The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Deborah Harkleroad.
Findings Of Fact Respondent Deborah Harkleroad has been employed by the School Board as a teacher for ten years. She is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to Section 1012.33, Florida Statutes.1/ During the first two years of her employment, the 2001- 2002 and 2002-2003 school years, Ms. Harkleroad was assigned to Tavares Middle School. At the start of her third year in the fall of 2003, she transferred to Fruitland Park as that school's first elementary literacy coach. During the 2007-2008 school year, Ms. Harkleroad transitioned into teaching a regular third-grade class at Fruitland Park. She remained in that position during the 2009- 2010 school year. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains 6 sections and subsections. The subsections are further divided into sub- subsections. The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I triggers the NEAT procedure and further evaluations. The IPPAS provides a voluntary alternative evaluation for experienced teachers who have received scores of 12 on the Appraisal I for the two immediately preceding years and have a professional service contract with the School Board. This alternative is called "PG-13," and allows the teacher to select a “professional growth” objective for the school year, work with an administrator in devising a strategy for attaining the objective, and demonstrate the attainment of the objective. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. In order to become eligible for the voluntary PG-13, a teacher must have received no Appraisal II reports during the two years immediately preceding entry into PG-13. In order to remain eligible for the PG-13, a participating teacher must continue to meet the standard competency level for teaching performance, which includes receiving no Appraisal II reports. Since the 2004-2005 school year, Ms. Harkleroad had participated in the PG-13 evaluation process every year except 2007-2008, when she had back surgery and was unable to complete her PG-13 project. For the 2007-2008 school year, Ms. Harkleroad received an Appraisal I score of 12. On March 19, 2009, Ms. Harkleroad received an Appraisal II report from the principal of Fruitland Park, Melissa DeJarlais. The "Area of Concern" listed on the Appraisal II form was "Personal Characteristics and Professional Responsibilities." Dr. DeJarlais wrote the following explanation of Ms. Harkleroad's deficient performance: On 3-5-09, teachers required to administer the FCAT assessment were mandated to attend the annual FCAT administration training. Mrs. Harkleroad was observed nodding off and/or sleeping during this training. She later explained that she did not feel well and it was possible that her prescribed medication was causing her to be overly sedated. As a precautionary measure, Mrs. Harkleroad's testing responsibilities were changed to that of a proctor thus requiring us to assign another instructional person to her classroom for the express intention of administering the FCAT. Mrs. Harkleroad did not perform her proctoring duties and instead spent time working on school related activities not germane to FCAT testing. These activities included printing her substitute or lesson plans while students were actively taking the FCAT assessment thus compromising the testing environment. At the time she received the Appraisal II, Ms. Harkleroad wrote the following response: In response to the Professional/Personal Action Report dated 3-19-09, I was running a temperature of 102.6 and my blood pressure was dipping dangerously low due to being sick on 3-5-09. I should have taken a sick day on this date, but I didn't due to the diminishing amount of teaching time left before the FCAT. I did fully perform my duties as a proctor for the math FCAT testing, and I did not at any time perform the activities alleged. During the time when I was printing my students' cloze practice reading assignments, no students were actively taking the test. At the hearing, Dr. DeJarlais offered no first hand testimony regarding the allegation that Ms. Harkleroad did not perform her proctoring duties and printed documents in the classroom while the FCAT was being administered. She testified that she relied on the reports of the test administrator and the testing coordinator in issuing the Appraisal II to Ms. Harkleroad. Ms. Harkleroad testified that, unlike the previous principals she had worked for at Fruitland Park, Dr. DeJarlais had never liked her or appreciated the extra work she did in compiling data that tracked student performance on the FCAT and other standardized tests. Ms. Harkleroad testified that she had always received "rave reviews" for the extra work she did in creating and maintaining the school wide data bank for tracking standardized test scores. She resented the fact that Dr. DeJarlais neglected to rave over the data notebooks when Ms. Harkleroad presented them to her. Ms. Harkleroad felt personally snubbed and concluded that Dr. DeJarlais did not like her. As to the events of March 5, 2009, Ms. Harkleroad surmised that the test administrator was trying to make "brownie points" with Dr. DeJarlais by maliciously reporting falsehoods about Ms. Harkleroad's actions in the classroom. Ms. Harkleroad asserted that the administrator was a friend of Dr. DeJarlais, and that the principal simply took the administrator's word for what happened without conducting any further investigation. Ms. Harkleroad disputed the incident to Dr. DeJarlais to the point of crying, and she was so upset she had to leave school early that day. She testified that at the time she was unaware that the CBA allowed her to file a union grievance over the Appraisal II. Neither party called the test administrator, Kimberly Belcher, to testify. Based on the testimony, the undersigned is not inclined to second-guess Dr. DeJarlais' decision to take the word of Ms. Belcher as to what occurred in the classroom on March 5, 2009. Ms. Harkleroad offered only speculation as to any motive Ms. Belcher had to concoct a story about Ms. Harkleroad's actions during the FCAT. To accept Ms. Harkleroad's version of events, it is necessary to believe not only that Dr. DeJarlais was out to get Ms. Harkleroad, but that Dr. DeJarlais' vendetta against Ms. Harkleroad was such common knowledge that Ms. Belcher knew she could win "brownie points" by lying about the teacher to the principal. The evidence does not support such a chain of inferences. Ms. Harkleroad testified that during the meeting about the Appraisal II, Dr. DeJarlais emphasized that she would no longer be eligible for the PG-13 evaluations and would have to revert to the Appraisal I evaluation. Ms. Harkleroad stated, "I knew then, when she told me that, that she was out to destroy my career." This extraordinary statement was premised on Ms. Harkleroad's assertion that she has a severe panic disorder that renders her unable to withstand the situation presented by an Appraisal I, in which she must teach while an evaluator sits in the room and judges her performance. Ms. Harkleroad asserted that Dr. DeJarlais was aware of this condition, and purposely contrived to force Ms. Harkleroad back into the Appraisal I process in order to get rid of her. At this point, it is useful to digress from the main narrative to provide a brief history of Ms. Harkleroad's medical travails. She testified that she has a severe form of stress or panic disorder that makes her paranoid and unable to function in situations in which she thinks people are judging her. Earlier in her career, she was able to control the panic attacks with a prescribed medication, Xanax (alprazolam), and was able to perform well in Appraisal I situations. At some unspecified time prior to the 2005-2006 school year, Ms. Harkleroad underwent spinal fusion surgery. During the 2005-2006 school year, Ms. Harkleroad was involved in an incident requiring her to restrain a kindergarten student who was throwing wooden chairs in the library. Ms. Harkleroad's back was injured. Ms. Harkleroad alleged that the School Board's contract workers' compensation physician misdiagnosed the injury and sent her back to work. Two years later, another physician examined Ms. Harkleroad's MRI from the incident and determined that her fusion had been shattered. During the 2007-2008 school year, Ms. Harkleroad had major back surgery that kept her away from school for 12 weeks. When she returned to work during the spring semester of 2008, she was in a body cast, followed by approximately five months in a brace. Ms. Harkleroad testified that the damage to her back was so severe that it could not be completely repaired. She was subject to muscle spasms due to pressure on her sciatic nerve. The pain became so severe that in February 2009 she began seeing a physician for pain management. The physician prescribed what Ms. Harkleroad called "pretty heavy duty" medications such as Oxycontin (oxycodone). Ms. Harkleroad's physicians advised her that Xanax cannot be taken with Oxycontin. Therefore, she was forced to forego her panic disorder medication after February 2009. Dr. DeJarlais came to Fruitland Park at the start of the 2008-2009 school year. Ms. Harkleroad was unsure how much Dr. DeJarlais knew about her medical history, though she specifically recalled telling Dr. DeJarlais that she was the teacher who had back surgery and came back in a body cast. Ms. Harkleroad also recalled that, in her first conversation with the new principal, she told Dr. DeJarlais about her panic disorder. Dr. DeJarlais testified that she was unaware that Ms. Harkleroad claimed any disabilities. She knew that Ms. Harkleroad took pain medications for her back, but knew no specifics about them. Ms. Harkleroad testified that at the time of the FCAT administration meeting on March 5, 2009, she was sick and had just started on the pain management medications. She had taken Nyquil for a cold on top of the Oxycontin, and the combination caused her to fall asleep at the meeting. As noted above, she absolutely denied the other statements in the Appraisal II. Shortly after receiving the Appraisal II, Ms. Harkleroad was involved in an automobile accident that kept her out of work for the remainder of the 2008-2009 school year. She had further surgical procedures on her back and remained on pain medications as the 2009-2010 school year began. Patricia Nave, a veteran administrator, arrived at Fruitland Park as assistant principal at the start of the 2009- 2010 school year. Dr. DeJarlais assigned Ms. Nave to conduct the Appraisal I performance evaluations of Ms. Harkleroad. Ms. Nave did not know Ms. Harkleroad before August 2009, and testified she was not aware that Ms. Harkleroad had anxiety issues. On February 18, 2010, from 12:45 p.m. until 1:45 p.m., Ms. Nave observed Ms. Harkleroad and scored her on the Appraisal I form. Ms. Nave gave Ms. Harkleroad a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. Under the section "Teaching Procedures," Ms. Harkleroad was rated unsatisfactory in the sub-subsection titled "Gives clear and explicit directions" within the subsection titled "Displays skills in making assignments." Under the section "Classroom Management," Ms. Harkleroad was rated unsatisfactory in the sub-subsections titled "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." In the area of Teaching Procedures, Ms. Nave testified that in making an assignment, the teacher is expected to use appropriate vocabulary. The teacher tells the students what the assignment is and when it is due, then checks with the students to ensure they comprehend the assignment before releasing them to do the work. Ms. Harkleroad did not make a comprehension check. She simply told the students what to do. In the area of Classroom Management, Ms. Nave had "many, many concerns" regarding Ms. Harkleroad's "conscious modeling to modify attitudes and behaviors." Ms. Harkleroad made unacceptable comments to students throughout the lesson, such as: "I don't understand what you're not getting, probably because you're not paying attention," "Your rudeness scale is going up," and "You are all just counting, not paying attention to what you are counting." Ms. Nave found that Ms. Harkleroad was not setting a proper example to the students. The teacher is expected to be respectful and to set an example by being fair. Ms. Harkleroad was neither consistent nor fair. At times, she would scold the students for calling out without raising their hands, but at other times she would allow them to call out. Some children were walking around the room when they should have been sitting down for the lesson. Ms. Harkleroad admonished some of the students for walking around but allowed others to do it. She allowed the students to engage in off-task behavior. Ms. Harkleroad testified that in her experience, evaluations last for about 35 minutes. She testified that she was doing fine for the first 35 minutes of Ms. Nave's evaluation. However, when Ms. Nave stayed beyond the 35-minute mark, Ms. Harkleroad began to panic, believing that Ms. Nave intended to stay until she could find something wrong. Her performance fell apart in the latter part of the hour. Ms. Harkleroad stated that she told Ms. Nave about her panic disorder after the evaluation. Ms. Nave noted no dramatic change in Ms. Harkleroad's performance from the first half to the second half of her one- hour observation. Ms. Nave also had no recollection of Ms. Harkleroad discussing her panic disorder at any time, before or after the evaluation. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Ms. Nave met with Ms. Harkleroad on February 22, 2010 to go over the Prescription/Assistance form. Ms. Nave noted the areas of deficient performance and recommended that Ms. Harkleroad review sections of the IPPAS manual that prescribe methods for the areas in which she had been found deficient and watch certain DVDs on effective teaching methods. Ms. Nave gave Ms. Harkleroad four weeks, rather than the usual three weeks, to correct the deficiencies and undergo another observation. To further lessen the pressure on Ms. Harkleroad, Ms. Nave exercised her prerogative to use the February 18, 2010, Appraisal I as an "observation" rather than a formal appraisal that would be counted against Ms. Harkleroad. School Board records indicated that Ms. Harkleroad checked out the recommended DVDs from the Fruitland Park library. Ms. Harkleroad testified that she watched the DVDs. Ms. Nave performed a second Appraisal I on Ms. Harkleroad on March 26, 2010. This appraisal also resulted in a total score of 10. On this appraisal, deficiencies were found under the sections titled "Classroom Management" and "Presentation and Knowledge of Subject Matter." As to Classroom Management, Ms. Harkleroad was rated unsatisfactory in the same sub-subsections as on the February 18, 2010, appraisal: "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." As to Presentation and Knowledge of Subject Matter, Ms. Harkleroad's performance was found unsatisfactory in the sub-subsection titled "Uses questioning techniques" under the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." Ms. Nave testified that in the area of questioning techniques, the preferred technique is to ask a question, wait for the students to process the question, and then call on one student to answer the question. Ms. Harkleroad was asking "multiple questions," meaning that she would ask a question, then ask another question or ask the same question in a different way, before the students had a chance to respond. Ms. Nave stated that teachers are counseled not to ask multiple questions because it confuses the children. Ms. Nave stated that Ms. Harkleroad failed to exhibit another aspect of proper questioning. A teacher should ask a question, and then call the name of a student to answer the question. Asking the question before calling on a student ensures that the whole class pays attention to the question. If the teacher calls on one student, then asks the question, the other children are off the hook and feel free to pay less attention. Ms. Harkleroad frequently called on students before asking a question. Ms. Harkleroad agreed that her performance during this evaluation was "awful." Ms. Nave had come in to the classroom a day or two before and stayed for about 25 minutes. According to Ms. Harkleroad, "Everything went great. I thought that was my evaluation. A couple days later, here she comes in again. And immediately that's like, 'Okay, what are they doing? They couldn't find anything wrong that time, so they're coming in to find something wrong this time?'" She had a panic attack, and knew that the evaluation was "horrible." Again, Ms. Nave made no note of the dichotomy claimed by Ms. Harkleroad. Her observations were consistent over time. Ms. Nave saw no "great" lessons taught by Ms. Harkleroad. Nonetheless, Ms. Nave continued to encourage Ms. Harkleroad to improve her performance and genuinely believed that "she could get it together" with hard work and a sincere commitment to the recommendations she was receiving. On March 29, 2010, Ms. Nave completed a Prescription/Assistance form and reviewed it with Ms. Harkleroad. Ms. Nave again stated the areas of deficient performance and listed sections of the IPPAS manual that addressed Ms. Harkleroad's deficiencies. Ms. Nave also obtained the assignment of Linda Bradley, a School Board employee who works as a mentor to beginning teachers, to visit Ms. Harkleroad's class every week to observe and assist her with her ongoing remediation strategies. The Prescription/Assistance form provided that Ms. Harkleroad would correct her deficiencies by the end of the school year, June 9, 2010. Ms. Harkleroad would then go through a 90-day performance probation period during the upcoming school year. Also on March 29, 2010, Dr. DeJarlais issued a memorandum to Ms. Harkleroad titled "Performance Probation" that read as follows: Pursuant to the provisions of Florida Statutes 1012.34, I am writing to inform you that you have performance deficiencies in the areas of Classroom Management and Presentation and Knowledge of Subject Matter. Based on the deficiencies, I am placing you on performance probation for 90 calendar days beginning on 8-23-2010. The 90 calendar days will end on November 23, 2010. By letter dated March 31, 2010, Superintendent of Schools Susan Moxley warned Ms. Harkleroad of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Both Ms. Nave and Dr. DeJarlais testified as to other problems with Ms. Harkleroad's performance in the classroom. The parents of two children in Ms. Harkleroad's class complained that their children were receiving too many disciplinary referrals to the office. Upon investigation, the administrators agreed with the parents and Ms. Harkleroad was counseled on the issue. As an alternative to referring minor disciplinary cases to the office, teachers at Fruitland Park are allowed to send students to another teacher's classroom for a time. Placed in a strange class with students who do not know him, the recalcitrant student usually will calm down and quietly do his work. Ms. Harkleroad's grade level peers complained to Ms. Nave that Ms. Harkleroad took excessive advantage of this option, sending children to their classrooms more frequently than should have been necessary. Ms. Nave's major problem with Ms. Harkleroad was her classroom management, her "with-itness," in Ms. Nave's terminology. Ms. Harkleroad too often appeared unaware of the things she was saying to the children, and unaware of what the children were doing in the classroom. She would not notice that children were up and walking around the classroom during lessons. Ms. Nave stated that during her observations, as many as 12 out of 22 children in Ms. Harkleroad's classroom would not be focused on the lesson, and Ms. Harkleroad did nothing to put them back on task. Dr. DeJarlais noted that some parents had complained about Ms. Harkleroad's odd behavior at a student assembly. Her speech was slurred, she called out the same student's name more than once, and she seemed disoriented. Dr. DeJarlais witnessed the assembly, and agreed with the parents that there was a problem. She spoke to Ms. Harkleroad about maintaining a sense of awareness on stage.2/ Dr. DeJarlais mentioned several other minor incidents. In the spring of 2010, Ms. Harkleroad did not fill out her report cards correctly. She once walked into the wrong grade level meeting and had to be directed to the right one. There was an incident in which she placed a child on the floor during a disciplinary timeout, and Dr. DeJarlais counseled her to use a desk. During a walkthrough, Dr. DeJarlais saw Ms. Harkleroad teaching the wrong subject. In each of these instances, Dr. DeJarlais counseled Ms. Harkleroad rather than giving her an official disciplinary or performance write-up. Ms. Harkleroad was convinced that Dr. DeJarlais was intentionally using her panic disorder to get rid of her. This was based partly on a conversation Ms. Harkleroad claimed to have overheard in which Dr. DeJarlais referred to Ms. Harkleroad as a "liability" because of her use of pain medications. Ms. Harkleroad believed that Dr. DeJarlais thought of her as a drug addict. She testified that Dr. DeJarlais made frequent comments that insinuated that she was an addict, asking whether she had a "problem" or needed "counseling." Ms. Harkleroad believed these insinuations were intended to add to the pressure she felt at school and therefore increase the anxiety and panic she would feel during her evaluations. Dr. DeJarlais denied ever calling Ms. Harkleroad an addict or even suggesting such a thing. She did recall that she and Ms. Nave had conversations with Ms. Harkleroad about her nodding off in front of the class, and that Ms. Harkleroad mentioned that she might need to adjust her medications. Dr. DeJarlais did not pry into the kinds of medications Ms. Harkleroad was taking. Ms. Harkleroad spoke to her several times in general terms about seeking help for medical conditions such as back pain. Dr. DeJarlais' only suggestion regarding counseling came when Ms. Harkleroad told her that she feared she was having a nervous breakdown. Dr. DeJarlais credibly denied doing anything to intimidate or humiliate Ms. Harkleroad. Ms. Nave confirmed that she had seen Ms. Harkleroad appear to be sleeping or nodding off while standing in front of the class. At the time, Ms. Nave was unaware that Ms. Harkleroad took prescribed pain medications. Ms. Nave stated that Ms. Harkleroad was unaware that she was nodding off and denied it until Dr. DeJarlais confirmed that two other persons had reported seeing Ms. Harkleroad nod off. At that point, Ms. Harkleroad stated she would go see a physician. Ms. Harkleroad testified that her physician assured her that she could not have been falling asleep on her feet. The physician stated that one of her medications may have been causing mini seizures that resembled nodding off. Ms. Harkleroad testified that she passed this information on to both Dr. DeJarlais and Ms. Nave, though neither of the administrators recalled such a conversation. Given her feelings about Dr. DeJarlais, it was not surprising that Ms. Harkleroad chose the option of transferring to another school for the 2010-2011 school year. Ms. Harkleroad testified that she chose a transfer only after Dr. DeJarlais made it clear that she would prefer for Ms. Harkleroad to move on to another school. Dr. DeJarlais denied expressing such a preference. Ms. Nave recalled that she and Dr. DeJarlais met with Ms. Harkleroad to discuss her options for the 2010-2011 school year, which included transferring to another school or trying to work through the probationary process at Fruitland Park. Ms. Nave testified that when the discussion turned to the 90-day probationary period, Ms. Harkleroad mentioned that she might be having a nervous breakdown. This conversation occurred near the end of the school year, and was the first mention of any mental problems that Ms. Nave could recall. Ms. Harkleroad testified that the "nervous breakdown" conversation was more complicated than Dr. DeJarlais and Ms. Nave indicated. Ms. Harkleroad stated that she told the administrators that she was having multiple anxiety attacks, one after the other, and that she would have a nervous breakdown "if they kept on pushing me and pushing me." Though she had requested assignment to a middle school, Ms. Harkleroad was transferred to Beverly Shores Elementary School ("Beverly Shores") for the 2010-2011 school year and assigned to a third-grade classroom. At the end of the 2009-2010 school year, the School Board notified Jeffrey Williams, the principal at Beverly Shores, that Ms. Harkleroad would be joining his staff in August 2010. The notice informed Mr. Williams that Ms. Harkleroad was on performance probation, and that her issues were classroom management and presentation of subject matter. Mr. Williams also received a phone call from Dr. DeJarlais to discuss the transfer. Dr. DeJarlais did not go into the details surrounding Ms. Harkleroad's probation aside from stating that she believed the move would be good for Ms. Harkleroad. Mr. Williams contacted Ms. Harkleroad and suggested they meet to discuss her transition to Beverly Shores. Ms. Harkleroad met with Mr. Williams at his office. Ms. Harkleroad told Mr. Williams that she had received a deficiency in her IPPAS evaluation and had requested a transfer, though Beverly Shores was not really where she wanted to be. Ms. Harkleroad mentioned that she had a back problem. Mr. Williams did not recall anything in the conversation concerning panic attacks, an anxiety disorder, or any other condition that would hinder Ms. Harkleroad's ability to pass an Appraisal I evaluation. Ms. Harkleroad denied telling Mr. Williams that she did not want to be at Beverly Shores, though she conceded that she told him she would rather be in a middle school because her back problems made it difficult to keep up with younger children. Ms. Harkleroad testified that she told Mr. Williams about her panic disorder, and further told him that she could not take medication for it because of the medication she took for her back pain. She requested that Mr. Williams use the PG- evaluation tool, or record her class, anything other than having people come into her classroom to judge her. She said that Mr. Williams replied that the rules required the use of the Appraisal I. Mr. Williams did not see Ms. Harkleroad again until school started in August 2010. He assigned assistant principal Tanya Rogers to be the supervising administrator handling all issues related to Ms. Harkleroad's job performance. During the first 90 days of the 2010-2011 school year, Mr. Williams limited his involvement to walkthroughs of Ms. Harkleroad's classroom. Ms. Rogers is an experienced assistant principal who has performed many teacher evaluations under the provisions of the IPPAS and the CBA. Ms. Rogers knew that Ms. Harkleroad was on performance probation, and saw to it that her Prescription/Assistance form from Fruitland Park was implemented at Beverly Shores. Linda Bradley was retained as Ms. Harkleroad's instructional coach, and Ms. Harkleroad was offered classes through the school's learning resource center. Ms. Rogers conducted frequent classroom walkthroughs and met with Ms. Harkleroad to assist her in preparing for her evaluation. Upon her arrival at Beverly Shores in August, Ms. Harkleroad discovered that her classroom was "filthy. There were mouse droppings all over. It took four of us six hours to get the room just clean enough that I'd bring my stuff in there. No air conditioning. . . It was almost six weeks before that air conditioning was fixed." Mr. Williams testified that the classroom was clean when Ms. Harkleroad arrived at the school in August 2010. Ms. Harkleroad estimated that the air conditioning was not repaired until September 27, and testified that the temperature reached 100 degrees in the afternoons. She had complained to Ms. Rogers but nothing was done until the date of the second observation by Ms. Rogers, when Ms. Harkleroad repeatedly noted how hot it was in the classroom and how difficult for the students to concentrate on their lessons. Ms. Harkleroad also testified that there was a "horrible" burning smell in the classroom. She complained to Mr. Williams about it. Eventually, on December 9, 2010, the Lake County Health Department came to the school to investigate the source of the smell. Ms. Harkleroad denied having called the Health Department. Ms. Rogers agreed that Ms. Harkleroad complained about the air conditioning in September. However, Ms. Rogers testified that she entered a work order and that the air conditioning was repaired on September 7. Ms. Rogers recalled no complaints about a smell in the classroom, though she did acknowledge that the Health Department was at the school on December 9, and that it found everything in Ms. Harkleroad's classroom to be in satisfactory condition. Mr. Williams recalled that Ms. Harkleroad complained about an odor in her classroom. Mr. Williams was convinced that Ms. Harkleroad had called the Health Department for the simple reason that the inspectors went straight to her classroom when they arrived at the school. However, Mr. Williams had no firm evidence that Ms. Harkleroad made the call and no way of knowing whether a concerned parent had made the call. In the absence of any stronger evidence, Ms. Harkleroad's denial is credited. There was no indication that either Ms. Rogers or Mr. Williams took retaliatory action against Ms. Harkleroad for her various complaints about conditions in her classroom, or that the performance appraisals Ms. Harkleroad received at Beverly Shores were based on anything other than her performance in the classroom. As part of her efforts to help Ms. Harkleroad prepare for her Appraisal I, Ms. Rogers conducted two classroom observations using the "Screening/Summative Observation Instrument" of the Florida Performance Measurement System ("FPMS"). This form was developed by the Florida Department of Education to enable an observer to calculate the frequency of effective and ineffective teaching techniques. In the first observation, conducted on September 7, 2010, Ms. Rogers found performance deficiencies in the areas of classroom management and presentation and knowledge of subject matter. In the second observation, conducted on September 27, 2010, Ms. Rogers found performance deficiencies in the same two areas, particularly in the area of managing student conduct. Ms. Rogers testified that she saw a great deal of choral reading and review of prior knowledge taking place in the classroom but observed no teaching of new content. She also noted that Ms. Harkleroad had a punitive approach to classroom management, and took a sarcastic tone with the children that tended to escalate discipline problems rather than calm them. Based on her observations, Ms. Rogers wrote a Prescription/Assistance form on September 29, 2010, and met with Ms. Harkleroad to go over the needed improvements. Ms. Rogers recommended weekly visits by Ms. Bradley, who would conduct FPMS observations in the problem areas and provide specific feedback to Ms. Harkleroad. Ms. Rogers also recommended specific classes offered at the School Board's staff development training facility: "Increasing Student Engagement," "Motivating Students," and "Classroom Management for Elementary Teachers." Ms. Rogers wrote that Ms. Harkleroad "will correct these behaviors by October 25, 2010, two weeks after staff development opportunity." Ms. Harkleroad testified that she attended one of the recommended classes, but found that it was unrelated to anything occurring in her classroom. She declined to attend the other classes. As the end Ms. Harkleroad's 90-day performance probation approached, Ms. Rogers notified Ms. Harkleroad of her intent to perform the Appraisal I. Ms. Harkleroad requested a conference with Ms. Rogers prior to the evaluation. At the conference, Ms. Harkleroad requested that Mr. Williams perform the Appraisal I evaluation. Ms. Rogers testified that Ms. Harkleroad told her that she found it difficult to respect women in positions of authority. Ms. Harkleroad believed that women should be at home taking care of their children, and that society's problems could be traced to women working outside the home. Ms. Rogers found this logic confusing because Ms. Harkleroad was herself a woman working outside the home. When Ms. Rogers pointed this out, Ms. Harkleroad responded that she did not have children. Ms. Rogers responded that her own children were grown and not living with her. Ms. Harkleroad asked Ms. Rogers whether her daughter stayed home with her children. Ms. Rogers replied that her daughter worked. Ms. Harkleroad said, "See, that's what I'm talking about. That's what's wrong with society." At the hearing, Ms. Harkleroad testified that her request had nothing to do with any general complaint about women in the workplace.3/ Her problem was with Ms. Rogers, whom she found to be unreasonably critical. Ms. Rogers conducted her first observation before Ms. Harkleroad even had a chance to learn the names of the children in her classroom, then told Ms. Harkleroad that she was an incompetent teacher, which caused Ms. Harkleroad to lose all respect for her. Thus, she told Ms. Rogers that she preferred to have Mr. Williams perform her Appraisal I. Ms. Rogers' version of the conference with Ms. Harkleroad is credited. Mr. Williams testified that Ms. Rogers came to him and told him that Ms. Harkleroad did not respect women in authority. Ms. Harkleroad did not think she could get a fair evaluation from Ms. Rogers and requested that Mr. Williams perform the appraisal. Without delving too deeply into the reasons for Ms. Harkleroad's request, Mr. Williams agreed to perform the Appraisal I. Ms. Rogers and Mr. Williams agreed that he declined to take the file that Ms. Rogers had developed on Ms. Harkleroad. He wanted a clean slate, and did not want to be influenced by the prior observations of Ms. Rogers. He wanted to evaluate what was happening in the classroom without preconceptions. Mr. Williams intended to evaluate Ms. Harkleroad as he would any other teacher. He entered Ms. Harkleroad's classroom several times during the week before the evaluation and performed a lengthy walkthrough to assess the overall learning environment. Mr. Williams conducted the Appraisal I on or about November 22, 2010.4/ He gave Ms. Harkleroad a score of 11. Mr. Williams found a deficiency in the section titled "Presentation and Knowledge of Subject Matter." Ms. Harkleroad was rated unsatisfactory in the subsection titled, "Communicates and presents subject matter in a manner that enables students to learn." This subsection contains seven sub-subsections, and Mr. Williams graded Ms. Harkleroad unsatisfactory in six of them: "Treats concepts/cause and effect/or states and applies rules;" "Teacher directed/guided practice is provided;" "Uses questioning techniques;" "Directs lesson;" "Provides periodic review;" and "Poses problems, dilemmas, and questions to promote critical thinking." Mr. Williams found these deficiencies because there was no direct instruction taking place in the classroom that would satisfy those areas of observation. Shortly after the evaluation, Ms. Harkleroad told him that she "just didn't have it today" and that she knew her performance had not been good. Ms. Harkleroad testified as to her problems with Mr. Williams' evaluation. These problems were related to her panic disorder and to an illness she claimed she had on the day of the evaluation. When Mr. Williams did his preparatory walkthrough of her classroom on the Friday before the evaluation, Ms. Harkleroad mistakenly believed that he was conducting the Appraisal I. As she had with Ms. Nave's earlier pre-evaluation classroom visit, Ms. Harkleroad claimed that the lesson went very well. She was jubilant that she had passed the evaluation. Mr. Williams noted no variance between what he observed on his walkthroughs of Ms. Harkleroad's classroom and what he observed during the November 22, 2010, Appraisal I. On the following Monday morning, Ms. Harkleroad was at an IEP meeting when she started pouring sweat and finding it difficult to breathe. The problem became worse as the day went by. She told Mr. Williams how sick she felt and that she might have to go home. Less than 30 minutes later, Mr. Williams appeared in her classroom to conduct the Appraisal I. Ms. Harkleroad stated that Mr. Williams' arrival "just blew it." She knew then that "all they wanted to do was fire me. They didn't care how they did it." After the evaluation, Ms. Harkleroad's husband picked her up from school because she was too ill to drive. Ms. Harkleroad testified that she was diagnosed with bacterial pneumonia. She did not return to school until the Monday after Thanksgiving, November 29, at which time Mr. Williams met with her to review her evaluation. Mr. Williams testified that Ms. Harkleroad said nothing to him about being sick and that he would have rescheduled the evaluation had he known. Before and during the evaluation, she showed no signs of illness. It was only after the evaluation, when they were discussing her poor performance, that Ms. Harkleroad appeared to become ill. Mr. Williams called the school nurse and Ms. Harkleroad's husband. Ms. Harkleroad later told him she had been hospitalized, but Mr. Williams had no firsthand knowledge of her medical treatment. On November 29, 2010, Mr. Williams conducted a post- evaluation conference with Ms. Harkleroad. He presented her options, which at that point were limited to resigning her position or facing formal termination procedures by the School Board. To Mr. Williams' surprise, Ms. Harkleroad chose termination. He was surprised because termination would likely end Ms. Harkleroad's teaching career. When Mr. Williams inquired further, Ms. Harkleroad told him that she chose termination in order to preserve her unemployment benefits. At the hearing, Ms. Harkleroad testified that she chose termination because resigning would have constituted an admission she had done something wrong. As to aspects of Ms. Harkleroad's performance outside the formal evaluation, Mr. Williams stated that there had been a couple of parent complaints. One child was moved out of her classroom due to what the parent termed "poor communication" with Ms. Harkleroad. Mr. Williams had to tell Ms. Harkleroad to stop asking the child why he had moved from her class. In a memorandum to Dr. Moxley dated December 9, 2010, and titled "Recommendation of Termination," Mr. Williams wrote as follows, in relevant part: Pursuant to Florida Statutes 1012.34, I am writing to inform you that Mrs. Deborah Harkleroad has completed his/her 90-calendar day performance probation and has failed to correct his/her performance deficiencies. I do not believe that Mrs. Harkleroad can correct said deficiencies and his/her employment should be terminated. I have complied with all applicable provisions of Florida Statutes 1012.34.... On the morning of December 13, 2010, Ms. Harkleroad wrote the following email to Dr. Moxley: Before a final decision is made on my employment status, I would like the opportunity to meet with you in order to discuss my current situation. It is my contention that I was performing my duties as a teacher in a manner that supported Literacy First guidelines on the date and time my evaluation was conducted. If I had been doing any type of activity other than something similar to what I was doing, I would not have been in compliance with established guidelines. Literacy First is a research-based, data-driven, comprehensive program designed to accelerate reading achievement. Beverly Shores implements the Literacy First program,5/ which includes explicit directives as to what should take place in whole group and small group instruction. Ms. Harkleroad did not raise Literacy First concerns with Mr. Williams at the time of the evaluation or even at the November 29 conference. After the fact, however, she contended that during the hour in which Mr. Williams conducted the evaluation, the Literacy First schedule called for her to perform whole group activities, which do not include "instruction." The children were building fluency by engaging in group reading practice. Had Mr. Williams stayed through the next hour, he would have seen explicit instruction when the class was broken into small groups. Ms. Harkleroad's argument that Literacy First mandated that she not teach the class is not credited. As early as her first observation on September 2, 2010, Ms. Rogers had noted that Ms. Harkleroad's whole group method appeared limited to "echo reading" rather than any of the other various strategies called for by the Literacy First program. Ms. Rogers did not formalize this observation in writing because echo reading is a legitimate Literacy First strategy, and she wanted to give Ms. Harkleroad the benefit of the doubt. Mr. Williams understood Ms. Harkleroad's class schedule, and as principal of Beverly Shores he understood the Literacy First guidelines. When he conducted his evaluation, he knew that Ms. Harkleroad's class was involved in whole group reading. It was in this context, with a full understanding of what should have been happening under Literacy First, that Mr. Williams concluded that no instruction took place during his observation. Ms. Harkleroad was not leading the class. Dr. Moxley did not meet with Ms. Harkleroad. By letter dated December 13, 2010, Dr. Moxley informed Ms. Harkleroad that, pursuant to section 1012.34, Florida Statutes, Ms. Harkleroad had failed to correct performance deficiencies identified by her principal and Dr. Moxley intended to recommend to the School Board that Ms. Harkleroad's employment be terminated as of January 10, 2011. At the hearing, Ms. Harkleroad contended that she had placed the School Board on notice of her panic disorder before the 2009-2010 school year, and that she specifically requested that school administrators use the PG-13 evaluation process as an accommodation to her disability. Ms. Nave recalled Ms. Harkleroad requesting that she be allowed to use the PG-13 evaluation. Ms. Nave stated that Ms. Harkleroad gave no reason for the request, other than an assertion that she had earned the right not to go through the Appraisal I process. Ms. Harkleroad testified that she also pleaded with Mr. Williams to allow her to use the PG-13 evaluation because of her panic disorder. Mr. Williams flatly and credibly denied that any such conversation occurred.6 Dr. DeJarlais had no recollection of Ms. Harkleroad asking for the PG-13 evaluation. She testified that Ms. Harkleroad made no complaints about the Appraisal I procedure until after the evaluation had been completed. The testimony of the four administrators permits the inference that, far from being open with her superiors about her mental and physical problems, Ms. Harkleroad tended to downplay them because of the intense scrutiny she felt she was receiving regarding her job performance. On several occasions, Ms. DeJarlais and Ms. Nave made tentative inquiries into Ms. Harkleroad's emotional well being only to have Ms. Harkleroad sidestep their questions with vague assurances that she was seeing a doctor.7/ Out of respect for her privacy, the administrators left it at that and focused on her classroom performance. The first duty of the school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. If Ms. Harkleroad's panic disorder required an accommodation, it was her responsibility to come forward and request it. The evidence established that she did not do so. It was not the duty of her superiors to tease the information out of her. As Mr. Williams pointed out, he is responsible for 55 teachers at Beverly Shores. He does not have the time to delve into all their personal lives and medical conditions, and tries to respect their privacy. Under all the circumstances, his focus was properly on the classroom. Aside from alleging a conspiracy of sorts to get rid of her,8/ Ms. Harkleroad could not explain why four experienced school administrators would lie about having no recollection of talking with her about her panic disorder, though they all testified that they knew about her back problems and had at least some knowledge that she took pain medications. Ms. Harkleroad testified that two previous principals at Fruitland Park, Joan Denson and Charles McDaniel, had been aware of and made accommodations for her panic disorder. She called neither of these former principals as witnesses to corroborate her version of events. The failure to corroborate her testimony was a theme of Ms. Harkleroad's overall presentation. She offered no documentary evidence regarding her medical condition. None of her physicians were called to testify. No fellow employees, friends or neighbors were called to testify that Ms. Harkleroad had discussed her panic disorder with them. Ms. Harkleroad testified that her students and their parents loved her as a teacher, but she called none of them to testify. Ms. Harkleroad's only supportive witness, teacher Norma Jean Miller, had not worked with Ms. Harkleroad for several years and only knew her as a literacy coach, not a classroom teacher. Ms. Miller knew of Ms. Harkleroad's back problems, but said nothing about a panic disorder. In the absence of corroborating evidence, it strains credulity beyond all reason to accept the sole word of Ms. Harkleroad that Dr. DeJarlais decided to get rid of her because of her drug use, realized that Ms. Harkleroad's panic disorder was a means to insure that she failed her evaluations, then apparently recruited the administration of another school to complete the process.9/ Because there is no evidence beyond Ms. Harkleroad's less than credible testimony to establish that the evaluation process was conducted in bad faith, it is found that the administrators at Fruitland Park and Beverly Shore judged Ms. Harkleroad on the merits of her teaching performance and graded that performance accordingly. Ms. Harkleroad complains that the criteria used in the evaluations were vague to the point of opacity, and did not take into account that different teachers may have different approaches to their work. She believes that some of the standard rules for classroom instruction are "ridiculous." When Ms. Rogers told her that she should make the children raise their hands and be called on before speaking in class, she airily dismissed the criticism as a "philosophical difference." Though the specific problems with Ms. Harkleroad's classroom performance were eminently correctible, her obstinacy and/or obtuseness in rejecting pointed advice from her superiors made it clear that she was highly unlikely ever to correct her performance deficiencies. The evidence established that the process followed by School Board personnel in evaluating Ms. Harkleroad's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA. The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. However, even though all procedures were correctly followed in the evaluation process, the School Board failed to establish grounds for terminating Ms. Harkleroad's employment pursuant to Section 1012.34(3), Florida Statutes, because it failed to offer evidence, apart from the anecdotal reports of the evaluators, that Ms. Harkleroad's teaching performance adversely affected the academic performance of the students assigned to her classroom.10/ The assessment procedure is to be "primarily based on the performance of students," and the absence of data such as FCAT scores or other objective comparators renders the School Board's case insufficient under section 1012.34, Florida Statutes.11/ The issue then becomes whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1), Florida Statutes. On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Harkleroad for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 24th day of June, 2011.
Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
The Issue Whether the Respondent should be terminated from her employment with Petitioner as a result of her teaching performance.
Findings Of Fact Respondent, Margaret Irvin (Irvin) has been employed as a classroom teacher with the Palm Beach County School District (School District) since the 1965-66 school year, with a break in service between 1967 through 1978 and again from 1979 through 1982. Irvin received a continuing contract for the 1985-1986 school year and has remained on continuing contract with the School District through the 1994-1995 school year. Irvin is employed pursuant to a Professional Service Contract from which she may be discharged only in accordance with the terms of Sections 231.36, 231.28 and 231.29, Florida Statutes. From 1982 through June 1993, Irvin taught pre-kindergarten at Belle Glade Elementary School (Belle Glade) and received satisfactory evaluations. The use of certified classroom teachers in the School District's pre- kindergarten program was discontinued at the end of the 1992-1993 school year. Irvin is certified by the State of Florida to teach all early childhood grade levels, which would include pre-kindergarten through sixth grade. For the 1993-1994 school year Irvin was assigned to teach a first grade class of fifteen students at Belle Glade. During the 1993-1994 school year, Lynn McGee (McGee) was the principal at Belle Glade. As part of her duties, McGee was responsible for evaluating Irvin's work performance. A Classroom Teacher's Assessment Evaluation Form is used in evaluating a teacher's performance in the classroom. This form is used for mid-year evaluations and for annual evaluations. Specific areas are marked on the form as being either satisfactory or unsatisfactory. If a teacher receives unsatisfactory in fewer than five areas, the teacher is given an overall rating of satisfactory. If a teacher receives unsatisfactory in more than four areas, the teacher is deemed to have an overall unsatisfactory rating. In December 1993, McGee presented Irvin with a mid-year evaluation of her performance as a classroom teacher. The overall evaluation was unsatisfactory and identified the following areas in which Irvin needed to improve her teaching performance: Management of Student Conduct. Instructional Organization and Development. Presentation of Subject Matter. Establishes an Appropriate Classroom Climate. Demonstrates Ability to Plan Effectively. Develops and Maintains an Accurate Record Keeping System. In the area of Management of Student Conduct, the teacher is evaluated on whether she keeps the students under control at all times. This area also covers teacher "withitness", which means the ability to know what the students are doing at all times. During her observations for the mid-year evaluation, McGee saw students talking and walking around and not being on task. Irvin had a chart on the wall for a behavior plan but she was not implementing the plan in the classroom. Irvin demonstrated a lack of "withitness." The area of Instructional Organization and Development covers lesson delivery, whether a teacher uses a variety of techniques, whether she teaches a complete lesson, and the actual presentation of the lesson itself. During McGee's observations, Irvin relied heavily on the use of dittos and did not use a variety of teaching techniques. Although all first grade teachers were using the same dittos, Irvin could have refrained from using one ditto sheet after another and varied the activities. Irvin did not follow the steps which are used to teach a lesson: orientation to the students, beginning review, teaching the concept, and an ending review or closure. Irvin asked questions which called for a unison response, which is usually not appropriate. A unison response does not allow the teacher to determine if all the students are giving the correct response to the question. Irvin did not ask a lot of "higher order questions", which are questions requiring the student to analyze and apply the information given. The area of Presentation of Subject Matter is specifically directed to the question of whether the teacher teaches concepts. A concept is taught by giving a definition and providing examples and nonexamples. McGee did not observe Irvin teaching any concepts. The area of Establishes An Appropriate Classroom Climate looks at the environment of the classroom, including the physical environment and whether the classroom is warm, caring and conducive to learning. When McGee observed the classroom, it did not have an environment which was conducive to learning. The room was not "print rich", which means that the classroom did not have a lot of written materials on the wall, labels on objects, and pictures on the walls. McGee's opinion was that the classroom did not present a warm and caring environment. The area of Demonstrates Ability to Plan Effectively is directed to the teacher's ability to put a plan together and whether the teacher is executing the plan when observed. Irvin did not have written lesson plans. The area of Develops and Maintains an Accurate Record Keeping System deals with properly recording the students' grades. During the first nine weeks of school, Irvin failed to maintain a grade book. In an effort to assist Irvin to improve, McGee sent Irvin to a workshop, provided demonstration lessons, and told Irvin to observe some of the other first grade classrooms. Additionally, Irvin was provided with sample lesson plans and was told to attend the weekly meetings of the first grade teachers where they did their lesson plans. Irvin sometimes did not go to the meetings or was late. Irvin was also provided with a sample grade book. Irvin disgreed with the content of the December 1994 evaluation. In March 1994, Irvin received from McGee an annual evaluation of her performance as a classroom teacher rating her overall performance as unsatisfactory and identifying the following areas which needed improvement: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Establishes Appropriate Classroom Climate Demonstrates Ability to Plan Effectively In the area of Management of Student Conduct, Irvin still had students who were not on task. There was down time in the class because of student misbehavior and failure to follow instructions, resulting in very little teaching time. In the area of Instructional Organization and Development, Irvin continued to rely heavily on dittos and did not vary her teaching techniques. The activities were disjointed rather than flowing and interrelated. Irvin did not teach a complete lesson which included the necessary elements for a lesson. In the area of Presentation of Subject Matter, Irvin again failed to teach concepts. In the area of Establishes an Appropriate Classroom Climate, McGee observed that Irvin did not smile or express enthusiasm. Her classroom did not provide a happy environment which was conducive to learning. Irvin was still not preparing lesson plans. McGee observed that for the week of February 7-11, 1994, there was almost no planning. By the time of the annual evaluation, Irvin had begun to keep a grade book. She was evaluated satisfactory in the area of Develops and Maintains an Accurate Record Keeping System. Irvin disagreed with the content of the March 1994 Evaluation. After the 1993-1994 annual evaluation, McGee notified the superintendent of schools that Irvin's annual evaluation was unsatisfactory. The superintendent sent a letter to Irvin advising her that she would have the following school year to remediate her teaching deficiencies. On May 4, 1994, Dr. Christina Diaz, a board certified neurologist, diagnosed Irvin as having Attention Deficit Disorder (ADD). Irving advised McGee a few days later that she had been diagnosed with ADD. On June 9, 1994, Irvin was placed on a Professional Development Plan (PDP) by the administration of Belle Glade to aid Irvin in remediating each area of concern contained in the March 1994 evaluation. The PDP also contained materials regarding deficiencies in the area of Develops and Maintains Accurate Record Keeping System, which was not included on the March 1994 evaluation as an area of concern. The PDP provided that a team of educators, including someone employed outside the School District, observe Irvin's performance and provide her with feedback and improvement strategies. The PDP also provided for Irvin to attend workshops, to review teacher effectiveness manuals, and to observe the performance of other teachers. Irvin was assigned as a kindergarten teacher in the 1994-1995 school year. The principal at Belle Glade for the 1994-1995 school year was Glenda Garrett (Garrett). Like McGee, Garrett's duties included evaluating Irvin. In September, 1994, Irvin attended an assistance review meeting, where she received the list of observers and the approximate dates that they would be observing her classroom performance. Through out the implementation of the PDP, Irvin was kept advised of the times when she would be observed. On September 29, 1994, Melvis Pender (Pender), an Area IV Instructional Support Team member in math and science, observed Irvin. The students were noisy. Irvin asked questions that called for unison responses, which made it difficult for the teacher to detect students who were giving incorrect responses. The discipline plan that Irvin was using was not effective and emphasized the bad behavior. Mr. Pender made recommendations on ways to improve in the areas that needed improving and provided them to Irvin. On September 30, 1994, Juanita Malone, assistant principal at Belle Glade, observed Irvin. The students were very noisy and Irvin kept turning the lights on and off to get their attention. Irvin was teaching the children about patterns during the observation. She started using links of four different colors to illustrate the lesson, but when she saw that a four color pattern was too difficult for the children to understand she switched to a simpler two color pattern. The students had not used the links before and many of the students spent time during the lesson playing with the links. Ms. Malone shared her observation with Irvin. On October 21, 1994, Irvin was observed by Jeanne Burdsall ("Burdsall"), the Manager of Professional Standards for the Palm Beach County School System. During the observation, Irvin did not teach a lesson. She did not have any lesson plans. Irvin did not smile or show any enthusiasm during the observation. She did not teach any concepts. Irvin lost valuable teaching time while she was looking for a misplaced "birthday box." She gave birthday cake to the children just prior to lunch. Again she lost teaching time while she had each child individually take his placemat to the sink, resulting in the children becoming disruptive while they were waiting for all the children to clean up. Burdsall put her observations and suggestions for remediation in writing and gave it to Irvin. On October 26, 1994, Irvin met with Burdsall, Garrett, and Clarence Gunn, her union representative to review the progress of the PDP. During the meeting, Irvin advised everyone that she had ADD and was taking medication for the condition. Burdsall said that she would provide Irvin with a copy of the American's with Disability Act (ADA) policy and request for information. Burdsall stated that she would see if someone from the School District could locate a local neurologist who could treat Irvin. At the October 26 meeting, Irvin stated that she plans by putting ideas and themes down as she goes along. Sometimes she writes them down before the activity and sometimes it is afterward. Garrett gave Irvin a set of model lesson plans. Irvin was instructed to prepare two days of lesson plans which could be used by a substitute teacher if necessary. It was agreed that Irvin would be allowed to shadow another kindergarten teacher. In the fall of 1994, Irvin attended workshops on intergrated curriculum, language arts and math manipulatives. On October 27, 1994, Mary Gray (Gray), a professor of Education Leadership at Florida Atlantic University, observed Irvin. Gray noted that the students were too noisy and could not hear directions that were being given by the teacher. Irvin did not have any lesson plans. Irvin asked the children multiple questions which resulted in confusion. Irvin told the class about a student's father who had been shot. Other children began to talk about unhappy incidents in their lives such as a brother who had gotten stuck in the eye with a knife. Gray felt that such discussion was inappropriate for kindergarten students. Gray shared her observation comments and suggestions on ways to improve with Irvin. On November 17, 1994, another meeting was held to review the progress of the PDP. Irvin was given the ADA policy with the medical request for information and was told to take it to the neurologist of her choice as soon as possible. Irvin had failed to turn in the two days of lesson plans as requested in the October meeting. She was again instructed to prepare the plans. Irvin was going to be released for two days to shadow a kindergarten teacher, who would demonstrate the whole language approach to teaching. Irvin asked for the materials that were handed out in a October 28 workshop and Ms. Burdsall agreed to provide her with those materials. On November 18, 1994, Gale Fulford (Fulford), who was the Area IV support team member for language arts, observed Irvin's classroom performance. Irvin did not have any lesson plans. Fulford did not see a lot of teacher created materials in the classroom, and the classroom lacked a print rich environment. Irvin's questions to the students did not include enough "high order" questions. The class was too noisy. On December 2, 1994, Dorothy Kelsey (Kelsey), a specialist in Pre- K/early intervention observed Irvin. Ms. Kelsey noted inappropriate activities being offered to the students such as dittos, rote memorization in the math lesson with no hands on activity, and reading and showing a small book in a group setting so that some of the children were unable to see the book. The classroom lacked well organized learning centers and did not have a print rich environment. On December 9, 1994, Garrett observed Irvin teach a concept. Irvin continued to ask for unison responses and posed multiple questions. Based on the codes on the evaluation form used by Garrett, Irvin's teaching performance was not satisfactory during the observation. On December 9, 1994, Irvin received a midyear evaluation of her performance as a classroom teacher identifying the following areas which needed to be improved and rating her overall performance as unsatisfactory: Management of Student Control Instructional Organization and Development Presentation of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instruc- tional Needs Irvin was still unable to manage the students' conduct. She failed to make lesson plans, resulting in her not being prepared to teach lessons. She was not following the kindergarten checklist, which is a list of objectives that the students should be able to meet at the end of the school year. Based on testing, it was determined that a large number of the students in Irvin's class were not working on the level that they should have been. It appeared to Garrett that some of the students in Irvin's class were "falling through the crack" and would not meet the objectives on the kindergarten checklist. Irvin had made improvement in the area of classroom climate. However, for this evaluation Irvin was rated unsatisfactory in the area of Demonstrates Ability to Evaluate Instructional Needs because she was not able to incorporate the kindergarten checklist in her lesson planning. The area of Demonstrates Ability to Evaluate Instructional Needs deals with the ability to tailor the instruction to meet the needs of the students. Thus, Irvin ended up with five areas of concern for her mid-year evaluation. Garrett recommended that Irvin remain on the PDP. Irvin disagreed with the December 1994 evaluation. Irvin was placed on her second PDP in January, 1995 for the purpose of providing her assistance in correcting the deficiencies listed on mid-year evaluation. The dates listed for the timeline for the PDP were from January through March, 1995. Irvin was observed during the time frames set forth in the second PDP. The School District received a letter dated January 12, 1995, from Dr. Diaz, informing the School District that Irvin had ADD and was successfully taking medication. The doctor stated: This disability will continue and is chronic. Disabilities will be noted in terms of ability to concentrate, organize and respond to change. Working in a quiet environment undistracted is helpful. Functioning in the school district with an aide is helpful as well as understanding the disorder in terms of response to changes in curriculum or responsibilities. On January 20, 1995, Pender observed Irvin. The students were divided into three groups. One of the groups was working at a table with manipulatives, was very noisy and was not directly supervised. Irvin asked her daughter who was helping her that day to sit with the noisy group. The group continued to be noisy and distracting to the other students. It was chaotic when the groups switched from one station to another. There was no connection of skills or concepts among the three stations during the class period. Irvin was reading the students Mother Goose Rhymes, which was appropriate for that grade level, but the noise level was so high that very little learning was going on. In comparing his first observation with his second observation, Pender opined that Irvin's ability to manage the classroom had not improved but was worse. On February 1, 1995, an assistance review meeting was held. The letter from Dr. Diaz had been given to Louis Haddad, the School District's Coordinator of Employee Relations and Services. Irvin was told that Mr. Haddad needed to have a list of the specific accommodations that were being requested. Irvin indicated that she was going to another doctor to get the list. Irvin had rearranged her room and modified her lesson plans. She had been working with Fulford. Irvin was scheduled to attend three workshops: Management of Student Conduct, Presentation of Subject Matter/Planning, and an inservice session on whole language. Irvin advised the members of the meeting that she was pleased with the assistance and the progress being made. On February 10, 1995, Gray observed Irvin in the classroom. Irvin spent ten minutes taking up money for various activities and collecting valentines. There was a show and tell with all the students. Irvin went to the calendar and indicated that the day was Friday. Nine students were taken to a table to work with the aide. The remaining nineteen students were talking and rolling on the floor. Instead of supervising the noisy children, Irvin helped the aide set up the work station for the nine students. The class became so noisy at one point that when Irvin was asked by the aide how many cards each child was to have, Irvin replied, "Sorry, I can't hear you." Irvin put eleven children at a table by themselves to draw a picture about weather, while Irvin began to teach the eight remaining children. During the 30 minute observation period, no teaching occurred for the first 26 minutes. During the observation, from 7 to 19 students were off task at various times. On February 14, 1995, Garrett observed Irvin's classroom. She went to the classroom early in the morning but the class was having a valentine party. She returned around 10:00 a.m. and observed Irvin and the students singing songs. Irvin did use her behavior management plan during the observation. The determination of whether a particular teacher should be recommended for termination based on incompetency is the responsibility of the principal of the school at which the teacher works. At the end of the day on February 14, 1995, Garrett met with Irvin and advised Irvin that she was going to recommend that Irvin not be reappointed. By letter dated February 14, 1995, Garrett advised the superintendent of schools that Irvin had not corrected her performance deficiencies and recommended that Irvin not be reappointed for the 1996 school year. The letter was sent according to a School District requirement that principals send notice regarding teacher termination to the superintendent sometime during February. During the 1994-1995 school year, the School District established February 14 as the date by which the School District needed to receive notice regarding teachers possibly not being reappointed for the next school year. The other observers on the PDP team agreed with Garrett's assessment that Irvin was not competent. On February 20, 1995, Irvin made an office visit to see Dr. Helen Baker (Baker), a licensed mental health counselor. Diaz had referred Irvin to Baker for counseling. Irvin requested assistance from Baker in coming up with specific accommodations relating to her ADD which she could request from the School District. On March 1, 1995, Burdsall observed Irvin. Burdsall noted that the classroom environment had improved. Irvin had some lesson plans but was not following the format that Gray had given her. Irvin did not completely follow her lesson plan during the observation period. Irvin was still not using all the elements that are necessary in teaching a lesson and was not teaching concepts by giving definitions, examples and nonexamples. Burdsall suggested that Irvin interact more with the students by asking comprehensive questions, both high and low order. On March 2, 1995, Irvin received an annual evaluation rating her classroom performance unsatisfactory and identifying the following areas which needed improvement: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instruc- tional Needs In developing the evaluation, Garrett factored in her formal and informal observations of Irvin as well as the observations of the members of the Professional Development Plan's assistance team. Irvin disagreed with the content of the March 2, 1995, evaluation. By letter dated March 10, 1995, the superintendent of schools notified Irvin that she had failed to correct the deficiencies noted by the principal and that her current classroom performance was unsatisfactory. Irvin was informed that her employment would end on June 16, 1995, and that she would not be reappointed for the 1996 school year. On March 19, 1995, Garrett received a letter from Helen Baker of Cape Counseling Services of Southwest Florida. After having seen Irvin two times Baker suggested the following accommodations for Irvin: Allow for changes to occur at a slower pace and when change is indicated be precise as to what is needed in the new situation. Have a clear workable curriculum. Have only one or two persons involved in giving guidance to Irvin and preferably a person with experience with the dynamics of ADD. Do not send conflicting messages in assisting Irvin. Place carpets or other materials to soften the sound in the classroom. Do not allow public announcements through electronic devices to interrupt during class. Leave Irvin messages in her mailbox for her to focus on when she has time to orient to them. Present written material on student behavior to Irvin one item at a time in a different manner. Allow Irvin timeout from her classroom so that she can extract herself from the over stimulation of the classroom. Provide Irvin with a full time aide who is aware of ADD behavior. The School District had made accommodations to Irvin prior to the letter from Dr. Baker. Irvin was allotted more aide time than any other kindergarten teacher. Usually different teacher assistants came to the teachers at different times of the week. Irvin requested that she keep the same teacher assistant. Garrett accommodated Irvin by allowing her to have the same assistant for the rest of the day and for the rest of the week. Belle Glade had a kindergarten extension room where kindergarten teachers are allowed to take their students twice a week, allowing the children to work with hands-on skills and activities. Two different groups would come into the extension room two different times of the day. Irvin felt that was too much movement for her and requested that she be allowed to go to the extension room only once with the same students at the same time. Garrett made the accommodation for Irvin. Irvin indicated that the format of the lesson plans for the extension schedule was difficult to follow and suggested that she be allowed to color code her lesson plans. Garrett allowed the accommodation. Irvin was provided the Florida Performance Measurement System otherwise known as the blue book. The purpose of the book is to provide assistance for effective teaching. Additionally, in September, 1994, Garrett provided Irvin with mini packets which broke the material down to a smaller scale so that Irvin would not have to try to digest the blue book at one time. A month later, Garrett supplied Irvin with additional reference materials. Irvin was provided training in formats other than written material. She attended workshops and observed other kindergarten teachers. In the area of lesson planning, Irvin met with the kindergarten chairperson one-on-one for assistance with the lesson plans. Garret also met with Irvin and the kindergarten chairperson to provide assistance to Irvin on the lesson planning. Irvin was provided with copies of lesson plans that Garrett deemed to be sufficient. Irvin had been provided with the kindergarten checklist. Based on the checklist Irvin should have been able to determine what things that the kindergarten students should be taught during the school year. Thus, Irvin was provided with a clear workable curriculum. There were seven kindergarten teachers at Belle Glade during the 1994- 1995 school year. The kindergarten supplies for the 1994-1995 had been ordered based on number of kindergarten teachers the previous year, six. Thus, the supplies which were ordered for six teachers had to be divided among seven teachers. Irvin did not receive a math kit which Pender had suggested using until almost the end of the 1994-1995 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered terminating Margaret Irvin's employment with the Palm Beach School District. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2073 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraphs 5-16: Accepted in substance. Paragraph 17: Accepted. Paragraphs 18-23: Accepted in substance. Paragraph 24: Accepted. Paragraphs 25-26: Accepted in substance. Paragraph 27: Accepted. Paragraph 28: Accepted in substance. 9 Paragraphs 29-30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraph 32: Accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Paragraphs 1-18: Accepted. Paragraphs 19-29: Accepted in substance. Paragraphs 30-36: Accepted. Paragraphs 37-39: Accepted in substance. Paragraph 40: The first two sentences are accepted. The last sentence is rejected to the extent that it implies that the timeline was not followed. Irvin was observed during the times set forth in the PDP with the exception of the evaluation by Kelsey which took place on March 9. Paragraph 41: Accepted in substance. Paragraph 42: The first two sentences are accepted in substance. The last sentence is accepted to the extent that the workshop dealt with planning but rejected to the extent that it implies that if Irvin had had the workshop earlier it would have helped her. When Burdsall observed Irvin on March 1, 1995, Irvin was not using the lesson planning format that Gray had recommended. Paragraph 43: Accepted in substance. Paragraph 44: Rejected as irrelevant. Paragraph 45: The first sentence is accepted. The second sentence is subordinate to the facts found because Irvin was given the kindergarten checklist and she knew that she was to incorporate those objectives in her lessons. Paragraph 46: Rejected as subordinate to the facts found. Irvin had not remediated her deficiencies by March 10. Paragraph 47: The first sentence is rejected as irrelevant. Irvin had taught kindergarten in summer school. (TR 622) The last sentence is rejected as not supported by the record as it deals with the use of the term "colored." The gist of Garrett's testimony was that she considered not only her observations in recommending termination but all the information from the observers and the assistance that had been provided to Irvin. Paragraphs 48-49: Accepted in substance. Paragraphs 50-51: Accepted in substance to the extent that Irvin had made some improvement during the 1994-1995 school year but rejected to the extent that it implies that she had remediated her deficiencies. Paragraph 52: Accepted in substance that the material was appropriate but rejected to the extent that it implies that Pender thought Irvin's performance was satisfactory. Paragraphs 53: Accepted in substance that singing songs is an appropriate activity for kindergarten children, but not necessarily that the activities that the students were engaged in constituted the teaching of a lesson. The last sentence is accepted. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: The first sentence is accepted. The second sentence is rejected as not supported by the record. Irvin presented a concept but whether she was teaching it could not be determined because of the unison responses and the failure of the students to line up appropriately in making the parade pattern. The third sentence is accepted in substance as to presenting a concept but rejected to the extent that it could be determined that the students actually learned a concept. The last sentence is accepted. Paragraph 56: The first sentence is accepted in substance. The first half of the second sentence is accepted to the extent that Irvin went from having no lesson plans to having some lesson plans that were acceptable some of the time. The last sentence is rejected as not supported by the record. According to Burdsall's last observation, Irvin was not following the format set up by Gray. Paragraph 57: Accepted. Paragraph 58: Accepted in substance. Paragraph 59: The first sentence is accepted to the extent that Irvin received the same amount of supplies as did the other kindergarten teachers and that she was impacted to the same extent as the other teachers but rejected to the extent that it implies the shortage of supplies caused Irvin to be incompetent. The remainder is accepted in substance. Paragraph 60: Accepted in substance. Paragraph 61: The first two sentences are rejected as not supported by the greater weight of the evidence. The last sentence is rejected to the extent that although the advice appeared to be conflicting, it was not because the problem was that Irvin could not control her classroom behavior with the techniques that had been suggested. It was not that the techniques were all inappropriate but that Irvin just could not seem to implement them. Paragraph 62: Rejected as not supported by the record. The observers were focusing on having Irvin make lesson plans, follow the lesson plans, and teach concepts. Irvin had been doing none of these things. Paragraph 63: Rejected as subordinate to the facts found. Apparently it was normal to have a housekeeping center in the classroom and Irvin had asked Fulford if it was okay to remove it. Kelsey did not see a housekeeping center which is normally a part of the classroom and commented on it. Irvin could have very easily explained to Kelsey that she had permission to remove the housekeeping center but Irvin chose not to tell Kelsey. Paragraph 64: Accepted that classroom climate was dropped but rejected that that was the only area in which Burdsall gave specific things to do. Paragraphs 65-67: Accepted to the extent that Irvin, like the other kindergarten teachers, was given a draft language arts curriculum which would be used in the upcoming year. Rejected to the extent that it implies Irvin was not given a clear idea of what the curriculum should be for the kindergarten because she was given the kindergarten checklist which spelled out what the children should learn in kindergarten. Paragraph 68: Accepted in substance but not incorporated in the findings of fact. However, this does not mean that Burdsall was against praising good behavior as well. Paragraph 69: The first two and the last sentences are accepted in substance but not incorporated. The third sentence is accepted in substance but not incorporated. However, it should be noted that Kelsey also concluded that a formal behavior management system would not be necessary if there was proper planning and organizing. Paragraphs 70-71: Accepted in substance but not incorporated. Paragraph 72: Accepted in substance to the extent that the management system that Irvin was using did not accentuate the positive behavior because there were only two categories, a happy face and a sad face. By adding a neutral category, Irvin could reward the student by moving his name to the happy category from the neutral category. Paragraph 73: Accepted in substance. Paragraph 74: The first sentence is accepted to the extent that in Malone's testimony she was emphasizing that Irvin had a management behavior system posted on the wall but she was not using it and was turning the lights on and off, which was not working, as a method of controlling the behavior of the children. The second sentence is accepted in substance but not incorporated. Paragraphs 75-76: Accepted in substance but not incorporated. The context of the statements is that Irvin was not in control of her classroom which resulted in the students being very noisy and off-task. Paragraph 77: Accepted in substance. Paragraph 78: Rejected as unnecessary. Paragraph 79: Accepted in substance. Paragraph 80: The first sentence is accepted in substance. The remainder is rejected as not supported by the evidence. The assistance provided to Irvin included accommodations which were requested by Irvin prior to the notification of her termination. Paragraph 81: Accepted in substance. Paragraph 82: The first and second sentences are accepted in substance. The third sentence is rejected as subordinate to the facts found because even with the accommodations that Irvin had requested and those listed by Diaz, Irvin was not able to satisfactorily perform her job. The fourth sentence is rejected as subordinate to the facts found. Paragraphs 83-84: Accepted in substance. Paragraph 85: Rejected as unnecessary. Paragraph 86: Accepted in substance that Irvin had ADD and that her behavior was symptomatic of ADD. Paragraph 87: The first sentence is accepted to the extent that Diaz believed it but rejected to the extent that the evidence demonstrated that with accommodations such as an aide Irvin still could not perform satisfactorily. The second and third sentences are rejected as subordinate to the facts found. Paragraphs 88-89: Accepted in substance. Paragraphs 90-91: Rejected that there was not a clear workable curriculum in place. Although SADI, was being phased out and whole language was being phased in, there did exist a kindergarten checklist which essentially provided what skills had to be taught during the kindergarten year. Paragraph 92: Accepted. Paragraph 93: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the School District did not accommodate Irvin in this area. Paragraph 94: Accepted. Paragraphs 95-96: Rejected to the extent that the information was in conflict. It was apparent that to a great extent Irvin was unable to use the behavior management system effectively whether she was emphasizing the negative or the positive. Paragraph 97: Rejected as subordinate to the facts found. The point to be learned from the observations was that Irvin did not have control of her classroom or her aide. Irvin should not have had to go to help the aide but the control of the classroom was the ultimate responsibility of Irvin so the misconduct had to be stopped at some point whether it was by Irvin or by the aide. Paragraphs 98-116: Rejected as subordinate to the facts found that accommodations were made for Irvin. Paragraph 117: Accepted. Paragraph 118: Rejected as subordinate to the facts found. COPIES FURNISHED: Darren K. Edwards, Esquire Palm Beach County School Board 3318 Forest Hill, Boulevard West Palm Beach, Florida 33406-5813 Thomas L. Johnson, Esquire 202 West Cardy Street Tampa, Florida 33606 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Bernard Shulman, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
Findings Of Fact Petitioner saw an ad in a Tampa newspaper for waitresses at Festhaus and assumed that to be at Busch Gardens. Respondent placed no advertisements for waitresses in a Tampa paper. There is another Festhaus operated in Tampa. On October 11, 1982, Petitioner, a 45-year-old female, filled out an application for employment at Busch Gardens, Tampa. She applied for a job as waitress at Festhaus as a permanent employee. Respondent employs no waitresses at Festhaus because that restaurant operates cafeteria style. On or about November 8, 1982, Petitioner sent a card to Busch Gardens employment office changing her application to say she was open for any position at Busch Gardens. She was then placed in a category that would be considered for a position in the food service department. Around December 1, 1982, Petitioner went to Busch Gardens employment office to inquire why she had not been employed. At this visit she talked to Frank Lopez, Employment Manager at Busch Gardens who invited Petitioner into his office when told she wanted to speak to him. In response to his inquiry Petitioner told Lopez she had applied for a permanent position. Lopez told Petitioner they had no permanent positions open at the time and inquired what she meant by asking for an open position. She responded that she was interested in any job available and asked in what type positions Respondent used employees. The list he recited to her included merchandising and Petitioner told him she would be interested in merchandising. When told by Lopez that they would be hiring soon for seasonal employees for eight to ten days, Petitioner responded that she was not interested in part-time employment, only full-time employment. Petitioner returned to Busch Gardens on January 31, 1983, at which time she spoke to Julie Waugh, personnel representative at Busch Gardens. At this time Respondent was interviewing for winter seasonal employment. Petitioner told Waugh she was available for full-time work and could work Saturdays but preferred not to work on Sundays but could if necessary. When told the job was seasonal, Petitioner stated she did not want seasonal work unless she could be guaranteed work at the end of the season. During the period October, 1982, and January, 1984, 15 permanent employees were hired by Respondent. In calendar years 1982 and 1983 Respondent employed 72 permanent positions, of which 20 were over 40 years old. During the period between October 11, 1982, and January, 1983, Respondent hired only two permanent employees at Busch Gardens, one a promotion manager and the other a fiberglass technician. Petitioner was not qualified for either of these positions. The vast majority of employees hired by Respondent are hired during the Christmas, Easter, and summer seasons. Since schools are out during these periods, most of the employees are students whose school schedules mesh with the availability of jobs with Respondent. No evidence of specific discrimination practices by Respondent was shown. A large majority of Respondent's employees are seasonal and these seasonal employees are predominantly of student age. However, Respondent has recruited at a meeting of the Retired Teachers Association and the American Association of Retired People.
The Issue Whether Respondent committed the acts alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Chih-Li Ou Yang (Respondent), currently holds a temporary teaching certificate, Florida Educator’s Certificate 683550, issued by the State of Florida, Department of Education. The certificate covers the area of Emotionally Handicapped and is valid from July 1, 1995 through June 30, 1997. Respondent was employed as a teacher of emotionally handicapped students in the Hillsborough County School District (Hillsborough County) from August 16, 1993 through June 30, 1994. Respondent’s employment in the Hillsborough County was pursuant to a temporary contract which guaranteed her employment for only one school year. During her employment as a teacher in Hillsborough County, Respondent’s performance as a teacher of emotionally handicapped students was evaluated. Of the four general areas covered on the evaluation, Respondent received an overall rating of unsatisfactory in three areas, resulting in an overall performance evaluation of unsatisfactory. Respondent was given a copy of her evaluation from Hillsborough County. On or about April 12, 1994, Respondent submitted an Application for Instructional Position (Application) for employment with the School Board of St. Lucie County, Florida. The Application included a section, entitled “Teaching Experience,” which requested that the applicant submit a copy of her most recent annual evaluation/observation. This section further provided space for the applicant to list the names and addresses of the schools where the applicant had taught; the grades and subjects taught; and the dates of such employment. Respondent did not list any prior teaching experience. The Application also contained a section entitled "Educational References," which required the applicant to list the name and location of the school system where she was currently under contract. Respondent did not respond to this question, but rather left it blank. The application contained the following statement: . . .I certify that all information given on this application is true and complete to the best of my knowledge. I understand that employment through false or willful misrepresentation of facts may be grounds for dismissal. Respondent signed the Application on April 8, 1994, thereby, certifying that the information provided on the Application was true and complete. On or about April 6, 1994, Respondent submitted a resume? to the School Board of St. Lucie County. The resume? failed to disclose her work experience in Hillsborough County. A new program for the emotionally handicapped students was being implemented for the 1995-96 school year at Garden City Elementary School, a school in the St. Lucie County School District. At all times relevant to this proceeding, Dr. Martha H. Rahming was the principal of Garden City Elementary School. In the fall of 1995, Dr. Rahming interviewed Respondent for a teaching position in the program for emotionally handicapped students at Garden City Elementary School. Although during the interview Respondent's past work experience was discussed, she did not disclose to Dr. Rahming her teaching experience in Hillsborough County. Respondent also did not provide Dr. Rahming with a resume? which included her Hillsborough County teaching experience. Dr. Rahming requested that Respondent be hired for a teaching position in Garden City Elementary School's program for emotionally handicapped students. On September 12, 1995, the School Board of St. Lucie County, Florida appointed Respondent to a position as a teacher of emotionally handicapped students at Garden City Elementary School. The appointment, effective September 13, 1995, was for the first semester only. While working as a teacher at Garden City Elementary School, Respondent demonstrated difficulty in adjusting to her work. The most serious problems experienced by Respondent involved her inability to maintain order in the classroom. This difficulty was similar to the difficulty Respondent had while teaching in Hillsborough County. Dr. Rahming tried to assist Respondent by having her work with more experienced teachers; however these efforts were unsuccessful. Dr. Rahming eventually sought assistance from the St. Lucie School District's Central Administration. On or about November 10, 1995, a conference was held at Garden City Elementary School concerning the difficulties Respondent was experiencing in the classroom. The conference was attended by Respondent, Dr. Rahming, and two district level administrators, Susan Ranew and Mrs. Gaylor. During this meeting, Respondent admitted that she had previously worked in Hillsborough County as a teacher. Only after this acknowledgment did Dr. Rahming become aware of Respondent's teaching experience in Hillsborough County. The problems that Respondent had in coping with her job responsibilities had a detrimental effect on the emotionally handicapped children she was hired to teach. Had Dr. Rahming been aware of Respondent's prior work history in Hillsborough County, she may not have recommended that Respondent be hired. Since inadvertently revealing her Hillsborough County teaching experience, Respondent has given several different explanations for not disclosing her Hillsborough County teaching experience on her Application. The reasons given by Respondent include (1) her belief that listing the experience would jeopardize her employment opportunity in the St. Lucie School District; the custom in her county is that negative work experience not be listed on applications; her belief that listing of all teaching experience on the application was optional; and at the time the application was completed, she was no longer under contract with Hillsborough County. Although English is not Respondent's first language, when the Application was completed, Respondent had earned two Master's degrees from two universities in the United States. In order to earn these graduate degrees, both of the universities required fluency in the English language. It is important for individuals applying for teaching positions to be honest in application for jobs so that administrators can adequately assess candidates and ultimately do what is best for the children involved. After admitting that she had failed to disclose her Hillsborough County experience, Respondent was informed by St. Lucie School District administrators that her behavior was sufficiently serious to justify discipline. However, prior to the St. Lucie School Board's taking any disciplinary action, Respondent resigned her teacher's position, effective December 12, 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a final order be entered suspending the teaching certificate of Respondent, Chih-Li Ou Yang, for a period of two (2) years, followed by a one year period of probation under such terms and conditions as prescribed by the Education Practices Commission. DONE and ORDERED this 6th day of May, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997. COPIES FURNISHED: Ms. Chih-Li Ou Yang 4246 Reuben Court, Apartment 64 Tampa, Florida 33616 Bruce Taylor, Esquire 501 First Avenue North St. Petersburg, Florida 33701 Kathleen M. Richards Administrator Department of Education Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Karen Barr Wilde Executive Director Educational Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-400
The Issue The issue in this proceeding is whether Petitioner was the subject of unlawful employment practice based on sex.
Findings Of Fact Since November 2006, Petitioner, Michael J. Pappas, was a male employee of Respondent, Bay County School Board. Initially, he was employed as a part-time substitute teacher at Patronis Elementary School (Patronis). Patronis has an “A” ranking under Florida’s school accountability program and was ranked as a Top 100 School in 2005. Eventually, Petitioner became a full-time para-professional (aide) assigned to work exclusively with an autistic child enrolled at the school. Ellie Spivey (female), the principal at Patronis, recommended Petitioner for the full-time position. Petitioner was hired under an annual contract. In addition to his employment with Respondent, Petitioner served as Captain of a Dolphin tour boat he operated out of Panama City. In his para-professional position, Petitioner worked with Art Beakley (male) and Mary Martin (female). Both were third grade teachers at Patronis. Mr. Beakley was Petitioner’s direct supervisor and, like Petitioner, had been recommended for his teaching position by Ellie Spivey. Petitioner’s performance as a para-professional was mixed. At best, both teachers indicated Petitioner’s performance was adequate, when he was present at the school. Often Petitioner was absent from school or left school early to go on dolphin tours. Petitioner often did not notify either teacher that he would be absent. Petitioner told Mr. Beakley that he could make more money as a boat captain on the dolphin tours. On the days Petitioner was absent, the autistic student’s mother would act as his caretaker during the day. Eventually, both teachers complained to the principal about Petitioner’s absences from school. The principal did not discipline Petitioner because the absences were taken on allowable personal leave days. However, Petitioner’s clear preference for working the dolphin tours as opposed to working at the school did not reflect well on his dedication or enthusiasm for a career at the school. Brooke Loyed, an Assistant Principal at Patronis, evaluated Petitioner’s employment based on her observations of Petitioner. She was unaware of Mr. Beakley’s and Ms. Martin’s complaints regarding Petitioner’s absences. On April 3, 2007, Petitioner received a good evaluation with no problems noted. However, funding for Petitioner’s para-professional position was not available for the next school term. In mid-to- late April 2007, Petitioner was advised his contract would not be renewed. That same month, after learning of the non-renewal, Petitioner asked Mr. Beakley and Ms. Martin for a letter of recommendation. Mr. Beakley reluctantly agreed to give Petitioner a letter of recommendation and drafted a letter highlighting Petitioner’s good-qualities. The letter did not mention Petitioner’s absences and lack of enthusiasm. Initially, Ms. Martin refused to sign the letter by making excuses about why she had not signed the letter drafted by Mr. Beakley. However, she finally signed the letter so that Petitioner would stop asking her to do so. Ms. Martin now regrets that she signed the letter. In May 2007, Ms. Spivey was developing classes and personnel pairings for the next school term. She asked Kara Powell, a teacher at Patronis, if she was willing to work with a full-time para-professional in her classroom. Ms. Spivey did not indicate to Ms. Powell who the para-professional would be. Ms. Powell was not aware that Petitioner’s contract would not be renewed for the next term. Ms. Powell told Ms. Spivey that she would not be interested in working with a para-professional in her classroom if that person was Petitioner. Ms. Powell told Ms. Spivey that Petitioner made her uncomfortable because he would sit very close to her in the lunchroom and that he sometimes made comments she did not care for. She also told Ms. Spivey that Petitioner had once invited her and some other female teachers to go on a dolphin tour in their bathing suits without their husbands. Ms. Powell felt the invitation was inappropriate and made for sexual purposes. The evidence did not demonstrate that Petitioner invited the teachers to go on a dolphin tour for inappropriate reasons. From Petitioner’s point of view, the invitation was made to a group of teachers sitting as a group in the cafeteria during a light-hearted conversation at the table. He invited his co-workers because he thought they might enjoy going on a dolphin tour. He limited the invitation to his co-workers because his boat was not big enough to take spouses or boyfriends. On the other hand, other teachers confirmed Ms. Powell’s story, and also indicated that Mr. Powell made them feel uncomfortable. Since the school year was through and Petitioner’s contract was not going to be renewed, Ms. Spivey did not investigate further and did not take any formal action against Petitioner regarding the reports of these teachers. Eventually, due to the lack of funds, Petitioner’s contract expired and was not renewed. There was no evidence that demonstrated the non-renewal of Petitioner’s contract was based on Petitioner’s gender. In the summer of 2007, Patronis had several open teaching positions. Respondent advertised the positions for 5 days. Eventually, the District Office developed an applicant list for Patronis and forwarded it to the school. There were over 90 applicants on the list, of which almost 95 percent were female. A minimum of five applicants was required to be interviewed by the school with the same questions and scoring form used for each candidate. In June and July 2007, interviews for the open teaching positions were held at Patronis. Ms. Spivey and Ms. Loyed selected Petitioner for an interview. Other candidates were Sarah Patterson, Jessica Kelley, Debra Holbrook, Kim Rogers, Sasha Aufschieider and Jana Jackins. Petitioner did not have a good interview and did not promote himself or his qualifications during the interview. He was not particularly enthusiastic or upbeat about teaching. Other than his application, Petitioner did not bring any letters of recommendation or updated resume to the interview. He did not provide the Bleakley letter discussed earlier. He did not discuss current teaching methods or techniques even though the interview questions provided him an opportunity to do so. Importantly, Petitioner did not appear to be current with those methods. From his application, it was clear that he had received his teaching degree over 20 years ago and had had no full-time classroom teaching experience since that time. Petitioner refused to be considered for a special education teaching position. The refusal did not reflect well on his dedication or enthusiasm for teaching. Petitioner also had no “English as a second language (ESOL)” experience or certification. ESOL certification is a desirable skill for teachers today. Because of the poor interview and given the recent allegations that he made other teachers uncomfortable, Petitioner was not offered any of the open positions at Patronis. The evidence did not demonstrate that the reasons for not hiring Petitioner were invalid or a pretext to mask discriminatory action. The successful applicants for the open positions at Patronis were Sarah Patterson, Jessica Kelley, Debra Holbrook, Kim Rogers, Sasha Aufschieider and Jana Jackins. All of the candidates hired for the open positions were female. However, that fact alone is not demonstrative of discrimination given the fact that the applicant pool was almost 95 percent female. The evidence demonstrated that all of these candidates were more qualified for the open teaching positions than Petitioner. All of the applicants had better interviews. All showed more enthusiasm and dedication to teaching. All demonstrated that they had knowledge of the latest teaching methods and techniques. Finally, all scored higher in the interview. Kim Rogers had three years of teaching experience at a Title I school. Her Title I experience was a good indication that she had experience in teaching at-risk children. Sarah Patterson had a year of classroom experience and ESOL certification. She also was known to be a very hard worker at school. Jessica Kelley and Debra Holbrook were new teachers who had recently completed their teaching internship at Patronis. Both were current in the latest teaching methods and techniques and had demonstrated such during the interview. Both were highly thought of by their teaching peers. Sasha Aufschieider was ESOL-certified. She also was highly recommended by her peers. Likewise, Jana Jackins was highly recommended by her teaching peers. When Petitioner discovered that he would not be offered a position, he complained to Dr. Richardson at the District Office. At the time, he did not indicate that he thought he had been discriminated against based on his sex. Instead, he indicated that he thought he had been promised a position. Dr. Richardson determined that the District hiring policies had been followed. She offered to help Petitioner and contacted the principals at Cedar Grove Elementary School, a Title I school, and Surfside Middle School. On July 19, 2007, Petitioner interviewed at Cedar Grove Elementary for a position involving remediation of students who failed the FCAT. The school and the position required an enthusiastic and motivated person who could work with high-risk, failing students. The interview was conducted by the principal, Billy May (male). Petitioner performed adequately in his interview with Mr. May. Petitioner was not selected for the position. The successful candidate, Heather Six (female), was more qualified for the position. She scored higher and had ESOL certification. Indeed, there was no evidence that demonstrated Petitioner was discriminated against based on his sex when he was not hired for the Cedar Grove position. Similarly, Petitioner was not hired for the position at Surfside Middle School. The interview was conducted by the principal, Sue Harrell (female). Petitioner again did adequately in the interview. The successful candidate for the position was Kenneth Stem (male). As with Cedar Grove, there was no evidence of discrimination or pretext in the hiring of Mr. Stem over Petitioner and the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of January, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael J. Pappas 6208 North Lagoon Drive Panama City Beach, Florida 32408 Robert C. Jackson, Esquire Harrison, Sale, McCloy, Duncan & Jackson, Chtd. 304 Magnolia Avenue Post Office Drawer 1579 Panama City, Florida 33402-1579
Findings Of Fact Petitioner, Rafael A. Duharte, is a native of Cuba who moved to this country some sixteen years ago. He has lived in Miami since 1972. In 1976, Duharte obtained a bachelor's degree in Spanish from Biscayne College, and approximately eighteen months later received a master's degree in special education from the same institution. He is certified as a teacher by the State Department of Education. In October, 1977 Duharte began teaching at Montanari Residential Treatment Center (Montanari) in Miami, Florida, a school which specializes in teaching mentally retarded students. He continued to work there until February, 1984. In 1978, he filed an application with petitioner, School Board of Dade County, seeking a teaching position in the Dade County School System. He filed additional applications in 1980 and 1985. On all applications he acknowledged his employment at Montanari. Duharte also made inquiry as to openings with the Department of Instructional Staffing (Department) at least once a year after 1978. On two of those visits (June, 1984 and April, 1985), he met briefly and informally with a Department coordinator. The Department interviews all teaching applicants and makes recommendations as to whether a candidate should be hired. In February, 1984 Duharte was verbally informed by a school official that he was dismissed from employment with Montanari. He received nothing in writing memorializing this action but rather was told that he was being dismissed because of complaints from students. However, he did receive a letter of recommendation from Montanari which is now in petitioner's personnel files. In February, 1984 Duharte made application for and was accepted as a substitute teacher with petitioner. As a general rule, no background check is run on a substitute's application, and consequently no inquiry was made with Montanari, Duharte's former employer. Duharte began teaching as a substitute teacher in March, 1984 and continued doing so for the remainder of the school year as well as the entire school year 1984-85. On September 26, 1985 Duharte filed his third application with petitioner for employment as a full-time teacher. On the application was the following question: "Have you ever been removed or dismissed from any position?" Duharte checked off the answer "No". As a prerequisite to employment, Duharte was interviewed by a Department coordinator. However, he was asked nothing specific concerning the circumstances under which he left Montanari. Under petitioner's then existing policy, a background check was normally made of full-time applicants. In this case, the coordinator merely talked to Duharte's assistant principal at the school where he was a substitute. After no adverse information was disclosed, Duharte was hired to teach at Citrus Grove Junior High School. Several months later, the coordinator had an occasion to call Montanari concerning a different applicant, and learned that Duharte had been dismissed. This was confirmed by Duharte at a conference for the record, a meeting required by the teacher's union contract prior to the commencement of formal disciplinary action against teachers. At that meeting, Duharte stated he did not answer "yes" to the question because he knew he would not be hired if he gave a truthful answer. Duharte was then suspended by petitioner effective March 5, 1986. He has remained suspended without pay since that time. His suspension precipitated the instant proceeding. At final hearing, Duharte confirmed he had been orally dismissed from Montanari but was never given anything in writing concerning his dismissal. Therefore, he contended that to answer "yes" to the question would be acknowledging that Montanari had a valid reason for terminating him. He expressed a sincere desire to be employed and stated that he had nothing to hide. Indeed, he pointed out that during one of his informal meetings with Department personnel in April, 1985 he disclosed to a coordinator that he had been dismissed from Montanari. This was confirmed by a coordinator who testified at final hearing. However, the coordinator did not learn that Duharte was hired by the School Board until "months later". Duharte also indicated that had he been asked by the coordinator at the September, 1985 interview, he would have disclosed his dismissal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be dismissed from employment with petitioner. All other charges should be dismissed. Respondent should be permitted to refile an application for employment setting forth the circumstances under which he was terminated from his prior employment. A decision can then be made based upon the merits of the application. DONE and ORDERED this 21st day of November, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 21st day of November, 1986.
The Issue Whether the Respondent's termination of employment as a guidance counselor should be upheld.
Findings Of Fact O'Connor is a long-term employee of the School Board. She supported herself while obtaining her master's degree in counselor education and was continuously employed by the School Board as a counselor since 1986. Over the course of her employment she has served successfully as a guidance counselor at three schools under five principals. During her tenure at Salaxy Elementary, she was honored as The Palm Beach Post's "Teacher of the Week." Up until 1997, O'Connor enjoyed a professional period she calls "the golden years." Her description of an idyllic, "almost like a private practice in an elementary school," is supported by the consistently glowing performance reviews she received throughout that period from all persons designated by the School Board to perform her annual evaluations. The golden years began to come to an end for O'Connor with the arrival of a new principal, Debra Johnson (Johnson). By the spring of the 1996-97 school year, relations between O'Connor and Johnson were strained. Johnson found it necessary to reprimand O'Connor for occasional tardiness, and on May 27, 1997, O'Connor received the first negative evaluation of her career. Johnson prepared the evaluation, which reflected unsatisfactory performance in two areas: "develops and maintains an accurate record keeping system"; and "adheres to and enforces school policies." The negative evaluations in these areas reflected Johnson's concern over O'Connor's failure to provide guidance and mediation logs as requested and her failure to submit certain pre- and post-test results which needed to be sent to the Department of Drug-Free Schools pursuant to grant requirements imposed upon the School Board. The 1997-98 School Year On March 2, 1998, O'Connor was appropriately reprimanded for making unethical statements to a student. The reprimand grew out of an incident in which O'Connor, angered by the fact that parents had called Johnson to complain about O'Connor's alleged failure to provide services to a student, confronted the student and made highly inappropriate comments, including that the student was trying to get [O'Connor] fired. On March 11, 1998, Johnson conducted her second formal evaluation of O'Connor. This time, three areas of concern were noted: "management of counseling sessions"; "demonstrates self control"; and "adheres to and enforces school policies." On April 20, 1998, O'Connor was scheduled to conduct a student mediators' training session between nine and ten a.m. While conducting rounds that day, Johnson found O'Connor playing solitaire on the computer in her room. Asked whether she had conducted the mediators' group, O'Connor lied to her principal. O'Connor's conduct on April 20 appropriately resulted in a three-day suspension without pay beginning August 12, 1998. The 1998-1999 School Year Throughout the period of time during which O'Connor's performance reviews began to deteriorate and disciplinary actions increased, O'Connor was experiencing medical problems which ultimately led her to request and receive a medical leave of absence for the fall, 1998 semester. O'Connor maintains that her medical difficulties, which included brain surgery in 1995, have no bearing on her job performance. O'Connor contends her work was unaffected by her medical issues, and there was no evidence to the contrary. During O'Connor's medical leave, Lisa Bentolila (Bentolila) was hired as an interim guidance counselor. Bentolila discovered serious record-keeping violations committed by O'Connor. Correcting the problems consumed the time of Bentolila and at least two supervisors. In January 1999, O'Connor returned to Orchard View. She continued her traditional counseling schedule, which included classroom guidance, and individual and small group counseling sessions. The evidence suggests that Johnson was not enthusiastic about O'Connor's return, but the evidence is not sufficient to establish O'Connor's theory that by this time, if not earlier, Johnson had conceived a "conspiracy" to fire O'Connor, and had enlisted other School Board personnel to assist her in achieving that goal. On Johnson's request, a formal observation on March 8, 1999, was conducted by Dr. Jeanne Burdsall (Burdsall), who watched O'Connor conduct a small group counseling session and teach a classroom guidance lesson. Burdsall prepared a report which noted five areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; and "action development and planning skills." The report also set forth an improvement strategy as to each area of concern. Burdsall observed a disturbing pattern of obliviousness by O'Connor to student behaviors and comments which cried out to be decisively dealt with, but were instead ignored by O'Connor, or met with inappropriate responses. Misconduct was a serious problem during Burdsall's observation periods. The misbehavior was exacerbated, and perhaps provoked, by O'Connor's inability to effectively manage the sessions by starting on time with clear and succinct goals, rules and expectations; by dealing with negative behavior at its inception; and by communicating and reinforcing appropriate messages keyed to the theme of the lesson, and drawing the students out on pertinent issues and then taking advantage of the information they provided to make the lesson meaningful to them. O'Connor failed to address several instances of students' fighting with one another, as well as student comments which required attention, such as one little girl who yelled out, "I'm crazy enough to jump off a roof." O'Connor would abruptly move from one discussion to another, making it impossible for the children to receive effective guidance counseling. On April 14, 1999, Johnson conducted another observation. On that day, her concerns included: "poor concept development"; "excessive teacher talk"; "failure to provide children an opportunity to respond"; and "failure to use age appropriate vocabulary". The combined observations of Burdsall and Johnson were reduced to a formal evaluation scoresheet on April 15, 1999. Six areas of concern were noted: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; "action development and planning skills"; and "develops and maintains an accurate record keeping system." This unsatisfactory evaluation resulted in O'Connor being placed on school-site performance probation beginning on April 15, 1999 and ending June 2, 1999. Under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, on-site performance probation affords 30 calendar days to improve performance to a satisfactory level, as well as improvement strategies geared to her specific deficiencies. On May 6, 1999, Dr Ann Lynch (Lynch), a professor at Florida Atlantic University in the Counselor Education Department, who has provided workshops and some observations of counselors for the Palm Beach County School District, conducted, at the School Board's expense, an extended one-on-one workshop with O'Connor on counseling skills covering three areas of concern: "development of rapport"; "interpersonal skills"; and "problem clarification." O'Connor was cooperative and receptive to numerous suggestions provided by Lynch during the workshop. However, at the next observation, conducted by Johnson on May 20, 1999, the principal saw no evidence that O'Connor had profited from the workshop; the deficiencies observed in April still remained. A similar conclusion was also reached by Sandra Cunningham (Cunningham) of the Department of Student Services, who also observed O'Connor on May 20, 1999. Cunningham's specific areas of concern were: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; and "interpersonal skills." In particular, Cunningham noted that while O'Connor was able to establish initial rapport with the students, she could not maintain it throughout the session. She had a hard time pacing the lesson; was unable to engage the students; ignored some of the students; did not respond with consistency to children's misconduct; and would be sarcastic to the children, in violation of the most basic precepts of counseling. Cunningham provided O'Connor with improvement strategies, including reviewing a group counseling book, specifically looking at hints for leading groups, and proposing that O'Connor videotape herself and review it with a colleague. On June 2, 1999, Johnson again observed O'Connor in a regular classroom session. During this session, O'Connor's failure to appropriately manage student misbehavior resulted in an ineffective counseling session for all the children. Throughout the various observations and conferences which made up the 30-day school-site assistance plan, O'Connor professed understanding of the criticisms leveled against her and stated that she had already corrected the problems, as observers would see for themselves at subsequent observations. Yet, the same deficiencies consistently appeared. O'Connor had an additional opportunity to improve during the summer months. She was provided with a schedule of summer remediation activities and reference materials reasonably calculated to help her improve her performance. O'Connor claimed she was unable to avail herself of any of these materials and activities due to transportation issues. Yet, the uncontroverted evidence is that O'Connor failed to contact Johnson to ask for assistance in obtaining these resources despite Johnson's numerous offers to help. The 1999-2000 School Year On September 3, 1999, a meeting was held with O'Connor regarding the status of the school site-assistance plan. The discussion included information concerning future observations and what kind of assistance would be required and provided. On September 10, 1999, Cunningham observed O'Connor teaching a third and a fourth grade classroom guidance lesson. In addition she observed O'Connor counseling an individual student. In a memorandum to Johnson summarizing the observations, Cunningham's comments were consistently positive. She was able to conclude that O'Connor's performance was at all times effective. Johnson was encouraged about O'Connor's future. On September 16, 1999, Johnson again observed O'Connor. At that time, the progress Cunningham had observed was not evident to the principal. The following day, she prepared a report to the Superintendent in which she indicated six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills”; and "develops and maintains an accurate record keeping system.” Based on this report, O'Connor was placed on a so- called 90-day plan. In fulfillment of the requirements of Section 231.29, Florida Statutes, and under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, a 90-day plan affords time to improve performance to a satisfactory level, as well as improvement strategies geared to the employee's specific deficiencies. Employees subject to a 90-day plan have a right to request to be reassigned to another school. O'Connor timely exercised this right, but the request was denied by the School Board. In spite of, or perhaps because of, the difficulties O'Connor was having with her regular duties, Johnson elected to make a significant change in O'Connor's job duties with the adoption by the school of a so-called "intensive guidance model." The model, which was adopted without input from O'Connor, has a stated goal of assisting students to "learn appropriate social skills and conflict resolution skills in order to reduce their discipline concerns." Children assigned to the program had repeated issues regarding solving conflict, anger management, not being able to make friends or self-defeat. The program concept was to place these children together in a class to learn new skills in making friends, anger management, etc. There were approximately four to five children in such a class. Johnson assigned O'Connor to run this program four days a week during the fall of 1999. On the fifth day, she was to provide small-group or individual counseling. O'Connor viewed the program with great suspicion. She believed it was a glorified "in-school suspension" for the children, and, more fundamentally, an effort to place her in a situation in which she would fail. On October 14, 1999, Lynch observed O'Connor during a classroom guidance program of third and fourth grade classrooms. In the third grade classroom, the children were not consistently on task. It became obvious that O'Connor had prepared for the wrong session, mistakenly thinking she had been to that class the week before. In addition, O'Connor failed to establish rapport with the children at the expected level. Similar deficiencies were observed in the fourth grade class. O'Connor failed to advise students of the rules on confidentiality, together with their limitations, applicable to the class. This is a fundamental ethical duty of counselors, and Lynch had reviewed this requirement with O'Connor during her one-on-one workshop. Asked why she did not review these limitations with the children, O'Connor stated "she forgot to do it." Also on that day, Lynch observed O'Connor ask a teacher to see a child she had been counseling. The child came out to the hallway and stated several times that he wanted to go back in his classroom. After a couple of questions, O'Connor allowed the child to return to his classroom. No effective counseling took place during O'Connor's interaction with this child; moreover, it is generally inappropriate to conduct counseling sessions in a school hallway. On November 9, 1999, O'Connor received a written notice of verbal warning regarding her inappropriate and unprofessional language while on duty with students. Specifically, O'Connor contacted the school office over the public address system and stated in the presence of her students that she needed help or she was going to hit one of them; in addition, she used profanity in the presence of her students during that session. On November 19, 1999, Johnson observed Respondent in the classroom. During this observation, O'Connor failed to deliver a clear lesson, failed to give the students adequate opportunity to participate, and did not address resistance by the students. On December 13, 1999, Dr. Lynch again held a one-on- one group counseling session with O'Connor. Topics were geared to the now-familiar litany of complaints by observers and included: "working with the children"; "how to structure a group"; "what kinds of rules to establish"; "how to discuss confidentiality"; "what were the different skills needed"; "linking the children together"; "other techniques like role- playing"; and "age-appropriate activities and how to close a group." In addition, Lynch provided books and other materials on group counseling and showed O'Connor a video of what counselors actually do. As in the past, O'Connor was enthusiastic and receptive to the information. Cunningham returned to observe O'Connor on December 15 and 16, 1999. O'Connor's work on those days was in stark contrast to her largely good performance during Cunningham's observation on September 7, 1999. Cunningham's December observations included findings that O'Connor failed to clearly state the goals of the group; she used sarcasm and belittling remarks such as "That is why you are in this group;" she had trouble enforcing rules and monitoring behavior or in some instances, ignored behavior, resulting in many of the students being bored or acting out. On January 5 and 6, 2000, Burdsall observed O'Connor conducting a group counseling session and presenting a classroom guidance lesson. During these sessions, Burdsall did not observe effective guidance counseling. A particularly egregious lapse of professional judgment occurred when two first-grade boys came in to O'Connor's classroom. She turned to one of the boys and said "Your mother called, and she's getting a divorce." O'Connor said to the other boy,". . . your mother said that your family left Texas, and they left your father there 'cause he couldn't get along . . ." The boys looked at her, stunned. There is ample evidence that this was inappropriate and did not constitute competent guidance counseling. On January 19, 2000, Johnson again observed O'Connor and again saw failure to manage the classroom properly and to address misconduct. All observations were conducted by trained professionals in accordance with lawful standards, and were timely reviewed with O'Connor. O'Connor never disagreed with the substance of the evaluations and feedback she received. Rather, she would say such things as she was "correcting that behavior" or "Oh, yeah, wait 'til you see next time, I've already corrected that so when you come in, you're going to see this." However, there was never any consistent and significant improvement. By the time of the January 21, 2000, assistance review meeting, Johnson had appropriately concluded that O'Connor still exhibited significant deficiencies and would be recommended for termination. Notwithstanding Johnson's recommendation, on April 14, 2000, the parties entered into an agreement pursuant to which O'Connor released all legal claims against the School Board, and in exchange was provided an additional 90 days to remediate the noted deficiencies. During this second 90-day plan, O'Connor once again timely asserted her right to request a transfer to another school. Once again, the School Board refused the request, without explanation. For the second 90-day plan, O'Connor was given the opportunity to select some of the individuals who would observe her and provide assistance. The observation and assistance team for the second 90- day plan consisted of a diverse group of qualified professionals. Lynch remained and provided continuity. Johnson continued to participate until she was replaced as principal by Linda Nelson (Nelson); Susan Atherley, Ron Armstrong, and Dr. Gregory Brigman (Brigman) were added to the team and the new principal also had the opportunity to conduct her own observations. At the School Board's expense, Brigman provided a one day, one-on-one "supportive training" workshop again geared to the six deficiencies for which termination had initially been recommended. The 2000-2001 School Year On August 22, 2000, Brigman conducted the first observation of the new school year and again found that O'Connor failed to adopt the strategies provided to her during training, and was essentially operating at the same level she had since 1997. O'Connor's difficulties in managing her workload also continued into the new school year. On September 13, 2000, Nelson reprimanded O'Connor for failing to have her small groups in place. She was directed to prepare a list of the students needing small group services and to have all groups functioning immediately. In view of the growing consensus that O'Connor was unable to provide effective counseling, it is a mystery why the principal would insist that ineffective or inappropriate services be foisted upon the students most in need of competent professional help. However, this line of inquiry was not pursued by O'Connor in support of her theory that the School Board wanted to get rid of her either because of Johnson's personal animus, or because her medical needs, the substantial expense of which was at least partially borne by the School Board, caused her to be regarded as a liability. On September 28, 2000, O'Connor was again criticized for her record-keeping with a notice that she had failed to update certain legally mandated records known as "504 files." On September 28, 2000, Nelson conducted a formal annual personnel evaluation of O'Connor. Listing the now familiar six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills"; and "develops and maintains an accurate record keeping system," Nelson recommended that O'Connor's employment be terminated. Acting in accordance with Nelson's recommendation, the School Board voted on October 25, 2000, to suspend O'Connor without pay and to terminate her employment effective November 9, 2000.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Leslie O'Connor's employment for unsatisfactory performance as set forth in the Administrative Complaint dated November 7, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Glen J. Torcivia, Esquire 1800 Australian Avenue, South Suite 205 West Palm Beach, Florida 33409 Dr. H. Benjamin Marlin, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard Room C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
