The Issue The issue in this case is whether the Education Practices Commission (EPC) should discipline the Respondent, Bruce R. Ferko, on charges set out in an Administrative Complaint that he was alcohol intoxicated on and off the job as an elementary school teacher, was convicted of driving under the influence of alcohol (DUI), once falsely represented to the administration at his school that he was unable to teach because he was in the emergency room of a hospital when he was in fact in the county jail on (DUI) charges, and was guilty of personal conduct which seriously reduced his effectiveness as a teacher, in violation of Section 231.28(1)(c), (e), (f) and (h), Fla. Stat. (1989).
Findings Of Fact The Respondent, Bruce R. Ferko, held teaching certificate number 553660 issued by the Florida Department of Education, covering elementary education, at all times material to the allegations of the Administrative Complaint, until it expired on June 30, 1990. From approximately August, 1986, until approximately March, 1990, the Respondent was employed as a teacher at Southern Oak Elementary School in the Pinellas County School District. On July 11, 1988, the Respondent was arrested for driving under the influence of alcohol (DUI), fleeing and eluding a police officer, and driving with a suspended license. He pled guilty to the charges on August 30, 1988, and was sentenced to 30 days in the county jail, which was suspended, was fined a total of $382, was ordered to pay a total of $425 of court costs, was required to attend DUI school, and was placed on six months probation on two of the charges, to run concurrently. On several occasions during the 1988/1989 and 1989/1990 school years, the Respondent arrived at school with a smell of alcohol on his breath that was strong enough for at least four different employees at the school to have noticed on different occasions. When the smell was brought to the Respondent's attention, he sometimes would excuse himself to brush his teeth. On or about May 24, 1989, a fellow teacher with whom the Respondent team taught third grade in the 1988/1989 school year, noticed a very strong smell of alcohol on the Respondent's breath. The teacher was concerned and reported it to the school's assistant principal. The assistant principal consulted with the School District's chief personnel officer, who advised the assistant principal to have a conference with the Respondent about it this time. The Respondent admitted that he had been drinking the night before, had about five drinks, and did not eat breakfast. (Later, the assistant principal learned that he had been out until 2:00 a.m. that morning.) The assistant principal decided to send the Respondent to get something to eat and had to make arrangements to cover the Respondent's classroom responsibilities in the meantime. The Respondent often was late for school, especially during the 1988/1989 and 1989/1990 school years. Sometimes, he would take a shower at school when he arrived; sometimes, he would brush his teeth when he arrived at school. Once, after arriving late, the Respondent told an improbable tale of how his car broke down, requiring the Respondent to jump out and fall on his knee (although his white pants showed no evidence of this). Later the same day, the Respondent lay on top of another teacher's desk, in front of the teacher, and acted as if he was going to sleep. On January 17, 1990, the Respondent came to school late with the strong smell of alcohol on his breath and brushed his teeth when he arrived. While leading his class either to or from physical education class, the Respondent was heard singing "at the top of his lungs" This inappropriate behavior disrupted the classes being held nearby. The evidence was insufficient to causally connect the unusual behavior described in Finding 6, above, to the Respondent's use of alcohol. On the morning of October 12, 1989, the Respondent called the school office to arrange for a substitute classroom teacher to take his place for the morning. He reported that he was in the hospital emergency room and was spitting blood. The Respondent was asked if he was sure he only needed a substitute for the morning and was asked to call again if he would not be able to be in that afternoon. The Respondent neither called nor appeared for work the rest of the day, and last minute attempts had to be made to find a substitute for the Respondent for his afternoon classes. That evening, between 10:00 and 11:00 p.m., the Respondent telephoned the school secretary at home to ask if he was in trouble. He gave the excuse that he was lying on a table in the emergency room all morning having a barium enema and was not permitted to get up to call the school to get a substitute for the afternoon. Later, school officials learned that the Respondent had not been at the hospital that morning but rather, in fact, had been arrested earlier on the morning of October 12, 1989, and was in the Pinellas County Jail. (The evidence at the final hearing did not specify the charges or their disposition.) On the morning of October 24, 1989, the Respondent was scheduled to take his class on a field trip to Ruth Eckerd Hall, a performing arts center in Clearwater, with the other third grade class. The Respondent was late for school again, so late that the field trip almost had to be cancelled. He arrived with the strong smell of alcohol on his breath and complaining of a headache. When the bus arrived at Ruth Eckerd Hall, the Respondent jumped off and, inappropriately, headed across the busy parking lot toward the building well ahead of the children in his class, who were hurrying to try to keep up with him. The other third grade teacher was concerned for the safety of the children in the Respondent's class and had to take some of the stragglers from the Respondent's class, of whom the Respondent appeared oblivious, under her care for their safety. When the Respondent returned to school after the field trip, still complaining of a headache, he inappropriately yelled at one of the children in his class for not being appropriately dressed for Ruth Eckerd Hall, upsetting the child. On November 11, 1989, a Pinellas Park Police Department patrol officer saw the Respondent in his car weaving down the street and running a stop light. The officer attempted to stop the Respondent, who sped off in his car, leading the officer on a two mile chase at 60 miles per hour, 20 mile per hour over the legal speed limit, that ended in the driveway of the Respondent's residence. The Respondent resisted arrest (without violence), saying that he did not want to go back to jail because he would lose his job. The patrol officer had to call for back up assistance, and it took three officers to take the Respondent down to the ground to handcuff and arrest him. Although the Respondent's breathalyzer showed 13 to 14 percent blood alcohol, there was no evidence whether the breathalyzer was properly calibrated. However, the Respondent failed all four field sobriety tests, and it is found that he was intoxicated at the time of his arrest. Criminal charges are pending against the Respondent. He has failed to appear for criminal court proceedings, and there is an outstanding warrant for his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent, Bruce R. Ferko, guilty as specified in the Findings of Fact and Conclusions of Law and imposing the sanction that he be barred from applying for a new teacher certificate for a period of two years. RECOMMENDED this 18th day of February, 1991, 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 18th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5822 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): 1.-2. Accepted and incorporated. Rejected in part as not proven. There was no evidence to prove the third and fourth sentences. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 5.-10. Accepted but subordinate, mostly to facts found. 11. Accepted and incorporated. 12.-21. Accepted but subordinate, mostly to facts found. Rejected as not proven. The witnesses were not clear as to the Respondent's contract status, and there was no evidence to prove the rest of the proposed finding. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Herdman, Esquire Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675 Bruce R. Ferko 109 Collier Place, Apt. 2C Cary, North Carolina 27513 George A. Bowen Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Petitioner has sufficient grounds to support dismissal of Respondent from employment.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher by the School Board and currently holds a professional services contract. He began working for the School District on or about March 2007, in the middle of the 2006-2007 school year. His first assignment was at Holmes Elementary School where he worked on a “waiver,” since he did not have an elementary education certification. The principal asked him to get his certification in elementary education, which he did. According to Respondent, he was asked to start working early because the principal did not have enough teachers. During that year, he was evaluated as meeting standards in all areas of evaluation and was rehired for the 2007-2008 school year. Prior to becoming a teacher in Miami-Dade County, Respondent served in the United States military from 1978-1985, and had worked as a registered nurse. He holds an associate’s degree from Miami-Dade College, a bachelor’s degree from Florida International University (“FIU”), two master’s degrees from FIU, an academic certificate in gerontological studies from FIU, and an academic teaching certificate from FIU. For the 2007-2008 school year, Respondent worked at Little River Elementary School (“Little River”). The principal at Little River asked Respondent to work on another “waiver,” this time for teaching English as a Second Language students (“ESOL”). After completing the necessary coursework, Respondent received an ESOL certification. Respondent remained at Little River through the 2008-2009 school year until he was involuntarily transferred to Scott Lake Elementary School (“Scott Lake”) for the 2009-2010 school year. During the latter two years at Little River, he was evaluated as meeting standards in all areas. According to Respondent, he was transferred to Scott Lake because the administration of Little River objected to the number of student discipline referrals (“SCMs”) he was writing on students. Respondent reports having written somewhere between 600 and 700 SCMs on students over the years. Respondent freely admits he wrote many SCMs at every school he worked at and highlights that fact as an excuse for why he performed poorly. During Respondent’s first three years of employment at Holmes Elementary and Little River, he was evaluated across the board on his annual evaluations as “Meets Standards.” During this period of time, the only other rating an employee could receive was “Does Not Meet Standards.” During the 2009-2010 school year, Respondent’s principal for his first year at Scott Lake was Valerie Ward. During the 2009-2010 school year, the School District made changes to the teacher performance evaluation system. Use of the Instructional Performance Evaluation and Growth System (“IPEGS”) was implemented. The IPEGS Summative Performance Evaluations (“SPEs”) were now comprised of eight Performance Standards, where a teacher could be rated “Exemplary,” “Proficient,” “Developing/Needs Improvement,” or “Unsatisfactory.” In her first year with Respondent, Ms. Ward rated him “Proficient” in all eight standards. At the end of the 2009-2010 school year, Ms. Ward placed Respondent on a 90-day performance probation pursuant to section 1012.34. During this 90-day probation process, he was observed by administration on at least five different occasions, was put on several improvement plans, and had several meetings with administrators. The 90-day probation process is very time- consuming for both the subject employee and the employee’s administration. In other words, it is not the preferred task of a busy principal, unless he or she must, and then only when it is warranted by poor performance. Respondent believes Ms. Ward placed him on performance probation to retaliate against him because he complained about the temperature in his classroom. This is the first of many excuses and justifications Respondent has offered to explain criticisms of his performance by administrators. For the 2010-2011 school year at Scott Lake, Respondent was again evaluated as proficient in all areas. On or about April 2012, Principal Lakesha Wilson- Rochelle assumed Ms. Ward’s role at Scott Lake. Principal Rochelle signed off on Respondent’s summative evaluation during the 2011-2012 school year, but did not fill it out, since it had already been completed by someone else. The score placed Respondent in the “needs improvement” category. She signed it only because she was required to do so, and the summative evaluation rating she gave him for the next school year was even worse by several points. It was also during the 2011-2012 school year that IPEGS underwent another change. Now there were seven professional practice standards on which teachers were evaluated and one standard that was based on actual student data. Use of IPEGS IPEGS was approved by the Florida Department of Education (“FDOE”) for all years relevant to this case. The IPEGS processes from the 2013-2014 school year forward consisted of the following: Each teacher that had been teaching for more than two years received one formal observation. If during that observation the teacher’s performance was sufficient, nothing more need be done, outside of a summative evaluation at the end of the year. However, informal feedback is given to teachers throughout the year after classroom walkthroughs and through other means. If a teacher was observed to be deficient in one or more standards during the formal observation, the teacher and administration would engage in something called “support dialogue” in which support in various forms is provided to the teacher, so that the deficiencies can be remediated. If the teacher still exhibits performance deficiencies after the support dialogue, they are placed on the 90-day performance probation. While on performance probation, the teacher is observed another four times after the initial observation. After the second, third and fourth observations, if the teacher has not remediated, the administration develops an improvement plan, which must be followed. The improvement plan gives the teacher assignments and assistance to aid him or her in remediating any deficiencies. Also, each teacher, regardless of whether placed on performance probation, receives an SPE, as well as a Summative Performance Evaluation Rating (“SPE Rating”) of either “Highly Effective,” “Effective,” “Developing/Needs Improvement,” or “Unsatisfactory.” In addition to the seven professional practice standards, a data component is also factored into the SPE Rating known as the VAM. The VAM As explained by Director of Research Services Dr. Aleksander Shneyderman (“Dr. S”), the VAM is a statistical model that attempts to measure a teacher’s impact on student learning growth through the use of a multi-level lineal regression. Dr. S has been working with the VAM, since its inception in 2010-2011. He has studied it and keeps abreast of Florida’s rules and regulations of how to calculate it. Dr. S and his office calculate what is called “Local VAM” for the School District. He also provides trainings to School District employees on the use of the VAM. Dr. S was tendered and accepted in this proceeding as an expert in VAM calculation. Local VAM is usually calculated in September/October by his office after the previous year’s testing data become available. Various assessments are used to create the Local VAM. It is calculated in compliance with state statutes, and the methodology is approved each year by FDOE. Also, the methods for calculating the Local VAM are bargained for and ratified by the United Teachers of Dade (“UTD”) teacher’s union. The Florida VAM is calculated by the State using a model that is approved by the Florida Commissioner of Education. The results of the Florida VAM are given to Dr. S’s office by the State. The Florida VAM is created using the Florida Standards Assessment (“FSA”). In the 2013-2014 and 2014-2015 school years, Respondent’s Local VAM scores were calculated by Dr. S’s office and based upon his students’ results on the Stanford 8 Achievement Test, 10th edition. UTD approved the methodology in VAM calculation for both of these years. For the 2015-2016 school year, Respondent’s VAM score was the Florida VAM in English language arts for fifth grade. The goal of the VAM is to measure a teacher’s effectiveness on student learning growth. In order to do this as accurately as possible, students are compared to similar students for an “apples to apples” comparison. Only students with the same demographic characteristics, as well as the same prior year’s test scores are compared to one another. The demographic factors considered are English Language Learner (“ELL”) status, gifted status, disability status, relative age (which considers whether a child was retained in a previous grade), and attendance (which was added in 2014-2015). Student demographics and the prior year’s test scores must be exactly the same. Based on these demographics and past scores, an expected score is created for each student. If the student exceeds that score, the credit for that success is given to the teacher. The School Board and Dr. S concede that the VAM does not account for every possible student performance variable, because, simply put, this would be impossible, since there are a limitless number of factors that could be considered. Moreover, certain factors are forbidden to be used by the Legislature, including socioeconomic status, race, gender, and ethnicity. (See § 1012.34, Fla. Stat.). Respondent argues that because not every imaginable factor that might affect a student’s grade is captured, that the VAM is not useful. Respondent claims that factors beyond the teacher might be causing poor performance, for example: lack of parental engagement. While levels of parental engagement could impact student performance, the School Board states that it is following state statutes to the letter and doing the best it can within the applicable statutory framework. Moreover, just as factors outside of consideration might hurt student performance, other factors might enhance performance, and the teachers receive those possible benefits as well--for example, if parental engagement is good. Those benefits would flow to the teacher, despite not having earned them through his or her personal efforts. Moreover, the VAM score ranges that are used to classify teachers are bargained for with UTD. The ranges have confidence intervals developed through the application of margin of error calculations that mitigate uncertainty to protect and “safeguard” teachers from unfair classifications. In many instances these safeguards give the teachers the benefit of the doubt to make sure they do not fall into the lowest category, which is “unsatisfactory.” Noticeably absent from these bargained for “safeguards” is any mention of how much instructional time a teacher must have with a class before those students’ data can be used to calculate a teacher’s VAM score. UTD has not bargained for any special rules designating when teachers can and cannot be held accountable for their class’ data based on the time they have instructed that class. As such, the only relevant inquiry is whether those students are with that teacher during the FTE period in February. Also, the law (see § 1012.34, Fla. Stat.) makes no mention of any minimum length of instructional time necessary to hold a teacher accountable for his or her students. The 2013-2014 School Year at Scott Lake Refusal to teach basic Spanish In May 2013, near the end of the 2012-2013 school year, Principal Rochelle advised Respondent that he would be teaching a kindergarten class for the 2013-2014 school year and that he would be required to teach them one hour of introductory Spanish. In an email to Principal Rochelle, Respondent asserted that he believed he was being assigned to teach Spanish to the kindergarteners in retaliation for his extensive reporting of student SCMs. In that same email, he advised her that he did not want to teach Spanish. Prior to being advised of this assignment, the School District conducted a language proficiency assessment for Respondent with both a written and verbal component, which he passed. Principal Rochelle had personally seen Respondent speak fluent Spanish to her school secretary and the art teacher. Because Respondent spoke fluent Spanish, or, at least, “conversational” Spanish (as admitted by Respondent’s counsel in his opening), she gave him the assignment. Moreover, as a principal, she had the right to assign Respondent as she saw fit. School Board Policy 3130 - Assignments reinforces this assertion stating, in relevant part, “Instructional staff members may be reassigned to any position for which they are qualified in order to meet needs of the District and pursuant to the collective bargaining agreement.” In order to teach the one-hour basic Spanish component of the class, Respondent did not need to be certified to teach Spanish. He only needed an elementary education certification, which he had. He even attended a training class on the implementation of the Spanish program. Respondent admits he can speak Spanish, write basic Spanish, has taken Spanish classes and passed the School District’s proficiency exam. Curiously, he objected to them giving the proficiency exam to him based on the grounds he was “singled out” for having a Hispanic last name, having been overheard speaking the language, and because he is not from a Spanish-speaking country. These are not reasonable objections when the School District explained the objective reasons listed above regarding Respondent’s qualifications to provide the basic- level Spanish instruction. Respondent persisted in his belief that he is “not qualified” to teach kindergarten Spanish despite all the evidence to the contrary. Respondent simply refused to do something that he was entirely capable of doing and that was within his ambit of responsibilities. He described one of the lessons he was allegedly incapable of teaching as follows, “You put a CD in the player. The kids sing songs in Spanish. The kids cut out pictures of objects and match them to a picture with the word in Spanish.” The kindergartners in his class did not speak Spanish; they spoke English. The Spanish component of the class was very basic and involved things like vowels, colors, puppets, basic books, and vocabulary words. Contrary to Respondent’s assertions, no complex grammar or sentence structure was involved. Such things are not even part of ordinary English kindergarten instruction, as admitted by Respondent. Moreover, he was provided with materials from which to draw the instruction. Principal Rochelle does not speak Spanish herself, yet believes she could teach the Spanish component, as it is a “piece of cake.” Respondent filed a grievance regarding the Spanish assignment. In order to appease and accommodate Respondent, Principal Rochelle eventually sent a Spanish teacher to his room to teach the Spanish component. However, Respondent then complained that the grades she was entering still had his name attached to them in the computerized grading system. Finally, the principal decided to move him to a first-grade class in early November 2013. Undoubtedly, the requests of Respondent led to this assignment change. Formal IPEGS observation On March 11, 2014, Principal Rochelle performed her formal observation of Respondent pursuant to IPEGS. On that day, no performance deficiencies were noted. However, throughout the year, Principal Rochelle had conducted many informal observations and walkthroughs of his classroom and had already provided him feedback regarding his performance and her expectations. Examples of that feedback can be found in an August 27, 2013, email from Principal Rochelle to Respondent. Moreover, according to Principal Rochelle, teachers tend to be on their best behavior during these observations–-which makes sense, because they know the boss/evaluator is watching. The formal observation is also only a snapshot in time of the teacher’s performance on a particular lesson; it is not a reflection of the entire year’s performance. Respondent has argued that Principal Rochelle has retaliated against him. If that were the case, this observation would have been a perfect opportunity to retaliate against him. However, she found no deficiencies in his performance on this day. Scott Lake SPE—Professional Practice Throughout the rest of the school year, Principal Rochelle made other credible observations regarding Respondent’s performance. Despite her counseling that he meet with parents, he refused to do so. He refused to participate in activities, including field trips, school celebrations, and award ceremonies. Other teachers actually had to hand out awards for him at the ceremony. He refused to implement group instruction techniques and did not take advantage of the presence of reading and math coaches. He refused to implement progressive discipline and “red, green, yellow” behavior management techniques. He refused to implement various discipline strategies laid out in the Student Code of Conduct and school-wide discipline plan prior to writing SCMs on students. Principal Rochelle recalls that he wrote approximately 25 SCMs on one student within the first nine weeks of school and made no attempt to address the behavior issues with the student’s parents. At one point Principal Rochelle accommodated his request to have a student removed from his class. Since this was only Principal Rochelle’s first full year as principal of Scott Lake, and she was still new to the school, she tended to give the teachers the benefit of the doubt when completing their SPEs. She also had a few teachers who had to be terminated for lack of professionalism that were more of a priority for her than Respondent. As such, she rated Respondent as “effective” in six standards on his SPE and as “developing/needs improvement” for the Communication standard. In her view, “effective” is akin to a “C” grade, whereas “highly effective” is “A plus/high B” status, “developing/needs improvement” is a “D,” and “unsatisfactory” is an “F.” When asked what Respondent would have rated himself in these seven standards, he testified he would have given himself five “highly effectives” and two “effectives.” He believes Principal Rochelle rated him lower than she should have as a result of retaliation against him for him not wanting to teach Spanish. This is Respondent’s second claim of retaliation against Principal Rochelle, and third claim of retaliation overall. Principal Rochelle’s denial of such retaliation is credited based upon her testimony at hearing and the exhibits offered in support. Despite the fact that Respondent’s 2013-2014 SPE seemed adequate to a casual observer (with the only obvious blemish being the “developing/needs improvement” in the Communication standard), when compared to his peers, a different story emerges. His professional practice points total put him in the bottom .8 percentile for all teachers district-wide and in the bottom 2.6 percentile for all first-grade teachers district-wide. Without belaboring the data, Respondent’s professional practice scores are at the bottom of the barrel, regardless of how you spin them. Scott Lake VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 12.5 points–-the lowest possible score. He was one of 11 first-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2013-2014 school year was “Needs Improvement.” Only 29 percent of his first-grade students met or exceeded their performance expectations. Respondent’s VAM was based on the performance of his first-grade students. Respondent believes that, since he was moved to the class in early November 2013, and the SAT exam was given in April, he should not be held accountable for their performance. In order for him to have a fair shake, he claims he would have had to be there instructing the students on week one. Respondent says the amount of time he was given was not fair because, “if I’m the lowest teacher in Miami-Dade County, and here for termination, no, sir, I don’t think it was fair.” If the rule Respondent proposes were implemented as policy, any teacher could simply avoid responsibility for their student’s performance by requesting a transfer sometime after the first week of the year. It is also not uncommon for teachers to have students added or subtracted from their classes throughout the year for a multitude of reasons. This is a fact of life that teachers have to be able to cope with in the ordinary course of business for the School District. Moreover, and somewhat ironically, if another teacher had been teaching Respondent’s students for a portion of the year, based on his SPE Ratings and student achievement data, Respondent probably would have had better scores. The students would likely have been getting a more effective teacher than he. Respondent also claims Principal Rochelle gave him a lower functioning group of students, who were behind in their learning. He explained that he knew they were low-functioning because he gave them “STAR tests” to gauge their ability levels. When pressed on cross-examination, Respondent admitted that he only tested his own students and never anyone else’s. Therefore, it would be impossible for him to know whether his students were any lower-functioning or further behind than any other teachers’ students. Respondent’s doubtful claim is further undercut by Principal Rochelle’s credible testimony that she selected the members of his first-grade class at random from overcrowded classrooms. Respondent’s claims that he was robbed of instructional time by field trips and fundraising activities, matters that are required of all teachers, are unconvincing excuses for his students’ poor performance. The 2014-2015 School Year at Norwood Shortly after the start of the 2014-2015 school year, Respondent requested a hardship transfer to Norwood Elementary School (“Norwood”) because the school day at Scott Lake was going to be increased by one hour. Despite the fact that he would have been compensated approximately $4,500.00 for this time, he chose to transfer schools. Principal Kevin Williams (or Dr. Williams) had a teacher on leave so he assigned Respondent to fill that gap. Respondent started teaching a kindergarten class, but was moved to a second-grade class during the first week of school. Prior to conducting a formal IPEGS observation of Respondent, Dr. Williams had performed several walkthroughs of his classroom. Based on these walkthroughs, Dr. Williams advised Respondent that he was not properly implementing the school discipline plan. Respondent also refused to implement “grouping” of the students during instruction time. Dr. Williams also had a reading coach model lessons for Respondent and assigned him a teaching assistant. Respondent was the only teacher who received this level of assistance. Dr. Williams even went so far as to have two meetings with UTD prior to his formal evaluation of Respondent in order to help him. By October 2014, Dr. Williams had already explained his expectations to Respondent. Formal IPEGS observation On October 1, 2014, Principal Williams performed the formal IPEGS evaluation of Respondent. Principal Williams noted no deficiencies on that day. Generally speaking, Principal Williams does not view these observations as punitive. Over the years, Dr. Williams has conducted approximately 240 observations of teachers, and, generally, the employees are “on point” when being watched. Moreover, like Principal Rochelle, Dr. Williams views these observations as a snapshot of teacher performance while the SPE captures the year- long performance. In the report of the observation, Dr. Williams suggested that Respondent promote interactions with students, encourage more student participation, connect to prior student knowledge and interests, and present concepts at different levels of complexity, among other items. Norwood SPE—Professional Practice After the formal observation, Dr. Williams continued to conduct walkthroughs of Respondent’s class. He observed the same issues with refusing to use “grouping” and refusing to properly implement the discipline plan. Respondent never took advantage of the modeling techniques that were provided for him. He also was not implementing differentiated instruction. Dr. Williams himself held a professional development class on campus for the school discipline plan, which, instead of attending, Respondent attended a social studies class off campus. Instead of following the prescribed discipline plan, Respondent was trying to control the behavior of his students with treats. Similar to his time at Scott Lake, he refused to participate in field trips, staff gatherings, award assemblies, and student activity days. Respondent had lesson plans, but did not always follow them. He would spend an inordinate amount of time on vocabulary. He gave some tests, but would refuse to grade other tests. The pattern of his teaching was inconsistent, at best. On his SPE, Principal Williams rated Respondent as “effective” in five standards, “highly effective” in one, and as “developing/needs improvement” for the Learning Environment standard. Dr. Williams’ rating for Learning Environment was lower because Respondent failed to implement appropriate discipline strategies despite being told to do so. In eight years of being a principal, this was the first time he had ever given a teacher a “needs improvement” rating. He mostly gives his teachers combinations of “highly effective” and “effective,” if they do what they are supposed to do. Nevertheless, Dr. Williams testified he still went easy on Respondent because he was new to the school. In terms of his SPE professional practice points, Respondent scored in the bottom two percentile for second-grade teachers district-wide and was the worst rated second-grade teacher at Norwood. Instead of following the discipline plan, Respondent was using the emergency call button, writing SCMs, and writing to the superintendent to have ten students removed from his class. Another teacher at the school, Mr. W, had the exact same set of students as Respondent, only he taught them in the afternoon and not in the morning. He had none of the same behavior management issues Respondent had with this same group of children. Respondent claimed that Mr. W was able to manage the children better because, like the students, he was African-American. When asked how Respondent would have rated himself in these seven SPE standards, he would have given himself six “highly effectives” and one “effective.” He believes Principal Williams rated him lower than he should have as a result of retaliation against him for writing SCMs and because he complained about the size of his initial kindergarten class. This marked Respondent’s fourth claim of retaliation overall. Principal Williams credibly denied such retaliation at the hearing. Norwood VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 8.75 points-–the lowest possible score, again. He was one of 50 first-grade teachers district-wide who scored the bare minimum putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only six percent of his second-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from Norwood should not be considered because of his students’ behavioral issues. He also stated he did not have enough textbooks to send home with students. Much like at Scott Lake, he believes he was intentionally given bad students. This is peculiar for two reasons. First, Dr. Williams first tried to assign Respondent another class, but Respondent complained that one was too big. To accept this argument, the viewer would have to believe Dr. Williams knew Respondent would reject the larger class, and the principal had another one in the wings filled with “bad” students to make Respondent look ineffective. Second, Mr. W had none of the same problems Respondent did with this same group of students in the afternoon. To accept this contention, Principal Williams’ plan only “worked” on Respondent, since he was singled out for retaliation. This line of argument is nonsensical, at best. The 2015-2016 and 2016-2017 School Years at Aventura Waterways K-8 In looking for the right fit, Respondent was sent to Aventura Waterways K-8 (“AWK8”) for the 2015-2016 school year. He remained there for the 2016-2017 school year until he was dismissed from his employment in March 2017. As at his previous school assignments, the administrators at AWK8 tried to work with Respondent and the UTD to let him know their expectations prior to the formal observations. During these two school years Respondent was observed formally by Principal Luis Bello and Assistant Principal Ileana Robles on no less than nine occasions. In both years, during his initial observations, his performance was found to be deficient; and he was immediately placed on support dialogue and, eventually, 90-day performance probation. During these two probationary periods, he was provided assistance through improvement plans and completed all his improvement plan assignments. The goal was to help him remediate his deficiencies. The only change he ever implemented was switching from block to weekly lesson plans. Both his instructional delivery and the learning environment never improved. During these observations, Principal Bello and Assistant Principal Robles both observed the same repeated deficiencies, which they described in meticulous detail at the hearing. Summarizing their testimony, the issues concerning Respondent were: Pacing. Respondent spends too much time on issues and did not complete entire lesson plans. Questioning students. Respondent only uses basic, easy to answer questions; does not ask enough questions; or is dismissive of questions. Failing to properly explain concepts to students or to activate prior knowledge. Respondent fails to prompt students in order to generate interest in the subject matter and holds no conversations about the material in class. Not using challenging enough material. Respondent’s material was so basic that parents were concerned their children were getting grades they did not deserve and not learning grade- appropriate material. Principal Bello described Respondent’s instruction as “robotic” and lacking any semblance of “passion.” AWK8—Professional Practice On his SPE, Principal Bello rated Respondent as “effective” in two standards, and “unsatisfactory” in five standards. Principal Bello’s ratings were in line with the repeated deficiencies discussed above. He awarded Respondent “unsatisfactory” ratings because Respondent never remediated his deficiencies. Principal Bello credibly stands by his SPE Ratings as honest and admits to spending a great deal of time on them. In terms of his SPE professional practice points for 2015-2016, Respondent scored in the bottom (0) percentile for fifth-grade teachers at AWK8, all teachers at AWK8, fifth-grade teachers district-wide, and all teachers district-wide. When asked what Respondent would have rated himself in these seven standards, he would have given himself seven “highly effectives.” He believes Principal Bello rated him lower than he should have been rated, but could not say why. AWK8 VAM and overall SPE Rating Respondent’s State VAM score for learner progress points was 8.5 points-–the lowest possible score, for the third year in a row. He was the only one of 98 fifth-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only 32 percent of his fifth-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from AWK8 are not legitimate for a variety of reasons, none of which relate to his own shortcomings. Respondent’s excuses and the reasons not to credit those excuses are as follows: Respondent argues that his VAM cannot be counted against him because his afternoon class of fifth graders were ELL, and they spoke a variety of languages, including French, Russian, Hebrew, Portuguese, Spanish, and Turkish. His theory was that they performed poorly because of their poor grasp of the English language. For VAM scoring purposes, this excuse should not be credited because the VAM already takes into account their ELL status by comparing them only to other ELL students with identical demographics and prior test scores; and they are not expected to perform as well as non-ELL students. However, by Respondent’s own admission his afternoon ELL class was the best class he had had in ten years of teaching. He said they had emotional balance, presence of mind, and good parental engagement. He even explained how his ESOL certification assisted him in understanding how to teach them. According to him, by the end of the year, the students were at the level where they would be having conversations. Respondent also had another ESOL-certified teacher assist him for a portion of the year, which was a standard practice. Finally, ELL students, who are brand new to the country, are not calculated into the VAM because there are no prior year scores for which they can be compared “apples to apples.” Respondent himself testified that the lowest level ELL students did not get graded. This makes sense because Respondent testified that his afternoon ELL class was 31 students-–yet only 15 ELL students were factored into the data used to calculate his VAM score for 2015-2016. In sum, the grades of the lowest English language functioning students were not even held against him. Respondent next argues that the numbers of students in both his morning and afternoon classes at AWK8 exceeded class size restrictions. Respondent “believes” his morning class had 24 or so students, but only 18 after the special education students were removed. When the student data is examined, it appears that Respondent only had 15 non-ELL students factored into his VAM score. As for the afternoon ELL class, otherwise considered by him the best class he has ever had, Respondent claims there were 31 in that class. Even assuming Respondent’s numbers are accurate (and they do not seem to be, given the VAM data), these class sizes do not run afoul of class size restrictions and are commonplace at AWK8. The School District operates on averages for class size compliance and everyone teaching fifth grade at AWK8 had similar class sizes. None of those other teachers had the same problems Respondent did. Moreover, Respondent reported the alleged class size violations to the FDOE, and they did nothing about it. Respondent further argues that his morning group of students was once again a “bad” group that did not give him a “fair shot.” According to Respondent, he had a student who would sit in a garbage can and another that would tell him “F_ _k you” every day. He had behavior concerns with four to five students in the morning class. Eventually, the student who sat in the garbage can was removed from the class. Respondent then testified that these behavior issues were exacerbated by his absence from the classroom when he was performing his improvement plan activities. He now appears to be placing his behavior concerns on the administration for doing their job by trying to assist him and by remediating his deficiencies. Behavior management is integral to being a teacher. A teacher must not be allowed to escape his or her own responsibility for performance shortcomings by blaming it on the students. At every school where Respondent has taught, he has admittedly written a large number of SCMs, had behavior issues with his students, and believes he was purposely given “bad” students. The only common thread among these schools is Respondent. Nevertheless, he refuses to acknowledge that he might possibly be even a part of the problem and believes he has done nothing wrong. Respondent also blames his poor VAM on the fact that fundraising activities, book fairs, student activity days, and dances all detracted from instructional time at AWK8. This is the same excuse he used for his poor VAM at Norwood and holds no weight, since these are activities that all teachers at all schools must cope with as part of the instructional process. Respondent’s Termination by the School Board Respondent’s case was the first of its kind brought pursuant to section 1012.33(3)(b) (“3-year provision”), since this was the first time the School District had the requisite number of years’ data available. Of the thousands of teachers working for Miami-Dade County Public Schools, Respondent was part of a singular group of seven to nine teachers who fell into the three-year provision of the statute having the necessary combination of “needs improvement” or “unsatisfactory” final overall SPE Ratings. Of that handful of teachers, Respondent was the single worst. Respondent’s performance actually declined each year despite the assistance provided for and made available to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 15th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2018. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430 1450 Northeast Second Avenue Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board Suite 912 1450 Northeast Second Avenue Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school custodian based on the allegations contained in the Notice of Specific Charges filed June 21, 2001.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public education within the school district of Miami-Dade County, Florida. See Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a custodian at Miami Edison Middle School (Miami Edison) and Horace Mann. Both schools are public schools located in Miami-Dade County, Florida. On May 16, 2001, Petitioner voted to suspend Respondent's employment as a school custodian and to terminate that employment. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME). AFSCME and Petitioner have entered into a Collective Bargaining Agreement (the Agreement) that includes provisions for the discipline of unit members. Article II of the Agreement provides that Petitioner may discipline or discharge any employee for just cause. Article XI of the Agreement provides specified due process rights for unit members. Petitioner has provided Respondent those due process rights in this proceeding. Article XI of the Agreement provides for progressive discipline of covered employees, but also provides that ". . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. " Article XI, Section 4C of the Agreement provides that employment may be terminated at any time for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. On February 6, 1996, Respondent was issued a memorandum from the principal of Miami Edison involving Respondent's use of profanity in the presence of students. In the memorandum, the principal directed Respondent not to use profanity on school grounds. On May 21, 1998, Respondent, Mark Wilder, Clarence Strong, and a student were in the cafeteria of Horace Mann preparing for a fund raising activity. Respondent spouted profanities directed towards Mr. Wilder and threatened him with a mop handle. Respondent feigned a swing of the mop handle, causing Mr. Wilder to reasonably fear he was about to be struck by the mop handle. Mr. Wilder had done nothing to provoke Respondent. Mr. Strong knew Respondent and was able to defuse the situation. Mr. Wilder reported the incident to Senetta Carter, the principal of Horace Mann when the incident occurred. Ms. Carter reported the incident to Petitioner's director of region operations. Respondent received a copy of the School Board rule prohibiting violence in the workplace. After investigation, the school police substantiated a charge of assault against Respondent. On March 15, 1999, Petitioner's Office of Professional Standards held a Conference for the Record (CFR) with Respondent pertaining to the incident with Mr. Wilder. Respondent was specifically directed to refrain from using improper language and from displaying any action that another person could interpret as being a physical threat. On October 25, 2000, during the evening shift, Respondent physically assaulted William McIntyre and Noel Chambers while all three men were working as custodians at Horace Mann. Respondent shouted profanities towards both men, threatened them, and violently grabbed them by their shirt collars. Respondent punched Mr. McIntyre in the area of his chest and broke a chain Mr. Chambers wore around his neck. Mr. Chambers and Mr. McIntyre reported the incident to Robin Hechler, an assistant principal at Horace Mann. Respondent came to Ms. Hechler's office while she was interviewing Mr. McIntyre about the incident. When Ms. Hechler attempted to close the door to her office so she could talk to Mr. McIntyre in private, Respondent put his hand out as if to move Ms. Hechler out of his way. Ms. Hechler told Respondent not to touch her and instructed him to wait outside her office. Ms. Hechler later told Respondent to come in her office so she could interview him. Respondent was acting irrationally. Ms. Hechler told him if he could not control himself she would call the school police. Respondent replied that was fine and walked out of her office. Ms. Hechler reported the incident to the school police, who ordered Respondent to leave the premises. Following the incident, neither Mr. Chambers nor Mr. McIntyre wanted to work with Respondent because they were afraid of him. In response to the incident involving Mr. McIntyre and Mr. Chambers, the principal of Horace Mann referred Respondent to the Petitioner's Employee Assistance Program on November 2, 2000. Respondent's shift was changed so he would not be working with Mr. Chambers or Mr. McIntyre. On November 7, 2000, Respondent attacked J. C., a student at Horace Mann, in the cafeteria area of Horace Mann to punish J. C. for something Respondent thought J. C. had said or done. Respondent shouted profanities towards J. C. and choked his neck. J. C. was very upset and injured by Respondent's attack. Respondent was arrested on November 7, 2000, on the offense of battery on a student. On February 21, 2001, he was adjudicated guilty of that offense, placed on probation for six months and ordered to attend an anger control class. Respondent was also ordered to have no contact with J. C. School Board Rule 6Gx13-4-1.08, prohibiting violence in the workplace, provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools [sic] employees have a right to work in a safe environment. Violence or the threat of violence will not be tolerated. School Board Rule 6Gx13-5D-1.07, provides that corporal punishment is strictly prohibited. Respondent's attack on J. C. constituted corporal punishment. School Board Rule 6Gx13-4A-1.21, provides as following pertaining to employee conduct: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ORDERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2001. COPIES FURNISHED: Frank Ferguson 7155 Northwest 17th Avenue, No. 9 Miami, Florida 33147 John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent should be dismissed from her employment as a teacher in the Orange County Public Schools based on charges of incompetency and gross insubordination, as set forth in the letter of L. Linton Deck, Jr., dated August 16, 1977.
Findings Of Fact Respondent Ethel R. Jones has been an elementary school teacher for twelve years. She taught a year in Georgia before obtaining her degree in commercial education at Bethune-Cookman College at Daytona Beach, Florida, in 1960. After teaching for one year at Hungerford Elementary School in Eatonville, Orange County, Florida, in 1963, she pursued further studies and received her certification in elementary education. After teaching several years in various Orange County and Highlands County public schools, she became employed at Ocoee Elementary School, Ocoee, Florida, in 1970 and taught there for seven years through the 1976-77 school year. She was on annual contract for the first four years and then was granted a continuing contract the following year. She taught a sixth-grade class her first year at Ocoee and then became a fourth-grade teacher until the 1976-77 year when she again instructed a class of approximately 31 sixth-grade pupils. (Testimony of Respondent) Respondent served under three principals at Ocoee from 1972 to 1977. School records reflect that from 1973 two of the principals each rendered two annual performance reports on respondent termed "Assessment of Instruction." During the first year of each of these periods, the principals noted that respondent needed improvement in maintaining good rapport with students, parents and co-workers. During the second year of each period, each principal rated the respondent satisfactory in all respects. The third principal, Maxie Cinnamon, assumed her duties at Ocoee during the 1976-77 school year. (Petitioner's Composite Exhibit 1) During the first month of the school year, Principal Cinnamon received approximately twelve-complaints about the respondent from parents of children in her class. Most of these complaints dealt with apprehensions concerning respondent's teaching ability based on her prior performance with fourth-grade students. As a result, Cinnamon visited the respondent's classroom on September 9, 1976, and observed class instruction for several hours. She noted a number of deficiencies in the quality of respondent's teaching. These included unfamiliarity with the definitions of common words, inadequate preparation and lesson plans, inappropriate grouping of students and poor communication with students. These observations were set forth in great detail in a written document, dated September 14, 1976, which was provided to respondent as recommendations for improvement. Additionally, an unofficial "Assessment of Instruction" was rendered by the principal that indicated need for improvement in various areas. (Testimony of Cinnamon, Petitioner's Composite Exhibits 1, 7) During the course of the school year, the principal continued to receive complaints from parents and requests that their children be transferred from respondent's class. These complaints included reports that respondent was an inadequate teacher and that her disciplinary methods were inappropriate. In addition, no improvement in the previously-noted areas of deficiency had been observed by the principal. A number of conferences between Cinnamon and the respondent transpired in the fall of 1976 in an attempt to resolve these continuing problems, but achieved little or no success. Cinnamon directed a number of memorandums to respondent pointing out problem areas and suggesting remedial steps. She also suggested special courses and seminars that respondent could attend to improve her classroom instruction and to achieve a better relationship with parents and students. The respondent referred students to the principal's office on disciplinary matters some 35 times during the school year. For the most part, these referrals involved male students who were low achievers and either disrupted the classroom or failed to complete lesson assignments. (Testimony of Cinnamon, Respondent, Petitioner's Exhibits 8,9, 11-14) In December, 1976, Principal Cinnamon requested the Professional Practice Council of the State Department of Education to make a professional reviewer available to observe respondent's classroom performance and provide any necessary suggestions or recommendations for improvement. Thereafter, on January 31 and February 1, 1977, Mrs. Gretchen M. Olcott, a classroom teacher from Pinellas County, was sent to Ocoee Elementary School and conducted a "remediation review" concerning respondent. She rendered a report of her observations which was furnished to the respondent on March 11, 1977. The report contained many critical remarks concerning the quality of respondent's teaching ability and included detailed recommendations and suggestions for improvement. Most of Olcott's observations paralleled closely the previous deficiencies noted by Cinnamon and dealt primarily with inadequate lesson plans, lack of organization, poor student behavior patterns, lack of effective use of teaching materials and equipment, and the need to establish clear objectives and long-range goals. Also on March 11, Cinnamon wrote a letter to the respondent again listing her deficiencies and providing recommendations in that regard. The letter informed the respondent that unless she showed substantial improvement in all the noted areas by May 1, 1977, it would be necessary that she be recommended for dismissal to the Superintendent of the Orange County Schools. (Testimony of Cinnamon, Petitioner's Exhibits 3-5) During the ensuing weeks, Cinnamon was of the opinion that respondent had not materially improved her shortcomings despite efforts to assist her. At a conference in March, she told respondent that if she made no substantial improvement by May 23, she would recommend dismissal. She also requested that another reviewer be provided by the Professional Practices Council. Mr. Richard Svirskas visited respondent's classroom from May 11 to 13, 1977, for the Professional Practices Council. His report was similar to that of the previous reviewer and it concluded that respondent was far below average in ability in comparison with the majority of teachers known to the reviewer. (Testimony of Cinnamon, Petitioner's Exhibit 6) As a result of the reviewers' reports and respondent's failure to show improvement, Principal Cinnamon, on June 7, 1977, recommended to the Superintendent of Orange County public schools that she be dismissed from employment. Based on this recommendation, the Superintendent, by letter of August 16, 1977, charged the respondent with 14 areas of incompetency and three instances of gross insubordination. On August 18, 1977, the Superintendent recommended to the School Board of Orange County that respondent be suspended without pay pending a hearing on the charges if requested. The school board approved the recommendation and suspended the respondent without pay. Respondent thereafter requested a hearing in the matter. (Testimony of Cinnamon, Case File) Respondent testified as a witness and maintained that she had received no support during the year from the school administration and that she could not please Principal Cinnamon in any respect. She feels that she was the victim of a conspiracy between Cinnamon and parents of her students, and that the independent reviewers sent to assess her classroom performance were "against" her because they had met with Cinnamon in private during their visit. The respondent further implied that Cinnamon had a dislike for her because she was the only black teacher in the intermediate level. No black students were enrolled at Ocoee Elementary School during the 1976-77 school year, but there were five black teachers including the respondent. The respondent further claimed that she had done her utmost to follow the recommendations for improvement made to her by Cinnamon and the reviewers, but that she received no assistance from the administration in this regard. Further, she claimed that she was unable to enroll in certain reading, student discipline, and teacher effectiveness courses for various reasons; however, she did take a mathematics course at her own expense and attended several seminars. Although Cinnamon had testified that she had instructed respondent not to set up learning centers in her classroom because of her lack of organizational ability, the respondent denied that she was given such instructions. She testified that she established this system of instruction because Cinnamon had recommended it to her. She also denied that she had placed children in the halls for disciplinary reasons, or deliberately omitted to teach reading and math on each school day, contrary to instructions, as claimed by Cinnamon. (Testimony of Jones, Cinnamon) Based on the evidence presented at the hearing, it is found that during the 1976-77 school year: Respondent failed to make adequate plans and set definite objectives for her class- room instruction. Respondent failed to provide learning situations consistent with students' abilities. Respondent failed to exhibit adequate command of the subject matter that she taught. Respondent failed to communicate clearly and effectively with the students. Respondent failed to control the class so that a positive learning environment was created and maintained. Respondent failed to adequately pursue her professional growth and to seek ways of correcting identified deficiencies. It is further found that there is insufficient evidence to establish that the respondent committed the following alleged acts of gross insubordination: Suspended children from class by placing them in the hall and otherwise leaving them unsupervised after being specifically told not to do so. Failed to teach reading and math on each school day as specifically instructed to do. Failed and refused to maintain and utilize a plan book as instructed by the principal. It is further found that insufficient evidence was presented to establish that the respondent was a victim of a conspiracy by the principal of Ocoee Elementary School or anyone else, or that any racial discrimination was practiced against her.
Recommendation That respondent Ethel R. Jones be dismissed from employment by the School Board of Orange County, Florida, for incompetency, pursuant to Section 231.36(6), Florida Statutes. Done and Entered this 5th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Howard W. Cooper, Esquire 101 South Lake Avenue Orlando, Florida 32801 John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801
Findings Of Fact Respondent is an annual contract teacher with the Dade County Public Schools and holds a Florida state teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Since she is an annual contract teacher with no right to a continuing contract, the primary issue is whether she has the right to obtain back pay for the period of the school year during which she was suspended. Respondent was a teacher at Melrose Elementary School for the 1981-82 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in this classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for an audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contacted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson-plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. A Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction". This rating was based on the fact that Respondent did not pre-test her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long term prescription, she gave Respondent a list of short term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with the school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students continued to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade-level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was no improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and that the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed and on January 5, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing Respondent from her position as a contract teacher effective January 5, 1983. DONE and ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 20th day of December, 1983. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N.E. Second Avenue Miami, Florida 33132 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Dr. Leonard Britton, Superintendent Dade County Public Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent is guilty of failing to make reasonable effort to protect a student's safety, in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a).
Findings Of Fact Respondent holds Florida Educator Certificate 646554 in the area of Mentally Handicapped. For the past six or seven years, Respondent has been employed as an ESE teacher at Windy Ridge. The record contains no evidence of prior discipline of Respondent's educator certificate, but the District suspended her for five days without pay for the three incidents that are described below. For the 2012-13 school year, Respondent and four paraprofessionals taught a class of seven ESE students. The paraprofessionals performed tasks assigned to them by Respondent. Absences on December 4, 2012, reduced the class to five ESE students, Respondent, and two of the four paraprofessionals regularly assigned to Respondent's classroom. The principal assigned a substitute for one of the two absent paraprofessionals, so four adults were supervising five students on that day. One of the five students present on December 4 was D.R., who was nine and one-half years old and suffered from a "significant cognitive disability." As documented by his Individual Educational Plan (IEP), which is dated November 6, 2012, D.R.'s mother was "very concerned" about the safety of her son, who was tube-fed, "non-verbal," and able to follow only "some simple one-step commands." The IEP warns that D.R. was in a "mouthing stage," meaning that he put "everything" in his mouth for sensory input. As described in his social/developmental history, which is dated November 1, 2012, D.R.'s health was "fragile." The three incidents at issue took place during approximately one hour at midday on December 4. The first incident took place at 11:10 a.m. Serena Perrino, a District behavior trainer, was sitting alone in Ms. Barnabei's classroom, which is next to Respondent's classroom. The two classrooms are joined by the two teachers' offices, so it is possible to walk between the classrooms without entering the hallway. On a break, Ms. Perrino had turned off the lights and was on the computer at the front of Ms. Barnabei's classroom. While facing the computer monitor, Ms. Perrino heard a noise behind her, turned around, and saw D.R., by himself, seated on the floor playing with a toy. Ms. Perrino knew that he belonged in Respondent's classroom. Without delay, Ms. Perrino walked D.R. toward his classroom, but, as they were passing through the teachers' offices, Ms. Perrino and D.R. encountered one of Respondent's paraprofessionals, who said that she was "just coming to get him, thanks." The second incident took place between 11:30 a.m. and noon. Bernadette Banagale, the substitute paraprofessional assigned to Respondent's classroom on that day, was eating lunch in a small outside courtyard that is located at the end of the hallway where Respondent's classroom is located. Ms. Banagale saw D.R., by himself, enter the courtyard from the doors at the end of the hallway. Ms. Banagale approached D.R. and, with some difficulty, walked him back to Respondent's classroom where she left him in the custody of the other two paraprofessionals, Susan Brown and Delta Porter, but not Respondent, who was not in the classroom when Ms. Banagale returned the child. The third incident took place shortly after noon. Cathy Zimmerman, a teacher, was sitting in a classroom eating lunch with another teacher. Looking out the window of the classroom, Ms. Zimmerman noticed D.R. in the adjoining breezeway, which divides the building from the school parking lot. Ms. Zimmerman did not know D.R., nor where he belonged, but she saw that he was unescorted. Approaching D.R. in the breezeway, Ms. Zimmerman guided him back through the doors leading to a hallway that, after a short distance, intersects the hallway where Respondent's classroom is located. As she was walking the child into the building, Ms. Zimmerman directed the teacher with whom she had been having lunch to enter the nearest classroom to see if anyone could identify the child. As directed, the other teacher entered Ms. Barnabei's classroom, where she found Ms. Perrino, who again took custody of D.R. and immediately returned him to Respondent's classroom where Ms. Perrino found Respondent and one or more paraprofessionals. In an effort to prove that Respondent failed to make reasonable effort to protect D.R., Petitioner offered two pieces of evidence: during direct examination, the principal prescribed that a classroom teacher is required to know at all times the location of her students, and, during cross-examination, Respondent agreed with the metaphor supplied to her by Petitioner's counsel that a classroom teacher is the "captain of the ship." The principal's prescription and Respondent's metaphor constitute the entirety of Petitioner's explicit analysis of the reasonableness of Respondent's effort to protect D.R. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the first incident. The principal's testimony is inapt because Petitioner failed to prove that a paraprofessional did not always know D.R.'s location; that Respondent failed to protect D.R. when a paraprofessional knew his location, regardless of whether Respondent knew his location; and that D.R.'s safety was compromised at any time during the few seconds that he was in the adjoining classroom. Respondent's testimony is inapt because Petitioner did not prove that a paraprofessional failed to make reasonable effort to protect D.R.'s safety, which would be a pre-condition to attributing this failure to the captain of the ship, as discussed in the Conclusions of Law. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the second incident. Petitioner failed to prove that Respondent was in the classroom at the time of D.R.'s escape or at any time during his ensuing absence from the classroom and failed to prove that Respondent's absence from the classroom was unauthorized. As for the absence of Respondent from the classroom at the time of the escape in the second incident, the strongest evidence is Respondent's written statement to this effect. Other evidence tends to support Respondent's written statement that she was not in the classroom at the time of the escape. Ms. Banagale's scheduled lunch was 11:30 a.m. to noon, and nothing in the record suggests that the substitute paraprofessional took her lunch at other than her scheduled time. The distance between the front door of Respondent's classroom and the exterior doors leading to the courtyard is the width of the single classroom that separates Respondent's classroom from these exterior doors, so it would not have taken D.R. long to travel from the front door of the classroom to the exterior doors leading to the courtyard. Respondent's scheduled lunch was 11:00 a.m. to 11:30 a.m., but Respondent testified that she was behind schedule when she took her lunch. She also testified that she returned to the classroom "a little after noon." Nothing in the record indicates how long Respondent took for lunch, but, if she took all of her allotted time, she likely left the classroom shortly after Ms. Banagale, leaving a very narrow window for D.R. to escape, if he were to do so after Ms. Banagale's departure, but before Respondent's departure--a fact that Petitioner has not established. The only evidence suggesting that Respondent was in the classroom at the time of D.R.'s escape comes from Respondent's testimony at the hearing to this effect. Notwithstanding the inculpatory nature of Respondent's testimony, it is impossible to credit it. Provided nearly two years after the incident, Respondent's testimony was, at times, confused and unclear, but her written statement is clear and straightforward. It would appear that, based on the findings below concerning the third incident, Respondent may have confused the second and third incidents. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the third incident. The third incident is more complicated than the first and second incidents because it is more difficult to determine exactly what Petitioner proved and the extent to which the material factual allegations extend to the proof of the third incident.2/ At minimum, Petitioner pleaded3/ and proved that D.R. escaped from the classroom, and Respondent was in the classroom at the time of the escape. Respondent gave a written statement admitting that she was present when D.R. left the classroom and that she was unaware of his departure "because my back was turned by me working with another student on the computer, [as D.R.] left out the rear door." At the hearing, Respondent testified confusingly, possibly suggesting that she was at lunch or in planning when D.R. escaped in connection with the third incident, but any such exculpatory testimony is discredited for the same reason that her inculpatory testimony regarding the second incident was rejected. As was true of the written statement in connection with the second incident, other evidence tends to support Respondent's written statement in connection with the third incident. As noted in the discussion of the second incident, Respondent returned to the classroom "a little after noon." At this point, Respondent, Ms. Banagale, and Ms. Brown were in the classroom. Ms. Porter's scheduled lunch was from noon to 12:30 p.m., and nothing in the record suggests that she did not take her lunch as scheduled. As discussed in the Conclusions of Law, analysis of whether Respondent failed to meet a reasonableness standard may be facilitated by consideration of the burden of taking precautions sufficient to prevent an escape, the probability of an escape, and the magnitude of the threat to D.R.'s safety, if he escaped. The burden of taking additional precautions was not insubstantial. The classroom has three exits, and D.R. used each of them in connection with the three incidents. In the first incident, as noted above, D.R. used a side exit through the teachers' offices to get to the adjoining classroom of Ms. Barnabei. In the second incident, D.R. used the front door to get to the courtyard. In the third incident, D.R. used the rear door to access the adjoining breezeway, where Ms. Zimmerman found him no more than 75 feet from the rear door. Evidence suggests that locking the doors at each of these exits was forbidden, possibly due to fire regulations. Although three adults were supervising only five ESE students at the moment of D.R.'s escape in the third incident, the paraprofessional who normally taught D.R. one-on-one at the time of the escape was absent. It is not entirely clear how long Respondent was in the classroom before D.R. escaped, but Respondent was performing instructional duties at the moment of the escape, so additional attention by Respondent to security would have meant reduced instruction, at least of the child whom she was teaching one-on-one at the time of the escape; this adds to the burden of taking escape precautions.4/ The probability of D.R.'s escape was demonstrably very high, as evidenced by his three escapes in a single hour on December 4. The magnitude of the threat to D.R.'s safety from an escape is difficult to assess. D.R. was a medically fragile, highly vulnerable child. However, he suffered no injuries in any of the three escapes that are the subject of this case. The magnitude of the threat posed to D.R.'s safety from escaping was thus low. Considering that the burden of taking additional precautions was moderate, the probability of escape was high, and the magnitude of threat to D.R.'s safety from an escape was low, it is impossible to find that Petitioner proved by clear and convincing evidence that Respondent failed to make reasonable effort to protect D.R.'s safety by preventing the escape in connection with the third incident. The analysis in the preceding paragraphs focuses on Respondent's failure at the moment of D.R.'s escape, not on the duration of his absence from the classroom and any ongoing failure to notice that the child was missing from the classroom. As explained in the Conclusions of Law, Petitioner did not plead these failures as grounds for disciplining Respondent, but, in an abundance of caution, the following findings address these alternative grounds for determining that Respondent failed to make reasonable effort to protect D.R.'s safety in connection with the third incident. There is no direct evidence of how long D.R. was out of the classroom in connection with the third incident. There is only one point in time established by direct evidence: Ms. Zimmerman first saw the child at 12:10 p.m. There is no direct evidence of when D.R. escaped from the classroom, nor could there have been such evidence from the known witnesses. Ms. Zimmerman's written statement notes that all of the physical education teachers, which may include her, were in the area of the breezeway from noon to 12:07 p.m., and they never saw D.R. Ms. Zimmerman's statement implies that someone would have seen D.R. if he had been anywhere in the breezeway by himself. Although Ms. Zimmerman could have estimated how long she had the child before turning him over to Ms. Perrino, no one asked her to do so.5/ And there is no other direct evidence of how long Ms. Zimmerman had the child. Based on the evidence cited in the preceding paragraph, D.R. escaped the classroom between 12:08 p.m. and 12:10 p.m. and returned to the classroom between 12:11 p.m. and 12:13 p.m. Limiting inferences to those supported by clear and convincing evidence, as discussed in the Conclusions of Law, the earliest that D.R. left the classroom was 12:09 p.m., and the latest that D.R. returned to the classroom was 12:11 p.m. This means that Petitioner has proved that D.R. was absent from the classroom for no more than two minutes: one minute by himself and one minute accompanied by Ms. Zimmerman. The burden of taking adequate precautions to detect the child's absence and return him to the safety of the classroom is lower than the burden of preventing the escape, which can occur in a few seconds, although it is difficult to assess what exactly would have been required of Respondent to conduct a search or, by notifying school administrators, to cause a search to be conducted. The burden of preventing an escape is much greater than the burden of noticing, within two minutes, that a child is missing from a five-student classroom. The magnitude of the threat to D.R.'s safety rises the longer that he is out of the classroom, especially unescorted. Presenting a closer case than the pleaded case involving only an escape, the claim that Respondent failed to make reasonable effort, when directed to the length of time that D.R. was out of the classroom, requires consideration of any effort that Respondent made during D.R.'s absence. The duration of D.R.'s absence is thus linked to whether Respondent noticed that D.R. was missing and, if so, what Respondent did upon discovering that he was gone. As discussed in the Conclusions of Law, because inferences are limited to those supported by clear and convincing evidence, Petitioner has not proved that Respondent and the paraprofessionals failed to notice that D.R. was missing. There is no direct evidence that Respondent and the paraprofessionals failed to notice that D.R. was missing from the classroom. The record lacks admissions from Respondent and the two paraprofessionals in the classroom during the third incident that they were unaware of D.R.'s absence.6/ Both Ms. Zimmerman and Ms. Perrino testified that they did not see anyone in the vicinity of the classroom looking for D.R., and this testimony is credited, but supports no more than an inference by a preponderance of the evidence that the adults in the classroom were not looking for the child, and does not support even an inference by a preponderance of the evidence that the adults in the classroom had failed to notice that D.R. was missing. Ms. Perrino testified that when she returned D.R. to the classroom, none of the adults present seemed to have realized that the child had been missing. This testimony is credited, but, lacks important detail, including on what this testimony is based and whether this observation applied to Respondent, so as to support no more than an inference by a preponderance of the evidence that the adults had not noticed that D.R. was missing. Thus, even if Petitioner has pleaded the duration of D.R.'s absence and a failure to notice the absence of the student as grounds for determining that Respondent failed to make reasonable effort to protect his safety, Petitioner failed to prove these claims by clear and convincing evidence
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of December, 2014, 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 1st day of December, 2014.
The Issue The issue in this cause is whether the Petitioner Duval County School Board should dismiss the Respondent for professional incompetence pursuant to the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941) as amended.
Findings Of Fact The Petitioner is the Duval County School Board. The Respondent, Bobby Palmore, has been an employee of the Petitioner since the 1992-93 school year. The Respondent is a tenured teacher assigned as a guidance counselor. During the 1997-98 school year, the Respondent was a guidance counselor at North Shore Elementary School. The Principal at the school in 1997-98 was Larry Davis. Concerns regarding the Respondent’s work performance at North Shore were raised early in the school year regarding his participation with Intervention Teams. An Intervention Team is formed to assist a guidance counselor with a particular student. The team meets when requested by the guidance counselor. Notwithstanding that the Intervention Team convened at the Respondent’s request, he missed the meeting scheduled for September 29, 1997. His erratic attendance at other Intervention Team meetings was of concern to the Assistant Principal, Martha Johnson, and the Principal. Ms. Johnson spoke with the Respondent about this, and Mr. Davis wrote the Respondent about his attendance at these meetings. Respondent’s attendance did not improve. The Respondent’s erratic attendance at Intervention Team Meetings was unsatisfactory performance of his duties and showed a lack of understanding of the subject matter. The Respondent repeatedly interrupted classroom teachers with unannounced and unscheduled calls and visits to their classrooms. This disrupted their classes, and they complained to administrators about Respondent’s conduct. These interruptions were frequently to obtain information regarding students who were being staffed for one reason or another, an activity coordinated by the guidance counselor. The Respondent was officially counseled about these interruptions by Ms. Johnson, but continued to interrupt classes and cause disruptions. This was unsatisfactory job performance and showed the Respondent’s failure to follow directions, plan his activities effectively, and manage his time well. These are considerations in Competency 2 of the Evaluation criteria. The Respondent was asked by Ms. Johnson to make a sign to direct parents and others to a December 12, 1997, Child Study Team (CST) meeting. He did not do so. This also showed the Respondent’s inability to follow direction. On January 13, 1998, the Respondent told Deborah Nurse, an employee of the school, in a rude and loud voice, that she was not to use the copying machine that was outside his office. Mr. Davis counseled the Respondent in writing regarding his behavior on January 16, 1998. On January 14, 1998, at a CST meeting, Ms. Slaughter asked the Respondent for a cumulative folder on a student. The Respondent had been asked to the meeting because of his lack of cooperation regarding the folder. The Respondent accused Ms. Slaughter of not respecting him in the meeting, and insisted that she ask him again for the folder. The Respondent’s actions were embarrassing to the professionals present at the meeting and showed a lack of professionalism on the part of the Respondent. He was counseled in writing by Ms. Johnson about his conduct. On January 15, 1998, a meeting was held to discuss a student between Ms. Johnson, Mrs. Shabazz, and the Respondent. Mrs. Shabazz indicated that a pertinent document was missing from the student’s folder that could effect his educational program and result in a loss of funding for the school. It was Respondent’s responsibility to maintain the student’s records in the guidance office. Ms. Johnson counseled the Respondent about his responsibilities in maintaining records and their importance to the school. She offered to assist the Respondent in reviewing the cumulative folders prior to their processing. The Respondent was responsible for preparation of materials for and participation in CST meetings on students. The Respondent placed students on the CST agenda without completing the data in their folder. This failure interfered with the proper and timely placement of students, and evidenced an unsatisfactory performance of a basic part of the Respondent’s job. As a result of the complaints about the Respondent’s work and conduct, a Success Plan was developed. This plan outlined areas in which the Respondent was not performing satisfactorily, identified objectives for improving his performance, and strategies to meet the objectives. A team was created to assist the Respondent including Mr. Davis, Ms. Johnson, the Respondent’s supervisor in guidance services, and the professional development facilitator. The Intervention Team had decided that team members should receive a response from the Respondent within three days. This time limit was incorporated in the Respondent’s Success Plan; however, the Respondent did not submit the CST packets within the time limits. In addition, the Respondent’s tone in speaking with the teachers was such that they complained to Ms. Johnson about the Respondent. Ms. Johnson counseled the Respondent about the lateness of his submittals and his interactions which the teachers. The Respondent did not improve his conduct that directly resulted in student’s needs not being met. The Respondent continued to be late to or to miss meetings and scheduled classroom visits. On February 4, 1998, he was late to a classroom visit. He cancelled a classroom visit he had scheduled. He did not follow the weekly calendar of guidance activities as required in his Success Plan. On February 4, 1998, Mr. Davis met with the Respondent to discuss the proper procedures for conducting a CST meeting as a means of assisting the Respondent. On February 6, 1998, Mr. Davis counseled the Respondent about his continued interruption of classes, and the Respondent forgot about a scheduled guidance session and did not attend, until reminded by Ms. Dennis. On February 6, 1998, Ms. Anderson met with the Respondent to discuss the guidance program and to offer assistance to him. She suggested that he use a weekly, hour-by- hour calendar to plan his time and activities. She also counseled with him about using a lesson plan for a small group session to provide a clearly defined objective for the session. Ms. Anderson directed the Respondent to follow-up with her in a week. The Respondent did not follow-up with Ms. Anderson or follow any of her advice. On February 9, 1998, Mr. Davis observed the Respondent conduct a meeting with staff regarding the Florida Writes Test. The Respondent’s conduct of the meeting was unsatisfactory. Issues were left unresolved and staff members were confused about the presentation. Some of the material presented was inconsistent with the information in the manual. Mr. Davis wrote the Respondent about these matters, and referred the Respondent to his Success Plan. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to make to two-scheduled classroom visitations. On February 10, 1998, the Respondent missed a scheduled classroom visitation. The Respondent was not following a weekly calendar of activities, and his performance was unsatisfactory and contrary to the Success Plan. On February 10, 1998, the Respondent attempted to counsel the wrong child about the death of the child’s mother, and was prevented from doing so by the teacher. This reflected poorly on the Respondent’s attention to his duties, and his professionalism. On February 10, 1998, the Respondent was provided a list of counselors at other schools who had agreed to let the Respondent attend classroom guidance or CST meetings at their schools. The Respondent was late and showed a lack of interest while attending a classroom guidance session at Lake Forrest. On February 11, 1998, Mr. Davis observed a CST meeting at North Shore. It was evident that the parents had not received the required seven days' notice of the meeting. The Respondent had not conducted the pre-conferences, and had not coordinated the scheduling with the teachers. The Respondent did not have the proper forms in the cumulative folders, and had not conducted any classroom observations in preparation for the CST meeting. In sum, the Respondent’s performance showed a complete lack of competence and knowledge of his duties as a guidance counselor. On February 11, 1998, the Respondent missed his scheduled classroom guidance visit. On February 12, 1998, the Respondent missed his scheduled classroom guidance visit because he was late in arriving. On February 12, 1998, The Respondent discovered a coding error on the Florida Writes Test. He reported the error to Mr. Davis and accused the teacher of coding the test incorrectly. Davis directed the Respondent to correct the mistake and notify the testing department regarding the possible problem. The Respondent did not correct the test as directed, but placed a note on the box and resealed it to be mailed. The Respondent’s actions violated the testing procedures, and he did not do as he had been directed. On February 17, 1998, Ms. Johnson counseled with the Respondent concerning his failure to respond to student and staff needs. She advised him he was not meeting his Success Plan goals, and students were not receiving services they needed. The Respondent refused to counsel with a developmentally disabled student who had been sent to guidance by his teacher. The proper paper work had been completed for the student to participate in the group counseling session; however, the Respondent refused to allow the student to participate, chasing the student around the room telling him to "get out." The student was confused and embarrassed. Ms. Johnson, who was observing the session, and took charge of the student by having him sit with her, resolved the situation. The Respondent's actions demonstrated a complete lack of understanding of the role of a guidance counselor, sensitivity for students, and ability to conduct a class or counseling session. On March 9, 1998, Mr. Davis completed the Respondent’s Annual Performance Evaluation. The evaluation consisted of eight competency areas. The Respondent received an unsatisfactory rating in three of the competency areas, which constituted an overall unsatisfactory evaluation. The facts as presented at hearing confirm the evaluation, and show that the Respondent was clearly incapable of performing his job duties. He lacked knowledge of his duties or how to perform them. He was insensitive to the students' needs and did not meet them. He did not follow the direction of his Principal and did not maintain a professional relationship with his coworkers and superiors. After receiving this evaluation, the Respondent continued in the same pattern of behaviors. He did not prepare and use a calendar of activities. He continued to provide materials late. He refused to assist a parent obtain the proper papers to enable the parent’s child to enroll in another school. He continued to disturb classes. He failed to notify staff of CST meetings at which they needed to attend. He took seven months to complete the paper work to have one child tested. In fact, there were several students who were awaiting CST processing at the end of the year. The Respondent was treated fairly and provided assistance by the school’s administration. Based upon his unsatisfactory evaluation in 1997-98, the Respondent was administratively transferred to J.E.B. Stuart Middle School the following year for an additional year of observation of in-service training. Carol Daniels is the Principal of Stuart Middle School. She met with the Respondent and advised him that he was starting with a clean slate at her school. School Board Policy required that Ms. Daniels confer privately with the Respondent and develop a Success Plan. She met with the Respondent on August 24, 1998. The Success Plan outlined goals and objectives to improve the Respondent’s performance as a guidance counselor. A support team was created to assist him. Soon after the school year began, Ms. Daniels counseled the Respondent about the proper method to request student records. She arranged for him to attend New Counselor Training on or about August 31, 1998. The Respondent was negative and adversarial about being requested to attend the training. He officially complained about the request, but upon review the Regional Superintendent determined that Ms. Daniels’ request was not arbitrary and was appropriate. The Respondent was counseled by Mr. Gilmore, the Vice Principal, on the need to process gifted students under the ESE program. He had failed to process several of these students, and he was given a deadline for processing these students. On September 8, 1998, the Respondent did not exit the building during a fire drill. Ms. Daniels counseled him in writing about the need for everyone to evacuate the building during drills. Mr. Gilmore counseled in writing the Respondent about the lack of lead-time in requesting information about students, and his abruptness and tone in making requests. On October 26, 1998, Linda Bailey requested an ESE/CST Agenda from the Respondent. The Respondent replied he was too busy to provide the information. On October 28, 1998, Ms. Bailey again asked for the information in writing. The Respondent did not provide the information. On October 26, 1998, Ms. Bailey also requested progress reports for the ESE students who would be reevaluated on November 9, 1998. These reports had been used at Stuart Middle School for many years as a best practice strategy. The Respondent advised that he had no intent of providing the progress reports and refused to do so. On October 26, 1998, the Respondent accused the District ESN Admissions Representative of taking ESE forms from his office. His tone and manner were threatening and confrontational. On October 27, 1998, Ms. Daniels notified the Respondent that he would have an evaluation and conference on October 30, 1998, pursuant to district guidelines. On October 28, 1998, Charlotte Robbins, ESE Interventionist, met with the Respondent to discuss three students. It was the Respondent’s responsibility to provide information to Ms. Robbins in a timely manner. The Respondent did not provide Ms. Robbins the necessary information prior to the meeting. The Respondent also invited parents to the meeting without advising Ms. Robbins. On November 2, 1998, Norma Peters, a speech therapist, advised Ms. Daniels that she had requested the Respondent to provide her a list of students to be evaluated two to three weeks before CST meetings. The Respondent told Ms. Peters he would not be able to provide the information as requested, although previous guidance counselors had provided Ms. Peters the names three to four weeks in advance of meetings. Although Ms. Daniels spoke with the Respondent about Ms. Peter’s concern, the Respondent did not provide the information as requested. On November 5, 1998, the two eighth grade counselors met with the Respondent to discuss the need for him to be a team member. They raised the fact that he did not answer the phone, assist parents, or help the guidance clerk when necessary. They also advised him to improve his communication with the ESE teachers, CST members, speech pathologist, and interventionist. A CST meeting was held on November 9, 1998, and only half the parents had been noticed and invited to come to the meeting. The Respondent had been responsible for contacting the parents in compliance with district policies. This failure prevented the CST team from addressing the needs of students. Not only did it potentially deny students services, it frustrated teachers, staff, and parents. On November 24, 1998, the Respondent interrupted class instruction by bringing a parent into the class who had missed an earlier appointment with the teacher. On November 25, 1998, Kathee Cook telephoned the Respondent regarding contacting children for the December 9, 1998, CST meeting. The Respondent refused to contact the parents of the students because ESE procedures required that Ms. Cook contact him seven days prior to the designated date. Ms. Cook reported this to Ms. Daniels, who discussed it with the Respondent, explaining that the requirement was for at least seven days notice. Ms. Daniels advised him that he was responsible for notifying parents for CST meetings, and his position potentially jeopardized notice to the parents as required by district policy. Ms. Daniels directed the Respondent to give the Vice Principal all of the parental notices by December 2, 1998. On December 2, 1998, the Respondent gave Mr. Gilmore ten notice letters; however, he did not provide notices to eleven other parents. The Respondent excused his failure by asserting his interpretation of the seven-day rule. On November 25, 1998, Ms. Daniels advised the Respondent that he had made little improvement in his performance. She discussed with him performance of his duties; and being courteous and respectful to faculty, staff, and parents. The Respondent did not accept the evaluation and was confrontational and adversarial with Ms. Daniels. He refused Ms. Daniels' offer of assistance. On or about January 5, 1999, the Respondent placed seven notice letters to parents in Mr. Gilmore’s box for the January 11, 1999, CST meeting. Not only were the letters late, if intended for the January 11th meeting, but they were addressed to the parents of children being staffed in the January 22, 1999, meeting. The Respondent failed to discontinue ESE services to a student contrary to the parent’s request on three separate occasions, to include at least one request in writing. The Respondent’s failure resulted in the matter being re-assigned to the chair of the guidance department to discontinue the services in accordance with the parent’s wishes. The Respondent left the campus without following the procedures for leaving early. These requirements had been explained during orientation and were in the teachers’ handbook. Ms. Daniels had to notify the Respondent in writing of his oversight. On January 25, 1999, Ms. Daniels notified the Respondent pursuant to the collective bargaining that his work performance was unsatisfactory. He was advised that his performance in Competencies 1, 2, 4, 8 and 9 needed improvement by March 15, 1999. On February 2, 1999, the Respondent was notified that this memorandum would be placed in his personnel file. The Respondent met with parents who were not enrolled in Stuart Middle School during the middle of the school day. Ms. Daniels advised him in writing on February 11, 1999, that this was inappropriate, and he should limit meeting to parents or students enrolled or engaged in enrolling at Stuart. On March 10, 1999, the Respondent made a presentation to an ESE class. His Success Plan required him to schedule presentations during Advisor/Advisee time period. The Respondent’s presentation was arbitrary and he did not seek assistance from his support team. On March 11, 1999, Ms. Daniels completed the Respondent’s annual evaluation. The evaluation addressed nine competency areas. Th Respondent received an unsatisfactory in five of the nine areas, which constituted an overall unsatisfactory evaluation. The Respondent’s performance in Competency 1 (ability to plan and deliver instruction), Competency 2 (demonstrates knowledge of subject matter), Competency 4 (shows sensitivity to student needs by maintaining a positive school climate), Competency 8 (demonstrates a commitment to professional growth), and Competency 9 (shows evidence of professional characteristics) was unsatisfactory. Not only was his performance unsatisfactory, he continued to be unwilling to accept support and assistance. He failed to comply with many areas of his Success Plan and failed to perform his duties. On March 17, 1999, the Respondent interrupted Mrs. Bascombe’s class. Ms. Daniels counseled the Respondent in writing about class interruptions, and how to handle situations by checking the master schedule and placing notices in teacher mailboxes. On March 23, 1999, Ms. Daniels relieved the Respondent of his responsibilities for ESE students because of his poor performance and its impact on the students' welfare. He had failed to timely notify parents. He had failed to communicate with parents, the staff, faculty and the district. His failures had adversely affected the operations of the ESE program. The Respondent was assigned to handle seventh grade non-exceptional education students. Ms. Daniels had to direct the Respondent in writing to relinquish the ESE forms to his successor. On April 20, 1999, after being relieved of his ESE duties, he met with the mother of an ESE student who was then receiving services from his successor. The Respondent was treated fairly at Stuart Middle School. All of the personnel were ready and willing to provide him assistance. He was negative, and refused to co-operate or perform his duties as directed. On May 19, 1999, the Respondent was notified by the Superintendent that he was charged with professional incompetence. He was advised that he would be discharged from the Duval County School System if the charge was sustained by the School Board. He was advised of his right to request a hearing within two days of receipt of the letter dated May 19, 1999. On June 15, 1999, Ms. Daniels provided John Heavner, Director of Professional Standards, written notice that the Respondent had not completed the requirements of his Success Plan. The Respondent requested a formal hearing by letter on July 10, 1999. Notwithstanding that this was late, he was afforded a hearing. On August 5, 1999, the Respondent was notified that he would be suspended without pay effective August 12, 1999. The Respondent was advised that the suspension would be considered at the September 7, 1999, regular meeting of the School Board. The Respondent is charged with incompetence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that: A final order be entered denying the Respondent’s disciplinary appeal and demands set forth in his pleadings, and dismissing the Respondent for incompetence. DONE AND ENTERED this 27th day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 27th day of March, 2000. COPIES FURNISHED: Lashanda R. Johnson, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Bobby G. Palmore 863 Poydras Lane, West Jacksonville, Florida 32218 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 321399-0400
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the collective bargaining agreement, and School Board policies. Respondent's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether a district school board is entitled to terminate the employment of a non-instructional employee whose performance is alleged to have been unsatisfactory.
Findings Of Fact At all times material, Ms. Dickerson was employed in the District as an education paraprofessional. For the 2000-01 school year, she was assigned to Meadow Park Elementary School (the "School"). That year, Ms. Dickerson worked under the supervision and direction of a special education teacher named Kimberly Vargas-Vila, whose half-dozen or so pupils, ranging in age from three to seven years, were children with autism. Ms. Dickerson was one of two paraprofessionals placed in Ms. Vargas-Vila’s classroom for the 2000-01 school year. In the discharge of her duties, Ms. Dickerson was required to feed students, help them in the toilet, assist the teacher in the classroom, assist children in play, watch them on the playground, make copies, and run errands for the teacher. Not long after the school year started, Ms. Vargas-Vila noticed that Ms. Dickerson resisted attempts by the other paraprofessional, who was a so-called "one-on-one" aide assigned to a specific student, to help Ms. Dickerson. Ms. Dickerson wanted to perform certain duties herself and often refused offers of assistance. Ms. Dickerson's unwillingness to share the work load was not initially disruptive but increasingly became so. In October 2000, another problem developed: Ms. Dickerson began to disobey Ms. Vargas-Vila's directions concerning the management of students' behavior. The teacher spoke with Ms. Dickerson about this issue, but Ms. Dickerson refused to discuss the matter with her. Instead, Ms. Dickerson sent a letter to the Board in which she unjustly accused Ms. Vargas-Vila of harassment. Unable on her own to resolve the problems she was having with Ms. Dickerson, Ms. Vargas-Vila sought the advice of the School's Principal, Elizabeth Cardozo. After conferring, they decided that the three of them (the principal, the teacher, and the paraprofessional) should meet together. Accordingly, a meeting was held between Ms. Dickerson, Ms. Vargas-Vila, and Ms. Cardozo on October 18, 2000. While the primary topic of discussion was Ms. Dickerson's allegation that Ms. Vargas-Vila had harassed her (which was groundless), other matters were discussed too, with the participants agreeing to reconvene if problems recurred. Despite this meeting on October 18, 2000, Ms. Vargas- Vila continued to have difficulties with Ms. Dickerson. Therefore, a few weeks later, on November 7, 2000, Ms. Vargas- Vila wrote a memorandum to Ms. Cardozo that related her concerns about Ms. Dickerson's ongoing failure to follow instructions relating to the behavior management techniques that she (the teacher) wanted to use with a particular student. In this memorandum, Ms. Vargas-Vila explained that she frequently had told Ms. Dickerson to ignore certain inappropriate behaviors in which the student in question was engaging, but Ms. Dickerson refused to comply. Rather than ignore the student, as directed, Ms. Dickerson would continue to talk and interact with the student. Ms. Vargas-Vila also had instructed that the student’s chair be placed slightly apart from the other students, but Ms. Dickerson, disobeying, had moved the student’s chair back towards the others in the group. Ms. Dickerson's defiance was causing friction in the classroom. When Ms. Vargas-Vila witnessed these insubordinate acts, she immediately discussed them with Ms. Dickerson, who either did not comment or expressed her opinion that the teacher's orders were inappropriate. Ms. Vargas-Vila's memorandum of November 7, 2000, reported as well that Ms. Dickerson continued to object when the teacher asked the other paraprofessional to handle duties that Ms. Dickerson felt were "her" tasks. As a result of Ms. Vargas-Vila's memorandum, a meeting was held on November 17, 2000, between Ms. Dickerson, Ms. Vargas-Vila, Ms. Cardozo, and a District official named John Stevens. The meeting was difficult because Ms. Dickerson became loud and angry, accusing the attendees, among other things, of plotting to violate her Constitutional rights. She also made the weird charge that Ms. Vargas-Vila had employed a "fake cough" to aggravate her in the classroom. Notwithstanding these impediments to productive discourse, Ms. Vargas-Vila reviewed "improvement strategies" with Ms. Dickerson, who said that she would follow this advice. Afterwards, Ms. Dickerson was provided a written summary of the November 17, 2000, conference, which specified the areas in which improvement was needed and the recommended improvement strategies. For a while after the November 17, 2000, meeting, Ms. Dickerson's performance improved. But before the month was out, Ms. Dickerson had resumed refusing to allow the other paraprofessional to perform certain duties, and she had begun once again to disregard the behavior management techniques that Ms. Vargas-Vila prescribed. These problems continued into the next calendar year. Throughout January 2001, Ms. Dickerson's performance- related problems persisted. Ms. Vargas-Vila talked specifically with Ms. Dickerson about the need for her to follow directions and allow other people to help out in the classroom, but Ms. Dickerson did not change her unsatisfactory behavior. As a result, another meeting with Ms. Cardozo was scheduled, for January 25, 2001. The January 25, 2001, meeting was attended by Ms. Cardozo, Ms. Vargas-Vila, and Ms. Dickerson. During the meeting, Ms. Dickerson was told that she had failed to follow the improvement strategies that had been recommended——and which she had agreed to implement——during the conference on November 17, 2000. Ms. Dickerson was notified that if she continued to disobey the teacher's directions, she would be subject to disciplinary action. Finally, more improvement strategies were discussed, and these were reduced to writing, as part of the principal's conference notes, a copy of which was provided to Ms. Dickerson on January 30, 2001. As of the January 25, 2001, meeting, Ms. Cardozo was convinced that Ms. Dickerson’s job performance was unsatisfactory and that her actions were interfering with the instructional process in the classroom. Consequently, Ms. Cardozo sought guidance from Diane Curcio-Greaves, a Professional Standards Specialist at the District's headquarters, in regard to the preparation of a performance evaluation of Ms. Dickerson. The conditions of Ms. Dickerson's employment were governed by a collective bargaining agreement called the Agreement Between the School District of Palm Beach County, Florida and the Association of Education Secretaries and Office Professionals, dated July 1, 1997 - June 30, 2000 (the "Union Contract"). The Union Contract forbade the recommendation of an employee for termination based upon an unsatisfactory evaluation unless that employee had been given at least 30 days to improve his or her performance. In view of this contractual provision, Ms. Curcio- Greaves and Ms. Cardozo decided that Ms. Dickerson would be afforded 30 days from the date she received an unsatisfactory performance evaluation within which to correct the identified deficiencies. On February 2, 2001, based on Ms. Vargas-Vila's input as well as her own observations, Ms. Cardozo recorded her assessment of Ms. Dickerson's performance on a Noninstructional Evaluation form used by the District. Ms. Cardozo rated Ms. Dickerson unsatisfactory under the categories of self motivation, adaptability to change, interpersonal effectiveness, and assignments (specifically, under the last heading, for failing to follow directions easily and effectively). Ms. Cardozo assigned Ms. Dickerson an overall rating of unsatisfactory. Ms. Cardozo, Ms. Curcio-Greaves, and Assistant Principal Diane Bell met with Ms. Dickerson on February 5, 2001, to discuss the unsatisfactory evaluation and to initiate a 30- day assistance plan. At this meeting, improvement strategies for each area in which her performance had been deemed unsatisfactory were recommended to Ms. Dickerson. These improvement strategies, together with a statement of the reasons why Ms. Dickerson's job performance was considered unsatisfactory, were set forth in a memorandum of assistance dated February 2, 2001, which Ms. Cardozo had prepared earlier. The evaluation and its attachments, including the memorandum of assistance, were presented to Ms. Dickerson on February 5, 2001. Ms. Dickerson acknowledged receipt of these documents, noting her disagreement with the contents and vowing to appeal "THIS FALSE PLOT!" In accordance with District policy and the Union Contract, Ms. Cardozo was responsible for monitoring Ms. Dickerson's progress during the 30-day assistance period and periodically meeting with Ms. Dickerson to review her performance and provide feedback. Ms. Cardozo scheduled several review conferences with Ms. Dickerson, to occur on Friday, February 16; Monday, February 26; and Monday, March 12, 2001. These dates were provided to Ms. Dickerson in a memorandum dated February 8, 2001, receipt of which was acknowledged by Ms. Dickerson that same day. The first review conference was held on February 20, 2001.1 Present were the same persons as on February 5: Ms. Cardozo, Ms. Bell, Ms. Curcio-Greaves, and Ms. Dickerson. Ms. Cardozo discussed each previously-identified area of deficiency with Ms. Dickerson and told Ms. Dickerson what was expected of her to correct these deficiencies, which persisted. Ms. Dickerson was not receptive to advice and indeed refused to acknowledge that her performance was unsatisfactory. Based upon Ms. Dickerson’s comments and the fact that she had not been following the implementation strategies described in the February 2, 2001, memorandum of assistance, Ms. Cardozo was of the opinion that as of February 20, 2001, Ms. Dickerson’s job performance had not improved. On February 22, 2001, Ms. Cardozo wrote a memorandum detailing the discussion that had taken place during the February 20, 2001, meeting. This memorandum specified the areas of Ms. Dickerson’s job performance that continued to be deficient, and spelled out the steps that Ms. Dickerson needed to take in order to improve. Ms. Cardozo gave Ms. Dickerson a copy of her memorandum on February 22, 2001, receipt of which was acknowledged by Ms. Dickerson. On February 23, 2001, Ms. Cardozo formally observed Ms. Dickerson in Ms. Vargas-Vila's classroom for one hour. She noticed that Ms. Dickerson continued to be performing unsatisfactorily in the area of interpersonal effectiveness. A few days later, on February 26, 2001, a second review meeting was held with Ms. Dickerson. In attendance were Ms. Cardozo, Ms. Curcio-Greaves, Ms. Bell, Jeanne Burdsall (a Manager in the District's Office of Professional Standards), and Ms. Dickerson. At this meeting, Ms. Dickerson informed the group that she had spoken with the "Assistant Superintendent" concerning her belief that people were trying to take her job away and give her a bad evaluation. Ms. Dickerson was reminded that on February 5, 2001, she had been advised about the grievance procedures available to union members. Ms. Dickerson was again informed of her right to contact a union representative if she wanted to file a grievance regarding her evaluation. It is evident that by the time of the February 26, 2001, meeting, Ms. Dickerson was not implementing previously- recommended improvement strategies and had no intention of doing so. She continued to deny having performance problems and stubbornly resisted attempts to help her improve. Ms. Dickerson repeated the now-familiar but utterly unsubstantiated accusation that Ms. Vargas-Vila and others were harassing her and plotting to take away her job. Ms. Dickerson's comments had become alarmingly irrational and paranoid. On March 6, 2001, Ms. Dickerson received a copy of Ms. Cardozo's detailed memorandum describing the February 26 meeting. Ms. Cardozo continued to hold the opinion that Ms. Dickerson had not improved her job performance to a satisfactory level. The next day, Ms. Dickerson refused to change a child's diaper at the direct request of Ms. Vargas-Vila, claiming that it was not her job and complaining that the teacher's directive constituted harassment. Ms. Vargas-Vila immediately brought this incident to Ms. Cardozo's attention. Within hours, the principal had notified Ms. Dickerson in writing that she wanted to meet with her the following day, March 8, 2001, in order to review the notes that Ms. Cardozo had made concerning her February 23, 2001, classroom evaluation of Ms. Dickerson. Later that afternoon, Ms. Dickerson appeared in Ms. Cardozo's office, ranting loudly that she was being harassed and asking why they needed to have a meeting. Ms. Cardozo advised Ms. Dickerson that the reason for the meeting was to go over the results of the February 23, 2001, observation. Ms. Dickerson alleged (again) that she could no longer do her job due to the supposed harassment. Ms. Cardozo asked Ms. Dickerson if she was refusing to meet with her, and Ms. Dickerson told her she was not. At that point, Ms. Cardozo told Ms. Dickerson that she would arrange to discuss the observation of February 23, 2001, at the upcoming assistance review meeting, scheduled for March 12, 2001. Thereupon, Ms. Dickerson left Ms. Cardozo’s office, only to return minutes later to tell Ms. Cardozo that she was sick and leaving for the day. In light of Ms. Dickerson's outburst and bizarre behavior, Ms. Cardozo began to worry that she or her staff might be in danger. Ms. Cardozo’s last meeting with Ms. Dickerson was on March 12, 2001. Ms. Cardozo gave Ms. Dickerson a copy of her memorandum of the observation that she had conducted on February 23, 2001. In the memorandum, Ms. Cardozo specifically commented on Ms. Dickerson's lack of interpersonal effectiveness. Ms. Cardozo also handed Ms. Dickerson a Noninstructional Evaluation form that she had completed on March 12, 2001, on which Ms. Dickerson was graded unsatisfactory in the areas of self motivation, adaptability to change, interpersonal effectiveness, and assignments——the same areas in which Ms. Dickerson's performance previously had been considered deficient. Overall, the evaluation was unsatisfactory. Because she had failed to correct the identified performance deficiencies within 30 days, Ms. Dickerson was informed via a letter from the Chief Personnel Officer, which she received on March 12, 2001, that effective March 13, 2001, she was being reassigned to her home with pay, pending the Board's next meeting on March 28, 2001, at which time action would be taken to dismiss her. By memorandum dated March 12, 2001, Ms. Cardozo notified the Director of Professional Standards that Ms. Dickerson had been given an unsatisfactory evaluation after the end of a 30-day assistance period. Based upon the unsatisfactory evaluation, Ms. Cardozo requested a District review to determine further action, up to and including termination of Ms. Dickerson's employment. In due course, pursuant to District policy, a competency hearing was convened before a committee of District employees, to review the evaluation process and Ms. Cardozo's recommendation that Ms. Dickerson's employment be terminated. The committee determined that all of the procedures for terminating a non-instructional employee for unsatisfactory performance had been followed, and it voted to uphold Ms. Cardozo's recommendation. The superintendent accepted the committee's recommendation, executing a petition on March 15, 2001, which urged the Board to suspend Ms. Dickerson without pay effective March 29, 2001, and to terminate her employment effective 15 days after the Board's decision or following an administrative hearing if timely requested. Although the record is not entirely clear, it appears that the Board suspended Ms. Dickerson without pay effective March 29, 2001, as recommended. Ultimate Factual Determination Ms. Dickerson's job performance was unsatisfactory, and she failed to correct the identified deficiencies within the 30-day period prescribed under the Union Contract, despite the provision of ample assistance to improve her performance.
