpts of two teachers' lesson plans for 2004-2005, which were confusing and did not themselves comply with the new lesson plan format imposed that year. In the 2005-2006 year the Respondent was not asked to submit lesson plans on a weekly basis and received no assistance with lesson plans until Ms. Palazesi, who was observing his class or classes that fall, in early November, wrote a model lesson plan, adapted from one of his actual lessons. Ms. Palezesi, however, was not aware of the lesson plan requirements in place at Oakridge then, and even her lengthy lesson plan sample, for just one class period, did not meet all of Oakridge's lesson plan criteria imposed for 2005-2006. It is noteworthy that the lesson plans for 2004-2005 and 2005-2006 of teacher Charles Robshaw, also a resource teacher for Special Ed at Oakridge clearly do not comply with the lesson plan requirements. This fact serves to corroborate the Respondent's contention that only he was held strictly accountable for the administration's excessively detailed and to some extent non-germane lesson plan requirements. In both pertinent school years the Respondent was deemed deficient by Ms. Huckaby and Ms. McFarland in terms of timely or fully complying with student progress monitoring test data compilation requirements. The Respondent did keep abreast of his students daily classroom progress and maintained files on their work and test papers. In the 2004-2005 school year, however, in the early part of the year (September thorough mid- November) he encountered problems in timely complying with submitting the "cover sheet" student progress test data information as part of the curriculum notebook he was required to supply the administration, through the mechanism of either monthly or bi-weekly progress monitoring meetings between teachers and the administration. He was given a needs improvement notice as to this issue, and as the year progressed, he complied with these requirements. In the 2005-2006 school year he inadvertently missed the initial progress monitoring meeting because he became confused as to when his fourth grade team was supposed to meet for the progress monitoring session and he candidly admitted that was his own mistake. Ms. McFarland did not criticize him for that, but simply reminded him that he had missed the meeting. A subsequent meeting early in the fall of 2005 was scheduled with Ms. McFarland and he did attend with his notebook (or other required data) for a 3:00 p.m. meeting. He had an pre-existing appointment after school at 3:30, which he could not miss, and he informed Ms. McFarland of that fact. She excused him from the meeting. After those two early progress monitoring meeting discrepancies in September 2005, however, the Respondent complied with his progress monitoring requirements and those issues were not again raised with him, until raised as one of the reasons in Ms. Huckaby's final decision in late December 2005 as to why she recommended his termination. Significantly, the school administration only checked to see that teachers other than Mr. Waters had completed similar student data compilations only once or twice early in each school year. Subsequently, each year the administration was less interested in actually inspecting such data and course test score charts plotted on spread sheets/graphs by most teachers. In neither of the two school years in question was Mr. Waters given a full planning period or a week after students arrived to prepare for his resource assignment ESE students. These are privileges which were customarily given to resource teachers in prior years. Despite the meager planning time he was accorded on the administrator's schedule, in reality he lost significant valuable planning time by escorting students to and from classes and due to his morning duties. Adequate planning time is crucial to the work of special education teachers, particularly if one is deemed to be struggling with lesson planning, IEP preparation and timeliness issues, and related A3 IEP technology time demands. The Respondent asked for schedule changes to improve his ability to meet the new administration demands, as, for instance, to allow time during the day to input IEP requirements into the A3 system to prepare IEP documents, instead of at the end of the school day when all the ESE teachers were on the A3 system, which slowed it down drastically. Ms. Huckaby, however, never agreed to provide such schedule changes so that he could more efficiently use his planning time. Indeed, in the 2005-2006 school year, Ms. Huckaby scheduled Mr. Waters to spend 26.25 hours teaching students each week which is more than the 25 hour per week maximum teaching time provided by the collective bargaining agreement while still providing him less than a full class period of uninterrupted planning time. Sometime in the 2003-2004 school year the system for generating individual education plans (IEP) changed from paper IEPs or the so called "gibco" IEP system (apparently a school based software operated system) to a district-wide computer net system called the "A3 IEP." This was a difficult system to learn and to use in completing IEP's without mistakes in the first effort. The District made training available in 2004, particularly in the summer of 2004 and subsequently. It can take as much as three hours to create IEP's "from scratch" on the A3 system and to input all the necessary student demographic and test score history data to upgrade a previously hand-written or gibco-generated IEP in converting it to an A3 IEP. This is especially so for newly trained or partially trained teachers. Complicating these time constraints were the Respondent's limited planning time, with competing meetings being held in the conference room area where cumulative ("cume") folders were housed at Oakridge, which are necessary to the student data research required to generate the IEP's. Thus teacher access to the demographic and testing information needed for IEP completion was somewhat restricted at times. Moreover, Mr. Waters had his only significant block of continuous planning time, when he could work on IEP's, immediately after school. This is the time of day when the A3 IEP computer network operates very slowly because most of the ESE teachers in the entire district are attempting to use it immediately after school hours. These factors are part of the reasons Mr. Waters in the Spring of 2004 had an occasion when IEP's were prepared somewhat late and computer-generated progress reports on one occasion were submitted several days late. It is also true that the Respondent and Ms. Wacksman were not formally trained on the A3 system until late January 2005. This delay in receiving the A3 system training appears to have been due to both the Respondent's and Ms. Wackman's delay in seeking the training and the district's and the school's inattention to scheduling the training sessions. With regard to the occasion testified to by Ms. Petrick concerning his late preparation of, or need to correct mistakes in some IEPs, the Respondent established that he immediately corrected the minor mistakes in several of the IEPs he prepared and that, when Ms. Petrick contacted him about the need for him to make corrections, in several instances the corrections had already been made on the original IEP in question but had not gotten corrected on her copy. Moreover, four or five of the students who had to have corrected IEPs, or whose IEPs were submitted slightly late were students who the Respondent himself had identified to his administration as being wrongly placed by the administration. The students were supposed to have been in a fourth grade level program and instead were in a first or second grade level program. This necessitated re-constituting their IEPs. The Respondent, after alerting the administration to its error also completed the new IEPs on these students. In any event, it is true that Mr. Waters could have begun sooner and more timely prepared the IEPs involved and the same is true of the occasion when the somewhat late progress reports caused his reprimand by Ms. McFarland. It is also true, however, that the requirement of using the cumbersome A3 system to prepare IEPs, more particularly the lack of adequate usable planning time, and the somewhat chaotic effects of five schedule changes during that school year imposed by Ms. Huckaby also contributed to the issue encountered near the end of that year concerning timeliness and corrected IEPs. Although the Respondent received less than satisfactory evaluation ratings as to professionalism and ethics because of the issue regarding delays and mistakes in the IEPs described above, these were a small number of occurrences, concerning very few students, at one particular period of time in the school year. They did not cause any delay or other adverse effect in the provision of ESE services to students nor the loss of any federal, state, or other special education funds, or adverse effects on the school's rating. Moreover, this aspect of Mr. Waters' performance improved after this occasion. Ms. Huckaby and Ms. McFarland made significant changes in required lesson plan and progress monitoring formats, and student progress charting. These requirements were considerably more time demanding and were accompanied by rigid reliance on upgraded, scripted reading and standardized math curricula with the advent of the 2005-2006 school year. These new requirements were to be applied by all ESE teachers for their students. Ms. Huckaby imposed a severely time-constrained, scripted reading curriculum for Mr. Waters' class and also a mandatory new vocabulary program that took up to 15 minutes more of his reading class time block each day. She also required an additional fluency probe-recording requirement to be carried out weekly in all reading classes, including Mr. Waters', which required an average time for completion of five minutes per student. Mr. Waters' reading mastery (RM) curriculum required class time scheduled during the first ninety minutes of his day in the 2005-2006 year. This was clearly impossible to carry out and remain consistent with the RM program's lesson sequence requirements, particularly with the addition of the fluency probe and vocabulary project requirements that Mr. Waters and all teachers were required to include in their reading classes that year. In fact, the reading mastery schedule for Mr. Waters was impossible to carry out within the allotted time period, even when one was not additionally delivering the required vocabulary project lesson and doing the reading probe requirement. In this regard one of the individuals asked to assist Mr. Waters in the 2005-2006 school year was Donna Haff, of the FDLRS staff. Ms. Haff, in working with Mr. Waters, tried to develop a better means for him to address the RM scheduling problem. She began that effort by "model teaching" his scripted RM classes in order to better understand his problem. This means that she simply tried to teach the RM class herself to see if it could be done within the mandatory curriculum and time period in which Mr. Waters was required to do it. Despite her extensive experience and familiarity with RM curriculum and her experience teaching it as a trainer for teachers, Ms. Haff was unable to complete the RM lesson in the time allotted to Mr. Waters, even without performing the mandatory new vocabulary program or any reading fluency probe requirements. She concluded that his RM schedule could not reasonably be carried out. She informed Ms. Huckaby of that conclusion. Ms. Huckaby expressed her frustration to Ms. Haff concerning this problem by asking, "Do you realize how much time we have put into this?" Ms. Huckaby decided not to act on Ms. Haff's advice and decided not to make any changes in Mr. Waters' 2005-2006 RM schedule. On or about June 3, 2005, Ms. Huckaby imposed an improvement notice on Mr. Waters, listing items in his instruction and teaching management that she felt needed improvement and concomitantly imposing a 90-day probationary period running from a date in September through early December 2005. Making only two observations of Mr. Waters' teaching herself, she relied upon reports of Margot Palazesi's 13 observations of Mr. Waters' classroom and teaching during the 2005-2006 school year from generally September through December. Ms. Palazesi's primary expertise, however, was in IEP compliance, IDEA compliance and grant funding compliance. She has a great deal of training in exceptional student education including a PHD degree, but she was not trained or qualified to work within and with regard to Leon County's performance observation and assessment for teacher evaluation, as either an administrator or a classroom mentor. Ms. Palazesi was unfamiliar with the lesson plan requirements at Oakridge and with the CHAMPS behavioral program requirements. She acknowledged that she understood Mr. Waters had the CHAMPS program implemented in the behavioral management aspect of his class and teaching, but she had little familiarity with what it entailed. She did acknowledge, however, that he had an award system for behavior and academic performance for his students built into and actively followed in his classroom. Ms. Palazesi also was not certified in reading and had not taught a reading mastery class in 20 years. Nonetheless, she made 8 of her 13 observations of Mr. Waters' teaching in his RM class. She did not have any understanding of the impossible double-scripted reading class schedule for his two reading groups that he was required by Ms. Huckaby to execute within the 90 minute time block. Through her interaction with Mr. Waters she came to understand from him that there was more material in the double-scripted reading curriculum than could be delivered in the 90 minute period, as Ms. Haff's testimony also showed. Ms. Palazesi, nonetheless, criticized his lecture teaching style, without acknowledging that that teaching method might have been effectively imposed on Mr. Waters in large part due to the impractical time constraints placed upon his delivery of the reading program, the vocabulary requirement and the reading fluency assessment requirement, imposed on him by Ms. Huckaby. Ms. Palazesi also noted, early in her observations, that Mr. Waters did not, in her view, engage in a review of material previously instructed, as, for instance, the day before, or inform the students what they would be learning in the lesson that day. Concerning one or more of her October observances, however, she acknowledged in her testimony that he had done that or started doing that. Moreover, one of her notations was acknowledged by her to be inaccurate in that she criticized him for not doing an introductory portion to his lesson, but then acknowledged that she had arrived some 10 minutes late, missing that portion of his lesson for that day. She also acknowledged that he was receptive to following her suggestions for improvements she thought should be made in his classroom management, in terms of assigning student desks, changing the arrangement of the room as to where a work table was placed, etc., and he did so. Ms. Palazesi also noted that he had a very good rapport with his students, and that his students behaved well and did their work in his classroom. They were on task much of the time. Although she criticized him for departing from his lesson plan on her first observation, in later observations she acknowledged he appeared to adhere more to his lesson plan. Ms. Palazesi was ostensibly dispatched to Mr. Waters' classroom to provide him technical ESE department-type assistance. However, she primarily engaged in making suggestions concerning ways that Mr. Waters could improve otherwise acceptable lessons and lesson plans and make improvements to his classroom management and the physical layout of his classroom. She acknowledges in her testimony that this was an exercise that she could have undertaken in any teacher's classroom and instructional regimen, and could have found ways to suggest improvements. Her suggestions, however, to the extent they were criticisms, appeared to have been relied on, and, inferentially, used to corroborate Ms. Huckaby's negative findings. During the second part of the 2004-2005 school year and the first half 2005-2006 school year Mr. Waters used computer technology in his classroom. He received advice from Ms. Donna Haff on how to incorporate it as a relevant and exciting way to reinforce his course curriculum and began doing so. In each of the 2004-2005 and 2005-2006 school years, he used power point technology in the form of game show question and answer formats ("Who Wants to be a Millionaire," "Jeopardy," and "Hollywood Squares/Tic Tac Toe"). He also employed other types of computer technology in his classroom on a regular basis, whether or not they were also noted in his lesson plans or were specifically observed by Ms. Huckaby, Ms. McFarland, or Ms. Palazesi. He demonstrated an ability to incorporate technology into his classroom instruction at least as effectively as most of his colleagues. Despite this fact and Ms. Huckaby's own praise for Mr. Waters' use of power point technology as a reinforcement tool in her December 14, 2005, observation, Ms. Huckaby still asserted to the Superintendent of the District in her letter recommendation for his termination that Mr. Waters did not adequately incorporate technology into his teaching and claimed that the December 14, 2005, lesson where she observed his use of technology marked "the first and only time he has integrated technology in the teaching and learning process." If Ms. Huckaby had made adequate observations of his teaching and his classes, or had even adequately conferred with Ms. Haff, she would have known of the extent of his use of technology in the classroom (or else perhaps she knew it and disregarded it). This statement to the Superintendent is one of the indicators of the level of bias Ms. Huckaby bore towards Mr. Waters. Most of the ESE teachers, including Ms. George, Mr. Waters, and Ms. Wacksman customarily do not employ computerized grading of their students because of the unique, singular nature of each ESE student's problems, learning styles, abilities, and each ESE student's goals and the varying curriculum and social needs of each ESE student. These and the other individualized differences among ESE students render a hand-written old fashioned grade book the most effective way to make a record of each student's progress toward that student's IEP- codified goals. Ms. Huckaby gave Mr. Waters a negative rating in the area of technology use partly because he did not use a computerized grading system, but neither did any other ESE teacher at Oakridge. Mr. Waters was singled out for criticism for that aspect of his teaching and the others were not. All teachers at Oakridge, particularly ESE teachers, during both the relevant school years, worked under increasing lesson plan requirements and student performance monitoring and documentation requirements and changes, as well as curriculum changes and related paperwork and time constraints. These were very stressful and no doubt were related in a significant part to the fact that the school had slipped from a "C" rating to a "D" rating on Ms. Huckaby's watch as principal. This no doubt caused significant tension and anxiety for all concerned on the instructional staff and in the administration. Only Mr. Waters, however, was held strictly accountable to all deadlines and all aspects of the burdensome documentation requirements and time constraints imposed during those two school years. In the context of his limited planning time, the excessive student contact time scheduled for him in 2005-2006, the delays he encountered in getting A3 IEP System training (some of which were self-inflicted), the difficulties encountered in gaining sufficient access to the conference room where the cume folders were maintained in order to comply with progress monitoring requirements, as well as the repeated schedule changes to his 2004-2005 assignment schedule and the time constraints of his 2005-2006 reading mastery schedule, put the Respondent in a position where it was impossible for him to timely and fully comply with every requirement imposed on him. Ms. Huckaby's close monitoring of the Respondent, as compared to other teachers, under such circumstances, is reflective of her bias in favor of a recommendation of termination. It impelled her, Ms. McFarland and Ms. Palazesi to document and exaggerate the significance of every minor error or omission that involved Mr. Waters. Arranging for ESE meetings, monitoring and complying with deadlines related to IEP's, monitoring ESE consult situations and completing all IEP-related paperwork are the responsibilities of the assigned ESE teacher. The carrying out of these tasks, however, often involves frequent communications among, and timely cooperation with several other people, such as other ESE teachers, regular classroom teachers, school administrators, the District Staffing Specialist, and the ESE students' parents. Mistakes, delays, and miscommunications concerning these ESE teacher responsibilities will occur and while they are not desirable they are not unusual. When such problems arise they are normally corrected by all persons involved as quickly and cooperatively as possible without resort to blame. Although Ms. Petrick became critical of paperwork problems and delays Mr. Waters was responsible for in the last half 2004-2005 school year, Oakridge school lost no federal funding because of them nor was it shown that any students suffered in academic or behavioral progress because of them. It is noteworthy that the IEP-related deficiencies concerning Mr. Waters began to arise only in the second half of the 2004- 2005 school year around the same time that critical memoranda from both Ms. Huckaby and Ms. McFarland were becoming the norm. In any event, Mr. Waters improved in these areas in the 2005-2006 school year. Mr. Waters received little of the help promised him in the September 2005 revised improvement notice document. He did not have a national board-certified mentor assigned him for 2005- 2006, did not get to meet with consultants from the Reading Mastery Plus Program, "Open Court," the "Great Leaps," or the Harcourt Brace Mathematics Programs. He did not meet with anyone from the Florida Inclusion Network. The administration did not provide adequate or meaningful assistance to him in either school year, but rather denied, delayed answering, or ignored his specific requests for more planning time, model lesson plans which would comply with Ms. Huckaby's lesson plan changes and requirements, relief from his impossible RM schedule for 2005- 2006, and his request for a transfer to another school. Instead of providing practical help to him (with the exception of Dr. Adams), the District focused its "assistance" mostly upon sending more staff and district employees to observe him and provide resulting reports to Ms. Huckaby. (Ms. Smith and Ms. Sands in 2004-2005 and Ms. Palazesi in 2005-2006.) During the 2005-2006 school year Mr. Waters work was being scrutinized over the 90 day performance improvement probationary period imposed by Ms. Huckaby which ended on December 8, 2005. During that time, however, his classroom activities were observed only once by Ms. Huckaby, on November 8, 2005. Ms. Huckaby's second observation of him took place nearly a week after the end of the probation period and was two and one- half hours long. It resulted in a critical observation report based primarily upon the last third of that classroom time when Mr. Waters had a formal lesson plan to take his writing class students to a "writing boot camp" session to be attended by all fourth grade teachers and students. Ms. Huckaby, however, refused to let him follow his lesson plan for that day's writing class and insisted that he teach the group there in his room. It was the last day his writing class would meet before the Christmas break which is why he planned to let them go to the writing boot camp with students from other classes on that day. There were no lesson plans for the rest of that week that he could adapt to the remaining one- third of his class that day, with the students unexpectedly present because of Ms. Huckaby's order; it was the last day of school before the Christmas break, and lesson plans for the next day or other days remaining in the week were thus unnecessary. Nevertheless, Ms. Huckaby made negative comments concerning allegedly inadequate planning for his writing group for the class that day after she concluded her observation. Ms. Huckaby had access to Mr. Waters' lesson plans for his December 14, 2005, class and before her observations that day. She had previously reviewed his lesson plans while observing his class to be sure he was precisely following those plans as he had often been instructed to do. She no doubt reviewed his plans for the December 14th lesson and had to have seen the writing boot camp entry. Nevertheless, she refused to let his students attend the writing boot camp. It was by this means that she was able to document a purportedly inadequately planned writing class activity for that day and then relied upon those negative comments in support of her termination recommendation to the superintendent which, inferentially, she had already decided to write. Ms. Huckaby only observed Mr. Waters classroom activities one time during the probationary period. Her only other observation of his classroom activities occurred on the December 14, 2005, occasion, approximately a week after the probation period ended. School administrators, however, are required to periodically evaluate and apprise teachers of their progress during such a 90-day probationary period, which Ms. Huckaby did not do.1/ The Respondent was confronted with a significant increase in time consuming paperwork/reporting requirements lesson plan requirements and the other burdens depicted in the above findings of fact, which Ms. Huckaby placed upon him. Other teachers and ESE teachers had to contend with some of these as well, although to a lesser extent and with less micro- management by Ms. Huckaby. Nonetheless, the Respondent made significant improvements in teaching methods, lesson plan quality and organization, classroom organization, the variety of planned classroom activities and his technology-supported lesson delivery methods. Mr. Waters was effective enough in his teaching and had made sufficient progress so that he received the second highest number of votes for "teacher of the year" from Oakridge's faculty and staff. He thus only ranked behind one revered teacher who had received the award before and who had more recently received the most votes, but declined the award in order to allow someone else to get it. Mr. Waters complied with all reasonable requests made of him, by and large, and in those areas of less than acceptable compliance made the necessary improvements in his compliance. He satisfactorily executed his job duties in both 2004-2005 and 2005-2006 school years as long as he was at Oakridge. Notwithstanding those improvements in performance, Ms. Huckaby continued to evaluate him as if he had made no improvements, pronouncing in June 2005 the results she had angrily promised him in their October 2004 meeting. She re- confirmed that negative assessment in December 2005 with her termination recommendation, made with only one observation by her during the actual period of his 90-day probationary status. Mr. Waters' teaching and classroom management performance in 2004-2005 as well as 2005-2006 and Ms. Huckaby's and Ms. McFarland's criticism of it, culminating in the termination recommendation by Ms. Huckaby, did not result and was not predicated on his students' FCAT scores. Ms. Huckaby admitted as much in her testimony as to both relevant years. The Petitioner attempted, in its rebuttal case only, to introduce test-related evidence that students of Mr. Waters in the 2004-2005 school year did not do well on standardized tests. That exhibit, and the information it was prepared from, however, were not made available at the hearing, during discovery, were not disclosed in the pre-hearing stipulation, and were not disclosed as a reason for Mr. Waters' performance criticism and termination by any charging document, notice or pleading by the Petitioner made a part of this record. The Petitioner in essence was using or attempting to use the proffered Exhibit 46 to buttress its case-in-chief because it was not rebuttal of anything raised or offered in the Respondent's case. Therefore, it was excluded on the basis that it constituted improper rebuttal evidence and, moreover, because of the non-disclosure problem referenced above, was not admissible on due process of law and "notice pleading" principles. Moreover, the information included in the charts in Petitioner's proffered Exhibit 46 is misleading with respect to comparative student progress issues by teacher. There is confusion as to which student was the pupil of Mr. Waters or another ESE teacher or teachers. It is difficult to determine based upon that exhibit, and the testimony proffered concerning it, an accurate comparison of student progress by the students depicted under Mr. Waters's teaching performance versus that of other teachers. Further, the "Writes Upon Request" chart comparison contained in Petitioner's Exhibit 48 and the testimony related to it, was clearly not a reason used or considered in lodging performance-related criticism against Mr. Waters or ultimately in the decision to terminate him. It clearly could not have been considered until several months after Mr. Waters had been removed from the Oakridge school. Had those Writes Upon Request chart results been considered by Ms. Huckaby in the context of this case, they would not serve as preponderant evidence of sub- standard performance by Mr. Waters, considering the other evidence of the circumstances and abilities of his students in conjunction with his performance. Mr. Waters is at minimum an adequate teacher and in some aspects of his performance a superior teacher, as, for instance, in his ability to advance his students' performance in writing and in terms of his ability to motivate his students and establish a good rapport, with an interest in learning, in his students. His classroom management skills, instructional methods and classroom demeanor fall within the parameters of acceptable performance and behavior as a teacher and an ESE teacher. He consistently and successfully relied upon his own behavior management reward system for his students, employed the Champs Program in his classroom and was successful at motivating his students to enjoy learning. In demonstrating a very good rapport with his students, he always created a classroom environment of mutual respect that is conducive to student learning and his students were learning. His overall performance for both school years at issue was objectively satisfactory despite Ms. Huckaby's biased assessment of his performance during those years and in her ultimate termination recommendation. In fact, the excessive number of areas of criticism by Ms. Huckaby concerning Mr. Waters job performance made it quite difficult to demonstrate mastery of every criticized area, much less to demonstrate it all in only two formal observation attempts by Ms. Huckaby. Ms. Donna George is a 21-year career ESE teacher. She has a master's degree in the areas of learning disabilities, emotional handicap, and varying exceptionalities. She has spent 13 of her teaching years at Oakridge school. She is the ESE Department Team Leader at Oakridge, as well as the "technology contact" teacher, who trains and assists other teachers in implementation of technology programs and equipment at Oakridge. She assists in teacher technology training. She is also a National Board Certified ESE Teacher. Ms. George is thus a leader on the staff at Oakridge. She has observed in ESE meetings and in school-wide faculty meetings, throughout Ms. Huckaby's tenure as Principal, that Ms. Huckaby has an autocratic, dictatorial management style, and an aversion to allowing commentary or questions regarding her policies, directives or programs at Oakridge. Ms. Huckaby has demonstrated little tolerance for questions or comments she perceives to reflect less than complete agreement with her positions or policies. Indeed, although Ms. George is the ESE team leader, she seldom has asked questions or sought clarifications of Ms. Huckaby during such meetings, because of her fear that she would be yelled at, treated with disdain, anger or even with reprisal. Such has also been the experience of Ms. Wacksman and others. Ms. George established that Ms. Huckaby's management style had driven many good teachers away from Oakridge. A survey by the district staff concerning long-term teacher retention rates showed that Oakridge had the lowest retention rate at 17 percent. The next lowest school in the survey had approximately 30 percent retention rate. This survey encompassed the period beginning with the 1999-2000 school year to present. Ms. George observed that Ms. Huckaby often responded to questions or comments from Mr. Waters with both verbal and non-verbal ques, such as eye rolling or turning away or other mannerisms, that generally showed disdain for his questions or his opinions. Ms. George unequivocally opined upon cross- examination by the Petitioner that Ms. Huckaby clearly does not like having Mr. Waters on her staff and was "out to get him." According to Ms. George, Mr. Waters asked questions more frequently than others in faculty meetings, but his questions generally were reasonable ones. He apparently also would attempt to make humorous comments, at times which often irritated Ms. Huckaby and other teachers as well. It is likely that some of his motivation to question Ms. Huckaby and her motivation to treat him with disdain, stemmed from their strained relationship starting with the student disciplinary incident described above. In any event, Ms. George's testimony is accepted in establishing that Ms. Huckaby had a bias in favor of removing the Respondent from her staff, which colored her judgment in making many of her criticisms of his teaching, which long pre-dated his probationary period and which, along with her scant actual observations of his instructional prowess, caused some of his improvements to be overlooked or disregarded, and which caused him to be evaluated more critically than his colleagues as to some performance requirements. In fact, the preponderant evidence establishes that in an objective sense his performance as a teacher, although not flawless, was acceptable and improved in a number of areas. As found in more detail above, in consideration of the circumstances imposed on him by the school administration, in his capacity as a resource teacher, with the time and schedule constraints and disadvantages that status entails, he performed in at least a satisfactory way in the 2004-2005 and 2005-2006 years at issue.
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 Leon County School Board re-instating the Respondent to a similar special education teaching position, with reimbursement for lost wages and benefits, in a manner so as to be "made whole" from the date of termination. DONE AND ENTERED this 31st day of July, 2007, 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 Clerk of the Division of Administrative Hearings this 31st day of July, 2007.
Findings Of Fact Respondent is Lawrence J. Ferrara. He holds Florida teaching certificate number 150262, issued by the State of Florida, Department of Education. He is certified to teach social studies, grades 7-12. He has not been assigned to teach outside of this subject area at any time relevant to this proceeding. While Respondent's performance for the school years 1981-82 through 1985-86 is at issue in this proceeding, a review of his annual evaluations for the years 1966 to 1986 indicate a continuing problem in the control of students in the classroom and teaching effectiveness. Respondent was assigned to teach at John I. Leonard High School beginning with the 1970-71 school year and remained in this assignment until his suspension on February 19, 1986. John I. Leonard High School consisted of a 40 acre campus, 145 teachers, and about 2,200 students during the 1985-86 school year. Luke Thornton has served as principal of John I. Leonard High School since October 22, 1981. In dealing with employees, he follows guidelines set out in the collective bargaining agreement with the Classroom Teacher's Association. He is also guided by district school board policy, administrator's directives and the John I. Leonard High School Teacher and Student Handbooks. Thornton has several assistant principals, including "deans", who are authorized to counsel and reprimand employees. Deans are, however, primarily responsible for discipline of students and working with parents. Guidance counselors at the high school are also known as Senior High Counselors. They provide individual and group counseling to students, interpret test results and assist students in career planning. Guidance counselors may counsel other staff members when need arises. While designated department chairpersons within the school have authority to counsel with teachers in their respective departments, the chairpersons do not have the authority to reprimand or evaluate teachers. The chairperson for the social studies department at John I. Leonard High School is Catherine Thornton (no relation to the principal, Luke Thornton). As the chairperson, Ms. Thornton reviews lesson plans of all 16 teachers in the department to assure that objectives of the unified curriculum program are covered by the teacher. This action is mandated by the school board. Teachers are required to prepare lesson plans one week in advance. They must also prepare emergency lesson plans which can be used by a substitute teacher in the event the teacher is unexpectedly absent. Course assignments within the social studies department are recommended by the chairperson and reviewed by the assistant principal assigned to that task. The entire schedule is eventually approved by the principal. Textbooks are issued to each teacher within the social studies department by the chairperson. The teacher returns the books at the end of the semester or school year. If books are not returned, the teacher must collect the cost of the missing textbook from the student responsible for it. The 1981-82 School Year During the 1981-82 school year, Respondent was assigned three 9th grade American government classes and two 11th grade history classes. Respondent's hours of work, to accommodate this teaching schedule, were normally 9:45 a.m. until 5:15 p.m. In previous years, Respondent's assignment had been all 11th grade classes and his hours were normally 6:45 a.m. through 2:15 p.m. Shortly after the beginning of the school year, Luke Thornton became principal. Respondent sought to have his assignment changed by Thornton. The principal denied the request and told Respondent the subject would be revisited at the semester's end. At the end of the semester, Thornton again denied Respondent's request for change in course assignment due to disruption that would be caused in the master schedule, concerns about Respondent's performance, and what Thornton considered to be an excessive amount of failing grades received by students in Respondent's classes during the first nine weeks of the previous semester. During the fall semester, Respondent was absent on several occasions. After the refusal of his request at the end of the semester for a change of his teaching assignment, Respondent took a leave of absence for the entire second semester. During Respondent's absences in the 1981-82 school year, Mary Sandt substituted as the teacher of his classes. Lesson plans were available during the first semester. However, no lesson plans were provided for the second semester. Respondent did not provide any assistance to the substitute teacher in this regard, although testimony of Sandt establishes that other teachers normally provided such assistance. More than any other teacher during the 1981-82 school year, Respondent referred students from his classes to the deans for disciplinary reasons. The referrals were for minor infractions such as talking out of turn, sharpening pencils, and squeaking chairs. Sometimes he referred groups of students for discipline. Earl Higgs, a dean during this school year, discussed ways of handling minor infractions with Respondent. Higgs advised Respondent to review the John I. Leonard Handbook discipline provisions. Respondent was not responsive to these recommendations. Higgs was required to review class rules with Respondent's students on at least three occasions as a result of being called to the class by the Respondent because the class was out of control. Initially, Mary Sandt had some disciplinary problems with Respondent's classes during her substitute teaching for him, but the deans provided her with assistance in gaining control. Thereafter, she was able to control the students with only minor problems. Before referring students, Ms. Sandt attempted to resolve discipline problems in the class. If unsuccessful, she documented her action on a discipline referral slip. Respondent did not follow this procedure. Luke Thornton's first evaluation of Respondent following the 1981-82 school year noted Respondent had a considerable amount of discipline problems with 9th and 11th grade students. In addition, it was noted that students have "difficulty understanding his approach to teaching." Respondent's ineffective working relationship with associates and his failure to attend open house and graduation functions at the school were also noted. The evaluation reflected no areas of strength beyond the observation that Respondent "uses various methods and materials." The 1982-83 School Year The chairperson of the social studies department recommended that Respondent be assigned all 9th grade American Government classes for the 1982-83 school year. The recommendation was approved by Assistant principal Shirley Jackson and by Luke Thornton, the principal. Respondent felt "absolutely demoralized, devastated and dehumanized" and worthless in the eyes of fellow teachers as a result of his assignment to teach 9th grade. The 1982-83 school year produced numerous complaints about Respondent's teaching. His teaching technique essentially consisted of giving students a text book reading assignment and have them answer review questions at the end of the chapter. Students completed these assignments in class time while Respondent read the newspaper or listened to the radio. Students cheated on many occasions in order to complete their work by passing answer sheets around the classroom while Respondent was present. Respondent sometimes gave lectures to his classes. Many times the lectures had nothing to do with the course content. Respondent discussed a lawsuit he had initiated against the school board without relating it to the lesson content. He repeatedly told his students they were immature, he hated them and he preferred to teach upperclassmen. Respondent would tell students to be quiet or find the answer in the book when they asked for assistance. Respondent called students names such as "jackass" and "jerk" in class. Students did not pay attention to Respondent because they found his classes boring. Respondent's general reputation among students was that he was not a good teacher; that he treated students in the same manner each year, and that he was "weird." Many of Respondent's students tried to transfer out of his class. Reasons given to Pat Konttinen a school guidance counselor, for requesting transfers included no motivation for students, inability to understand Respondent's lectures when he gave them, Respondent's failure to lecture on the subject matter, testing students on materials not covered in class, and that the class was boring. Ms. Konttinen discussed specific complaints of students with Respondent, but he did not change his teaching style. The testimony of students concerning the 1982-83 school year reveals that they have had no other teachers at the school who taught as poorly as Respondent. Respondent had the highest rate of textbook losses for the 1982-83 school year. During the first semester of the 1982-83 school year, Ms. Sandt again substituted for Respondent when he was absent. No lesson plans were available contrary to the requirement that such plans be provided. Respondent also failed to complete emergency lesson plans. Ms. Sandt wrote lesson plans and gave assignments when substituting because she had no idea when he would return. When Respondent did return, he threw assignments completed by the students in the trash because Sandt had not graded the work. Substitute teachers do not normally grade papers. The students felt the substitute teacher, Ms. Sandt, was a better teacher than Respondent. During Respondent's absences, Ms. Sandt experienced no discipline problems. Earl Higgs, in his capacity as dean, continued during the 1982-83 school year to receive numerous discipline referrals from Respondent. In each case, Higgs asked students for their side of the story and advised Respondent of actions taken on referrals. These referrals indicated that Respondent did not have proper control of his classes. Students were referred for minor disciplinary matters because Respondent did not want to handle problems on his own. Students who were referred for discipline by Respondent were either never previously referred by any other teacher, or, at most, referred one other time. Respondent continued to send groups of students to the dean. Sometimes the students would get out of control talking and laughing in class because "they could get away with it." On occasion, Respondent would shut the door to the classroom, close the windows and turn off the air conditioner as punishment for the class until the class was in control. On one particular occasion, Luke Thornton walked back to Respondent's room with four girls after they complained that Respondent would not open the room windows and the air conditioning was not working. On arrival at the room, Thornton found the room extremely hot. Respondent was wearing a sweater and the room windows were closed. The principal opened the windows to prevent students from passing out in the heat. Respondent improperly grabbed a student by the arm to discipline him during the 1982-83 school year. Bruises were left on the arm. After an investigation, Respondent was counseled concerning the incident. In his 1983 evaluation of Respondent, Luke Thornton noted that Respondent had knowledge and understanding of his subject matter, maintained an appropriate appearance, possessed appropriate educational qualifications and adhered to the defined duty day. The principal noted no other areas of strength. Numerous performance deficiencies were noted in a sheet attached to the 1983 evaluation form. Specific recommendations for improvement were cited. In regard to teaching technique, Respondent was informed he should vary methods of instruction. Consistency in discipline standards was noted as a way to improve classroom environment. Respondent was urged to strive to achieve rapport with peers and parents, as well as to timely submit lesson plans. Luke Thornton held several conferences with Respondent to discuss the deficiencies noted in the 1983 evaluation. Respondent was not receptive to suggestions. He complained of unfair treatment in course assignments and repeatedly discussed his lawsuit against school officials. Respondent continued to maintain he was better suited to teach 11th graders, although he was certified to teach 9th and 11th graders. The principal told Respondent to be responsible to his students regardless of other personally perceived problems. He also told Respondent that he should work to improve performance. While there is no significant technical difference in teaching either 9th or 11th grade, there is a difference in maturity levels of the students in each grade. Such a difference in maturity levels requires a difference in teaching style. Pat Martin, a guidance counselor, testified that ninth grade boys "get a little antsy" and have to be motivated by the teacher. This testimony was corroborated by Assistant Principal Earl Higgs who preferred to teach 9th graders but conceded they required more assistance and can be more difficult to handle. The 1983-84 School Year Respondent remained in the same teaching assignment during the 1983-84 school year. He did not request a transfer to another school, nor did he request a schedule change. Testimony of students of Respondent for 1983-84 school year was consistent with the testimony of his students from the 1982-83 school year. Respondent's teaching techniques did not vary from the previous year. Respondent's attitude remained unchanged in the 1983-84 school year as he continued to advise his students that they were immature and that he preferred to teach upperclassmen. Students requested transfers at an increased rate from Respondent's classes, indicating that Respondent was unresponsive and they did not know how they were doing in his class. Respondent was advised of student and parent complaints by guidance counselors Pat Konttinen and Melinda Wong. They observed no change in his behavior. Two written complaints were received by Ms. Wong concerning Respondent's behavior in the classroom. Respondent did not issue required progress reports to students at the proper time to advise them whether they were failing. When several students were failed by Respondent, they complained about this fact. Luke Thornton discussed this problem with Respondent. Respondent had the second highest rate of textbook losses for the social studies department. Students defaced a number of books due to Respondent's improper storage of the books. Respondent continued to ignore requests to make lesson plans available. As of February, 1984, Respondent had turned in three lesson plans for a 20 week time period. By June, 1984, Respondent had completed five lesson plans when he should have completed a total of 36 lesson plans. The lesson plans completed by Respondent were usually unsatisfactory. Respondent was on leave for approximately three weeks during the Spring semester of this school year. The substitute teacher was Robin Thomas. Respondent left no lesson plans, nor did he have emergency lesson plans available as required. Catherine Thornton, the department chairperson, provided Ms. Thomas with assistance. Thomas created lesson plans, gave assignments to students and corrected the results even though she was not required to do so. She had no problems with discipline in any of Respondent's five classes. She was 21 years old at the time. When Respondent returned to the class after his absence, the students did not want him back and told Respondent to go away. Respondent did not consider Thomas' graded assignments. Students were required by Respondent to repeat the work previously given by Thomas. Also, after returning to school, Respondent requested lesson plans from Ms. Thomas contrary to normal procedure. On several occasions, David Culp, a dean at the school, was advised by Respondent that he, Respondent, refused to teach the class. Students also told Culp that Respondent would stop teaching. Culp received numerous complaints from parents about the lack of teaching their children received from Respondent. Respondent refused to grade papers on one occasion. He also refused to sign a withdrawal slip for a student even though requested to do so by Culp's office. Both Culp and Earl Higgs received frequent discipline referrals from Respondent. Higgs, serving his last semester as dean during the first semester of the 1983-84 school year, testified that Respondent's referrals did not diminish while he was a dean. Culp became a dean beginning with the 1983-84 school year. Culp's testimony was consistent with that of Higgs concerning the type of referrals Respondent sent to him. Culp was also called to Respondent's room to assist Respondent in regaining control of the class. According to Culp, he routinely visited Respondent's class because of his personal observation that Respondent did not have adequate control of students and the atmosphere in the classroom was so hostile that learning could not take place. Culp discussed Respondent's large number of discipline referrals with Respondent. Culp, like Higgs, had many more discipline referrals from Respondent than other faculty members. Culp estimated 25 per cent of all referrals received by him were from Respondent with the remaining 75 per cent split among the remaining 139 faculty members. Students continued to complain that Respondent did not open windows or turn on the air conditioner when requested. A parent's complaint regarding Respondent's discipline techniques was filed with Luke Thornton. Respondent began to come to work late and leave early. This action was noted and Respondent was warned to adhere to the defined duty day. On April 25, 1984, Luke Thornton placed Respondent on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure as a result of Respondent's continuing problems. The purpose of the program is to provide assistance to teachers with performance problems. Respondent was given a detailed written summary of all deficiencies noted in his performance and given until October 16, 1984, to correct those deficiencies. Among the deficiencies noted were failure to use acceptable teaching techniques, lack of a positive classroom environment through use of acceptable control, lack of professional and effective working relationships with peers and failure to submit proper records. Respondent believed the NEAT procedure was a "device used to get rid of tenured teachers, especially those who made waves." He characterized the "T" in NEAT for "termination," not "time". Respondent's evaluation for the 1983-84 school year noted that the same deficiencies pointed out previously still existed. The evaluation noted that Respondent possessed appropriate educational qualifications and used good oral and written language. Among other subjects, Respondent was criticized for having an inadequate variety of methods and materials, inadequate planning, using inappropriate language with students, discussion of inappropriate topics with students during class time, unwillingness or inability to work effectively with parents, unwillingness or inability to provide a positive learning environment, failure to submit proper records, failure to comply with defined duty days, and failure to have an effective relationship with colleagues. He was admonished to avoid improper language with students, to maintain appropriate standards of discipline and to promote a positive relationship between students and teacher. The 1984-85 School Year At the beginning of the 1984-85 school year, Luke Thornton asked Respondent what assistance he could offer Respondent that had not yet been provided. Respondents refused the principal's offer of assistance. Based on testimony of students who had him as a teacher for the 1984- 85 school year, Respondent's teaching methods did not vary. Students again confirmed that Respondent told them he hated 9th graders and felt they were immature. Students also confirmed that when given worksheet assignments, some students would cheat while Respondent read the newspaper, listened to the radio or looked out the window. Respondent continued to refer to his lawsuit against the school board and school officials during class time. He also discussed with his students the qualifications of another teacher in the social studies department. Respondent's general reputation among his students was that he was boring and no one liked or respected him. Instead of paying attention to Respondent, some students would sleep or "horse around." Students indicated they did not learn anything or learned very little because Respondent did not teach. Also, these students had not encountered any other teachers at the school with teaching problems like those of Respondent. Complaints by students regarding Respondent's refusal to open windows and doors for air continued. On one occasion, Respondent told the class the air conditioner was not working, but refused to open windows because the students were too loud. Respondent refused to give credit for assignments given by the substitute teacher. He refused to issue progress reports. He refused to change a student grade after being directed to do so by Luke Thornton, although such change was appropriate. Guidance counselors continued to receive requests from students seeking transfers from Respondent's class. A new guidance counselor for the 1984-85 school year, Pat Martin, received reports that Respondent constantly talked about his lawsuit during class time. Another guidance counselor also received numerous self-referrals from Respondent's students who were concerned that they were not learning American government, the course subject matter, and that Respondent was talking about his court case. Martin, who had formerly served as a social studies teacher at the school with Respondent, was unable to discuss complaints she received with Respondent. He would not communicate with her and requested she not be allowed to sit in parent conferences with him. As a result, Martin was forced to communicate with Respondent in writing. She handled several complaints of students and parents in this manner. Guidance counselor Elizabeth Konen informed Respondent of complaints from students and parents. Usually, Respondent advised Konen he had no time to participate in conferences with the parents and students. In some instances, Respondent would not respond to parents requests that he contact them. At other times in parent conferences, Respondent would discuss his personal problems with the administration rather than the student's problems. Respondent improved in this school year slightly on textbook accountability, but books and desks continued to be defaced. He also continued to disregard his defined duty hours. Respondent did not turn in any lesson plans during the entire school year. At the conclusion of the year, he turned in a complete set of plans. Those plans did not meet requirements of indicating what part of the unified curriculum objectives had been met. In addition to David Culp, who continued to receive a large number of student discipline referrals from Respondent, Sandra Cowne was assigned to be a dean. Ms. Cowne's testimony is that 35 to 45 percent of her time was spent dealing with referrals by Respondent. Cowne noted 75 per cent of those referrals could and should have been handled by Respondent. Cowne requested students who were referred by Respondent to write out the details of the incident where the student's version differed with that of Respondent. Usually, Respondent did not indicate on the referral form that any action had been taken by him, or whether he had provided instruction to his students about expected and acceptable behavior. Students admitted to administrators that they deliberately "egged" Respondent on, particularly when he made personal comments about them. They also complained that Respondent would shut the windows and make them sit in the heat for discipline, or that he would turn off the air conditioner. They complained that Respondent made them write sentences as punishment, an inappropriate method of discipline. Cowne dealt with several problems when it became apparent Respondent did not have control of his classes. She assisted Respondent in calming classes down and restoring order. The disruption caused by discipline problems adversely affected the amount of learning that took place in Respondent's classroom. Luke Thornton decided to extend the NEAT Procedure to the cover the entire 1984-85 school year. During this time, numerous conferences were held and memos provided to Respondent concerning a multitude of problems. Respondent was observed in class by three administrators. The first observation was conducted on September 19, 1984, by H. W. Berryman, an assistant superintendent and area administrator. An employee of the Palm Beach County School District for 24 years, Berryman has evaluated the performance of principals, teachers, department heads and directors. In his memo to Luke Thornton following the observation, Berryman noted that too much time was taken with roll call and students were not attentive to Respondent's lecture. Berryman was concerned that students in the class were not involved in the total learning process. Berryman stated that he foresaw Respondent "in serious difficulty in managing conduct of students and considered this his most urgent need for growth." On October 4, 1984, Respondent was observed by Dr. Mona Jensen. Jensen is a consultant, certified by the Florida Performance Measurement System (FPMS). The FPMS was designed to determine effective teaching behaviors. Jensen also trains other administrators in the use of FPMS, both locally and statewide. The FPMS utilizes a written instrument called a Summative Observation Form. This form is used to evaluate teacher performance by recording the types of effective and ineffective behaviors observed in four domains: management of student conduct, instructional organization, presentation of subject matter and communication skills. Jensen has previously observed teachers with performance problems on the NEAT procedure. The report provided by Jensen to Respondent and Luke Thornton was based on actual behaviors of Respondent which she observed. Jensen noted in the report that students were talking to one another and not participating in the activity at hand. Jensen provided specific recommendations for improvement in all the areas addressed by the Summative Observation Form. According to Jensen, the main problem with Respondent's teaching technique was the lack of several positive teaching behaviors. She offered Respondent a conference and assistance, but he rejected her offer. Respondent was also observed by Lois Biddix on October 29, 1984. She is a FPMS certified state trainer and is authorized to train administrators to observe teachers. Biddix used the Summative Observation Form in her observation of Respondent. Biddix provided a written summary to Respondent and to Luke Thornton. She observed students talking and engaging in activities unrelated to the lesson. The atmosphere in the classroom, she observed, was sedentary and lethargic. Students suffered from boredom and frustration caused by Respondent's lack of enthusiasm and failure to introduce new content into the lesson. Biddix's observation of students talking, putting on makeup and sleeping are consistent with those of Berryman and Jensen. Biddix's concern was that students were not involved in the learning process. Her recommendations for improvement were consistent with those noted by Jensen. Dr. Jensen completed a second observation of Respondent on January 31, 1985. Again, she provided a written summary of her observations to Respondent and Luke Thornton. On this occasion, Respondent was presenting a lesson and students were not paying attention or participating in the class discussion. Respondent became frustrated with a student who made a personal remark to him. Jensen's recommendations for improvement were basically the same as those proposed by her in October, 1984. She again offered to arrange a conference with Respondent to discuss recommendations and he again spurned her offer. In response to a recommendation by Earl Higgs that Respondent observe successful teachers in their classrooms, Respondent advised that he wanted to observe Catherine Thornton and Mike Lott. Respondent did not associate with these teachers professionally or otherwise. Both Lott and Catherine Thornton requested that Respondent not be allowed to observe their classes. This request was honored by Luke Thornton because he was aware that Respondent disliked these two teachers. Respondent's annual evaluation for the 1984-85 school year indicated the atmosphere in his class was not conducive to learning. He was criticized again concerning the discipline of his class. It was also noted that he continued to make unprofessional comments to his students despite warnings not to do so. Luke Thornton had reviewed specific incidents of such conduct with Respondent during the school year. The evaluation also noted Respondent's failure to adhere to defined duty days after warnings, other poor work habits (i.e., lesson plans) , and his inability to get along with his peers. The 1985-86 School Year Luke Thornton extended the NEAT procedure for Respondent through November 1985, with the hope that Respondent's performance would improve. In the August 19, 1985 letter, Thornton stated: In order to assure that you are given every opportunity to be successful, I am extending the NEAT procedure to November 1, 1985. If at that time, the deficiencies consistently noted . . . continue to exist, I will make my recommendation to the superintendent concerning your employment status with the Palm Beach County School Board. The testimony of Respondent's students for the first semester of the 1985-86 school year confirm that Respondent did not change his teaching techniques despite suggestions given to him for improvement. 9l. One student testified that on the first day of class Respondent told the students they were immature. Other students testified to Respondent's repeated statements that they were immature, childish and that he did not like them. Further, Respondent continued to discuss his problems with the administration during class time. Classroom temperature remained uncomfortable. Respondent advised students to complain to the administration. In one instance, a student vomited in the classroom, creating a foul odor. Although students complained about the smell and administrators located another available classroom, Respondent refused to move his classes. Students testified that Respondent's reputation among them was that he was a "jerk" and a bad teacher who was not liked or respected. Several students stated that they would not want Respondent as their teacher again. He had a bad attitude and they either did not learn anything or they did not learn as much as they felt they should. Respondent did display improvement in taking roll call issuing progress reports, adhering to defined duty days and reducing the number of failures in his classes. He continued to fail to attend open house and to provide adequate lesson plans. In addition to Ms. Cowne and Mr. Culp, Linda Chubbuck was assigned as dean at John I. Leonard High School for the 1985-86 school year. Chubbuck received referrals of students from Respondent which were usually for such minor infractions as talking in class, refusing to be quiet, or not writing "punishment sentences". Student and parent complaints were received by the deans as a result of Respondent continued making students write repetitious sentences. Groups of students were still referred by Respondent. On two occasions, Chubbuck was referred nine to ten students at one time. Cowne was referred six students at one time. The groups were usually referred by Respondent because the students were not being quiet, would not settle down or were otherwise causing disruption. The students who were referred to the deans described Respondent's classes as chaotic. They described Respondent as "caustic and cutting with them." Further, Respondent did not take action to control his classes and rarely instructed students concerning behavior. The deans continued to answer Respondent's requests to come to his class to settle the class down. David Culp saw no improvement in Respondent's ability to control his classes over a three year period. Respondent continued to have more referrals than other teachers, and it was difficult to support Respondent's actions. Due to the constant chaos in Respondent's classes, the deans concluded that very little learning could be taking place. The number of referrals from those classes decreased sharply after Respondent was later suspended from the school. Guidance counselors continued, during this school year, to receive the same type of complaints about Respondent as they had in the past. The only difference was the names of the students making the complaints. The guidance counselors concluded that Respondent was not benefiting students emotionally or academically. Dr. Mona Jensen conducted her third and final observation of Respondent on December 2, 1985. She observed that Respondent's pattern of instruction had not changed. She determined his lesson plan to be insufficient. Respondent had not added any of Jensen's prior recommended positive behaviors to his technique. Respondent continued to fail to provide motivational or positive reinforcement to his students. Jensen concluded that Respondent's "teaching behaviors" were ineffective, ranking Respondent below average as a teacher. Jensen testified that a teacher's behavior should not change based upon the quality of the students. Further, a professional should not allow personal problems with the administration to interfere with providing successful opportunities to students. H.W. Berryman conducted a second observation of Respondent in December, 1985. Berryman was more complimentary of Respondent than was Jensen. Berryman noted Respondent had improved in getting instruction started in the class. He also commended Respondent's knowledge of the subject matter, but noted Respondent seemed to be writing off a majority of the students in the class by allowing them to be inactive and uninvolved in the learning process. Respondent did not communicate well with other social studies teachers at any time at issue in this cause. No improvement of Respondent's behavior in this area was noted during the first semester of the 1985-86 school year. He had heated words for Catherine Thornton, the department chairperson, and expressed his disdain for her. He accused another teacher of theft of a map from his classroom. The atmosphere of the workroom for social studies teachers at the school was hostile and uncomfortable when Respondent was there. Respondent continued to perceive his assignment to teach 9th graders to be a demotion. His peers did not agree. Testimony of teachers indicates that each level of teaching has unique problems. Some teachers volunteered to teach 9th grade. Respondent had difficulty with the administration over reserved parking spaces for the deans, refusing to refrain from parking in the places reserved for them until ordered by Luke Thornton to park elsewhere. The school's security officer was asked by Respondent to investigate the theft of pens and pencils from his desk, as well the source of a stick figure drawing of Respondent. The security officer had not received similar requests from other teachers. An evaluation of Respondent on November 18, 1983, noted he did not have an up to date plan book; that parent complaints about Respondent's unwillingness to work to resolve student problems had been received; and that Respondent remained unable to have a positive relationship with coworkers. Respondent was on the NEAT procedure for a total of 16 academic months. During that time, Respondent's teaching style did not change. He continued to make disparaging remarks to students, failed to provide classroom management and failed to improve his peer relationships. He did not attend open house functions, and failed to maintain adequate lesson plans. Parent and student complaints about him did not diminish. District administrators and school personnel were unable to influence Respondent to change his behavior. Due to Respondent's inability to change and the finding that Respondent was damaging students, Luke Thornton recommended Respondent be terminated from employment. Respondent was suspended in February of 1986, and subsequently terminated from employment by the school board. In Luke Thornton's professional opinion, which is credited, Respondent performed incompetently as an educator from the fall of 1981 until his termination. Further, Respondent's personal conduct during that time seriously reduced his effectiveness as an employee of the district school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate. DONE AND ENTERED this 24th day of August, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner submitted 128 proposed findings of fact. Those findings are treated as follows: 1. Included in finding 2.-3. Included in part in findings 1-3, remainder rejected as unnecessary for conclusion reached. 4.-5. Included in findings 4-5. 6. Included in findings 6-7. 7.-8. Included in findings 9-10. Included in finding 12. Included in finding 11. Included in part in finding 6, remainder rejected. Included in finding 7. Addressed in findings 13-14. 14.-15. Addressed in finding 14. 16. Included in finding 15. 17.-18. Addressed in findings 16 and 14. Included in finding 17. Included in finding 18. 21.-22. Included in findings 18-19. 23.-24. Included in findings 20-21. Included in finding 23. Included in finding 24. Included in finding 25. 28.-30. Included in findings 26-28. Included in finding 29. Included in finding 30. Rejected as unnecessary to conclusion. 34.-35. Included in finding 32. 36.-37. Included in findings 33-34. Included in finding 31. Included in finding 36. 40.-41. Included in findings 37-39. 42.-43. Included in findings 41-42. 44. Addressed in part in finding 43. Remainder rejected as unnecessary to conclusion. 45.-55. Included in findings 44-54. 56.-57. Addressed in finding 55. Included in finding 56. Included in finding 48. 60.-61. Included in findings 56-57. 62. Included in findings 58-59. 63.-64. Included in findings 60-61. 65.-66 Included in finding 62. 67.-70. Included in findings 63-66. 71.-75. Included in findings 67-70. 76.-83. Included in findings 72-77. 84.-85. Included in finding 76. 86. Included in finding 71. 87.-94. Included in findings 77-83. 95.-128. Included in findings 85-111, except for a portion of proposed finding 122 which is rejected as unnecessary for conclusion reached. RESPONDENT'S PROPOSED FINDINGS Respondent submitted 145 proposed findings of fact. They were encompassed in 52 pages and are treated as follows: 1.-19. Rejected as unnecessary to conclusion reached and cumulative. 20.-24. Included in part in findings 13-14, and 21; remainder rejected as unnecessary to conclusion. 25. Addressed in part in finding 15. Remainder unnecessary for conclusion. 26.-28. Rejected as unnecessary for conclusion reached. 29.-31. Addressed in part in finding 20. Remainder rejected as unnecessary to conclusion. 32.-33. Included in findings 37-38. 34. Included in finding 60. 35.-36. Included in part in finding 88, remainder rejected as unnecessary to conclusion. 37.-38. Included in part in finding 108, remainder rejected as unnecessary to conclusion. 39.-40. Included in part in findings 3133, remainder rejected as unnecessary to conclusion. 41.-52. Rejected as unnecessary to conclusion reached. Included in part in findings 20-22, remainder rejected as unnecessary to conclusion reached. Rejected as unnecessary to conclusion reached. Included in part in finding 40, remainder unnecessary to conclusion. Included in finding 23 in part, remainder rejected as unnecessary to conclusion. 57.-63. Rejected as unnecessary to conclusion. 64.-65. Included in part in finding 93, remainder rejected as unnecessary to conclusion. 66.-73. Rejected as unnecessary to conclusion reached. 74. Included in part in finding 113-114, remainder rejected as unnecessary to conclusion. 75.-80. Rejected as unnecessary to conclusion. Addressed in finding 45. Rejected as unnecessary to conclusion reached. 83.-84. Included in part in finding 46, remainder unnecessary to conclusion reached. 85. Rejected, unnecessary. 86.-87. Addressed in part in findings 46 and 57, respectively; remainder rejected as unnecessary to conclusion. 88. Included in part in finding 88. Remainder unnecessary. 89.-90. Rejected as unnecessary to conclusion reached. 91.-96. Included in part in findings 34-35, remainder rejected as unnecessary. 97.-100. Rejected as unnecessary to conclusion reached. 101.-102. Included in part in finding 14, remainder unnecessary to conclusion. 103.-107. Rejected as unnecessary to conclusion. 108.-113. Included in part in findings 58-59, and 79; remainder rejected as unnecessary to conclusion. 114.-118. Rejected as unnecessary to conclusion. 119.-120. Included in part in finding 87, remainder rejected as unnecessary to conclusion. 121.-123. Rejected as unnecessary to conclusion reached. l24.-125. Included in part in finding 80. Remainder rejected as unnecessary to conclusion. 126.-129. Included in part in findings 81-84, remainder rejected as unnecessary to conclusion. Included in part in finding 67. Remainder rejected as unnecessary to conclusion. Included in part in finding 86, remainder rejected as unnecessary to conclusion. Rejected, unnecessary to conclusion and cumulative. Included in part in finding 88, remainder rejected as unnecessary to conclusion. Included in part in finding 89, remainder rejected as unnecessary. 135.-136. Rejected, unnecessary to conclusion reached. 137.-141. Included in part in findings 102-103, remainder unnecessary to conclusion. 142.-143. Included in part in finding 85, remainder rejected as unnecessary to conclusion. 144.-145. Included in part in finding 110, remainder rejected as unnecessary. COPIES FURNISHED: J. David Holder, Esquire 325 John Knox Road Suite C-135 Tallahassee, Florida 32303 Thomas W. Young, III, Esquire 208 West Pensacola Street Tallahassee, Florida 32301 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator. Professional Practices Services Department of Education 319 W. Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 =================================================================
Findings Of Fact Until March 23, 1994, the Respondent, James Ray, was a drama teacher on annual contract at the Pinellas County Center for the Arts (PCCA) program at Gibbs High School in St. Petersburg, Florida. He had been on successive annual contracts since 1990. PCCA is a special program for the arts. It is located at Gibbs High School and operates under the purview of the Gibbs High Principal and her administration. But it operates separately under the direction of its own Coordinator, who reports to the Principal, and has its own Guidance Counselor, who works primarily with the Coordinator, while also part of the school's guidance office. The education and work experience of those hired as PCCA teachers tend to be primarily in the performing arts, as opposed to being in formal classroom teaching. PCCA's class schedule differs from that of the regular Gibbs High students. While regular students are dismissed from school at approximately 2 p.m., PCCA students are in class until approximately 3:30 p.m. The Incident on February 10, 1994 During a class the Respondent was teaching at approximately 2:00 p.m. on Thursday, February 10, 1994, a student of the Respondent, named Marshal, came to the door of the Respondent's classroom and got the Respondent's attention. The Respondent went to the door, and the student asked the Respondent to step out in the hall. When the Respondent did, the student and another student of the Respondent, named Sean, pointed to a third student, who had fallen out of a chair near the door in the hallway and was lying on the floor. The two apparently sober students told the Respondent, and Respondent could see for himself, that the student lying on the floor was inebriated to the point of being incapacitated. Marshal and Sean told the Respondent that the inebriated student had been drinking. The Respondent presumed that they were referring to alcohol consumption. The Respondent told Marshal and Sean that he was going to contact a school administrator, but they pleaded with him instead to let them take the inebriated student home. They assured the Respondent that they could manage it, and the Respondent agreed to let them do so. Since the regular Gibbs High students were being dismissed from school, the Respondent advised them to go out the back door of the school so as to encounter the fewest people possible. The Respondent did not know the name of the inebriated student. He vaguely recognized the student but did not know from where. The Respondent did not think the inebriated student was in any of the Respondent's classes. The Respondent never inquired as to the identity of the student. After dealing with the students who had come to the door, the Respondent returned to his classroom to advise his class that he had to leave the classroom and to have one of his students lead dance exercises in his absence. He then went to the office a guidance counselor, Cody Clark, to report the incident. However, since he did not know the inebriated student's name, he was unable to identify him for Clark. The three students already had left, and the Respondent did not know where they were. He and Clark concluded that there was nothing more that could be done at that time. After speaking with Clark, the Respondent returned to his classroom. By the end of class, Marshal returned to the Respondent's class and told the Respondent that Sean had taken the inebriated student home on a regular school bus. This time, he indentified the inebriated student by name. Marshal also informed the Respondent that he had videotaped David, the inebriated student, while he was drunk in order to communicate an anti-drinking message to the other students. (The theme of the message was supposed to be, roughly, "make sure you never get this drunk.") The Respondent did not ask to see the video and did not ask whether David agreed its being recorded and shown. The Incident on February 11, 1994 The next morning, February 11, 1994, the Respondent had only four students in his first period class. (Some of his students apparently observed what some called "national skip day.") Someone came by his classroom to tell him that the videotape of David drunk the day before was going to be shown in the first period classroom of another teacher, Keven Renken. At the time, the Respondent thought that the video had been recorded after the three students had left the Respondent's classroom door on the previous afternoon. He again did not ask to preview the video. Although the Respondent did not ask, he had the impression that David was aware of and agreed to the showing of the videotape. The Respondent also was assuming that Renken had approved of the showing. He did not verify either assumption. Meanwhile, Marshal had only told Renken that he had "a film of someone being drunk." He also told Renken that the purpose of the videotape was to communicate an anti-drinking message. It was not clear from the evidence that Renken understood the video to be a recording of a student actually being intoxicated, as opposed to acting. Marshal managed to give Renken the impression that the Respondent had approved the showing of the videotape, and Renken did not preview the tape. When the Respondent and his four students arrived at Renken's class, Renken was attending to matters at his desk, and the video had just begun. The Respondent told Renken that he understood that a videotape was being shown in Renken's classroom. This question confirmed to Renken that the Respondent already knew something about the videotape and, perhaps, had previewed it and had approved it. The teachers did not discuss with each other whether the videotape had been previewed or approved. When Marshal saw that the Respondent and his class were arriving, he rewound and restarted the tape. The Respondent stood and watched the videotape with the students while Renken continued to attend to the matters at his desk. Soon after the Respondent arrived, Renken got up from his desk and asked the Respondent to be in charge of both classes while he left the classroom to copy some paperwork. The Respondent naturally agreed, and Renken left the classroom for approximately fifteen minutes. When Renken returned to the class the videotape was almost over. (It only lasted approximately 25 minutes.) It is not clear at what point in the showing of the videotape Renken left the room, or what point he later returned. He did not see very much of it. The Respondent, on the other hand, watched the entire videotape with the students. The videotape, which actually had been made during the morning on the previous day, was disgusting. It began by showing David unconscious on the floor of a room in Marshal's house next to what appeared to be, and what Marshal described on the videotape as being, green vomit. Right at the outset, Marshal mocked David for having gotten so drunk and verbally abused him by calling him names that were vulgar, humiliating and denigrating. From the beginning, the Respondent (and, if he was watching, Renken) should have realized: (1) that the videotape was inappropriate for viewing by the class; (2) that he should have suspected that David had not agreed to its viewing by the class; and (3) that he should have suspected that Renken did not knowingly approve showing the videotape to the class. He should have stopped the tape at least to question David and Renken. The longer the tape ran, the more obvious and clear these judgments should have become to the Respondent. Subsequent footage showed David, while still lying unconscious on his stomach, being dragged by his feet, with his face scraping along the floor, out of the house and onto a concrete porch, leaving a trail of green vomit. On the porch, the other teenagers present (all male) continued various forms of physical and verbal abuse (which continued throughout the videotape.) When David regained semi-consciousness and began to move, they allowed him to fall off the porch on his face. (The porch was approximately two feet above ground level.) As he was leaning against the porch while trying to stand up, still only semi-conscious and totally incapable of protecting himself, they took turns pouring hot and cold water, flour, and urine on him. In a later segment, David is shown standing outside the house and is heard trying to protest and plead with the teenagers to stop hosing him down with a garden hose. He is seen attempting to stagger away and returning to the concrete porch, and it is obvious that he easily could have fallen and seriously injured himself. He stops on the porch to lean against the house, and the physical and verbal abuse continues. In a third segment, David is seen lying in a bathtub, again unconscious. There, the physical abuse continues. The other teenagers pour shampoo, gel, and powder on him. Later, they put nail polish and lipstick on his face, and one of them grabs his hair and bangs the back of his head against the bathtub. Finally, they take turns standing spread-eagle on the edge of the tub and attempting to urinate on David. At least some, but maybe not all, of them actually urinate on him. The Respondent exhibited appallingly poor judgment in passively watching the videotape to its conclusion. It was clearly probable, if not absolutely obvious, that showing the videotape to the class was humiliating and denigrating, not only to David but to the others as well. (Although Marshal and Sean obviously did not realize it, the videotape raised serious questions about their character.) Yet, the Respondent concluded that he did not have "the right" to stop the videotape because it supposedly was the result of Marshal's and Sean's attempt at artistically and creatively expressing an "anti-drinking" message. It is difficult to detect the supposed artistic or creative content in the videotape. Even if there were any, the Respondent clearly should have recognized his "right" as a teacher to stop the humiliating and degrading videotape. He did not even think to stop it in order to ascertain whether Renken and David indeed had approved of showing it. (In fact, neither had.) After the videotape finished, the Respondent left with his class. Neither he nor Renken confiscated the videotape to prevent it from being shown again. As a result, between class periods, Marshal began to show it again. When guidance counselor Clark looked in to check the classroom, where he was planning to lead a tour during the next period, he briefly saw what was going on and told Marshal to stop the tape and bring it to him later. (Clark did not confiscate the tape either. It was not clear from the evidence what parts of the videotape Clark was able to see.) When the Respondent returned to the classroom, where his next class was being held, Marshal was in the process of showing it again. This time, the Respondent told him to stop the tape but still did not confiscate it. Expectations of Pinellas County Teachers At the beginning of each school year, all Pinellas County teachers receive a copies of the Pinellas County Teacher Handbook and Code of Student Conduct. They are told to read and be familiar with them. According to the Pinellas County Teacher Handbook, while the use of guidance counselors for help with minor discipline problems related to instruction is permissible, for other discipline problems teachers are to contact the appropriate assistant principal. While the Teacher Handbook encourages teachers to "handle as many discipline problems as possible without jeopardizing the learning environment," it also provides that major offense should be referred directly to the assistant principal's office. The Teacher Handbook includes, among disciplinary offenses classified as major, being in possession or under the influence of "an unknown substance." The Teacher Handbook also includes the following provisions from an outdated version of the Principles of Professional Conduct for the Education Profession: Obligation to the student requires that the educator: Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety. The Teacher Handbook also requires that teachers be familiar with the "Code of Student Conduct." Among other things, the "Code of Student Conduct" prohibits the use or possession of illegal drugs, materials, substances, or alcoholic beverages on school property or prior to arriving at school and provides that a student violating the prohibition will be suspended and recommended for expulsion. Impact on Teacher Effectiveness David did not agree to showing the videotape. On the morning of Friday, February 11, 1994, Marshal and Sean told him that they had videotaped David while he was drunk the day before and that Marshal had the videotape. They said they were going to show the video in class that day. David did not think they were telling him the truth and did not think there actually was such a videotape. In any event, he was preoccupied as a result of also being told by Marshal and Sean that they had brought him to school the day before. He was concerned that he may have been "referred" to the administration for discipline for being intoxicated on campus. David went to ask guidance counselor Clark and was told that Clark had not "referred" him but that the Respondent might have. When he went to see the Respondent between the first and second period of class, the Respondent revealed to David that there was a videotape and that it already had been shown during first period in Mr. Renken's class. David then went to Renken's first period classroom, where Marshal and Sean were showing the videotape again. David watched for just a short time, but long enough to be shocked and disgusted, as well as humiliated. He left the classroom and went to report to Clark what Marshal and Sean were doing. David has been seriously adversely affected by the videotape and its having been shown at school. He already did not have a good self-concept. As a result of the videotape and its being shown at school, and the aftermath, including this proceeding, he now is in counseling. He thinks former friends and aquaitances have been avoiding him. He verbalizes strong anger at, disillusion with, and distrust of Marshal and Sean. He thought they were his friends but no longer does after what they did. He does not verbalize similar feelings about the Respondent. To the contrary, he appreciates the Respondent's willingness to allow Marshal and Sean take him home from school on Thursday, February 10, and does not blame him very much for the videotape being shown the next day. On the other hand, he blames himself for causing the Respondent's dismissal and is experiencing difficulty dealing with the resulting guilt he feels. On the other hand, David's mother faults the Respondent on several counts. First, she believes he should have taken steps to ascertain what David's problem was on the afternoon of Thursday, February 10, instead of taking the word of Marshal and Sean that he was drunk, presumably on alcohol, but that he was "okay." Second, she thinks she should have been notified so that she could have made arrangements to get David home and take care of him. Third, she thinks the Respondent exposed not only David but, as far as he knew, also other students to safety risks by allowing Marshal and Sean to take David home on the bus. Finally, she faults him for allowing the videotape to be shown in the classroom on Friday, February 11. She thinks the Respondent should be dismissed. She would no longer entrust the Respondent with David's safety and welfare, and she does not think the Respondent should be entrusted with the safety and welfare of any other students. She has given the School Board notice that she and her husband intend to claim damages for personal injuries to David as a result of the incidents on February 10 and 11. Several other students also were appalled at the videotape that was shown on Friday, February 11. They also found it to be disgusting, degrading, and humiliating. They empathized with David and were upset at Marshal and Sean and the other teenagers involved in making the videotape. They also were surprised and perplexed that the teachers were allowing it to be shown. They kept watching the Respondent as the videotape was being shown to see if he was going to stop it. The evidence is that, as a result of the incidents on February 10 and 11, the Respondent's effectiveness as a teacher in the school district has been seriously impaired. At the same time, many other students and parents think the Respondent can continue to teach effectively. Without question, except for the incidents on February 10 and 11, the Respondent has been a fine teacher. Some report that he is one of the best teachers in the school. Except for the incidents on February 10 and 11, he has been caring and concerned for the students. The students have responded to those good qualities and have liked and respected the Respondent. The Respondent has been able to engage his students in the learning process and elicit a good educational response from his students. The incidents on February 10 and 11 represent unfortunate blemishes on an otherwise commendable teaching record. It certainly is possible that the Respondent will be able to rehabilitate himself so as to be worthy of consideration for future annual contracts with the School Board. Discipline of Others Involved The Respondent was not the only School Board employee who was disciplined for conduct related to the incidents on February 10 and 11, 1994. Cody Clark was reprimanded for not notifying administration and David's parents at approximately 3:30 p.m., when he first learned from the Respondent that David was the intoxicated student who had been brought to the Respondent's classroom earlier that afternoon, and for not confiscating the videotape he saw Marshal playing the next morning. Keven Renken was suspended without pay for ten days for his role in allowing the videotape to be shown on Friday, February 11, 1994. It is found that the nature and extent of their roles, and questions regarding the extent of their knowledge of the content of the videotape, can justify taking less severe action against them. There was no evidence of any similar incidents involving School Board employees. The Respondent introduced evidence of discipline resulting from other kinds of incidents in an attempt to demonstrate that dismissal is too severe in relation to the Respondent's actions (or inactions). But those other incidents were too dissimilar to compare with the Respondent's action (or inaction) in this case, and the School Superintendent explained valid reasons for viewing the action (or inaction) by the teachers involved in those cases as being less egregious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Respondent, James Ray, from employment under his annual teaching contract. RECOMMENDED this 13th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1631 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-40. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary, and last sentence is conclusion of law. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Also, most of the news articles reported phases of the dismissal process. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and unnecessary. 5.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not supported by the evidence. As to E-2, accepted but unnecessary. (Also, omits: "i.e., contacting parent, detentions.") As to E-3, rejected as not supported by the evidence. 12.-13. Accepted but unnecessary. However, the statements and clear inferences in the handbooks and rules, including the excerpts from an outdated version of the Principles of Code of Professional Conduct, required the Respondent to act differently than he did. 14.-17. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. As to the second sentence: rejected as contrary to the greater weight of the evidence that "the purpose" was to dissuade other students from abusing alcohol; accepted and incorporated that Marshal and Sean stated that was a purpose of the videotape. Accepted and incorporated. Rejected as not established that they "drug" [sic] David, or that Clark was listed as an administrator. (Clark was listed as a "Counselor.") Rejected as contrary to the greater weight of the evidence that they said David was "drunk" or "messed up." (They said he was "sick." They assured her twice that David was nonetheless "alright." The third time she asked, David managed to lift his head and smile at her. She thought they were acting.) Otherwise, accepted but unnecessary. Accepted and incorporated. First sentence, accepted and incorporated. Second sentence, rejected as contrary to the greater weight of the evidence. Accepted but unnecessary. Accepted and incorporated. 26-27. Accepted but unnecessary. (It was not clear from the evidence that they knew or should have known David's condition.) Accepted and incorporated. (However, it would not have been Clark's job, and apparently was not Clark's nature, to reprimand the Respondent. He certainly communicated to the Respondent that there was not much either of them could do without the identity of the intoxicated student, and the two of them engaged in considerable effort to try to deduce the student's name.) Accepted and incorporated. Rejected as contrary to the greater weight of the evidence that Marshal came back "shortly" after the Respondent left Clark's office. 31.-35. Accepted and incorporated to the extent not subordinate or unnecessary. 36. Rejected as contrary to the greater weight of the evidence. 37.-38. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence that the period was "short"; it was about 15 minutes. Rejected as contrary to facts found and to the greater weight of the evidence. 41.-42. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not being clear from the evidence why the Respondent did not let Marshal show the tape during the second class period; however, that is the reason given by the Respondent in his testimony. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that there were no "drastic reactions." The Respondent himself found the tape to be "disgusting," and so did several other students. However, they apparently were following his lead, looking at the Respondent and waiting to see his reaction (reasonably, expecting him the stop the showing.) Also, rejected as contrary to facts found and to the greater weight of the evidence that the Respondent did not shut off the videotape only because "he did not want to override Mr. Renken." He also testified that he did not want to stifle the "creativity" of Marshal and Sean. It is not clear why the Respondent had the poor judgment to let the videotape be shown. Accepted but unnecessary. Accepted and incorporated. Rejected as not established by the evidence. 48.-52. Accepted but subordinate and unnecessary. 53. As to the first sentence, he testified that students needed to be protected, not teachers. Second and third sentences, rejected because he made it clear that each case is decided on its own facts and that the Respondent's evidence did not recite all of the pertinent facts. From the facts contained in the Respondent's evidence, the Superintendent recalled: in one case, a teacher got a three-day suspension for pushing a student, who did not belong in the classroom and refused to leave, out the door, accidentally causing the student to bump his head and cut his arm slightly; in another, a teacher got a five-day suspension for becoming upset at a student who hit him in the face with a thrown wad of paper, chasing the student with a stool, and accidentally injuring the student's hand slightly when he threw the stool on the floor; and, in a third, a teacher was suspended for five days for drinking off campus with adult students and for driving them and a school staff member while "appearing to be under the influence of alcohol." 54.-60. Accepted and incorporated to the extent not subordinate or unnecessary. 61. Accepted and incorporated as to specific references to videotapes and their confiscation. But several more general guidelines applied and were adequate. 62.-64. Accepted but subordinate to facts contrary to those found, and unnecessary. The guidelines were adequate to inform the Respondent as to what he should have done in this case. (Even without knowing the specifics of the guidelines and rules, Nurmela knew from intuition that the Respondent had violated them. Even Pomerantzeff testified that, from her understanding, never having seen it herself, the videotape was beyond the limits of what she would have allowed students to show and see.) Rejected as contrary to the greater weight of the evidence that he testified student and parent reaction was the sole basis for determining teacher effectiveness. (It can be one factor.) Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that they made that generalization. 68-70. Accepted and subordinate to facts found. 71.-72. Accepted but subordinate and unnecessary. Rejected that they were instructed that signing any petition for the Respondent could result in discipline, only signing one that Shorter had not pre-approved, in accordance with school policy. Accepted but subordinate and unnecessary. Rejected as not established by the evidence. 76.-77. Accepted but hearsay that cannot support findings. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney 301 Fourth Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Mishele B. Schutz, Esquire 535 Central Avenue St. Petersburg, Florida 33701 Howard Hinesley Superintendent of Schools School Board of Pinellas County 301 Fourth Street S.W. Largo, Florida 34640-3536 Honorable Doug Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract for approximately 15 years. He has a bachelor's degree and a master's degree in the area of education. During the 1988-89 school year Respondent was assigned as a teacher to Highland Oaks Middle School. Danielle Fisher was a student in Respondent's fifth period math class. On May 8, 1989, during math class, Dantelle Fisher became involved in a loud argument with one of her friends over which of the two girls was the owner of a "fucking lipstick." Fisher, who was also eating candy, kept proclaiming to the other girl, "Fuck you. It's mine." Fisher's argument disrupted Respondent's math class and the class next door. Respondent directed Fisher to be quiet, and Fisher refused. Respondent directed her again to be quiet, and again she refused. Respondent directed her to leave the room, and she refused. Respondent again directed her to leave the room, and she yelled at him "Fuck you. Screw you, asshole." Fisher continued yelling profanities, and Respondent went over to where she was sitting. He took her left arm to guide her out of her seat, and she resisted, refusing to move. He then exerted a small amount of force, pulling her up from her seat. Respondent gave her her books and her purse and led her by her left arm to the open classroom door, instructing her to report to the office. Respondent then closed the classroom boor. Fisher then opened the classroom door and screamed at Respondent, "Fuck you. I'm going to get you fired." She then yelled to her classmates, "Everybody, remember this." She then showed them her left arm which at that moment showed finger prints, i.e., the impression of where Respondent's fingers had been on her arm. She then left. By the time that Fisher reached the principal's office, she had red welts and scratches on her right arm. Respondent had not touched Fisher on her right arm. Fisher was not humiliated or embarrassed by the incident. She had been removed from Respondent's classroom on previous occasions for disruptive conduct and had been removed from her social studies class on a previous occasion for banging on the wall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing the Specific Notice of Charges filed against Respondent and reinstating Respondent to his position as a classroom teacher with full back pay from the date of his suspension to the date of hid reinstatement. DONE and ENTERED this 30th day of April, 1990, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990. APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 89-6345 Petitioner's proposed findings of fact numbered 1 and 6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact lumbered 2 and 3 have been rejected as being irrelevant to the issues under consideration in this proceeding. Petitioner's proposed finding of fact numbered 4 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 5 and 7-12 have been rejected as not being supported by the weight of the credible evidence in this proceeding. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 5 and 6 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact: numbered 1-4 and both numbers 7 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. COPIES FURNISHED: William DuFresne, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Dr. Paul W. Bell, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Annie Jackson, currently Principal of Golden Glades Elementary, also served in that capacity during Elijah McCray's 6th grade experience there during the regular 1984-1985 school year. On December 10, 1984, Mrs. Jackson personally removed Elijah from the lunch room for shooting paper at other students. He was reprimanded after a conference and sent to an alternative eating place for a month. On March 5, 1985 the classroom teacher referred Elijah to Mrs. Jackson for disruptive behavior, running around, not working and splashing water. He was removed from class and received a conference with Mrs. Jackson. Mrs. Jackson called the parents the next day and reported the situation. On March 27, 1985 he was referred to Mrs. Jackson for laughing at his teacher and being defiant. On March 28, 1985 he was assigned 3 days outside detention by Mrs. Jackson because he had refused to serve assigned detention. On April 2, 1985, which was the day Elijah was due to return, Mrs. Jackson wrote his parents because he had again been referred to the office and defied the authority of the teacher referring him by not carrying the referral to Mrs. Jackson's office. He was referred to the school counselor by Mrs. Jackson. There was a subsequent 5 day suspension for disruptive behavior scheduled to begin on April 15, 1985. At 5:00 P.M. on that day, Mrs. Jackson personally conducted a teacher/parent/ student/administrator conference to discuss the April 15, 1985/ suspension. Present in place of the parents were Mr. and Mrs. Taylor, Elijah's grandparents. The teacher made known to the grandparents that she did not want Elijah back in her class because he would throw items and deny it and frequently disrupt the class by spitting in the classroom or by leaving the classroom to spit. The grandparents made known to the teacher, and to Mrs. Jackson that a sinus condition of Elijah's required him to spit frequently and Mrs. Jackson apparently engineered some rapport between the teacher and Elijah upon this information so that the planned 5 days suspension was rescinded by Mrs. Jackson. Mrs. Taylor testified that she was present at this meeting but felt she had not participated because she had left most of the talking to Mr. Taylor and Mrs. Jackson, but upon Mrs. Jackson's and Mrs. Taylor's testimony together it is specifically found that this parent contact did occur. On April 17, 1985, Mrs. Jackson referred Elijah to the school counselor because of a report from his classroom teacher that Elijah had said he would "swing his old gun" at her. While this language by the teacher is technically hearsay outside the admission exception, information on the report was recorded contemporaneously by Mrs. Jackson in the school records and regardless of what was actually said to the teacher, Mrs. Jackson personally observed the distraught behavior of the teacher in reaction to whatever threat had been made by Elijah. Mrs. Jackson called school security as a result. The investigation of the incident by Mrs. Jackson and the security investigator revealed that the teacher had been told by other students that Elijah had shot a relative of theirs but that he had in fact never done so. Elijah was warned that it is serious to make threats to teachers. On April 22, 1985 Mrs. Jackson received a formal written request from the classroom teacher requesting Elijah's removal from her class. Much of Mrs. Jackson's testimony suggests that the persistent disruptive behavior was that of the classroom teacher who referred Elijah for what she perceived as threats. This teacher was not present to testify. Elijah was returned to class by Mrs. Jackson over the teacher's objections with a final warning concerning making threats. A parent/teacher/student/ administrator conference was held to apprise the parents that this was a last chance. It may be that Mrs. Taylor was not present for this conference, but Mrs. Jackson indicates at least one adult was present on behalf of the child. On April 25, 1985, Elijah was returned to class. On April 30, 1985, Mrs. Jackson requested Officer Harris of Operation Pro Volunteer Listener to confer with Elijah about the seriousness of making threats. On May 1, 1985, Mrs. Jackson investigated a report that Elijah had threatened two girls (Mirland Joseph and Lesley Compton) in his class with a knife. The girls gave statements which Mrs. Jackson synopsized as stating that they thought they had been threatened with a knife by Elijah. The statements are not signed. The incident as reported in the statements composed by the principal are by themselves hearsay and that hearsay is not confirmed or corroborated by a statement made by Elijah directly to Mrs. Jackson that he had showed the girls the point of a nail file attached to a man's pocket toenail clippers and was "just joking with it." Mrs. Jackson received a broken pair of blunt toenail clippers from Elijah at the time of this admission and a xerox copy of the nailclippers was admitted in evidence as a true and correct copy of the implement. Because of the presence of the nailclippers, which Mrs. Jackson characterized as a "pointed object", Mrs. Jackson initiated transfer of Elijah to an alternative education program. She felt this was a lesser alternative to expulsion. Expulsion would otherwise be required by School Board policy in the presence of a "weapon." Mrs. Taylor testified that she had heard one of the girls who had given statements to Mrs. Jackson or perhaps a third girl named "Alexandra" say they had made up the May 1, 1985 incident. Mrs. Taylor stated Elijah and his sister had told her the night before the May 1, 1985 incident that the two girls or Elizabeth Carpenter was going to "start a problem for him the next day" or "going to fight him" the next day. There is no record evidence of failing grades, truancies, or unexcused absences for Elijah.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Elijah McCray to the appropriate grade level in a regular school program with a different classroom teacher than previously assigned. DONE and ORDERED this 30th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire Law Offices McCrary, Valentine & Mays P.A. 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mrs. Sylvia Taylor 2971 N. W. 165 Street Opa Locka, Florida 33054 Madelyn P. Schere, Esquire 1450 N. E. Second Avenue Miami, Florida Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent may terminate Respondent's professional service contract for just cause, including a failure to correct performance deficiencies, pursuant to sections 1012.33(1)(a) and 1012.34(4), Florida Statutes.
Findings Of Fact Background In 1982, Respondent earned a bachelor of science degree in education from Central Michigan University where he majored in math and minored in history. The next year, Petitioner hired Respondent and assigned him to Cooper City High School, where he taught math and coached cross country and track. While teaching at Cooper City, Respondent also served as an adjunct math teacher at Broward Community College from 1992 to 1995. In 2000, Respondent transferred from Cooper City to AHS, where he taught math courses ranging from remedial to advanced. In 2006, Respondent earned a master's degree in teaching mathematics from Florida Atlantic University. On May 26, 2014, AHS Principal Angel Almanzar wrote a letter to the Superintendent recommending the dismissal of Respondent, and, on June 6, 2014, the Superintendent wrote a letter to Respondent advising that he would recommended his dismissal to Petitioner. Respondent has not taught at AHS since May 2014. While employed at AHS, Respondent diligently discharged his instructional duties. Among the first teachers to arrive at school each day, always wearing a tie, Respondent typically reported for duty at AHS between 6:15 a.m. and 6:30 a.m., which was 30 to 45 minutes before teachers were required to report. When necessary, Respondent stayed late and made himself available to meet with students during lunch. Recently retired IB Coordinator, Hallie Hooper, who taught 31 years for Petitioner, observed Respondent teach at AHS from 2001 through 2014. Focusing particularly on Respondent's Algebra II classes, Ms. Hooper found Respondent highly effective and knowledgeable about his subject and how to teach it, starting on time and teaching "from bell to bell." Although not "warm and fuzzy" with his students, according to Ms. Hooper, Respondent talked with them as he taught the daily lesson and checked the students' work during class. As Ms. Hooper noted, Respondent's students often complained that his course was too hard, but later, reflecting on how much they had learned, many were grateful for the demands that Respondent had placed on them. The record contains only limited evidence of more recent data of the academic achievement of Respondent's students. This evidence supports Ms. Hooper's assessment of Respondent's effectiveness as a teacher. In the 2008-09 school year, Respondent's math students enjoyed the greatest learning gains among AHS math students. In the 2011-12 school year, 80.6% of Respondent's regular Geometry students passed the end-of-course (EOC) exam, compared to AHS's Geometry EOC passing rate of 60%. In the same school year, when Respondent took over teaching IB math from the former chair of the AHS math department, William Peacock, the passing rates improved to 81% (13 of 16 students) in IB Math Studies and 80% (four of five students) in IB Calculus. Under Mr. Peacock, during the preceding school year, the passing rates had been 63% (12 of 19 students) among the IB Math Studies students and 50% (two of four students) and the IB Calculus students. Respondent's assignment to teach the demanding IB math classes followed the recommendation of Mr. Peacock, who based his suggestion on Respondent's knowledge of mathematics and hard work as a classroom teacher. For over 10 years, Mr. Peacock had received students who had taken math classes from Respondent, and Mr. Peacock had found these students to have been well prepared by Respondent for the next level of math. One year after Mr. Peacock's departure, AHS administrators assigned Respondent to teach remedial classes, including, possibly for the first time, Informal Geometry. Informal Geometry is a course that combines instruction in geometry with remedial instruction in Algebra I for students who are required to retake the Algebra I EOC exam to pass Algebra I. A student must obtain a certain number of math credits to obtain a high school diploma, so passing math classes has always been important. At about the same time that Respondent was assigned to teach Informal Geometry, passing at least certain math classes also required students to pass the standardized EOC exam, regardless of their grades for the class. Informal Geometry students who have failed the Algebra I EOC exam review the Algebra I curriculum and retake the Algebra I EOC exam up to three times in the succeeding school year--in September, December, and May--in order to recover the credit for Algebra I. By the time that Respondent was assigned to teach the class, Informal Geometry was therefore a high-stakes class for students seeking a diploma. The September retake of the Algebra I EOC exam is so early in the school year that the passing rates of Informal Geometry students indicate little about the effectiveness of their Informal Geometry teacher. But the passing rates of students taking the December and May retake exams reflect considerably on the Informal Geometry teacher's effectiveness. In December 2013, the AHS passing rate on the Algebra I retake exam placed the school eighth in Broward County, which by all accounts was a major achievement for AHS,2 many of whose students are below grade level in math. The credit for the school's success at the December 2013 retake of the EOC of Algebra I lies with Respondent, who was likely the only teacher of Informal Geometry at AHS.3 During this period of positive student learning in Respondent's classroom, Petitioner revamped its teacher evaluation system. In 2010 or 2011, Petitioner adopted a teacher evaluation system based on the work of Dr. Robert Marzano, including Dr. Marzano's iObservation® form. The rollout of this new teacher evaluation system was a work in progress during the years at issue in this case. The iObservation® form is a dual-purpose document to promote the professional growth of teachers and to evaluate the performance of teachers. This case involves the use of the iObservation® form for the evaluation of teachers. The iObservation® form comprises 60 strategies or criteria among four domains: Domain 1, which is instructional; Domain 2, which is planning and preparation; Domain 3, which is self-assessment; and Domain 4, which is professionalism. Domain 1 contains 41 criteria. Each criterion is accompanied by means by which an observer may assess the extent to which a teacher complies with the criterion. For Domain 1, these means are set forth as items of "Teacher Evidence" and items of "Student Evidence." Observers score criteria by issuing "datamarks" indicating the extent to which a teacher is complying with a criterion. The datamarks are "Not Using," "Beginning," "Developing," "Applying," and "Innovating." At the same time that Petitioner was adopting its new Marzano-based evaluation process, Respondent's grading policy and practices were increasingly drawing the attention of AHS administrators. Respondent assigned many Ds and Fs to his students, although the record is insufficiently developed to detail Respondent's full-year grades and compare them to the full-year grades of his comparable colleagues. Petitioner attributes the poor grades to Respondent's incompetence as a teacher, as documented by numerous completed iObservation® forms showing Respondent's failure to conform to the Marzano method of teaching. Respondent counters that the poor grades are due to two factors: 1) AHS administrators routinely allowed unqualified students to register for advanced courses and 2) students in remedial courses were unmotivated and did not try. Respondent was not the first math teacher at AHS to issue lots of poor grades, including in more advanced math classes. Toward the end of his tenure at AHS, Mr. Peacock failed upwards of 60% of his students in an Advanced Geometry class after AHS administrators declined to approve his request, at the start of the year, to transfer a number of unqualified students to regular Geometry. Conceding the obvious, Respondent's direct supervising administrator for the 2012-13 and 2013-14 school years, Assistant Principal Leslie Farr, allowed that there is "some truth" to Respondent's claim that the students were at fault for failing. At minimum, Respondent did not assign poor grades randomly or mistakenly. In this sense, the students earned these grades. The difficult--and, on this record, unanswerable--question is whether different teaching practices would have reduced the numbers of full-year Ds and Fs. More resolvable is the proper issue of the extent of Respondent's compliance with Dr. Marzano's strategies. Petitioner's first witness, former AHS Assistant Principal Errol Evans, was called to preview Respondent's deficiencies during the 2010-11 and 2011-12 school years when he observed Respondent. Assistant Principal Evans testified that he found that Respondent did not use any of the 41 Domain 1 criteria contained in the iObservation® form. This claim is difficult to credit, given the comprehensiveness of these criteria, the multiple levels of implementation recognized in the iObservation® form, and Respondent's record of student achievement during this period.4 Assistant Principal Evans also testified that he found Respondent to be "demeaning" and "insulting" to his students, and he left Respondent's classroom "totally appalled." Assistant Principal Evans added that he suggested that Respondent try various Marzano strategies. At times, Respondent flatly refused. At other times, he agreed to appear at teachers' meetings at which the Marzano strategies would be discussed, but did not show. In both of these responses, Respondent exhibited, in the words of Assistant Principal Evans, "a level of arrogance unparalleled." Respondent's defiant refusal to use Marzano strategies, his demeaning and insulting treatment of his students that left his immediate supervisor totally appalled, and his taunting failure to show at Marzano teacher meetings that he had explicitly told his immediate supervisor that he would attend--in sum, an unparalleled display of arrogance--drew two responses from Assistant Principal Evans and Principal Almanzar: a satisfactory evaluation for 2010-11 and a satisfactory evaluation for 2011-12. Likely, as Assistant Principal Evans conceded, the evaluations were satisfactory because Respondent's students performed better than the other AHS math students. The Administrative Law Judge finds that, in describing Respondent's teaching performance, Assistant Principal Evans has indulged in a little hyperbole to help his employer make its case. On at least one occasion during the 2011-12 school year, Principal Almanzar was impressed with one device used by Respondent--a device that Petitioner now cites as a problem. Respondent has long adhered to the practice of crediting and debiting points for correct and wrong answers to questions that he poses to the class. On "no-risk Fridays," though, students did not lose points for wrong answers. Respondent seemed to implement this class-participation device in such a way as to give students greater opportunities to win rather than to lose points, although this feature of the device was not readily apparent to students. In April or May 2012, Principal Almanzar observed Respondent use this academic game in a regular Geometry class, which eventually scored better than other AHS regular Geometry classes. After the class, Principal Almanzar, visibly impressed, suggested that Respondent present this device at a professional learning committee meeting. At the end of the 2011-12 school year, Assistant Principal Evans was replaced by Assistant Principal Farr. Over the course of the 2012-13 school year, Assistant Principal Farr conducted several observations of Respondent using the iObservation® form, which is described in detail below. Averaging all of the datamarks of Assistant Principal Farr and the datamarks of two other administrators who performed two observations, Respondent's IPS was 2.414, which was at the upper end of Needs Improvement, just short of the 2.5 threshold for Effective. His Student Growth Score (SGS), which was the same for all teachers that year, was 3.0, which was Effective. For the 2012-13 school year, the IPS was weighted at 60% and the SGS was weighted at 40%, so Respondent's Final Score was 2.648, which was at the lower end of Effective. For Domain 1, Respondent received 16 datamarks of Applying or Developing (which earned the same number of points for 2012-13 only), 23 datamarks of Beginning, and 4 datamarks of Not Using. For Domains 2 through 4, Respondent received 8 datamarks of Applying or Developing, 2 datamarks of Beginning, and 1 datamark of Not Using. About 10% of Respondent's datamarks, cumulatively and in Domain 1, were Not Using. Relations between the AHS administrators and Respondent were strained during the 2012-13 school year. AHS administrators had to deal with the fallout from Respondent's bad grades and disciplinary referrals and believed that better teaching would eliminate these problems. Believing that he was an effective teacher, Respondent accused AHS administrators of failing to support his practice of assigning realistic grades that might motivate the students to prepare earnestly for EOC and other high-stakes testing. On October 11, 2013, Assistant Principal Farr advised Respondent that it had been unprofessional and impolite of him three days earlier to have placed copies of a memorandum from an AHS administrator critical of some act or behavior of Respondent in the school mailboxes of other teachers. When Assistant Principal Farr directed Respondent not to do it again, Respondent replied that Assistant Principal Farr lacked the authority to prohibit him from doing so and, whenever an administrator gave him something "stupid," he would copy and disseminate it to the other teachers. Assistant Principal Farr issued Respondent a reprimand for his defiance on October 31, 2013. Not long after this incident, probably early in the second semester of the 2012-13 school year, Principal Almanzar initiated a cycle of assistance for Respondent due to the administrator's concerns about Respondent's delivery of curriculum, failure to conform to the Marzano strategies, poor relationships with students, excessive number of disciplinary referrals, and defiance toward administrators, but mostly because Respondent was assigning poor grades to too many students. The cycle of assistance did not focus on particular deficiencies perceived by Principal Almanzar. Principal Almanzar selected two coaches for Respondent: Maxine Spadaro, who was a math curriculum coach at AHS, and Linda Kal Sander, who was a literacy coach at AHS. Both coaches produced detailed records of their assistance during the 2012-13 school year. These emails reveal both coaches to be hard-working and capable professionals in their respective educational fields. As of the hearing, both coaches remained employed by Petitioner, and the Administrative Law Judge has credited their contemporaneous emails over elements of their testimony, which has been shaped somewhat by their knowledge of their employer's interest in securing the dismissal of Respondent. By email dated January 15, 2013, Ms. Kal Sander informed Respondent that she had been asked to support him in implementing Dr. Marzano's principles in engaging students. She stated that she visited Respondent's classroom the prior month to observe his teaching methods. Ms. Kal Sander advised that the research suggests that he should stay with a student who has given a wrong answer until he gets the right answer, rather than leave him and move on to another student. By email dated January 24, 2013, Ms. Spadaro documented her first observation a few days earlier. She noted that she had seen students answering questions after being called upon, earning one point for correct answers and losing one point for incorrect answers--she added, "with student approval." Ms. Spadaro has spoken with Respondent about penalizing a student for a wrong answer, and Respondent had assured her that he did not really do so when recording class participation grades. Ms. Spadaro had replied that the students did not know that. The January 24 email acknowledges that Respondent knew the names of the students on whom he called. The email adds that, as Respondent gave the answers to the homework assignment, most of the students did not have their homework assignment in front of them, and, when Respondent asked if anyone had any questions, only one student asked a question. The January 24 email suggests that Respondent wait a few seconds after asking a question and then call on any student, not always a student who had raised her hand; require students to have their homework assignments open on their desks and go over the answers more slowly; and, instead of asking the class if anyone has any questions, use the "four-finger method," in which a student may signal with his fingers the extent of his understanding, or lack of understanding, without embarrassing himself with his peers. By email dated January 29, 2013, Ms. Kal Sander memorialized her classroom observation earlier that day. The email commends Respondent for his "thorough . . . explanations . . . to your students." The email documents that Respondent had integrated technology, supported his students, provided direct instruction from the concrete to the abstract, executed a gradual release of responsibility, checked for understanding and accuracy among the students, questioned the student whose board work was incorrect, suggested support materials that students might use during independent practice, and demonstrated "withitness" and easy rapport with the students. Ms. Kal Sander's email concludes: "If I were to offer any advice concerning the delivery of this lesson, I would only suggest that, when releasing the task to the students, they "might have the opportunity" to work with a partner or check each other's work prior to regrouping. Ms. Kal Sander noted that this was a minor suggestion because of the presence of merely four students in the class, suggesting that she had observed an IB class. By email dated February 5, 2013, Ms. Spadaro confirmed an observation of Respondent's Geometry class earlier in the afternoon. She saw Respondent calling out answers from the homework assignment and asking if anyone had any questions. She noted that students appeared lost, although no one raised a hand. Respondent projected a test on a board and went over the answers, showing how the problems are solved. Only one student raised his hand during this lesson. Noting that most of the students had failed the test, Ms. Spadaro asked how Respondent could ensure that the students had assimilated the information on the test. She suggested that Respondent allow the students to give their answers for their homework and explain how they arrived at their answers. Ms. Spadaro recommended that Respondent continue to use the board to explain problems to help students who are visual learners. She advised Respondent to re-teach the materials on the test that most of the students had failed. By email dated February 11, 2013, Ms. Spadaro memorialized an earlier suggestion that Respondent set up some of his lessons so that the students could work in groups of two or three because cooperative learning usually meant active learning. Ms. Spadaro offered to help develop the groupings. By email dated February 14, 2013, Ms. Kal Sander reviewed an observation of a Geometry class that had taken place two days earlier. She found the students seated in pairs, the lesson presented in smaller chunks, and rules governing the subject--the geometric form known as a rhombus--given orally and in writing on the board, but no integration of technology. During a question-and-answer session, Respondent once stayed with a student until he successfully answered the question, which Ms. Kal Sander had suggested in her January 15 email. Other times, though, Respondent reverted to the warning that a wrong answer would cost a point and asked other students to point out the error in the answering student's wrong answer, after which only one student raised her hand. Ms. Kal Sander offered to discuss with Respondent how to make the question-and-answer session more "'rewards' based." Ms. Kal Sander cited two pages from a book authored by Dr. Marzano suggesting four strategies for managing questions and responses--wait times, response cards, choral responses, and response chaining--and four ways of analyzing errors--faulty logic, attacks, weak reference, and misinformation. Lastly, Ms. Kal Sander criticized Respondent for publicly reprimanding a student who had not brought his materials to class, suggesting that Respondent project the materials onto a wall or screen. By email dated February 15, 2013, Ms. Spadaro documented a classroom observation the prior day. The email states that, on her arrival, the class was transitioning from a test to a lesson, but not all of the students had finished the test. Respondent explained the lesson with examples on the board and called on students to explain problems, as she had recommended in her February 5 email. She noted that Respondent used the "four-finger method" to ensure student comprehension, as she had recommended in her January 24 email. Ms. Spadaro suggested that, rather than present a lesson while students are finishing a test, Respondent present enrichment or review material. She also suggested that Respondent use visuals while presenting materials. By email dated February 20, 2013, Ms. Spadaro acknowledged having observed Respondent earlier that day. She had seen the students take a 20-minute quiz, after which Respondent projected the answers on the board for review. Unfortunately, Respondent also complained to the students that he was being harassed by AHS administrators, including Ms. Spadaro. Ms. Spadaro objected that Respondent's comments concerning her classroom observations were "unprofessional" and demanded that Respondent behave in a more professional manner. He did not again complain about Ms. Spadaro in front of his students. The next day, Respondent had a similar episode with Ms. Kal Sander. By email dated February 21, 2013, Ms. Kal Sander documented her classroom observation earlier in the day. When Respondent opened the classroom door, he saw Ms. Kal Sander and asked if she was there to help him. She tactfully replied "yes," if he should need her help. Respondent answered that he did not need her help and she had not helped so far. Respondent added that Ms. Kal Sander's presence was "harassment." Ms. Kal Sander politely objected to Respondent's comments and left the classroom. Respondent never again embarrassed her in the presence of students. By email dated February 22, 2013, Ms. Spadaro noted a classroom observation of the same date. She found Respondent collecting student work and going over the problems from an assignment. After finishing this task, Respondent then reviewed workbook assignments. He called on various students to give and explain answers with no risk of losing points, as she had suggested in her January 24 email, although this was a "no-risk Friday." Ms. Spadaro noticed that more students than usual participated. When reviewing the geometric mean, Respondent kept going through students until one finally answered the question, but never explained the basis for the answer. Ms. Spadaro suggested that Respondent "continue" helping visual learners by drawing on the board. She also suggested not penalizing students for wrong answers. Lastly, she recommended that Respondent explain incorrect answers, adding that, if he grouped his students, the other students in the group could help students who were confused. By email dated February 27, 2013, Ms. Spadaro responded to Respondent's request for EOC support and provided him with references to useful materials. By email dated March 14, 2013, Ms. Spadaro stated that it was nice seeing Respondent earlier on that day and discussing certain EOC data. By email dated March 14, 2013, Ms. Spadaro stated that it had been nice having a conversation with Respondent about the EOC data. The email confirms that they agreed that Respondent would continue to use class warm-ups that incorporated benchmarks that would be covered on the Geometry EOC exam. By email dated March 21, 2013, Ms. Spadaro noted that she had observed Respondent earlier in the day. She found all but one of the students were engaged in working on a practice problem in the workbook. The lone student had forgotten his workbook, and Respondent had warned him that he would lose a point if he asked to borrow a workbook. The students were all working independently with their desks in rows, as Respondent delivered the lesson by direct instruction. Respondent again used the "four-finger method" to assure student understanding, as Ms. Spadaro had advised in her January 24 email. Ms. Spadaro recommended not penalizing the student for sharing a workbook. She also suggested allowing the students to work in groups of two or three. By email dated April 5, 2013, Ms. Kal Sander documented an observation earlier that day. She appreciated the notes that Respondent had placed on the board for the students as they worked on practice EOC questions. Referring to a specific principle authored by Dr. Marzano, Ms. Kal Sander asked if Respondent should allow each student three to five minutes to discuss his or her answers to the practice EOC questions with another student before turning in his or her work, so that the students could review similarities and differences, examine errors, and revise knowledge. This suggestion implies that small-group instruction may take place by this means and does not invariably require moving desks out of rows. By email dated April 12, 2013, Ms. Kal Sander complimented Respondent: "I am always amazed how quickly the concepts [of geometry] come back to me when you explain them the way that you do. I appreciated that you projected the reference sheet and gave so many explanations for solving the sector problems." Referring to the fact that she had observed a "no-risk Friday," Ms. Kal Sander saw that the same two or three students were the only ones raising their hands, suggesting that the risk of losing points might not have been the major deterrent to student participation that Petitioner now contends that it was. By email dated April 16, 2013, Ms. Spadaro noted a brief classroom visit on that day. She witnessed Respondent's reviewing content for an upcoming test with visuals on the board, student participation, and a clear statement of expectations. By email dated April 26, 2013, Ms. Spadaro documented classroom observations of April 24 and 26. On April 24, Ms. Spadaro found Respondent walking around the room monitoring students taking the daily quiz, reviewing answers by calling on students individually, asking students to explain their answers, and using visuals to explain problems. On April 26, Ms. Spadaro found the same methods, adding that she also saw a lot of student interaction. The final emails during the 2012-13 school year suggest a successful conclusion to the cycle of assistance. The two coaches noted Respondent's productive use of several Marzano strategies, acknowledged that Respondent had tried many of their suggestions, and cited no major outstanding problems. 2013-14 School Year Cycle of Assistance and PDP However, Principal Almanzar continued the cycle of assistance for Respondent in the 2013-14 school year. There is no evidence of any communications between the coaches and the AHS administrators, other than the copying of the coaches' emails to one of the administrators. The coaches were evidently reassigned the task of inducing Respondent to adopt more Marzano strategies, especially small-group instruction, more of the time. For the 2013-14 school year, Principal Almanzar added John O'Brien to those who were providing assistance to Respondent. Not a coach, Mr. O'Brien is a "Marzano peer reviewer" from the District office. Mr. O'Brien previously had served seven years as a law enforcement officer and initially had come to work for the District as a "security specialist," but had taught, mostly math, for a total of 16 years. Reminiscent of Assistant Principal Evans, Mr. O'Brien painted an unflattering portrait of Respondent in the classroom, mostly, but not entirely, in broad strokes. Mr. O'Brien testified that he observed negativity on Respondent's part, such as warning inattentive students that they would get bad grades if they did not behave and pay attention. One time, Respondent did so after noticing seven or eight students who were visibly disengaged. When the students persisted in ignoring him, Respondent warned the students that he was going to call their homes or an administrator, and they would be out of class. He finally sent them to the office and asked if anyone else wanted to go with them. Three more students joined them. Mr. O'Brien testified that he heard Respondent say to the class that the administration was out to get him and Assistant Principal Farr was not a good Marzano evaluator. Mr. O'Brien testified that Respondent only occasionally used effective instructional practices. Mr. O'Brien also witnessed a tense encounter between Respondent and Ms. Kal Sander in March 2014, which is described below. Otherwise, Mr. O'Brien's testimony lacked much detail, even though he had observed Respondent on numerous occasions in the classroom. In particular, Mr. O'Brien did not describe any of Respondent's teaching practices, regardless of the extent to which they conformed to the Marzano method. The coaches and even Assistant Principal Farr in his 2013-14 observations found some good things about Respondent's teaching. As already noted, Respondent's students made positive academic gains, and his evaluations in prior years were satisfactory. The lack of balance in Mr. O'Brien's depiction of Respondent undermines Mr. O'Brien's credibility. One year later, Mr. O'Brien's largely conclusory testimony disparaging Respondent is outweighed in particular by the contemporaneous, detailed evidence provided by the coaches. The coaches, whose job title suggests a primary responsibility to train and counsel, found time to document what they observed in Respondent's classroom, but a former law enforcement officer and Marzano peer reviewer, whose job title suggests a primary responsibility to assess, did not. Ultimately, the conclusory testimony of Mr. O'Brien, like that of Assistant Principal Evans, has been rejected as unworthy of belief. Ms. Kal Sander also did not document her 2013-14 observations of Respondent, as she had the previous year. However, she recalled clearly one incident. Likely in early March 2014, Ms. Kal Sander modeled cooperative learning in small groups to demonstrate how Respondent could enhance student engagement and facilitate monitoring of student understanding. The presentation had required Ms. Kal Sander to master the subject matter of the lesson, and she had worked hard to do so. During the class, the students were engaged and turned in an assignment that they had done during class. After the students had left the room, a brief meeting took place with Ms. Kal Sander, beaming in pride; Respondent, stewing in frustration; and Mr. O'Brien, witnessing. Instead of complimenting Ms. Kal Sander, Respondent claimed that she had not done anything that he was not doing, and he could get the same results in terms of all of the students turning in their classroom assignments at the end of the period. Ms. Kal Sander demanded to know how Respondent could say that when 59% of his students had Fs in the class. Respondent replied that she had not been very effective. Ms. Kal Sander stormed out of the room in tears, returning briefly to tell Mr. O'Brien to tell the administration that she was done coaching Respondent. As she turned to walk away, she uttered, to herself, a one- or two-word expletive description of Respondent that, unfortunately, he overheard. Ms. Kal Sander's momentary lapse was nothing more than her unconsciously giving audible utterance to a passing thought after an exhausting teaching performance and an adverse review of her work by Respondent. Respondent did not react to her comment, adding some credibility to his self-description as an "old fashioned guy." As a result of Respondent's decision not to react to Ms. Kal Sander's comment, the meeting after class was nothing more than a frank exchange of opinions between Respondent and Ms. Kal Sander. At the hearing, Respondent elaborated on his frustration about Ms. Kal Sander's teaching performance. First, Respondent had tried on numerous occasions to have Mr. O'Brien, who, unlike Ms. Kal Sander, had formerly taught math, model the Marzano method, but Mr. O'Brien had declined because he was concerned that the class might not go well. Second, Ms. Kal Sander had not modeled cooperative learning so much as team teaching because, while she taught, Mr. O'Brien circulated through the room monitoring the students for understanding; a lone teacher could not replicate the work of two teachers. By email dated March 7 to Principal Almanzar, Ms. Kal Sander alluded to her unpleasant exchange with Respondent after she had taught his class, and she told Principal Almanzar that she was "withdrawing support as I feel that I have a right to work [sic] a non-hostile environment." Ms. Kal Sander's description of her sometimes-fraught relationship with Respondent as "hostile" is rejected as unsupported by the record. Ms. Spadaro documented her contacts with Respondent during the 2013-14 school year, but most of the early emails seem to be more in her capacity as math curriculum coach than as Respondent's coach. On August 29, 2013, Ms. Spadaro asked Respondent about the failure of one of his classes to use the computer lab during its scheduled time. The same day, Respondent emailed her that the class had refused to cooperate in the lab, and he had had to end the session. By email dated September 9, 2013, Ms. Spadaro offered to help Respondent plan to prepare his Informal Geometry students to retake the Algebra I EOC exam in December. By email dated September 12, Ms. Spadaro attached several practice tests and other test-preparation materials in connection with the Algebra I EOC retake exam in December--the September retake exam being one week away, so Respondent presumably did not have enough time to help students taking this test to prepare for it. By email dated October 22, 2013, Ms. Spadaro asked if Respondent had any questions about some teaching materials that she had given him several days earlier. By email dated November 5, 2013, Ms. Spadaro noted that only one student from the first-period class had taken a certain assessment in a test-preparation program. She asked Respondent to have the rest of his students take this assessment as soon as possible. By email dated November 6, 2013, Ms. Spadaro advised Respondent of some additional teaching materials that had become available for his use. More clearly returning to her role as a coach in the cycle of assistance, by a second email dated November 6, Ms. Spadaro stated that she had thought a lot about a recent conversation she and Respondent had had concerning grouping. She admitted, "I fought it many years ago, and finally tried it. It does work, no matter what level students you have." She asked Respondent to take the time to read the research supporting small-group instruction. By email dated November 15, 2013, Ms. Spadaro provided Respondent with more class warm-ups and promised to visit an Informal Geometry class to help prepare the students for the December EOC re-exam. By email dated November 20, Ms. Spadaro noted that Respondent had used a practice test during her observation, as a warm-up, in preparation for the EOC re-exam. She asked how Respondent knew that the students had understood the problems that he had gone over because he had not undertaken a check for understanding. She also mentioned additional warm- ups that she had transmitted to Respondent and explained how they related to the monthly assessment that the students were taking. By reply email dated later in the day on November 20, Respondent stated that he had complied with her directive to go over an Algebra I EOC practice exam. By email dated December 13, 2013, with a copy to Assistant Principal Farr, Ms. Spadaro complimented Respondent on a "nice job" the prior day in having his students work collaboratively in small groups. Ms. Spadaro agreed with Respondent's comment that working with partners, manipulatives, and physical movement had helped a lot. Ms. Spadaro stated that student engagement had neared 100%, but dropped dramatically when the desks were returned to rows for direct instruction. Recognizing that there will always have to be some direct instruction, Ms. Spadaro suggested that Respondent try leaving the desks in small groups during his lectures. By email dated January 10, 2014, Ms. Spadaro documented an observation three days earlier. She noted that Respondent's explanation of Venn diagrams had been "well done," but some students had appeared puzzled during the first independent assignment. Although a couple of the students had asked their neighbors for help, most had not. She asked if working in groups would have helped these students. Ms. Spadaro also asked how Respondent knew that the students had understood the lesson because Respondent had answered his own questions, although he had walked around the room a couple of times and checked the students' work. On February 3, 2014, Principal Almanzar and Assistant Principal Farr issued a PDP for Respondent. The PDP identifies deficiencies as iObservation® Criteria 1, 2, 6, 7, 8, 9, 15, 18, 19, 24, 26, and 28, all of which are discussed in detail below. The PDP contains a review date of March 20 and a deadline of May 13. The PDP warns that a failure to demonstrate "mastery" of the cited deficiencies will result in a "less than effective BrIDGES evaluation" or dismissal from employment. "Mastery" is not defined in the PDP, nor, as discussed below, in the iObservation® form.5 Principal Almanzar's belated identification of Respondent's deficiencies was news to Ms. Spadaro, who would have known better than Principal Almanzar what, if any, deficiencies undermined Respondent's effectiveness as a teacher. In her first email after the PDP, which is dated February 4, Ms. Spadaro refers to the PDP indirectly by noting: "Now that we know, with specificity, the areas that are targeted for support, I would like to continue to collaborate with you to effectively address administrative concerns." By email dated February 11, Ms. Spadaro recommended that Respondent set up some of his lessons to allow his students to work in groups of two or three. She counseled that "cooperative learning more often than not engages active learning." The email offers additional help for forming groups. By email dated February 12, Ms. Spadaro confirmed her delivery a few days earlier of a "check for understanding" rubric and noted that she witnessed Respondent's using this strategy on the previous day. She offered to model the use of this strategy. She suggested that Respondent contact another teacher, who had other rubrics posted in his classroom. By email dated February 20, Ms. Spadaro provided Respondent with two links to Marzano practices, including grouping, and a third link to grouping. She advised that Respondent put some thought into grouping his students, considering such matters as what were his goals. Ms. Spadaro offered to help Respondent decide how to implement small-group instruction. By email dated March 5, Ms. Spadaro documented a discussion that she had with Respondent earlier in the day on tracking student progress. Ms. Spadaro stated that one of Respondent's students had approached her with a concern about a 30-question quiz that he had given the students the other day. The student had said that many of the students had not had enough time to finish the test, so Respondent had offered them the chance to stay over lunch to finish it. Not all students had accepted this offer. Ms. Spadaro pointed out that, for some students, this is their only meal of the day. It is unclear whether Ms. Spadaro knew that Respondent was already making himself available to students before and after school. More importantly, Ms. Spadaro asked Respondent what really had happened--specifically, had there been enough time to do the test in the 50 minutes of class time? If not, she suggested that he should have added more time or shorten the quiz. She concluded with a request: "Please let me know . . . how you handled the situation so that I can field any other issues on this matter." Regardless of whether this is a reference to questions or complaints from other students or AHS administrators, Ms. Spadaro seems to have been trying to acquire the information necessary to defend Respondent. By email dated March 19, Ms. Spadaro provided Respondent with a Powerpoint® presentation on iObservation® Criterion 1. On this anti-climactic note, Respondent's cycle of assistance came to an end. Collective Bargaining Agreement and Memorandum of Understanding The collective bargaining agreement (CBA) in effect for the 2013-14 school year provides for "progressive discipline" based on "just cause." CBA, art. 18, para. B.1.a. The range of discipline includes reprimand, suspension, demotion, and termination. Id. At the start of the 2013-14 school year, according to the CBA, the purpose of the teacher-evaluation process was "the improvement of individual and collective teaching performance resulting in optimal student learning." CBA, art. 18, para. F.1.a. The CBA acknowledged that "[e]ducational research has not identified a single uni-dimensional construct called 'effective teaching.' Teachers must pursue a variety of models of effective teaching." Because the educational environment is "complex and variable," the CBA continued, "great weight should be placed on teacher judgment to guide the activities of student learning." CBA, art. 18, para. F.1.b. The CBA added that the teacher-evaluation process must help the teacher in "improving deficiencies as well as contribute to their professional growth and development." CBA, art. 18, para. F.1.c. Each of the provisions set forth in the preceding paragraph was superseded by agreement between Petitioner and BTU. Memorandum of Understanding Between [Petitioner and BTU] dated October 8, 2013 (MOU), para. 22. The Marzano teaching strategies--having ripened from suggestions into mandates-- override "teacher judgment," as the Marzano method now set forth the single construct of "effective teaching." Noting that the new evaluation system, BrIDGES, is based on the "Marzano Professional Growth Model,"6 the parties to the MOU set forth the entire teacher-evaluation process, of which the iObservation® form is a part. MOU, paras. 1-2. According to the MOU, BrIDGES comprises an IPS and a Student Data Score (SDS, which replaces the above-described SGS used in the preceding school year); a Deliberate Practice Score (DPS) may be considered part of the IPS or a separate score. MOU, paras. 2-3. Either way, for the 2013-14 school year, a teacher's Final Score was a product of her IPS weighted at 49%, DPS weighted at 1%, and SDS weighted at 50%. Id. Simplifying matters for the 2013-14 school year, the DPS was set at 3 points for all teachers completing a self-assessment form. MOU, para. 3. Judging from Petitioner Exhibit 16, Respondent completed the self-assessment because he received 3 points for the DPS. Also as reflected in Petitioner Exhibit 16, Respondent was assigned 3 points for the SDS--again, it seems, based on the points assigned to all of Petitioner's teachers, or at least all AHS teachers. The MOU states that the Florida Department of Education would use the Value Added Model to generate SDSs based on student achievement data, but the document notes that both sides were still trying to determine this score. Id. at para. 12. For 2013-14, the IPS was a product of the Domain 1 scores weighted at 68% and Domains 2, 3, and 4 scores weighted at 32%. Id. at para. 3. In awarding datamarks for Domain 1, an observer "shall consider supplemental documentation." Id. at para 5. But the MOU does not define "supplemental documentation," and the meaning of this requirement in Domain 1 is uncertain. In awarding datamarks for Domains 2 through 4, an observer "shall consider supplemental documentation, evidences, and/or artifacts provided by the educator." Id. These requirements make more sense due to the items of Teacher Evidence and, for Criteria 42 and 44, items of Planning Evidence that are discussed below. The MOU requires teachers to receive at least three observations--a snapshot, an informal, and a formal--and at least 45 datamarks, including at least 25 datamarks in Domain 1 and 10 datamarks in Domains 1, 2, and 3. Id. The recommendations for a snapshot observation are 3 to 10 minutes' duration with two to three datamarks, an informal observation are 15 to 25 minutes' duration with 5 to 10 datamarks, and a formal observation are at least 30 minutes' duration with 12 to 15 datamarks. Id. Administrators are to "make every effort to allow for a reasonable amount of time for growth between observations." Id. For the 2013-14 school year, a datamark of Innovating earns 4 points, Applying earns 3 points, Developing earns 2.5 points, Beginning earns 2 points, and Not Using earns 1 point. Id. at para. 5. The MOU adopts the "Averages Model" for the IPS, which produces an average score by adding the points assigned to each datamark and dividing the result by the total number of the datamarks. Id. For 2013-14, the "Overall Evaluation Scale" is Highly Effective from 4.0 to 3.45 points, Effective from 3.449 to 2.5 points, Needs Improvement from 2.499 to 2.0 points, and Unsatisfactory from 1.999 to 1.0 points. Id. The "Overall Evaluation Scale" is in the paragraph of the MOU that describes the IPS calculation, but seems to apply equally to the Final Score that results from combining the IPS, DPS, and SDS in accordance with their above-stated weights. A teacher may be given a PDP once she has received 10 Not Using or Beginning scores, an average IPS of Needs Improvement, and at least three observations, including two formal observations. Id. at para. 11. The MOU states that a "process shall be developed" to provide employees scored as Needing Improvement or Unsatisfactory with "sound professional assistance and development to help correct job performance deficiencies." Id. at para. 15. Using "mentors, coaches, and peer reviewers, [Petitioner] will determine and provide the appropriate training and development." Id. In particular, peer reviewers "will provide feedback and enhanced growth opportunities based on effective teaching strategies." Id. at para 20. During the 2013-14 school year, these elements of the evaluation process had not yet been implemented. The suggestion in the last paragraph that Petitioner will develop policies in the future extends to another provision of the MOU. This provision promises that "procedures shall be developed to address employment decisions for employees rated at each level of BrIDGES. Procedures should address actual rating, employee experience, assistance provided, improvement demonstrated, and other pertinent factors." Id. The MOU thus anticipates that, at some point, employment decisions will be based on a teacher's Final Score, experience, coaching assistance, and demonstrated improvement, among other things. Based on the following findings of fact, it is unnecessary to consider whether Petitioner may presently base an adverse employment decision solely on an IPS or Final Score. Count 4: Failure to Correct Performance Deficiencies iObservation® Form: Domain 1 Domain 1 Criteria The 41 iObservation® criteria for Domain 1 are set forth below. Items of Teacher Evidence and items of Student Evidence accompany each Domain 1 criterion in the iObservation® form. The excerpts omit all items of Student Evidence and, except for Criterion 37, those items of Teacher Evidence for criteria that were not assessed during the 2013-14 school year. Providing Clear Learning Goals and Scales (Rubrics) The teacher provides a clearly stated learning goal accompanied by scale or rubric that describes levels of performance relative to the learning goal. Teacher Evidence Teacher has a learning goal posted so that all students can see it The learning goal is a clear statement of knowledge or information as opposed to an activity or assignment Teacher makes reference to the learning goals throughout the lesson Teacher has a scale or rubric that relates to the learning goal posted so that all students can see it Teacher makes reference to the scale or rubric throughout the lesson Tracking Student Progress The teacher facilitates tracking of student progress on one or more learning goals using a formative approach to assessment. Teacher helps student track their [sic] individual progress on the learning goal Teacher uses formal and informal means to assign scores to students on the scale or rubric depicting student status on the learning goal Teacher charts the progress of the entire class on the learning goal Celebrating Success The teacher provides students with recognition of their current status and their knowledge gain relative to the learning goal. Teacher acknowledges students who have achieved a certain score on the scale or rubric Teacher acknowledges students who have made gains in their knowledge and skill relative to the learning goal Teacher acknowledges and celebrates the final status and progress of the entire class Teacher uses a variety of ways to celebrate success Show of hands Certification of success Parent notification Round of applause Establishing Classroom Routines The teacher reviews expectations regarding rules and procedures to ensure their effective execution. Organizing the Physical Layout of the Classroom The teacher organizes the physical layout of the classroom to facilitate movement and focus on learning. The physical layout of the classroom has clear traffic patterns The physical layout of the classroom provides easy access to materials and centers The classroom is decorated in a way that enhances student learning: Bulletin boards relate to current content Students['] work is displayed Identifying Critical Information The teacher identifies a lesson or part of a lesson as involving important information to which students should pay particular attention. Teacher Evidence Teacher begins the lesson by explaining why upcoming content is important Teacher tells students to get ready for some important information Teacher cues the importance of upcoming information in some indirect fashion Tone of voice Body position Level of excitement Organizing Students to Interact with New Knowledge The teacher organizes students into small groups to facilitate the processing of new information. Teacher Evidence Teacher has established routines for student grouping and student interaction in groups Teacher organizes students into ad hoc groups for the lesson Diads Triads Small groups up to about 5 Processing New Content The teacher engages students in activities that help them link what they already know to the new content about to be addressed and facilitates these linkages. Teacher Evidence Teacher uses preview question before reading Teacher uses K-W-L [Know, Want to Know, Learned] strategy or variation of it Teacher asks or reminds students what they already know about the topic Teacher provides an advanced organizer Outline Graphic organizer Teacher has students brainstorm Teacher uses anticipation guide Teacher uses motivational hook/launching activity Anecdotes Short selection from video Teacher uses word splash activity to connect vocabulary to upcoming content Chunking Content into "Digestible Bites" Based on student needs, the teacher breaks the content into small chunks (i.e. digestible bites) of information that can be easily processed by students. Teacher Evidence Teacher stops at strategic points in a verbal presentation While playing a video tape, the teacher turns the tape off at key junctures While providing a demonstration, the teacher stops at strategic points While students are reading information or stories orally as a class, the teacher stops at strategic points Processing New Information During breaks in the presentation of content, the teacher engages students in actively processing new information. Teacher Evidence Teacher has group members summarize new information Teacher employs formal group processing strategies Jigsaw Reciprocal Teaching Concept attainment Elaborating on New Information The teacher asks questions or engages students in activities that require elaborative inferences that go beyond what was explicitly taught. Teacher Evidence Teacher asks explicit questions that require students to make elaborative inferences about the content Teacher asks students to explain and defend their inferences Teacher presents situations or problems that require inferences Recording and Representing Knowledge The teacher engages students in activities that help them record their understanding of new content in linguistic ways and/or represent the content in nonlinguistic ways. Teacher Evidence Teacher asks students to summarize the information they have learned Teacher asks students to generate notes that identify critical information in the content Teacher asks students to create nonlinguistic representations for new content Graphic organizers Pictures Pictographs Flow charts Teacher asks students to create mnemonics that organize the content Reflecting on Learning The teacher engages students in activities that help them reflect on their learning and the learning process. Teacher Evidence Teacher asks students to state or record what they are clear about and what they are confused about Teacher asks students to state or record how hard they tried Teacher asks students to state or record what they might have done to enhance their learning Reviewing Content The teacher engages students in a brief review of content that highlights the critical information. Teacher Evidence Teacher begins the lesson with a brief review of content Teacher uses specific strategies to review information Summary Problem that must be solved using previous information Questions that require a review of content Demonstration Brief practice test or exercise Organizing Students to Practice and Deepen Knowledge The teacher uses grouping in ways that facilitate practicing and deepening knowledge. Teacher Evidence Teacher organizes students into groups with the expressed idea of deepening their knowledge of informational content Teacher organizes students into groups with the expressed idea of practicing a skill, strategy, or process Using Homework When appropriate (as opposed to routinely) the teacher designs homework to deepen students' knowledge of informational content or practice a skill, strategy, or process. Teacher Evidence Teacher communicates a clear purpose for homework Teacher extends an activity that was begun in class to provide students with more time Teacher assigns a well-crafted homework assignment that allows students to practice and deepen their knowledge independently Examining Similarities and Differences When the content is informational, the teacher helps students deepen their knowledge by examining similarities and differences. Teacher Evidence Teacher engages students in activities that require students to examine similarities and differences between content Comparison activities Classifying activities Analogy activities Metaphor activities Teacher facilitates the use of these activities to help students deepen their understanding of content Ask students to summarize what they have learned from the activity Ask students to explain how the activity has added to their understanding Examining Errors in Reasoning When content is informational, the teacher helps students deepen their knowledge by examining their own reasoning or the logic of the information as presented to them. Teacher Evidence Teacher asks students to examine information for errors or informal fallacies Faulty logic Attacks Weak reference Misinformation Teacher asks students to examine the strength of support presented for a claim Statement of a clear claim Evidence for the claim presented Qualifiers presented showing exceptions to the claim Practicing Skills, Strategies, and Processes When the content involves a skill, strategy, or process, the teacher engages students in practice activities that help them develop fluency. Teacher Evidence Teacher engages students in massed and distributed practice activities that are appropriate to their current ability to execute a skill, strategy, or process. Guided practice if students cannot perform the skill, strategy, or process independently Independent practice if students can perform the skill, strategy, or process independently Revising Knowledge The teacher engages students in revision of previous knowledge about content addressed in previous lessons. Organizing Students for Cognitively Complex Tasks The teacher organizes the class in such a way as to facilitate students working on complex tasks that require them to generate and test hypotheses. Teacher Evidence Teacher establishes the need to generate and test hypotheses Teacher organizes students into groups to generate and test hypotheses Engaging Students in Cognitively Complex Tasks Involving Hypothesis Generation and Testing The teacher engages students in complex tasks (e.g. decision making, problem solving, experimental inquiry, investigation) that require them to generate and test hypotheses. Providing Resources and Guidance The teacher acts as resource provider and guide as students engage in cognitively complex tasks. Noticing When Students are Not Engaged The teacher scans the room making note of when students are not engaged and takes overt action. Teacher Evidence Teacher notices when specific students or groups of students are not engaged Teacher notices when the energy level of the room is low Teacher takes action to re-engage students Using Academic Games The teacher uses academic games and inconsequential competition to maintain student engagement. Managing Response Rates The teacher uses response rate techniques to maintain student engagement in questions. Teacher Evidence Teacher uses wait time Teacher uses response cards Teacher has students use hand signals to respond to questions Teacher uses choral response Teacher uses technology to keep track of students' responses Teacher uses response chaining Using Physical Movement The teacher uses physical movement to maintain student engagement. Maintaining a Lively Pace The teacher uses pacing techniques to maintain students' engagement. Teacher Evidence Teacher employs crisp transitions from one activity to another Teacher alters pace appropriate (i.e. speeds up and slows down) Demonstrating Intensity and Enthusiasm The teacher demonstrates intensity and enthusiasm for the content in a variety of ways. Using Friendly Controversy The teacher uses friendly controversy techniques to maintain student engagement. Teacher Evidence Teacher structures mini-debates about the content Teacher has students examine multiple perspectives and opinions about the content Teacher elicits different opinions on content from members of the class Providing Opportunities for Students to Talk about Themselves The teacher provides students with opportunities to relate what is being addressed in class to their personal interests. Presenting Unusual or Intriguing Information The teacher uses unusual or intriguing information about the content in a manner that enhances student engagement. Teacher Evidence Teacher systematically provides interesting facts and details about the content Teacher encourages students to identify interesting information about the content Teacher engages students in activities like "Believe it or not[!®]" about the content Teacher uses guest speakers to provide unusual information about the content Demonstrating "Withitness" The teacher uses behaviors associated with "withitness" to maintain adherence to rules and procedures. Teacher Evidence Teacher physically occupies all quadrants of the room Teacher scans the entire room making eye contact with all students Teacher recognizes potential sources of disruption and deals with them immediately Teacher proactively addresses inflammatory situations Applying Consequences for Lack of Adherence to Rules and Procedures The teacher applies consequences for not following rules and procedures consistently and fairly. Teacher Evidence Teacher provides nonverbal signals when students' behavior is not appropriate Eye contact Proximity Tap on desk Shaking head, no Teacher provides verbal signals when students' behavior is not appropriate Tells students to stop Tells students that their behavior is in violation of a rule or procedure Teacher uses group contingency consequences when appropriate (i.e. whole group must demonstrate specific behavior) Teachers involves the home when appropriate (i.e. makes a call home to parents to help extinguish inappropriate behavior) Teacher uses direct cost consequences when appropriate (e.g. student must fix something he or she has broken) Acknowledging Adherence to Rules and Procedures The teacher consistently and fairly acknowledges adherence to rules and procedures. Understanding Students' Interests and Background The teacher uses students' interests and background to produce a climate of acceptance and community. Using Verbal and Nonverbal Behaviors that Indicate Affection for Students When appropriate, the teacher uses verbal and nonverbal behavior that indicates caring for students. Teacher Evidence Teacher compliments students regarding academic and personal accomplishments Teacher engages in informal conversations with students that are not related to academics Teacher uses humor with students when appropriate Teacher smiles, nods, etc. at students when appropriate Teacher puts hand on students' shoulders when appropriate Displaying Objectivity and Control The teacher behaves in an objective and controlled manner. Demonstrating Value and Respect for Low Expectancy Students The teacher exhibits behaviors that demonstrate value and respect for low expectancy students. Asking Questions of Low Expectancy Students The teacher asks questions of low expectancy students with the same frequency and depth as with high expectancy students. Probing Incorrect Answers with Low Expectancy Students The teacher probes incorrect answers of low expectancy students in the same manner as he/she does with high expectancy students. For each of the Domain 1 criteria, the datamarks are as follows: Not Using: Strategy was called for but not exhibited. Beginning: Uses strategy incorrectly or with parts missing. Developing: [Complies with the requirement or requirements set forth in the criterion], but the majority of students are not monitored for the desired effect of the strategy. Applying: [Complies with the requirement or requirements set forth in the criterion] and monitors for evidence of the impact of [compliance] on the majority of [students for the desired effect of the strategy]. Innovating: Adapts and creates new strategies for unique student needs and situations in order for the desired effect to be evident in all students. The iObservation® form provides the framework for the collection of teacher-performance data, and the MOU provides the framework for the analysis of these data. The 41 Domain 1 criteria survey a wide range of elements of teacher performance, and each criterion supports a detailed assessment of each of these elements. Due to its breadth and depth, the iObservation® form is a powerful data-collection tool. Domain 1 Datamarks Appendix A is a spreadsheet of Respondent's Domain 1 datamarks for the 2013-14 school year. Four observers conducted 18 observations during which they entered a total of 102 datamarks. Assistant Principal Farr conducted 13 observations and issued 84 datamarks. Principal Almanzar conducted three observations and issued 14 datamarks. Two other AHS administrators each conducted one observation--the first two--and issued two datamarks each. The average score of Respondent's 102 datamarks was 1.799. His average on the seven observations and 54 datamarks before the PDP was 1.685, and his average on the 11 observations and 48 datamarks after the PDP was 1.927. The 102 datamarks covered 25 of the 41 Domain 1 criteria. Eleven criteria were observed only once or twice each: Criteria 3, 12, 13, 21, 32, 33, 34, and 41 (one observation) and Criteria 2, 17, and 30 (two observations). Nine criteria were observed six to nine times each: Criteria 6, 7, 15, and 24 (nine observations); Criterion 14 (eight observations); Criteria 18 and (seven observations); and Criteria 1 and 9 (six observations). The reliability of these 102 datamarks is undermined by major flaws in the iObservation® form and the analytical framework and Assistant Principal Farr and Principal Almanzar's incompetence, carelessness, and confirmation bias, all as detailed below. The distortions resulting from these deficiencies were amplified by the power of the iObservation® form in terms of its breadth and depth, so as to produce an unreliable IPS and, thus, Final Score. The following three sections discard and revise datamarks, so as to produce a minimally reliable IPS. Discarded and Revised Domain 1 Datamarks for Misapplication of Criteria Requirements With one exception,7 the criteria are the sole source of requirements imposed on a teacher by the iObservation® form. The items of Teacher Evidence are means by which a teacher may show that she is complying with a particular criterion. Confusion about the requirements of individual criteria arises from a lack of editorial consistency in stating the items of Teacher Evidence relative to their respective criteria. This inconsistency promotes user error in assessing the extent to which a teacher is implementing a criterion. For most criteria, the items of Teacher Evidence illustrate means by which a teacher may demonstrate compliance with the criterion to which the items relate. These items are typically characterized by language specifying activities or practices that exemplify means of demonstrating compliance with criteria, but do not themselves exceed the requirements of the criteria. For some criteria, the items of Teacher Evidence essentially restate the requirements of their criteria, typically in more general language that tracks the language of the criteria. These items operate as mandatory requirements, not illustrations. For some criteria, the items of Teacher Evidence purport to add new requirements by illustrating activities or practices that, in exceeding the requirements of their criteria, necessarily satisfy those requirements. For relatively few criteria, the items identify activities or practices that are completely irrelevant to their criteria, meaning that they are not even illustrative of means of satisfying their criteria. Further complicating matters, for some criteria, the items of Teacher Evidence combine more than one of these editorial approaches. The scope of this section of the recommended order is limited to discarding and revising datamarks for which the observer has revealed, by checking items of Teacher Evidence or by comments, a misunderstanding of the relationship of the items of Teacher Evidence to the criterion that the observer was assessing. Petitioner has trained its observers to check items of Teacher Evidence that are present during an observation of a particular criterion. Checking what is observed is intuitive to support relatively high datamarks for items of Teacher Evidence that are illustrative or mandatory. But checking what is missing is intuitive to support relatively low datamarks for items of Teacher Evidence that are mandatory. For some observers, checking what is missing may be intuitive to support relatively low datamarks for items of Teacher Evidence that purport to add requirements to their criteria. For particularly inattentive or inept observers, checking what is missing may be intuitive to support relatively low datamarks for items of Teacher Evidence that are clearly illustrative, even though the absence of an illustrative item logically does not preclude a relatively high datamark, if other evidence of compliance is present. In this case, checked items or comments reveal observer confusion in 30 datamarks covering 17 of the 25 Domain 1 criteria that were observed. The relationship of the items of Teacher Evidence to these 17 criteria is set forth in the following paragraphs. For Criterion 1, the five items divide into two sets, although the text does not so indicate. The first three items address a learning goal, and the last two items address a scale. The criterion requires a learning goal and a scale, so, if the items were purely illustrative, evidence of one item in the first set and one item in the second set would justify a higher datamark. But the correct use of these items of Teacher Evidence is complicated by their purported addition of requirements to Criterion 1. The first and fourth items require the posting of a learning goal and scale, respectively. Posting requires a writing, but Criterion 1 does not require that the learning goal or scale be written or posted. Posting a written learning goal or scale would be one way of meeting the criterion's requirement of providing a learning goal or scale, but the absence of a posting would not demonstrate noncompliance. The purported addition of "requirements" of a posted writing is harmless, as long as the observer understands that the criterion does not require a posted writing. The third and fifth items operate in the same fashion. These items purportedly require references to the learning goal and scale throughout the lesson. References throughout the lesson clearly would satisfy the requirement of providing the learning goal and scale, but references throughout the lesson exceed the requirements of the criterion, so such repeated references are not required. The first part of the second item also purports to add a requirement to Criterion 1. The first part of the second item requires that the learning goal is a clear statement of knowledge or information. The criterion requires only that the learning goal is clearly stated. A clear statement of knowledge or information as a learning goal is a clearly stated learning goal that exceeds the requirement of the criterion. Again, this purported addition is harmless, as long as the observer recognizes that the criterion does not require a clear statement of knowledge or information. The second part of the second item raises a different type of editorial treatment of an item of Teacher Evidence. Here, the item clearly prohibits something that is not prohibited by the criterion, so that noncompliance with the item is irrelevant. Leaving aside the issue of whether a learning goal could apply to an assignment, it could apply to an activity, such as learning how to conduct internet research, operate a scientific calculator, or utilize a usage manual. The potential for confusion is especially great when the iObservation® form cites an irrelevant item of Teacher Evidence, regardless of whether it is as a prohibition, as here, or, as is more common, as a requirement. For Criterion 2, the first two items of Teacher Evidence are general restatements tracking the requirements of the criterion. Because these items are not illustrative and no other means of satisfying the criterion appears to exist, the first two items are properly mandatory, not illustrative. However, the third item under Criterion 2, which is charting the progress of the entire class, is a means of tracking student progress and is thus merely illustrative. This editorial inconsistency requires the observer to understand that the presence of the first two items means a higher datamark, the absence of the first two items means a Not Using datamark, and the absence of either of the first two items means a lower datamark. The absence of the third item is irrelevant, but the significance of its presence depends on the status of the first two items. The editorial inconsistencies among the items of Teacher Evidence in Criterion 5 create similar confusion. The first item is illustrative, if the physical layout of a classroom can be organized to facilitate movement without featuring clear traffic patterns. If such a physical layout must feature clear traffic patterns, the first item is mandatory. The second item purports to add requirements by substituting access to "materials and centers" for the criterion's reference to facilitating "learning." Again, the organizing of a classroom to provide easy access to materials and centers illustrates one means of facilitating learning, but the absence of easy access to materials and centers would not justify a lower datamark. The third item is another example of an item's complete departure from the requirements of its criterion--this time in the form of an irrelevant requirement, rather than an irrelevant prohibition. The criterion covers only organizing. The third item covers decorating. Decorating8 is not organizing;9 these two activities have nothing to do with each other. The decorating of a classroom--here, with bulletin boards displaying student work--is not evidence of a criterion requiring organizing, so the presence or absence of decorations is irrelevant. For Criterion 6, the first item of Teacher Evidence is illustrative, but seems to add the requirement that the teacher identify the critical information at the start of the lesson. The criterion requires only that the teacher inform her students of critical information before presenting the information, so the first item illustrates one way of satisfying this criterion. The second item may be mandatory because it essentially restates the requirement of the criterion in general language, and the third item is illustrative. For Criterion 7, the second item is largely mandatory because it essentially restates the requirements of the criterion, ignoring its limitation of small groups to groups of "up to about" five students and ignoring its implied duration of small-group instruction for "the lesson," even though the criterion does not require the use of small-group instruction for the entire lesson. The first item adds an irrelevant requirement that the teacher establish routines for grouping. The criterion requires only that the teacher uses groups, not that she establishes routines for the use of groups, and the existence of established routines does not tend to prove her use of groups, only, perhaps, her readiness to use them. For Criterion 8, the eight items of Teacher Evidence are clearly illustrative. The specificity of the language of the items coupled with the obvious fact that these eight activities do not exhaust the collection of activities that could help students link what they know to new content would seem to preclude the misapplication of any of these items. For Criterion 9, the four items illustrate means by which a teacher may "chunk" her presentation into small parts; other means of doing so obviously exist. For Criterion 10, the two items, which are illustrative, purport to add a requirement of groups, but the criterion makes no mention of groups. For Criterion 14, the first item of Teacher Evidence requires that the teacher begin the lesson with a brief review. This item is illustrative, but seems to add a requirement because the criterion does not provide when during class the review must take place. The second item is illustrative. For Criterion 15, the two items of Teacher Evidence are mandatory requirements because they use general language to track the two components of the criterion: deepening knowledge and practicing skills. For Criterion 19, the lone item of Teacher Evidence seems to add new requirements to the criterion, which requires only that the teacher engage her students in practice activities to develop fluency whenever the content involves a skill, strategy, or process. The item adds that the practice activities must be massed and distributed--the criterion would allow any type of activity--and must be appropriate to the students' current abilities--the criterion does not address students' abilities. The failure to meet these requirements would thus signify nothing. For Criteria 18, 26, 28, 30, 32, and 33, the various items of Teacher Evidence are illustrative. From Assistant Principal Farr's checkmarks and comments, it is clear that he misapplied the requirements of various criteria in 22 of his 84 datamarks. There is sufficient information in his comments to revise 2 datamarks; the remaining datamarks must be discarded. Sometimes Assistant Principal Farr checked items that were absent, and sometimes he checked items that were present. He issued Not Using datamarks for criteria bearing checked items on November 5, November 20, January 17 and February 28, although, for the first three observations, he also issued Not Using datamarks for criteria bearing no checked items. It is reasonably clear that Assistant Principal Farr intended for these checkmarks to signify that items were absent. On November 20 and December 4, Assistant Principal Farr issued Developing datamarks, which were the highest datamarks that he issued in the first semester, for criteria with items that were checked. It is unclear whether Assistant Principal Farr was signaling why he issued a higher datamark or why he did not issue an even-higher datamark. To avoid an unreasonable likelihood of an unreliable observation, the Administrative Law Judge has discarded all of Assistant Principal Farr's datamarks of Not Using or Beginning through the February 28 observation that are accompanied by checked boxes, except for datamarks involving items of Teacher Evidence that essentially restate the mandatory requirements of their criteria. This results in the discarding of the following 15 datamarks: November 5--Criterion 18 (item is illustrative); November 20--Criterion 1 (item purports to add a requirement--a posted learning goal) and Criterion 30 (item is illustrative); December 2--Criterion 33 (item is illustrative); December 4-- Criterion 5 (item adds irrelevant requirement--decoration); Criterion 26 (item is illustrative); January 17--Criterion 6 (item is illustrative); Criterion 8 (item is illustrative); Criterion 9 (item is illustrative); Criterion 10 (item purports to add a requirement--groups); Criterion 19 (item purports to add a requirement--massed and distributed practice activities); Criterion 30 (item is illustrative); and Criterion 32 (item is illustrative); February 12--Criterion 18 (the absent item is illustrative); and February 28--Criterion 19 (item purports to add a requirement--massed and distributed practice activities). After February 28, Assistant Principal Farr no longer checked items of Teacher Evidence for which he assigned Not Using datamarks, and, where he did check items, he did so in connection with relatively high datamarks. The evidence is close, but it appears more likely than not that he changed his practice to conform to his training, rather than continued to check missing items to explain why he did not issue even-higher datamarks. Assistant Principal Farr entered only a few comments on his completed iObservation® forms. Some of them reinforce the misunderstandings noted above in connection with checked items, but others pertain to datamarks for criteria for which there are no checked items and reveal additional misunderstandings. Assistant Principal Farr's first comment reinforces the need to discard his already-discarded Not Using datamark in connection with Criterion 5 on the December 4 observation. The comment is that the "strategy is called for but not exhibited." As noted above, the item checked is the decoration of the classroom with bulletin boards displaying student work--a requirement that is not called for in the criterion. Assistant Principal Farr's only other comment on the December 4 iObservation® form confirms his Developing datamark for Criterion 28. Assistant Principal Farr's next comment is to Criterion 24 on the January 17 observation. He issued a Beginning datamark and checked the item requiring the teacher to notice when students are not engaged. This is an example of a mandatory item, so its checking would justify his low score. The comment asks how could Respondent scan the room to notice when students are not engaged and take action. Assistant Principal Farr then adds: "Tapping on the desk and telling students that they better get going or you would have to send them to someone else is not very encouraging." The datamark is justified because Respondent evidently did not notice that students were disengaged, but the last comment adds a requirement that Respondent's overt action be "encouraging," not tapping on the desk and telling them that Respondent might have to send them somewhere else like the office.10 Nothing in the language of this criterion supports Assistant Principal Farr's limitation of "overt action" to "overt encouraging action." He was simply not paying attention to what he was doing and either relied on his belief that Respondent generally was insufficiently positive with his students or vaguely recalled other Marzano criteria that require positive reinforcement. Another comment for this observation concerns Criterion 26, which is managing response rates. The comment is: "During the 30 minutes of my visit, only one of your 19 students participated in your lecture. How can you begin to incorporate this strategy into your instruction?" This comment justifies a lower datamark for Criterion 24, which requires the teacher to notice when students are disengaged and take overt action. But these generic comments do not justify a lower datamark for Criterion 26--specifically for failing to manage response rates. From the comment, there were no responses to manage. At least as likely, this lack of student engagement was due to a failure to use academic games (Criterion 25), use physical movement (Criterion 27), maintain a lively pace (Criterion 28), maintain intensity and enthusiasm (Criterion 29), use friendly controversy (Criterion 30), provide opportunities for students to talk about themselves (Criterion 31), present unusual or intriguing information (Criterion 32), or use some combination of these strategies. Assistant Principal Farr's selection of a criterion does not guarantee that it was "called for," as discussed in the next section. The same comment accompanies Assistant Principal Farr's Beginning datamarks for Criteria 28 and 32 and Not Using datamarks for Criteria 26 and 30. His datamarks for Criteria 30 and 32 have already been discarded. His datamarks for Criteria 26 and 28 must also be discarded to avoid an unreasonable likelihood of an unreliable evaluation. There were no responses to manage, and Assistant Principal Farr failed to supply any support for a finding that Respondent was failing to maintain a lively pace, which, as noted by the coaches, he tended to do. Assistant Principal Farr's next comment is for Criterion 14 on the February 12 observation. He assigned a Developing datamark for this criterion, which is for the teacher to engage the students in a brief review of critical information. The comment is: "In addition to engaging students in a brief review of content, how can you monitor the extent to which students can recall and describe previous content?" This comment acknowledges implementation of the activities, but without monitoring, so the datamark was properly Developing. Assistant Principal Farr's comment for Criterion 7 on the first February 18 observation, for which he assigned a Developing datamark, is: "Students were engage [sic] and really enjoyed this activity. However, students need to be taught how to work collaborate [sic] in their assigned roles so that they can get the most of the activity." Assistant Principal Farr's comment justifies the Developing datamark if Criterion 7 mandates the use of small-group instruction when presenting new information, even though the students were engaged and enjoying what was presumably direct instruction by lecture. For the reason explained in the next section, if a strategy could be used, it must be used for the duration of the activity to which it pertains. This comment, though, reveals that such an interpretation of "called for" may require the use of a Marzano-mandated strategy, such as small-group instruction, even though the students are engaged and enjoying the teacher's use of a Marzano-unapproved strategy, such as direct instruction, when presenting new information. Only 90 minutes later, Assistant Principal Farr returned to Respondent's class and reassessed Criterion 7. This time, he issued a Beginning datamark and commented: "Uses the strategy incorrectly or parts are missing. Students were told to ask the person next to them if they got stuck or ask the teacher. Putting students in groups would have been a more effective strategy." As noted above, one of the illustrative items for this criterion is organizing the students into small groups, such as "diads," which is a group of two persons.11 Telling students that they may confer with a neighbor is a form of grouping; the iObservation® form does not treat the moving of chairs as a condition precedent to grouping. The comment reveals that Respondent had grouped his students, so the Beginning datamark must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. Assistant Principal Farr's other datamark on this observation is also erroneous. He assigned a Not Using for Criterion 10, which is for the teacher, during breaks in the presentation of content, to "engage. . . students in actively processing new information." Assistant Principal Farr did not check either item of Teacher Evidence, but commented: "The activity called for grouping but it was not used. How can you begin to incorporate some aspect of this strategy in your instruction?" As discussed above, this criterion does not call for grouping. The items of Teacher Evidence purport to add grouping as a requirement, and this editorial inconsistency in illustrating evidence that exceeds the criterion's requirement has misled Assistant Principal Farr. The Not Using datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Assistant Principal Farr added a comment to his Not Using datamark for Criterion 19 on the February 28 observation. This datamark has already been discarded for the reasons noted above. But the comment reveals Assistant Principal Farr's haphazard approach to using the iObservation® form. For a criterion that requires the teacher to "engage. . . students in practice activities that help them develop fluency" when the "content involves a skill, strategy, or process," Assistant Principal Farr commented: "Teachers [sic] sitting at desk while students completes [sic] quiz. One student was had [sic] her head down while falling asleep. I asked her if she was not feeling well and she said that she was OK and started working again." The disengagement of a lone student from a practice activity does not merit a Not Using datamark for a criterion requiring a teacher to engage students in practice activities to develop fluency. The Not Using datamark must be discarded to an unreasonable likelihood of an unreliable evaluation. On his March 18 observation, Assistant Principal Farr issued a Not Using datamark for Criterion 2, which is tracking student progress. The comment, in part, is: "Students were not monitored to see where they were on the scale in relation to the learning goal." The only point at which a failure to monitor enters into this criterion is when issuing a Developing datamark. The Not Using datamark must be raised to Developing to avoid an unreasonable likelihood of an unreliable evaluation. On the same observation, Assistant Principal Farr's comment concerning Criterion 7 justifies his Not Using datamark for this small-group criterion. Likewise, his comments concerning Criteria 18 and 26 justify his Beginning datamarks for these criteria. On his April 11 observation, Assistant Principal Farr issued a Beginning datamark for Criterion 6, which is identifying critical information. His comment is: "Student was still confused after you gave the answer to a problem. How can you signal to student which content is critical versus non-critical?" For no apparent reason, Assistant Principal Farr has inferred that the student's confusion is due to Respondent's failure to signal what content is critical. From the comment, Assistant Principal Farr may have thought he was scoring Criterion 13, which is reflecting on learning. The Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Citing substantially the same comment about the student who remained confused after Respondent had solved a problem, Assistant Principal Farr on the April 11 observation issued another Beginning datamark for Criterion 14, which is reviewing content. This criterion requires only that a teacher engage her students in a brief review of content that highlights critical information. The comment does not suggest that Respondent was reviewing content when he answered a question posed by a student, who remained confused after hearing the answer. Again, the comment suggests that Assistant Principal Farr should have issued a datamark for Criterion 13. More interestingly, Assistant Principal Farr's assigning of two relatively low datamarks for the same "deficiency," even if the two criteria had applied, raises the issue of how observers choose which criteria to observe, which is discussed in the next section. Here, though, the Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. This analysis of Assistant Principal Farr's comments has resulted in the discarding of his datamarks for Criteria 26 and 28 on the January 17 observation, Criterion 10 on the second February 18 observation, and Criteria 6 and 14 on the April 11 observation, as well as raising two datamarks--the Beginning for Criterion 7 on the second February 18 observation to Applying and the Not Using for Criterion 2 on the March 18 observation to Developing. From Principal Almanzar's comments, it is clear that he misapplied the requirements of various criteria in 8 of his 14 datamarks. There is sufficient information in his comments to revise six datamarks; the remaining two datamarks must be discarded. On his April 3 observation, Principal Almanzar issued a Not Using datamark for Criterion 14, which is reviewing content. Although he did not check any items of Teacher Evidence, Principal Almanzar added extensive comments including that Respondent asked the students to review another teacher's presentation, which obviously encompasses the activity of reviewing. Several comments have absolutely nothing to do with this criterion. Additionally, Respondent added an extensive comment of his own to this observation, stating that he was reviewing critical information during the observation by collecting an IB practice exam question that reviewed material previously covered in the class. This Not Using datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. On his April 10 observation, Principal Almanzar issued a Developing datamark for Criterion 5, which is organizing the physical layout of the classroom. He checked the item involving classroom decorations, including bulletin boards featuring student work. Principal Almanzar's comment is: "The room is not rich in content, no student work, and no math posters on the wall." As discussed above, this item of Teacher Evidence is completely irrelevant to the criterion. The Developing datamark, which establishes implementation of other requirements of the criterion, must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. The same problem occurs with Principal Almanzar's Developing datamark for Criterion 6, which is identifying critical information. His comment is: "During several occasions the teacher stated to students 'you have to know this to pass the EOC.' However, at no time did the teacher say to students you need to know this 'specific information for the EOC.'" Principal Almanzar made a distinction without a difference, and, more importantly, he made a distinction that lacks relevance. Principal Almanzar checked the item that the teacher tells students to get ready for important information. The criterion does not require greater specificity than "a lesson or part of a lesson." Again, this Developing datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. The next item observed by Principal Almanzar on April 10 is Criterion 7, which is: "The teacher organizes students into small groups to facilitate the processing of new information." He checked the item that states: "Teacher has established routines for student grouping and student interaction in groups." Seizing on the absence of routines, Principal Almanzar's comment reveals his misunderstanding of the criterion: "Teacher gets students into groups, but does not establish rules for students to work together. Consequently, students work independently as they sit in a group formation." As noted above, the requirement of routines in the items of Teacher Evidence is not in the criterion. The Not Using datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. Selecting another small-group criterion, Principal Almanzar entered a Not Using datamark for Criterion 15, which is: "The teacher uses grouping in ways that facilitate practicing and deepening knowledge." He checked both items of Teacher Evidence, but his comment is: "Teacher organizes students to work together and assigns problems for students to solve. Students sit in groups, but the majority of students work independently." Here, Principal Almanzar seems to be adding a requirement to one of the small-group criteria. The Not Using datamark must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. On his May 8 observation, Principal Almanzar issued a Beginning datamark for Criterion 6, which is identifying critical information. He did not check any items of Teacher Evidence, but his comment is: "Teacher said to students 'what is the measure of an adjacent angle?' How can you signal to students which content is critical versus non-critical?" Principal Almanzar has never taught math and cannot establish that the measure of an adjacent angle is critical. Any implication that a teacher must affirmatively enumerate, as to every bit of information taught in class, whether it is critical or noncritical is rejected as impracticable. The Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. For Criterion 14, which is reviewing content, Principal Almanzar assigned a Beginning datamark, checked the item that illustrates several specific strategies that a teacher might use to review information, and added a comment: "Teacher did not ask students to relate previous knowledge to content being reviewed. How can you engage students in a brief review of content that highlights the critical information?" The question merely restates the criterion as a question. The statement completely misses the point of the criterion, which requires only that the teacher "engages students in a brief review of content that highlights the critical information." The statement bears a resemblance to Criterion 20, which requires the teacher to engage the students "in revision of previous knowledge about content addressed in previous lessons." Principal Almanzar's evident inattentiveness requires that the Beginning datamark be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Principal Almanzar's comments to Criteria 15, which is a small-group criterion, and 19, which is practicing skills, ask the same pleasantly encouraging question that, if machine- generated or -prompted, should remind the reader of the role of the iObservation® form as a professional-growth instrument: "How can you begin to incorporate some aspect of this strategy in your instruction?" But Respondent had already begin to use both strategies. In his April 10 observation, Principal Almanzar acknowledged that Respondent had used small-group instruction and had issued a Developing datamark for Criterion 19. And, if Respondent were to respond to the gentle prod of this question and "begin" to use these strategies, he needed a sense of urgency because, one week later, Principal Almanzar recommended to the Superintendent that Respondent be fired. Although these comments suggest carelessness on Principal Almanzar's part, they do not affirmatively discredit the datamarks assigned to Criteria 15 and 19. However, Principal Almanzar's comment for Criterion 19 adds: "Students were not grasping teacher's explanations." This criterion requires the teacher to "engage. . . students in practice activities that help them develop fluency." The comment implies that Respondent was doing that, but, at worst, was failing to monitor a majority of the students for the desired effect of this strategy. Principal Almanzar's Not Using datamark for Criterion 19 must be increased to Developing to avoid an unreasonable likelihood of an unreliable evaluation. This analysis of Principal Almanzar's comments has resulted in the discarding of his datamarks for Criteria 6 and 14 on the May 8 observation, as well as the revision of six datamarks: on the April 3 observation, the datamark for Criterion 14 has been increased from Not Using to Applying; on the April 10 observation, the datamarks for Criteria 7 and 15 have been increased from Not Using to Applying and the datamarks for Criteria 5 and 6 have been increased from Developing to Applying; and, on the May 8 observation, the datamark for Criterion 19 has been increased from Not Using to Developing. Discarded Domain 1 Datamarks for Disproportionate Observation of Small-Group Criteria An observer may assign a datamark only for a strategy that is "called for." If, under the circumstances, a strategy is not "called for," the observer must choose another strategy for assessment. The iObservation® form fails to define "called for," but permissible meanings of "called for" are that a strategy must or could have been used.12 An observer who reserves datamarks for strategies that must be used will have fewer opportunities to issue datamarks than an observer who issues datamarks for strategies that could be used. A strategy, such as small-group instruction when presenting new information, could be used more often and for longer duration than it must be used. Nothing in the iObservation® form indirectly supports either definition of "called for." But the MOU's statement that the Marzano criteria are mandatory and have displaced teacher judgment militates in favor of the definition that gives the Marzano criteria their widest reach. For this reason, "called for" means any strategy that could be used, meaning that observers have greater latitude in assigning Not Using datamarks. Observers have even greater latitude in another respect: the selection of criteria to observe. Neither the iObservation® form nor the MOU limits the discretion of an observer in selecting criteria for observation. When the iObservation® form is used to promote professional growth, homing in on a teacher's weaknesses may be a useful practice, but when the form is used to evaluate a teacher, the same practice presents a unbalanced portrait of the teacher by over-emphasizing her weaknesses. Combined with the vagueness of "called for," the unfettered discretion to select criteria for observation confers upon observers a unique power to shape observations and, thus, evaluations. The observer who fully exploits the latitude extended to him by these two omissions will generate observations that tell the reader increasingly less about the teacher and increasingly more about the observer, as he assumes the role of the "I" in "iObservation."® The iObservation® form and MOU support one limitation on the observer's selection of criteria for assessment. Because Dr. Marzano, Petitioner, and BTU have not weighted individual criteria in these documents, observers cannot assume this authority by disproportionately assessing certain criteria. Due to the large number of criteria relative to the number of datamarks that a teacher receives during a school year, it is impossible to require proportional observation on a per-criterion basis. This would unduly restrict the flexibility of observers, who, for instance, could not observe the same criterion a second time in a school year to see if the teacher had corrected a deficiency noted in the implementation of that strategy earlier in the school year.13 The limitation imposed on observers is on the cumulative over-representation14 of groups of related criteria. For present purposes, there is no need to discard datamarks of criteria that are within groups that are over-represented in observations unless the over-representation is material. Materiality is a function of the relationship of the over-represented datamarks to the remaining datamarks in terms of point values. Given the issues framed by a case of this type, the issue is whether observers have assigned relatively low datamarks to the criteria that are within groups that they have over-represented in their observations. Broadly speaking, the prominent groups of Domain 1 criteria are Criteria 6-13--presenting new information; Criteria 14-20--reviewing information; Criteria 24-32-- maintaining student engagement; and Criteria 4 and 33-39-- maintaining positive teacher-student relations. In this case, the third group of criteria was observed proportionately, but the first two groups were over-observed, and the fourth group was greatly under-observed.15 But the over-representation of datamarks for the first two groups has proved immaterial. After reviewing the scores and, where the record fails to support the lower scores, increasing them, the datamarks are not so low as to distort the overall evaluation process. The under-representation of datamarks for the fourth group has proved irrelevant.16 The same is not true for one group of three criteria: the small-group criteria, which are Criteria 7, 15, and 21.17 AHS administrators over-represented these criteria in their observations and assigned very low datamarks to these criteria. With few exceptions, the datamarks for these criteria are supported by the record,18 which is why a limitation on the observer's selection of these criteria is important to assuring a reasonable likelihood of a reliable evaluation. Criteria 7, 15, and 21, require small groups, respectively, when presenting new knowledge, practicing or deepening knowledge, and helping students who are working on complex tasks that require them to generate and test hypotheses.19 Respondent testified that he engaged in small-group instruction once every three weeks. Mr. O'Brien testified that Respondent grouped students on Thursdays. But, even if Respondent increased his use of small-group instruction in response to the repeated urgings of Ms. Spadaro and Ms. Kal Sander, nothing in the record suggests that he engaged in small-group instruction much of the time during the 2013-14 school year. In turn, AHS administrators assessed the small-group criteria greatly in excess of their representation in the iObservation® form. The three small-group criteria constitute only about 7% of the 41 criteria, but they generate almost 19% of the datamarks--19 of 102 datamarks. The over-observation of the small-group criteria was material. These three criteria generate almost 45% of the Not Using datamarks--17 of 38 datamarks. For this reason, the small-group criteria generated very low scores: nine datamarks of Criterion 7 averaged 1.278 points, nine datamarks for Criterion 15 averaged 1.0 point, and one datamark for Criterion 21 was 1.0 point. Due largely to the analytical framework provided by the MOU, the effect of Not Using datamarks is dramatic on a teacher's Final Score. To earn the minimum Effective rating of 2.5 points, without any Innovating ratings, a teacher must obtain three Applying datamarks for every Not Using datamark to reach the threshold of Effective. A teacher receives a minimum of 25-35 datamarks over the course of a school year. Assuming 30 datamarks without any Innovating datamarks, once a teacher receives eight Not Using datamarks, she cannot earn an Effective score. Here, with 102 datamarks, if none is Innovating, a teacher with more than 25 Not Using datamarks cannot attain an average of 2.5 points. The requirement of proportionality is an imperfect device,20 but provides some limit on an administrator's ability to distort the evaluation process by ducking into a teacher's classroom to confirm that she still is not using certain strategies and quickly accumulating numerous Not Using datamarks. To some extent, Assistant Principal Farr did just this regarding the three small-group criteria. On February 18, 2014, he conducted two snapshot observations for Criterion 7 only 90 minutes apart, scoring during these observations only one other criterion, Criterion 10, which he erroneously believed also was a small-group criterion.21 More generally, although less dramatically, the same thing happened repeatedly with respect to the small-group criteria. AHS administrators conducted nine snapshot observations and two informal observations involving no more than two criteria, so as, in this respect, to resemble snapshot observations. During these 11 focused observations, the administrators issued 26 datamarks, of which 14 were Not Using datamarks. Focused observations thus accounted for about 22% of the total datamarks, but about 37% of the Not Using datamarks. For the three small-group criteria--again, representing about 7% of the total criteria--the AHS administrators conducting focused observations issued 7 datamarks, or about 27% of the datamarks that they issued in focused observations and half of the Not Using datamarks that they issued in focused observations. AHS administrators observed one or more of these small-group criteria in six of the 11 focused observations. Prior to the discards and revisions set forth in the preceding section,22 as noted above, the three small-group criteria accounted for 19 of the 102 datamarks, or nearly 19%. If the AHS administrators had limited their observations of these three small-group criteria to their proportional share of the 41 Domain 1 criteria, they would have generated no more than about eight datamarks for these three criteria, instead of 19. An approximate proportionality will suffice, so ten of the Not Using datamarks for Criteria 7 and 15 must be discarded to provide a reasonable likelihood of a reliable evaluation. Revised Domain 1 Datamarks for Failure to Prove Datamarks by Greater Weight of the Evidence Petitioner must prove by a preponderance of the evidence that Assistant Principal Farr or Principal Almanzar saw or did not see activities to support the datamarks on their iObservation® forms. Notwithstanding the language of the MOU promising a more comprehensive process for the evaluation of a teacher,23 at present, the Final Score is the sole determinant of the employment decision, so the burden placed on Petitioner is merely to prove that the observers saw and did not see what they reported directly in their comments or checked items of Teacher Evidence or implicitly based on the datamarks. Petitioner's task is further eased by the fact that, except for Respondent, the other sources of opposing evidence--Respondent's coaches and teaching colleagues--were rarely, if ever, in the classroom during the observations, which were not recorded for review by third parties. The evidentiary bar thus is not exceptionally high, but even a low bar must be cleared. For the datamarks revised in this section, Petitioner's proof is insufficient to overcome the opposing evidence largely due to the impression left with the Administrative Law Judge that the observations conducted by Assistant Principal Farr and Principal Almanzar were tainted by incompetence, carelessness, and confirmation bias. It would seem that ineptitude in using the iObservation form could not impede an administrator's observing accurately what a teacher is doing and not doing during an observation. However, due to its breadth and depth, the iObservation® form imposes considerable burdens upon an observer. The record does not reveal any protocol used by Assistant Principal Farr or Principal Almanzar when observing Respondent. It is thus unclear whether the administrator first selected a criterion and then observed a class to see if the criterion was "called for," or if the administrator first observed a class to determine the activity, such as introducing or reviewing information, and then selected a criterion for observation. Clearly, some criteria, such as Criterion 24, which is noticing when students are not engaged and taking overt action, would spontaneously emerge as "called for," so that they would less likely be preselected for assessment. An observer needs considerable familiarity with the iObservation® criteria to conduct an efficient, accurate observation. A teacher might be chunking content under Criterion 9 and managing response rates under Criterion 26 when students suddenly disengage, requiring her to take other overt action, under Criterion 24, which could entail academic games or physical movement under Criteria 25 and 27, respectively--all within one or two minutes. Even in a less dynamic interval, a teacher might be identifying critical information under Criterion 6, previewing new content under Criterion 8, chunking content under Criterion 9, engaging the students in processing information under Criterion 10, and engaging students requiring elaborative inferences under Criterion 11--all within a span of several minutes.24 In varying sequences, an observer must select one or more criteria to assess; if he is not sufficiently familiar with the iObservation® form, review the requirements of the criterion or criteria; observe what the class is doing at the moment and, in some cases, place this moment in the context of what presumably has already taken place, possibly before the start of the observation; observe what the teacher is doing and not doing; observe the students' responses; analyze the teacher's acts and omissions in the context of all 41 Domain 1 criteria; and document his findings in the form of one or more datamarks, possibly one or more comments, and possibly one or more checked items of Teacher Evidence, while, for Assistant Principal Farr, trying to keep straight if checks signify the presence or absence of an activity. These hypotheticals suggest the range of tasks that an observer must perform, but do not so much suggest the span of time in which he must perform these tasks. In three of the four formal observations conducted by Assistant Principal Farr, he assigned 49 datamarks--slightly over the upper range of 45 datamarks for three formal observations. In one comment, noted above, Assistant Principal Farr mentioned 30 minutes as the duration of one of these formal evaluations. If the other two formal observations were of the same duration, this means that he was assigning a datamark every two minutes, which would have necessitated that Assistant Principal Farr maintain a lively pace while entering nearly half of the datamarks that Respondent received for 2013-14. This also would have necessitated that Assistant Principal Farr have much greater dexterity in using the iObservation® form than he has demonstrated in this case. The odds of missing elements of what the teacher was doing are fairly high. The lack of skill in using the iObservation® form demonstrated by Assistant Principal Farr and Principal Almanzar--but especially Assistant Principal Farr, given the time pressures to which he subjected himself in three formal observations--thus reduces the weight to be assigned to their datamarks as descriptions of what they saw or did not see. There is also ample evidence of carelessness by both administrators in discharging their duties in this case, as detailed above. Inattention to the details of the iObservation® form suggests inattention to the situations confronting a teacher in the classroom, the strategies that she employs in response to those situations, and the effect of these strategies on her students. Respondent argues for an inference of bias in the form of a conspiracy between Assistant Principal Farr and Principal Almanzar, if not others, to gain the dismissal of Respondent. The evidence offers little support for Respondent's conspiracy template. Among other things, schemers presumably would have paid more attention to the details of their conspiracy. However, it is impossible also to rule out confirmation bias25 on the part of Assistant Principal Farr and Principal Almanzar. An occasional misreading of the confusing items of Teacher Evidence signifies nothing, but one-quarter of Assistant Principal Farr's datamarks and over half of Principal Almanzar's datamarks were bed on their misreading of the requirements of the criteria that they were assessing. This record signifies incompetence, carelessness ripening into recklessness, and possibly confirmation bias. Neither incompetence nor inattentiveness would seem to have been involved in Assistant Principal Farr's failure to give effect to the MOU requirement that he make "every effort" to allow for a reasonable amount of time for growth between observations. Even if he were ignorant of this provision of the MOU, Assistant Principal Farr should have been guided by basic notions of fair play, but was not. Instead, Assistant Principal Farr conducted three observations totaling 30 datamarks, or about 29% of all of the datamarks for the school year, in a span of seven school days--November 20, December 2, and December 4--averaging, respectively, 1.917, 1.0, and 2.278 points.26 And, as noted above, on one day, he conducted focused observations of small-group criteria 90 minutes apart. Principal Almanzar's failure to align the Marzano-based deficiencies in the PDP with a Marzano-based level of implementation, rather than "mastery," is easily explained by inattentiveness and unfamiliarity with the iObservation® form. But his failure to inform timely the coaches of Respondent's specific deficiencies suggests that Principal Almanzar may have been going through the motions of complying with a procedural requirement, not providing Respondent with targeted assistance. Assistant Principal Farr and Principal Almanzar also distorted the observation data and, thus, the evaluation process by disproportionately assessing the small-group criteria, often in focused observations. They knew that these observations would produce a large number of Not Using datamarks, which would produce a low IPS and Final Score. Respondent posed two main problems to his administrators: primarily, lots of poor grades and, secondarily, lots of disciplinary referrals. Each of these practices presumably generated lots of complaints, which meant considerable demands on the administrators' time. Respondent appears to lack the skills or inclination to work on his relationship with his superiors. At the same time, Petitioner adopted the Marzano mandates for teaching and Marzano method for evaluating teachers. It is unclear whether the two AHS administrators appreciated the depth and breadth of the iObservation® form, but they likely understood, as noted in the MOU, that Marzano mandates had displaced a considerable amount of teacher judgment in terms of teaching methods. Responsible for conducting the observations of Respondent,27 Assistant Principal Farr and Principal Almanzar could have approached their task with one of three mindsets. They could have been predisposed to share Respondent's opinion that the poor grades and disciplinary referrals were due to a lack of student motivation and, for more advanced classes, their failure to assign students properly. This possibility can be dismissed. Assistant Principal Farr and Principal Almanzar could have been predisposed to think that the poor grades and disciplinary referrals were due to Respondent's poor teaching practices. If so, the new Marzano-based evaluation process presented a good opportunity to document Respondent's deficiencies. Or Assistant Principal Farr and Principal Almanzar could have had no predispositions as to the cause of the poor grades and disciplinary referrals and seen the new Marzano-based evaluation process as a good opportunity to assess Respondent's teaching performance. Between them, Assistant Principal Farr and Principal Almanzar entered 98 datamarks. Of these, 30 datamarks were erroneous to the detriment of Respondent and 10 Not Using datamarks were discarded due to material disproportionality to his disadvantage. Of the remaining 62 datamarks, not a single one is erroneous to the benefit of Respondent, nor are there any datamarks that are materially disproportionate to his advantage. The impression that these administrators have left is that their uneven performance in this case is due, not merely to carelessness or ineptitude, but also confirmation bias, as each administrator tended to see and not see evidence that confirmed his knowledge that Respondent was a bad teacher. Thus, for the datamarks discussed below, the weight to be assigned to the direct or indirect reports of Assistant Principal Farr and Principal Almanzar of what they saw or did not see is insufficient to satisfy Petitioner's burden. Where datamarks, including some that have been discarded above, are increased to Applying or, for one criterion, Innovating, the required element of student monitoring is inferred from Respondent's recent record of student academic achievement and other sources. Although Assistant Principal Farr missed one instance of small-group instruction, as mentioned above, Petitioner generally proved that small-group instruction was not present when the observers issued Not Using datamarks for the three small-group criteria. To sustain these datamarks, the class must have been engaged in one of the three activities that triggers small-group instruction. It is fairly easy to notice when a class is interacting with new knowledge or practicing knowledge. On the other hand, nothing in the record persuades the Administrative Law Judge that Assistant Principal Farr is capable of recognizing or, if capable, bothered to recognize when math students were working on complex tasks that required them to generate and test hypotheses. His Not Using datamark for Criterion 21 on the January 17 observation is thus discarded to avoid the unreasonable likelihood of an unreliable evaluation. On December 2, Assistant Principal Farr assigned a Not Using datamark for Criterion 33, which is demonstrating "withitness." Ms. Kal Sander's email of January 29, 2013, and Ms. Spadaro's email of April 26, 2013, both commend Respondent for his "withitness." Although Assistant Principal Farr's Not Using datamark for this criterion has already been discarded, it must be replaced with an Applying datamark to avoid the unreasonable likelihood of an unreliable evaluation. Respondent testified that he has long "chunked" his material to facilitate his students' learning, as required by Criterion 9. Ms. Kal Sander noted this in her email of February 14, 2013. The items of Teacher Evidence exclusively concern chunking the presentation, but the criterion does not preclude chunking the content. Based on his knowledge of the content of standardized tests and considerable experience teaching math, Respondent has done just that. His average score on six datamarks, as originally issued by the AHS administrators, was 2.417, so they had recognized his relative strength using this strategy. When compared to the strategies set forth in the items of Teacher Evidence, Respondent's "chunking" appears to be a new way of conforming to this criterion, thus entitling him to Innovating datamarks. The Developing datamark of April 10 has already been sustained. But the five remaining original datamarks, including the Beginning datamark on January 17 that has already been discarded, must be raised to Innovating datamarks to avoid the unreasonable likelihood of an unreliable evaluation. As explained by Respondent and corroborated by Ms. Spadaro's emails of February 20 and April 16, 2013, a core practice of Respondent is reviewing content, which is Criterion 14, but his average score for eight datamarks for this criterion is only 2.188. Principal Almanzar's Not Using datamark for Criterion 14 on April 3 has already been raised to Applying. Assistant Principal Farr's Developing datamark on February 12 has already been sustained. The remaining six datamarks, including those previously discarded, must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. Respondent's teaching practices have long included tracking student progress, which is Criterion 2, even to the point of hectoring his students about their lack of progress. As explained by Respondent and corroborated by Ms. Spadaro's emails of February 15 and March 21, 2013, Respondent also adopted her suggestion of the four-finger method of tracking student understanding. Respondent's two Not Using datamarks for Criterion 2 on observations dated March 18 and May 2--the former of which was already raised to a Developing--must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As explained by Respondent and corroborated by Ms. Kal Sander's email of February 14, 2013, Respondent has long provided clear learning goals and scales, which is Criterion 1, as part of his careful preparation of students for standardized testing. The poor alignment of all five items of Teacher Evidence to Criterion 1, as discussed above, invites erroneous scoring of this criterion. The six datamarks originally assigned for Criterion 1, including the Not Using datamark of November 20, must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. For largely the same reasons, the seven datamarks originally assigned for Criterion 6, which is identifying critical information, must also be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. This excludes the datamark of Applying on May 2 and the datamark of Developing on April 10 that was already raised to Applying, but includes the datamarks of January 17, April 11, and May 8 that were previously discarded. Considerable evidence establishes that Respondent maintains a lively pace in class, which is Criterion 28, sometimes perhaps at the cost of not leaving enough time to ensure that his students are always keeping up with him. The Developing datamark on December 4 has been sustained, but the remaining three of four original datamarks, including the Beginning datamark on January 17 that has already been discarded, must be increased to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As set forth in this section, 30 datamarks have been revised and one has been discarded. Nineteen of these revisions and the lone discard are to datamarks not previously discarded or revised in the preceding two sections; the remaining revisions are to datamarks that were previously discarded to revised in the preceding two sections. Conclusion as to Domain 1 Datamarks The net result of the discards and revisions detailed in the preceding three sections is the discard or increase of 61 datamarks. As discarded and revised, the remaining datamarks are set forth in Appendix B. As reflected on Appendix B, Respondent's average IPS is 2.532, which is the lowest score that avoids the unreasonable likelihood of an unreliable evaluation. iObservation® Form: Domains 2-4 Domains 2-4 Criteria The iObservation® criteria for Domains 2 through 4 that were assessed are set forth below. 42. Effective Scaffolding of Information within Lessons Within lessons, the teacher prepares and plans the organization of content in such a way that each new piece of information builds on the previous piece. Planning Evidence Content is organized to build upon previous information Presentation of content is logical and progresses from simple to complex Where appropriate, presentation of content is integrated with other content areas, other lessons and/or units The plan anticipates potential confusions that students may experience Teacher Evidence When asked, the teacher can describe the rationale for how the content is organized When asked, the teacher can describe the rationale for the sequence of instruction When asked, the teacher can describe how content is related to previous lessons, units or other content When asked, the teacher can describe possible confusions that may impact the lesson or unit. 44. Attention to Established Content Standards The teacher ensures that lesson and unit plans are aligned with established content standards identified by the district and the manner in which that content should be sequenced. Planning Evidence Lesson and unit plans include important content identified by the district (scope) Lesson and unit plans include the appropriate manner in which materials should be taught (sequence) as identified by the district Teacher Evidence When asked, the teacher can identify or reference the important content (scope) identified by the district When asked, the teacher can describe the sequence of the content to be taught as identified by the district 55. Promoting Positive Interactions with Colleagues The teacher interacts with other teachers in a positive manner to promote and support student learning. Teacher Evidence The teacher works cooperatively with appropriate school personnel to address issues that impact student learning The teacher establishes working relationships that demonstrate integrity, confidentiality, respect, flexibility, fairness and trust The teacher accesses available expertise and resources to support students' learning needs When asked, the teacher can describe situations in which he or she interacts positively with colleagues to promote and support student learning When asked, the teacher can describe situations in which he or she helped extinguish negative conversations about other teachers Seeking Mentorship for Areas of Need or Interest The teacher seeks help and input from colleagues regarding specific classroom strategies and behaviors. Teacher Evidence The teacher keeps track of specific situations in which he or she has sought mentorship from others The teacher actively seeks help and input in Professional Learning Community meetings The teacher actively seeks help and input from appropriate school personnel to address issues that impact instruction When asked, the teacher can describe how he or she seeks input from colleagues regarding issues that impact instruction Mentoring Other Teachers and Sharing Ideas and Strategies The teacher provides other teachers with help and input regarding specific classroom strategies and behaviors. Teacher Evidence The teacher keeps track of specific situations during which he or she mentored other teachers The teacher contributes and shares expertise and new ideas with colleagues to enhance student learning in formal and informal ways The teacher serves as an appropriate role model (mentor, coach, presenter, researcher) regarding specific classroom strategies and behaviors When asked, the teacher can describe specific situations in which he or she has mentored colleagues Adhering to District and School Rules and Procedures The teacher is aware of the district's and school's rules and procedures and adheres to them. Teacher Evidence The teacher performs assigned duties The teacher follows policies, regulations and procedures The teacher maintains accurate records (student progress, completion of assignments, non-instructional records) The teacher fulfills responsibilities in a timely manner The teacher understands legal issues related to students and families The teacher demonstrates personal integrity The teacher keeps track of specific situations in which he or she adheres to rules and procedures Participating in District and School Initiatives The teacher is aware of the district's and school's initiatives and participates in them in accordance with his or her talents and availability. Teacher Evidence The teacher participates in school activities and events as appropriate to support students and families The teacher serves on school and district committees The teacher participates in staff development opportunities The teacher works to achieve school and district improvement goals The teacher keeps track of specific situations in which he or she has participated in school or district initiatives When asked, the teacher can describe or show evidence of his/her participation in district and school initiatives Domains 2-4 Datamarks The definitions of the Developing and Applying datamarks for Domains 2 through 4 are different for each criterion and are provided as needed below. The remaining definitions are: Not Using: The teacher makes no attempt to perform this activity Beginning: The teacher attempts to perform this activity but does not actually complete or follow through with these attempts Innovating: The teacher is a recognized leader in helping others with this activity The criteria within Domains 2 through 4 are unlike Domain 1 criteria because they span an extended period of time--here, nearly the entire school year--rather than the period of an observation. Most, if not all, of the items of Teacher Evidence for criteria in Domains 2 through 4 contemplate an exchange between the teacher and the administrator to inform the administrator's datamark for these criteria. Criteria 42 and 44 also contemplate that the administrator will examine the teacher's planning materials to inform his datamarks for these criteria. Assistant Principal Farr issued all of the datamarks for the criteria within Domains 2 through 4. There is no evidence of any exchange of information or examination of planning materials. Instead, Assistant Principal Farr apparently drew upon his general knowledge of Respondent when entering these datamarks in a span of six school days about six weeks before the end of the school year. The failure to inform these determinations in the manner provided by the iObservation® form undermines the reliability of all of the datamarks for these criteria. There is also apparent inconsistency among certain datamarks. On April 29, Assistant Principal Farr issued Developing datamarks for Criteria 58 and 60 without comments and without checking any of the items of Teacher Evidence. The next day, Assistant Principal Farr issued datamarks of Not Using for Criterion 58 and Beginning for Criterion 60. Although he did not check any items, Assistant Principal Farr added comments. The comment for Criterion 58 is: "Does not contributes [sic] to new ideas to enhance student learning in formal or informal ways." The comment for Criterion 60 is: "The teacher attempts to perform activity but does not actually complete or follow through with these attempts; shows up to meetings (PLC) but does not contribute." Given that the second set of datamarks cover the same span covered by the first set of the datamarks, plus one day, these four datamarks collectively make no sense, so all four datamarks are discarded to avoid an unreasonable likelihood of an unreliable evaluation. On April 30, Assistant Principal Farr also issued Not Using datamarks for Criteria 55 and 59 and Beginning for Criterion 57. The comment for Criterion 55 is: "Comments during meetings are not negative [sic] and does [sic] not contribute to teaching and learning." The items of Teacher Evidence for this criterion require an analysis of indicators of the extent to which a teacher interacts with other teachers to promote learning. This was not done. If Respondent's negative comments were directed toward another teacher, as Assistant Principal Farr implies, but does not state, such comments would not necessarily preclude a higher datamark without consideration of Respondent's other relevant activities. Most likely, this datamark reflects Assistant Principal Farr's opinion of Respondent's behavior at a recent teacher meeting, nothing more, so it must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. The comment for Criterion 57 is: "Does not seek out help from academic coaches from [AHS] and does not show appreciation for their efforts and assistance." Gratitude is not an element of this criterion, nor is it mentioned in the items of Teacher Evidence, but it signals that Assistant Principal Farr has based a lower datamark on Respondent's lack of appreciation for the efforts of Ms. Spadaro, Ms. Kal Sander, and Mr. O'Brien. Assistant Principal Farr has selected a criterion that he should not have selected. Respondent's time has been filled with assistance from coaches. Under the circumstances, his failure to request more assistance is justified and renders this criterion unsuitable for assessment. For the reasons set forth in the preceding two paragraphs, the Beginning datamark for Criterion 57 must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. The comment for Criterion 59 is: "Does not fulfill responsibilities in a timely manner with regards to emails from administrator." Again, Assistant Principal Farr appears to have reduced this criterion to one failing--possibly, a lone instance of a failure of Respondent to reply, or to reply timely, to an email, probably from Assistant Principal Farr or Principal Almanzar. The Not Using datamark for Criterion 59 must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. Seven minutes after entering the Not Using datamark for Criterion 59, Assistant Principal Farr himself seems to have discarded this datamark when he issued an Applying datamark for Criterion 59. Assistant Principal Farr checked two items of Teacher Evidence: performing assigned duties and fulfilling responsibilities in a timely manner. Given the high datamark, Assistant Principal Farr's checkmarks indicate that these items were present. Assistant Principal Farr added a one-word comment, "voting." Of course, Respondent does not challenge this datamark, so an exegesis of this cryptic comment is fortunately not called for, as in required. On May 7, Assistant Principal Farr issued Not Using datamarks for Criteria 42 and 44. He added no comments to these datamarks. The six items of Teacher Evidence for these criteria all bear the same preface: "When asked." The six items of Planning Evidence for these criteria require Assistant Principal Farr to examine Respondent's planning materials, which he did not do. Assistant Principal Farr checked none of these items. For these omissions alone, Assistant Principal Farr's datamarks may be discarded. However, there is ample evidence that Respondent earned Applying datamarks for Criteria 42 and 44. As for Criterion 42, Respondent consistently scaffolded information within lessons. As a subject, math requires scaffolding, both within an individual lesson and over longer periods of time. For Criterion 42, Applying requires: "Within lessons the teacher organizes content in such a way that each new piece of information clearly builds on the previous piece." In light of Respondent's recent history of positive student achievement, Assistant Principal Farr's saying that Respondent does not scaffold information does not make it so. The Not Using datamark for Criterion 42 is raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. Respondent consistently ensured that his lesson and unit plans were aligned with established content standards and sequencing guidelines or requirements. For Criterion 44, Applying requires: "The teacher ensures that lessons and units include the important content identified by the district and the manner in which that content should be sequenced." The Not Using datamark for Criterion 44 is raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As revised, Respondent's three datamarks of Applying generate an average of 3.0 for Domains 2 through 4. 3. Application of Analytical Framework to Remaining, Revised Datamarks for Domains 1-4 Criteria The MOU calculates a teacher's Final Score based on her IPS, SDS, and DPS (if not treated as part of the IPS) with respective weights of 49%, 50%, and 1%. As noted above, Respondent received a 3.0 for his SDS and a 3.0 for his DPS, so the remaining task is to calculate his IPS and combine the three weighted scores for a Final Score. The Domain 1 score of 2.532 is weighted at 68% and the Domains 2-4 score of 3.0 is weighted at 32%. The result is 2.68 for Respondent's IPS. Combining the IPS, SDS, and DPS results in a Final Score of 2.84. Petitioner has thus failed to prove any performance deficiency for the 2013-14 school year. Count 3: Inefficiency or Incapacity Petitioner has failed to prove inefficiency or incapacity. The above-described analysis of his teaching performance establishes that the was Effective during the 2013-14 school year. Counts 1 and 2: Failure to Protect from Conditions Harmful to Learning and Not Engaging in Harassment or Discriminatory Conduct that Unreasonably Interferes with an Individual's Duties or Orderly Process of Education or Creates an Intimidating or Offensive Environment and Engaging in Behavior that Disrupts Student's Learning Environment or Colleague's Ability to Perform Duties Judging from Petitioner's proposed recommended order, Count 1 was intended to encompass a wide range of incidents, all minor in nature. Petitioner claims that Respondent lied about comments favorable to him made by one or more of his coaches. None of the comments warrants individual discussion; none was particularly important. The Administrative Law Judge has not determined whether these statements by Respondent were true or not because they are subordinate to the many issues present in this case. Some of these statements involve his claims that AHS administrators were biased against him. Given the combined possibilities that Respondent was telling the truth when making these statements, at least as to confirmation bias, or that Respondent believed he is telling the truth when making these statements, Petitioner has failed to prove that he has lied about his colleagues. Undoubtedly, Respondent had some unpleasant exchanges with AHS administrators. However, in the only such incident described in any detail, Respondent displayed restraint during the March 2013 encounter in which he overheard Ms. Kal Sander's frustrated dismissal of him. In that encounter, Respondent's characterization of Ms. Kal Sander's modeling was probably brusque, but appropriate, and part of a frank exchange between two professionals. Ms. Kal Sander over-reacted. Mr. O'Brien cited a lack of courtesy by Respondent. Mr. O'Brien's poor credibility as a witness disqualifies him as an arbiter of acceptable behavior, but even his account of this encounter does not justify a characterization of Respondent's behavior as harassment, discriminatory, intimidating, oppressive, or otherwise capable of reducing his colleagues' ability to perform their duties. More generally, the evidence as to all other matters does not rise to these levels. The most serious incidents encompassed by Count 1 are the occasional statements of Respondent to his class criticizing the administration or coaches. As to this matter, Mr. O'Brien's testimony has been rejected. On two occasions, Respondent made such comments about each of the two coaches, but did not make further such comments after being admonished by each coach. Petitioner's evidence concerning comments about AHS administrators falls short in two respects. First, it fails to establish the number of times that Respondent made such comments in front of his students or any such incident involving extended comments. Second, Petitioner produced no evidence of any student for whom these incidents were harmful to learning, disruptive to his learning environment, or harmful to the student's mental health. Significantly, the students were all high-school age, and the Administrative Law Judge finds an inadequate basis in the record to infer such harm or disruption. Just so it is clear to Respondent, this proof fails, not because such comments are acceptable when the students are high-school age, but for all of the reasons set forth immediately above. Counts 5-7: Failing to Work Diligently, Perform Prescribed Duties, and Comply with other Applicable Statutes, Rules, and Policies Petitioner has failed to prove that Respondent has failed to work diligently and faithfully help his students meet or exceed their annual learning goals or to perform any prescribed duties, or that he otherwise violated any provisions of law.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint and reinstating Respondent with his back salary. DONE AND ENTERED this 19th day of August, 2015, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2015.
