The Issue The issue for determination at hearing is whether Respondent committed the offenses set forth in the administrative complaint, and if so, what action should be taken.
Findings Of Fact At all times material hereto, Wilma Nottage (Respondent) held a teaching certificate issued by the State of Florida, Department of Education, having been issued educator's certificate #357933, in the areas of Early Childhood Education, Elementary Education, and English to Speakers of Other Languages. Her teaching certificate is valid through June 30, 1998. Respondent graduated from Florida Atlantic University in 1974 with a degree in Elementary Education and immediately thereafter began employment as a classroom teacher with the Dade County School Board (School Board). At all times material hereto, Respondent was employed with the School Board as a classroom teacher. For the 1989-90 school year, Respondent was hired by the Principal of Norwood Elementary School (Norwood) to teach fifth grade. The Principal interviewed Respondent and was very impressed with her professionalism and appearance. During Respondent's first year at Norwood, the Principal found Respondent's teaching ability to be acceptable and Respondent's behavior and appearance to be professional. Respondent received an acceptable annual performance evaluation for the 1989-90 school year. However, during the 1991-92 school year, the Principal observed that Respondent's appearance, performance, and emotional stability deteriorated and continued to deteriorate through the 1992-93 school year. At hearing, the Principal observed that the Respondent, who was present, was the Respondent that she saw, appearance wise, in the 1989-90 school year. For the 1991-92 school year, at Respondent's request, she was assigned to teach kindergarten at Norwood. 3/ The teaching concept was different for kindergarten in that there was only one classroom and the students were taught in a team concept with three teachers, Respondent being one of the three teachers. The teachers would plan together, but the subjects being taught would be equally divided. On or about October 30, 1991, the Assistant Principal of Norwood conducted an observation of Respondent's teaching performance after giving her proper notice. In an observation a teacher's classrooom performance is assessed as acceptable or unacceptable (deficient) in six areas: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. The Assistant Principal found Respondent's performance to be unacceptable in the area of classroom management. After an observation is conducted, a post-observation is held between the observer and the teacher to discuss the observation. If there are any deficiencies found, a plan for performance improvement, also called a prescription, is issued to the teacher. The prescription contains activities (strategies) for remediating the deficiencies, a date certain (time line) for completion of the activities of the prescription, and a date for the next observation, if necessary. On or about November 5, 1991, the Assistant Principal held a post- observation conference with Respondent to discuss his observation. A prescription was given to Respondent, with a completion date of November 25, 1991. Respondent failed to complete the activities of the prescription. The team concept was not working for the kindergarten class. Respondent was infrequently completing her lesson plans, and the grades of the students for whom Respondent was responsible for assigning and recording were not properly recorded. Further, the students for whom Respondent was responsible consistently failed to complete the required areas of study, and Respondent frequently left her students unattended. The Principal became concerned that a health problem was interfering with Respondent's performance in the classroom. The Principal did not question Respondent's ability to teach. On or about November 21, 1991, by memorandum to the Associate Superintendent for the Bureau of Professional Standards and Operation of the School Board, the Principal requested a medical fitness determination for Respondent, as a component of the employee assistance program. The Principal's request was based upon, among other things, Respondent's combative and emotional behavior, inefficient work performance (no grades in her grade book), and pattern of absences. Respondent participated in the employee assistance program. However, her participation prematurely ended, lasting only approximately one (1) month. Respondent was not attending the scheduled conferences and ended her participation indicating that she was getting assistance on her own. On December 16, 1991, a conference for the record was held with Respondent. During the conference, Respondent admitted that she had not completed any of the requirements set forth in the prescription issued November 5, 1991. Even though Respondent's observation of October 30, 1991 was unacceptable and she had not remediated the deficiencies, the Principal was recommending Respondent's reappointment for one year. Also, Respondent was afforded additional time in which to complete the prescription and was to submit the appropriate paperwork for the prescription by January 7, 1992. On January 22, 1992, the Principal observed Respondent's classroom performance after giving proper notice. The Principal found Respondent's performance unacceptable in the area of classroom management. Prior to the observation on January 22, 1992, the Principal terminated the kindergarten team because the team concept was not working. Even though Respondent's participation in the team was less than adequate, the other two kindergarten teachers contributed to the failure of the team concept by failing to provide Respondent a fair chance to join the team and teach in the kindergarten setting as established at Norwood. The other two kindergarten teachers did not properly assist or support Respondent or share needed materials. On January 29, 1992, the Principal held a post-observation conference with Respondent regarding the observation on January 22, 1992. A prescription, consisting of two activities, was given to Respondent with time lines for completing the activities. Respondent was unable to complete one of the activities due to illness. Respondent failed to complete the second activity. On February 27, 1992, the Principal observed Respondent's classroom performance after giving proper notice. The Principal found Respondent's performance unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. The Principal found the observation of February 27, 1992, unusual in that areas in which Respondent was previously found to be acceptable were now found to be unacceptable. The Principal's position is that, if a teacher is capable of doing something one day, the teacher is capable of doing the same thing another day. On March 5, 1992, a post-observation conference was conducted and a prescription was given to Respondent regarding the observation of February 27, 1992. The time line for completion of the activities of the prescription was March 27, 1992. As of March 27, 1992, the Principal had not received the material from Respondent showing that the activities of the prescription were completed. The Principal extended Respondent's compliance date for the prescription to April 1, 1992. By memorandum dated March 31, 1992, the Principal informed Respondent that her failure to comply with the required prescription by April 1, 1992, would result in a violation of professional responsibility which is a category VII classroom assessment violation. Not completing the activities of the prescription by April 1, 1992, Respondent requested an extension to April 13, 1992, which was granted by the Principal. However, on April 13, 1992, Respondent failed to complete the activities of the prescription. The Principal notified Respondent that her conduct of not completing the prescription constituted insubordination and could result in disciplinary action if it continued. By another memorandum dated March 31, 1992, the Principal requested an external review (external observation) of Respondent's classroom performance. The external observation provides an independent observation of Respondent's classroom performance. By memorandum dated April 1, 1992, the Principal notified Respondent that her unusually high number of absences since the beginning of the 1991-92 school year were adversely affecting the educational environment. The School Board allows 10 days for sick leave during a school year. The memorandum specified the dates of the absences, the category of the absences (whether personal or sick leave), and how the absences impacted the educational environment. Five of Respondent's absences were designated as sick leave. The Principal issued directives to Respondent as to how she should conduct herself in the future regarding absences and informed Respondent that her failure to comply with the directives would result in a review of her situation for disciplinary action. On April 30, 1992, a conference for the record was held with Respondent. The purpose of the conference was to discuss Respondent's attendance, her noncompliance with the directives to complete the prescriptions of January 22, 1992, and March 27, 1992, and her future job status. As a result of the conference, among other things, it was agreed that Respondent would present the materials needed to comply with all the prescriptions to the Principal by May 8, 1992. On May 13, 1992, the external observation which was requested by the Principal was conducted by the School Board's District Director of the Office of Instructional Leadership after giving proper notice. Simultaneously, in conjunction with the external observation, the Principal conducted an observation after giving proper notice. The District Director found Respondent's classroom performance unacceptable in the areas of knowledge of subject matter, classroom management, and techniques of instruction. The Principal found Respondent's classroom performance unacceptable in the areas of classroom management, and techniques of instruction. When the two observations were reviewed together, the area of knowledge of subject matter was determined to be acceptable. On May 20, 1992, the Principal held a post-observation conference with Respondent. A prescription was given to Respondent with time lines for completion of the activities of the prescription. On May 29, 1992, the Principal observed Respondent's classroom performance after giving proper notice. The Principal found Respondent's performance unacceptable in the areas of classroom management, and techniques of instruction. On June 8, 1992, the Principal held a post-observation conference with Respondent. A prescription was given to Respondent with a June 18, 1992, completion date for the activities of the prescription. Respondent's annual evaluation for the 1991-92 school year was conducted on June 17, 1992. Her overall performance was found unacceptable in two areas: classroom management and techniques of instruction. Respondent had failed to remediate these unacceptable areas. Also, on June 17, 1992, a conference for the record was held with Respondent regarding her failure to complete the activities of the prescription due April 27, 1992, the unacceptable observation of May 29, 1992, and her future job status. Respondent was informed, among other things, that the prescription deadline for the activities due June 18, 1992, was changed to June 19, 1992, that she continued to have an opportunity to complete outstanding prescriptions, that she was ending the year on prescription and that her end of year evaluation was rated unacceptable. For the 1992-93 school year, Respondent was assigned to teach the fifth grade. Respondent did not receive this assignment until around the beginning of the school year. Expecting to teach kindergarten, Respondent had prepared for kindergarten; however, the enrollment for kindergarten declined and there was not a need for a third teacher in kindergarten. The Assistant Principal requested Respondent's lesson plans for the first week of classes, but Respondent failed to make them available. Furthermore, in her lesson plans for the second week of classes, Respondent failed to include four objectives which are required to be included in lesson plans. By memorandum dated September 23, 1992, the Principal reminded Respondent of the requirement for lesson plans and the objectives which are required to be included in lesson plans. On October 6, 1992, the Principal observed Respondent's classroom performance after giving proper notice. The Principal found Respondent unacceptable in the areas of classroom management, techniques of instruction, and assessment techniques. On October 13, 1992, the Principal held a post-observation conference with Respondent. A prescription was given to Respondent. The activities of the prescription were to be completed by November 16, 1992, with one to be completed by October 23, 1992. Respondent failed to complete the prescription. On November 17, 1992, the Assistant Principal observed Respondent's classroom performance after giving proper notice. The Assistant Principal found Respondent's performance unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. On November 23, 1992, the Assistant Principal held a post-observation conference with Respondent in which Respondent was given a prescription. The activities of the prescription were to be completed by December 4, 1992. Respondent failed to complete the prescription. Subsequently, the teachers' union interceded and changes were made in the results of the observation of November 17, 1992. The areas of knowledge of subject matter and techniques of instruction were found to be acceptable; and, therefore, Respondent's classroom performance on November 17, 1992, was unacceptable in the areas of preparation and planning, classroom management, and assessment techniques. On December 16, 1992, a conference for the record was held with Respondent to discuss, among other things, Respondent's performance assessments, her failure to provide required lesson plans and to complete required prescriptions, and her future employment. Respondent was informed, among other things, that her failure to comply with directives was insubordination and that, if she continued to have unacceptable performance ratings, her situation would be submitted to the Department of Education for review. At the December 16, 1992 conference, Respondent's behavior was unusual, out of character. She was very loud instead of her usual quiet self. On February 2, 1993, a conference for the record was held with Respondent. She was requested to provide the outstanding prescriptions. Because Respondent had not completed all of the requested prescriptions, she was given twenty-four (24) hours to complete and provide the unfinished prescriptions. Respondent failed to complete the prescriptions within the 24- hour period. On February 16, 1993, the Principal conducted an observation of Respondent's classroom performance after giving proper notice. The Principal found Respondent's performance unacceptable in the areas of preparation and planning, knowledge of subject matter, and techniques of instruction. On February 24, 1993, a post-observation conference was held and a prescription was given to Respondent. Included in the prescription was an unacceptable performance in the area of professional responsibility (category VII violation) regarding Respondent's failure to comply with prescription deadlines. The activities of the prescription were to completed by March 10, 1993. Respondent failed to complete the prescription. On March 17, 1993, the Assistant Principal observed Respondent's classroom performance after giving proper notice. The Assistant Principal found Respondent's performance unacceptable in the areas of preparation and planning, classroom management, and assessment techniques. The post-observation conference in which a prescription was issued was held on March 24, 1993. 4/ However, because the conference was not timely held, the observation was used only for assistance purposes. By memorandum dated March 24, 1993, the School Board's Associate Superintendent of the Bureau of Instructional Support requested an external observation of Respondent's classroom performance. On April 21, 1993, an external observation of Respondent's classroom performance was conducted by the School Board's Executive Director for Mathematics, Science and the Urban System Initiative after giving proper notice. Simultaneously, in conjunction with the external observation, the Principal conducted an observation of Respondent's classroom performance after giving proper notice. Both the Director and the Principal found Respondent's performance unacceptable in the areas of knowledge of subject matter, and techniques of instruction. A post-observation conference was scheduled for April 28, 1993; however, Respondent was absent that day. The conference was held on April 30, 1993. Respondent was given a prescription, consisting of two activities, with the activities of the prescription to be completed by May 10, 1993. Respondent failed to complete one of the activities by the due date. On April 14, 1993, a conference was held with Respondent and a prescription was given to her regarding her unacceptable performance in the area of professional responsibility (category VII). The prescription addressed Respondent's failure to provide upon request and to maintain lesson plans, grade books and graded material and her failure to comply with prescription deadlines. By memorandum dated May 14, 1993, and received by Respondent on June 3, 1993, the Principal advised Respondent of her excessive absences for the 1992-93 school year to date. Twenty-six of Respondent's absences were designated as sick leave. Moreover, the Principal advised Respondent that the absences adversely impacted the support services to students, the academic progress of the students, the continuity of instruction, and the effective operation of the school. The Principal issued directives to Respondent and advised Respondent that the failure to comply with the directives would result in review by the Office of Professional Standards and, possibly, in disciplinary action. On May 20, 1993, the Assistant Principal conducted an observation of Respondent's classroom performance after giving proper notice. The Assistant Principal found Respondent's performance unacceptable in the areas of preparation and planning, classroom management, and assessment techniques. On May 24, 1993, the Assistant Principal held a post-observation conference with Respondent. A prescription was given to Respondent. The activities of the prescription were to be completed by June 17, 1993. Respondent failed to complete the prescription. On June 2, 1993, Respondent's annual evaluation was conducted. The Principal found Respondent's overall performance unacceptable in the areas of preparation and planning, classroom management, assessment techniques, and professional responsibility. Respondent had failed to remediate these unacceptable areas. A conference for the record was held with Respondent on June 2, 1993, regarding her performance assessments and her continued employment with the School Board. Respondent was reminded and advised, among other things, that she had 31 absences for the school year, had not completed all prescriptions, and had two years of unacceptable evaluations, and that her performance would be recommended for review and termination procedures. Prior to the 1991-92 and 1992-93 school years, Respondent had not received an unacceptable annual evaluation, having been in the classroom for almost 17 years. Respondent experienced medical problems during the 1991-92 and 1992-93 school years. During the 1991-92 school year, Respondent's medical problems included high blood pressure, back pain, and a herniated disc. Also, Respondent received psychological treatment from a psychologist, which was independent of the employee assistance program. During the 1992-93 school, Respondent's medical problems included high blood pressure, pain and swelling in her legs and ankles, back problems, and fibroid tumors. These medical problems which were experienced by Respondent over the two school years caused her to be absent from school for many days. Obviously, the medical problems would have some affect on Respondent's teaching performance. However, there is no medical opinion, no objective evidence as to how and to what extent the medical problems affected or would affect Respondent's teaching performance. 5/ In June 1993, after almost 19 years as a teacher with the School Board, Respondent resigned from the School Board as a teacher. At the time of the hearing, Respondent was no longer receiving treatment for her physical or mental well-being. However, there is no medical evidence indicating that Respondent no longer needs such medical treatment. At no time during any of the post-observation conferences in which prescriptions were given did Respondent indicate that she was experiencing any medical problems whether they were physical or psychological. Because of Respondent's conduct during the 1991-92 and the 1992-93 school years, her effectiveness as a teacher was seriously reduced, she failed to provide the children in her classes the minimal education experience required or reasonably expected, and she has demonstrated that she did not possess the competence to teach or perform the duties of a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order: 1.Suspending Wilma Nottage's teaching certificate for 60 days; Requiring Wilma Nottage to submit to a physical and psychological evaluation, prior to reemployment, which must confirm that there is no physical or psychological impediment to her teaching students; Placing Wilma Nottage on a two-year probation, commencing at the time of reemployment, with the condition that, during the first year of probation, she successfully complete two three-hour college courses or the equivalent in- service training courses in the areas of classroom management and elementary education; and Reprimanding Wilma Nottage. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1995. ERROL H. POWELL 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 22nd day of November 1995.
Findings Of Fact Annie Jackson, currently Principal of Golden Glades Elementary, also served in that capacity during Elijah McCray's 6th grade experience there during the regular 1984-1985 school year. On December 10, 1984, Mrs. Jackson personally removed Elijah from the lunch room for shooting paper at other students. He was reprimanded after a conference and sent to an alternative eating place for a month. On March 5, 1985 the classroom teacher referred Elijah to Mrs. Jackson for disruptive behavior, running around, not working and splashing water. He was removed from class and received a conference with Mrs. Jackson. Mrs. Jackson called the parents the next day and reported the situation. On March 27, 1985 he was referred to Mrs. Jackson for laughing at his teacher and being defiant. On March 28, 1985 he was assigned 3 days outside detention by Mrs. Jackson because he had refused to serve assigned detention. On April 2, 1985, which was the day Elijah was due to return, Mrs. Jackson wrote his parents because he had again been referred to the office and defied the authority of the teacher referring him by not carrying the referral to Mrs. Jackson's office. He was referred to the school counselor by Mrs. Jackson. There was a subsequent 5 day suspension for disruptive behavior scheduled to begin on April 15, 1985. At 5:00 P.M. on that day, Mrs. Jackson personally conducted a teacher/parent/ student/administrator conference to discuss the April 15, 1985/ suspension. Present in place of the parents were Mr. and Mrs. Taylor, Elijah's grandparents. The teacher made known to the grandparents that she did not want Elijah back in her class because he would throw items and deny it and frequently disrupt the class by spitting in the classroom or by leaving the classroom to spit. The grandparents made known to the teacher, and to Mrs. Jackson that a sinus condition of Elijah's required him to spit frequently and Mrs. Jackson apparently engineered some rapport between the teacher and Elijah upon this information so that the planned 5 days suspension was rescinded by Mrs. Jackson. Mrs. Taylor testified that she was present at this meeting but felt she had not participated because she had left most of the talking to Mr. Taylor and Mrs. Jackson, but upon Mrs. Jackson's and Mrs. Taylor's testimony together it is specifically found that this parent contact did occur. On April 17, 1985, Mrs. Jackson referred Elijah to the school counselor because of a report from his classroom teacher that Elijah had said he would "swing his old gun" at her. While this language by the teacher is technically hearsay outside the admission exception, information on the report was recorded contemporaneously by Mrs. Jackson in the school records and regardless of what was actually said to the teacher, Mrs. Jackson personally observed the distraught behavior of the teacher in reaction to whatever threat had been made by Elijah. Mrs. Jackson called school security as a result. The investigation of the incident by Mrs. Jackson and the security investigator revealed that the teacher had been told by other students that Elijah had shot a relative of theirs but that he had in fact never done so. Elijah was warned that it is serious to make threats to teachers. On April 22, 1985 Mrs. Jackson received a formal written request from the classroom teacher requesting Elijah's removal from her class. Much of Mrs. Jackson's testimony suggests that the persistent disruptive behavior was that of the classroom teacher who referred Elijah for what she perceived as threats. This teacher was not present to testify. Elijah was returned to class by Mrs. Jackson over the teacher's objections with a final warning concerning making threats. A parent/teacher/student/ administrator conference was held to apprise the parents that this was a last chance. It may be that Mrs. Taylor was not present for this conference, but Mrs. Jackson indicates at least one adult was present on behalf of the child. On April 25, 1985, Elijah was returned to class. On April 30, 1985, Mrs. Jackson requested Officer Harris of Operation Pro Volunteer Listener to confer with Elijah about the seriousness of making threats. On May 1, 1985, Mrs. Jackson investigated a report that Elijah had threatened two girls (Mirland Joseph and Lesley Compton) in his class with a knife. The girls gave statements which Mrs. Jackson synopsized as stating that they thought they had been threatened with a knife by Elijah. The statements are not signed. The incident as reported in the statements composed by the principal are by themselves hearsay and that hearsay is not confirmed or corroborated by a statement made by Elijah directly to Mrs. Jackson that he had showed the girls the point of a nail file attached to a man's pocket toenail clippers and was "just joking with it." Mrs. Jackson received a broken pair of blunt toenail clippers from Elijah at the time of this admission and a xerox copy of the nailclippers was admitted in evidence as a true and correct copy of the implement. Because of the presence of the nailclippers, which Mrs. Jackson characterized as a "pointed object", Mrs. Jackson initiated transfer of Elijah to an alternative education program. She felt this was a lesser alternative to expulsion. Expulsion would otherwise be required by School Board policy in the presence of a "weapon." Mrs. Taylor testified that she had heard one of the girls who had given statements to Mrs. Jackson or perhaps a third girl named "Alexandra" say they had made up the May 1, 1985 incident. Mrs. Taylor stated Elijah and his sister had told her the night before the May 1, 1985 incident that the two girls or Elizabeth Carpenter was going to "start a problem for him the next day" or "going to fight him" the next day. There is no record evidence of failing grades, truancies, or unexcused absences for Elijah.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Elijah McCray to the appropriate grade level in a regular school program with a different classroom teacher than previously assigned. DONE and ORDERED this 30th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire Law Offices McCrary, Valentine & Mays P.A. 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mrs. Sylvia Taylor 2971 N. W. 165 Street Opa Locka, Florida 33054 Madelyn P. Schere, Esquire 1450 N. E. Second Avenue Miami, Florida Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent should be properly discharged from employment with the Duval County School District in accordance with the Duval County Teacher Tenure Act, 21197 Laws of Florida (1991) (Act), including the issue of whether she has received two consecutive unsatisfactory yearly evaluations as a teacher.
Findings Of Fact The Respondent was a certified teacher employed by the Petitioner Duval County School Board at all times pertinent hereto. The governing authority herein is the Act. Ms. Jacqueline Y. Davis was the principal during the academic year 2002-2003 at Whitehouse Elementary School. She was the Respondent's supervising principal during that year. Principal Davis determined, after observations and other gathering of information, that Ms. Neeley's performance as a teacher was deficient. Among the deficiencies, she found were the following: Respondent failed to prepare report cards. Respondent improperly calculated students' grade point averages. Respondent failed to prepare Academic Improvement Plans for students. Respondent failed to timely complete pre-planning checklists, professional development plans, and class schedules. Respondent showed age-improper materials to her students. Respondent failed to clearly state the lesson's objective at the beginning of her lessons. Respondent exhibited unsatisfactory classroom management techniques, including failure to follow school-wide disciplinary policies, failure to keep students on-task, and failure to maintain order in her classroom. Respondent failed to communicate basic concepts clearly to the children. Respondent failed to review basic concepts with the children to ensure understanding of the material. Respondent failed to call parents back upon request. Respondent exhibited use of an intimidating, loud tone with students. Respondent failed to provide requested information to parents regarding student progress. Respondent failed to send graded papers home for parents' review. Respondent failed to collect homework after being assigned. Respondent failed to maintain a neat and orderly classroom. Respondent failed to properly record grades in a grade book, an official record that must be maintained by the teacher and the school. On at least two occasions, parents contacted Principal Davis and requested that their child be removed from Ms. Neeley's class due to Ms. Neeley's incompetence as a teacher. The Respondent exhibited consistent and chronic tardiness. The Respondent exhibited numerous absences during the school year. These deficiencies were communicated to Ms. Neeley, which lead to the eventual implementation of a "success plan," listing specific categories in which Ms. Neeley needed instruction and needed to make improvement. Principal Davis assigned a success team to Ms. Neeley when it became evident that her performance as a teacher was unsatisfactory. Principal Davis observed the Respondent's classroom performance on October 3, 2002, November 19, 2002, and January 21, 2003. On each of those occasions, she found Ms. Neeley's performance as a teacher to be unsatisfactory. Following each observation, Principal Davis communicated her findings orally and in writing to Ms. Neeley. On January 30, 2003, Principal Davis held a meeting to discuss the success plan with Ms. Neeley and to introduce her to the success team members who would assist in providing specific in-service instruction and assistance for Ms. Neeley. Ms. Neeley, however, failed to attend that meeting. The meeting was re-scheduled for February 3, 2003, and again Ms. Neeley failed to attend the meeting. The meeting was re-scheduled for February 5, 2003, and again Ms. Neeley did not attend. On February 10, 2003, Principal Davis observed Ms. Neeley's teaching and again found her performance as a teacher to be unsatisfactory. Again, Principal Davis communicated her findings orally and in writing to Ms. Neeley. On February 26, 2003, another success team meeting was scheduled, but Ms. Neeley did not attend. On March 20, 2003, Principal Davis again observed Ms. Neeley's classroom performance and again found it to be unsatisfactory and that she did not demonstrate adequate required improvement. Because of Ms. Neeley's continued inability to improve, despite assistance of her success team members and the specific in-service assistance and instruction they provided, she received an unsatisfactory annual evaluation for the 2002-2003 academic year. Thereafter, the Respondent was assigned to Ortega Elementary School for the 2003-2004 school year. Principal Cynthia Thompson was her supervisor at Ortega. Almost immediately, Principal Thompson became aware of Ms. Neeley's unsatisfactory performance as an instructor. Among other things, she noted that: Ms. Neeley was absent from school without arranging for a substitute teacher. Did not prepare lesson plans. Misspelled words on the board and charts in her classroom. Provided incorrect definitions for words on the board. Was not able to convey to her students their goals for the class period. Was not able to maintain a consistent grade book for her students. Failed to attend scheduled conferences with parents. Was unable to explain basic concepts to the children. Was unable to maintain classroom discipline and control. On October 30, 2003, Principal Thompson formally evaluated Ms. Neeley in her classroom, and found her performance to be unsatisfactory. Principal Thompson discussed the unsatisfactory areas with Ms. Neeley both orally and in writing. Principal Thompson then initiated a formal success plan and formed a success team, including a standards coach and a district coach to help Ms. Neeley in those areas she needed improvement in, and to provide specific in-service instruction for Ms. Neeley. The first meeting of the success team was scheduled for November 3, 2003, but Ms. Neeley failed to attend. The meeting was re-scheduled for November 5, 2003, and on that date, Principal Thompson covered every area of competency in which Ms. Neeley needed improvement. She asked Ms. Neeley to name a success team member of her own choosing; however, Ms. Neeley failed to name any person whom she wanted to be part of the success team. On December 17, 2003, another success team meeting was scheduled, but again Ms. Neeley failed to attend. Following the Christmas vacation, Ms. Neeley did not return to the school for approximately three weeks and did not explain her absence. On March 3, 2004, Principal Thompson conducted her final evaluation of Ms. Neeley and found that Ms. Neeley's performance in the classroom was still unsatisfactory and did not demonstrate the required improvement. Because of Ms. Neeley's continued inability to improve, despite the assistance of her success team members and the specific in- service assistance and instruction they provided, she received an unsatisfactory annual evaluation for the 2003-2004 academic year.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Duval County School Board terminating the Respondent's employment as a tenured teacher for the Duval County School District. DONE AND ENTERED this 4th day of March, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2005. COPIES FURNISHED: John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Andres Rojas, Esquire City of Jacksonville City Hall, St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207
The Issue Whether it was appropriate for Petitioner, Pinellas County School Board, to terminate the employment of Respondent, Curtis Brown, under Section 1012.34, Florida Statutes (2007), due to his failure to correct performance deficiencies after having been placed on Professional Services Contract Probation for 90 days, in violation of School Board Policy 8.25(1)(t); his "incompetence," in violation of School Board Policy 8.25(1)(u); his "insubordination," in violation of School Board Policy 8.25(1)(u); and his failure to comply with "School Board Policy, State Law or the Appropriate Contractual Agreement," in violation of School Board Policy 8.25(1)(x) and Section 1012.33, Florida Statutes (2007).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner operates, controls, and supervises the public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals. Respondent is employed by Petitioner as a math teacher at Johns Hopkins Middle School and has a Professional Services Contract. Petitioner employs a formalized teacher evaluation process that assesses 25 teaching "expectations." These "expectations" are grouped in three related categories: Highest Student Achievement, Safe Learning Environment, and Effective and Efficient Operations. Each "expectation" receives one of four ratings: Exceeds Expectations, Meets Expectations, In Progress, and Not Evident. Assessments are made on specific and detailed indicia during observations, interviews, and review of data regarding student achievement. Depending on the number of indicia observed for each of the "expectations," a teacher receives a proficiency rating of Level 1 through 4, with Level 4 being the highest. Below a Level 1 is considered unsatisfactory. Respondent was rated unsatisfactory for school years 2006-07 and 2007-08. There are approximately 8,000 teachers in Pinellas County. Of the 8,000, 23 were rated unsatisfactory for the 2007-08 school year; only three were rated unsatisfactory for both 2006-07 and 2007-08. A state requirement of teacher appraisal includes student performance and learning gains for each student in a teacher's class. The Florida Comprehensive Achievement Test ("FCAT") is probably the most notorious student achievement data source in Florida. Unfortunately, the FCAT scores become available in July. Most annual teacher assessments are completed in April of each school year. However, there are other student achievement data sources that can be appropriately used in assessing student performance and learning gains. They include teacher-made pre- and post-tests, district developed assessments, student grades, and curriculum developed assessments. A teacher may offer any of these data sources during his or her evaluation. Because Respondent had received an unsatisfactory rating for the 2006-07 school year, administrators at his school and from the district office provided special attention and direction during the first months of the 2007-08 school year designed to help Respondent improve his teaching performance. The efforts of the administration were not successful. Respondent was placed on a 90-day probation period on January 14, 2008. He was advised of his unsatisfactory performance. At the same time, he received a revised "success plan" and a copy of Section 1012.34, Florida Statutes. Respondent received several formal observations and critiques during the probation period. Petitioner provided the requisite assistance, direction, and on-going assessment. During the 90-day probationary period, Respondent did not respond to specific corrective direction given him by administrators regarding a myriad of basic administrative details, teaching techniques, and methodology. Respondent's annual evaluation took place on April 24, 2008, after the conclusion of the 90-day probation. Even though requested, Respondent failed to provide any documentation of positive classroom results. Even though Respondent failed to present any evidence of positive classroom results, the evaluator (the school assistant principal) had monitored potential classroom progress through various data available to him. He failed to note any positive trend. Respondent received 19 "Not Evident" ratings in 25 "Expectations" and an unsatisfactory rating. Respondent's performance problems were increasing in spite of a concerted effort by the administration to correct the trend. In the 2005-06 school year, he received six "Not Evident" ratings; in 2006-07, 14 "Not Evident" ratings; and in 2007-2008, 19 "Not Evident" ratings. Over the several years contemplated by the testimony of school administrators who had supervisory authority over Respondent, he failed to teach the subject matter assigned, failed to complete lesson plans correctly and timely, failed to use a particular math teaching software program (River Deep) as required, failed to take attendance, and did not use the required grading software. In each instance he was encouraged and, then specifically directed, to comply with established policy regarding these areas of teaching responsibility; and yet, he failed to do so. Respondent's teaching record contains memos regarding the following: Two formal conferences regarding use of excessive force (12/6/02 and 10/29/03); A formal conference regarding growing number of parent concerns over penalizing students on academic work for behavioral problems and giving students F's for assignments that they couldn't complete due to lost work books (11/3/2004); A formal conference summary involving several issues including instructional methodology, leaving students unsupervised in class and leaving campus early (1/24/2005); Three reprimands for disparaging remarks made to or about students (1/19/05, 2/16/05, 4/02/07); A 15-day suspension for falling asleep in class and again leaving students unattended in class (7/12/2005); A formal conference summary for again leaving students unattended in the classroom and unsupervised outside of the classroom door (2/9/2007); and A formal conference summaries for missing a meeting and not turning in lesson plans and IPDP's (12/04/07, 1/29/08, 3/03/08).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Curtis Brown's, Professional Services Contract be terminated. DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2009. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 33770-2942 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurie A. Dart, Esquire Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Findings Of Fact Each of the Petitioners is a school teacher at Rosenwald Middle School in Bay County, Panama City, Florida. Celestine Cherry has a total of twenty-four years of teaching experience, all of which have been in the Bay County school system. She has taught home economics and physical education at Rosenwald Middle School for the last nine of those years. Ida Conner has had twenty which have been in Bay County. She began at Rosenwald teaching language arts and U.S. history in 1988. Albert Harris has had fourteen years of teaching experience, all but one of which have been in Bay County. He has a BS degree in biology and is certified to teach science to grades seven through twelve. Grace Bryan has had twenty time of the hearing, she had been teaching at Rosenwald for fifteen years. She is an ESE teacher who is certified in the area of mental retardtion. Carol Love became the assistant principal at Rosenwald in 1989 and was promoted to principal of Rosenwald in 1990. During the 1989-90 school year, Love performed teacher evaluations of the four Petitioners and rated each as unsatisfactory. It is these unsatisfactory evaluations which the Petitioners allege were the result of racial discrimination. Love taught for eighteen years at all levels and has been an administrator since 1986. She holds a Masters Degree in Education and had served as assistant principal for three years at Rutherford High School prior to her assignment to Rosenwald. Jack Simonson was the superintendent of the Bay County schools from November 22, 1988, to November 16, 1992. The Bay County School Board is the entity ultimately responsible for the operation of the schools of that county and is the Petitioners' employer. One of Simonson's major campaign promises in seeking election as superintendent was to rigorously evaluate school administrators and employees. After his election, he regularly reminded the administrators of his desire that they conduct accurate evaluations. During his term as superintendent, Simonson strictly pursued the evaluation of district administrators. This policy resulted in the non-renewal of four white administrators, who either returned to the classroom or left the school system. He reduced one black administrator from principal to assistant principal. No black administrators were returned to the classroom or non-renewed. Except for his demand for rigorous evaluations, Simonson took no part in the 1989-90 annual evaluations of the Petitioners. When Carol Love began as assistant principal at Rosenwald in 1989, she worked for Eli Campbell, the principal. The other assistant principal was Lynn Stryker. Campbell is black and Stryker is white. The Bay County School District uses the Florida Performance Measurement System (FPMS), which is a Florida Department of Education approved method for teacher evaluation. Love is a certified FPMS evaluator. The FPMS identifies effective and ineffective teacher behaviors. The evaluator's responsibility is to observe whether or not the teacher exhibits these behaviors during the periods of observation. The actual observations are noted on a summative form and are then transferred to the evaluation form. A tallying of the observations determines whether or not the teacher receives a satisfactory or unsatisfactory evaluation. The FPMS evaluation instrument predetermines which behaviors are effective and which are ineffective. These decisions are not made by the evaluator. The evaluator merely notes the behaviors observed. Bay County teachers are all given in includes copies of the evaluation instruments. The teachers are therefore aware, at the beginning of each school year, of the behavior which will be observed, and whether or not they are effective or ineffective under the FPMS. For the 1989-90 evaluations, Campbell assigned one teachers to himself and one previously taught with Karl Elliott, who is white, and Conner, who is black, she felt uncomfortable in evaluating these two teachers, and therefore requested Love do their annual evaluations. In addition, the two assistant principals thought it best to keep departments together for the purpose of evaluation. It was agreed that Bryan and Laticia Washington, both of whom are black, would be assigned to Love, so that she would then be evaluating the entire EMH Department. All of these proposed changes in evaluations were discussed with Mr. Campbell at the administrators' regular Monday morning meeting and he gave his approval for these changes to be made. In addition to the unsatisfactory evaluations of the Petitioners, Love also gave unsatisfactory evaluations in 1989-90 to Karl Elliott, Fran Walters, Wayne Davidson, and Charles Clark, all of whom are white. Two black teachers, Ms. Washington and Ms. Smith, received satisfactory evaluations from Love for that same evaluation period. Campbell signed all of the evaluations and improvement notices given to the Petitioners in their annual evaluation in 1989-90. It was not until some time later that he raised some procedural objections to the improvement notices. None of these procedural objections are at issue in this matter. For the 1989-90 school year, Simonson assigned Assistant Superintendent Glenda Hamby to evaluate Campbell. Prior to the beginning of the 1989-90 school year, Simonson determined that teacher evaluations at Rosenwald had not been appropriately conducted for the 1988-89 school year. By a memo dated August 1, 1989, Simonson gave specific directions to Campbell regarding Campbell's performance and the expectations regarding Campbell's administration of Rosenwald for the 1989-90 school year. Campbell clearly was on notice that big improvements were expected or else Campbell would be removed as principal of Rosenwald. Rather than making a genuine effort to improve his administration at Rosenwald, Campbell instead embarked on a campaign of public challenges to Simonson, agitated the faculty and the black community to help him keep his position as principal, failed to acknowledge deficiencies in his performance, and publicly alleged that his problems were the result of racism. Campbell was unhappy that Love had been assigned to Rosenwald and his relationship with her was markedly uncooperative. Campbell publicly aired his allegations of racism, going so far as to discuss them on television. Hamby's unsatisfactory evaluation of Campbell was the final factor that resulted in his removal as principal at Rosenwald and his reassignment within the Bay County School District. Love's evaluations of the Petitioners for the 1989-90 school year were consistent with the requirements of the FPMS system. She conducted several classroom observations of each Petitioner and based the teacher assessments, professional development plans and improvement notices on the observations. Cherry received an overall assessment of unsatisfactory based on deficiencies in the areas of Instructional Organization and Development and Communication: Verbal and Nonverbal. A professional development plan was given which further identified the specific goals and strategies for correcting the deficiencies. Finally, improvement notices were given that specifically defined the unsatisfactory performance, the improvement desired and the assistance to be provided to the teacher for achieving that improvement. Cherry was unsatisfactory for her use of incorrect English in the classroom, inadequate verbal and nonverbal communication skills, inadequate instructional organization and development, and inappropriate and/or lack of supervision in class. She refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Instead, Cherry took the position that the evaluations were incorrect and were based on racism. In May, 1990, Love went to Cherry's class in response to a complaint from a teacher and a student. She discovered that the student's were engaged in writing and turning in to Cherry letters directed to Love concerning Cherry's unsatisfactory evaluation and her quality of teaching. Love sent Cherry from the room and conducted an investigation of the incident. As a result, Cherry received two letters of reprimand for these actions in her classroom. While Cherry did grieve these two letters of reprimand, the grievances were denied after binding arbitration. Cherry has received unsatisfactory evaluations from Love in each school year since the 1989-90 school year. Cherry continues to believe that the evaluations and reprimands are the result of racism. To support this belief, Cherry also cites to an incident during a school picture when Love told her to sit on the ground, a time when Love told Cherry not to read her newspaper during faculty meetings, and an occasion when Love required Cherry to get to her class room in a timely fashion. In fact, the great weight of evidence is contrary to Cherry's allegations of racism and no racial content in these incidents has been shown. Cherry maintains that the deficiencies noted in the evaulations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Cherry's evaluations were based and in comparing those observations with Cherry's demeanor as a witness at hearing, it is found that some of the unsatisfactory observations regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Cherry did not use grammatically correct English, was at times vague and rambling, maintained a hostile posture, and was verbally hostile and caustic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Conner received an overall evaluation of unsatisfactory with areas of deficiency in Instruction Organization and Development, Knowledge/Presentation of Subject Matter, and Communication: Verbal and Nonverbal. Conner also received a Professional Development Plan with goals and strategies for remediating the deficiencies and three improvement notices which set forth a description of the unsatisfactory performance, improvement desired, and assistance to be provided to assist Conner in improving the unsatisfactory performance areas. Conner was unsatisfactory for verbal and nonverbal communication; for failure to begin instruction promptly, handle materials efficiently, maintain academic focus, conduct beginning and ending review, question effectively, recognize and amplify responses, and give appropriate praise; and for her inability to use English correctly. Conner also refused to accept the validity of the criticisms and failed to carry out any of the strategies for improvement. Conner took the position that the evaluations were incorrect and were based on racism. Conner has received unsatisfactory evaluations from Love in each school year since 1989-90. The inadequacies remained the same. Because of her failure to remediate these deficiencies, Conner was removed from teaching language arts and history and was reassigned to teach alternative education for the 1990-91 school year. Conner suggests that her charge of racism is supported by several incidents. Conner asserts that Love took money from her alternative education budget to buy computers to go in other classrooms. This is simply not so. Conner also believes that Love's racist motivation resulted in omission of an award for Conner in September 1990, in interception of a note that Conner sent by way of a student, in the failure to invite Conner to a school literary luncheon in January, 1993, and in the failure to invite Conner to an in program on Macintosh computers in December, 1992. The evidence is to the contrary in each of these incidents. No evidence of racial content or motivation has been presented in any of these incidents. Conner also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Conner's evaluations were based and in comparing those observations with Conner's demeanor as a witness at hearing, it is found that some of the unsatisfactory behaviors regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Conner did not use grammatically correct English, mispronounced basic words, and was at times loud, hostile, and sarcastic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Harris received an overall evaluation of unsatisfactory for the 1989- 90 school year. Deficiencies were noted in the areas of Instructional Organization and Development, Communication: Verbal and Nonverbal, and Personal Qualities. As with the other Petitioners, a professional development plan and improvement notices were provided. Harris was unsatisfactory for his inability to question effectively, to recognize and amplify responses, to give appropriate praise and to express enthusiasm and interest verbally and through body behavior. He was also frequently tardy to his classes thus leaving students unsupervised and he needed improvement in classroom behavior management. As did Cherry and Conner, Harris refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Harris also believed that the unsatisfactory evaluation was the product of racism. Harris complained that he could not effectively teach science from a regular classroom as he had done since 1987. At the beginning of the 1990-91 school year, Love assigned Harris to a science room, which gave him better access to the science closet for equipment and a demonstration table, running water, and an outside access door. Harris' teaching did not improve and he has been evaluated as unsatisfactory in every subsequent year. He was finally reassigned to teach alternative education. To support his claim that these unsatisfactory evaluations are the result of racial discrimination, Harris cites to two incidents in which he thought Love was rude and abrasive. One incident occurred when Love chided Harris in the hallway about being late for his class; the other occurred in the gymnasium just before an assembly when Love told Harris to "move it" and to "get those kids in line." No evidence was offered to show a racially discriminatory motivation for these incidents. Harris also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In examining the Summative Observation Instruments and in comparing those observations with Harris' demeanor as a witness at hearing, it is found the some of those same unsatisfactory behaviors were evident in the hearing. Specifically, Harris spoke in a low monotone, showing no enthusiasm or interest. He was lethargic, made no eye contact, and had a flat affect. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Bryan received an overall unsatisfactory evaluation for the 1989-90 school year, with deficiencies noted in Instructional Organization and Development, Communication: Verbal and Nonverbal, and Management of Student Conduct. Bryan was given a Professional Development Plan and improvement notices. She also believes that the unsatisfactory evaluation was the result of a racial motivation, but she, unlike the other Petitioners, took advantage to the suggested strategies for improvement by reviewing tapes and research, exploring new methods, practicing those improved behaviors, and attending a class. Bryan's efforts to improve were successful and she has not received another unsatisfactory evaluation from Love. Bryan tendered no competent evidence to show a racially discriminatory motivation for the unsatisfactory rating given in 1989-90. The improvement notices given to the Petitioners required "Improvement will be demonstrated by October 1, 90." The stated consequences if improvements were not made was "Progressive discipline which could lead to dismissal." No disciplinary actions have been taken against the Petitioners at any time since the initial evaluations. Love has consistently reproved both black and white teachers for being late to class. In dealing with the faculty, staff and students of Rosenwald, Love is direct, firm, aggressive, and at times, abrasive, regardless of the race of the party with whom she is dealing. It is not unusual for her to call out instructions to teachers or students in the common areas of the campus. The assistant principals under Love are Stryker and Linwood Barnes. Barnes is black. Both have observed Love's interactions with students and faculty on a daily basis. Neither have ever observed Love to treat black students or teachers in a manner different than that with which she treats white students and faculty. Petitioners assert that Love acknowledged her prejudice to Bronkelly Porter, a black student at Rosenwald. In fact, the incident cited occurred after Campbell had rallied students, teachers and the black community in an effort to retain his job. Because of Campbell's accusations against Love, she was regularly harassed by students. The event in question occurred in the cafeteria when she was challenged by Porter, a student with whom she had had problems in the past. Bronkelly yelled out to Love a question about whether she was prejudiced. Love spontaneously and sarcastically said "Yeah, right, Bronkelly, I am." While it is recognized that Love, in an off used a poor choice of words, this statement is not taken to be probative evidence of racial prejudice on the part of Love. Love also made certain statements while counseling Michelle Ward regarding her discipline problems. Specifically, Love told Ward that "if she'd hang around with her own kind then she would not get in so much trouble." The statement was not made in reference to the race of any individual, but instead was intended to get Ward to reconsider the group she was running with in an attempt to decrease Ward's discipline problems. The greater weight of the probative and material evidence establishes that Love at no time took any discriminatory action against the Petitioners on account of their race. Further, there is even less evidence of racial discrimination on the part of Simonson or the Bay County School Board. Petitioners have simply failed to prove their case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying and dismissing the claims for relief filed by Albert Harris, Celestine Cherry, Grace D. Bryan and Ida Conner. DONE and ENTERED this 1st day of June, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 92-1698, 92-1699, 92-1700, and 92-2304 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7(6); 9(7); 15(18); and 17(13). Proposed findings of fact 8, 10, 16, 21-23, 26-32, and 37-39 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 11-14, 20, 25, and 33 are irrelevant. Proposed findings of fact 18, 19, 24, and 34-36 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(10); 3(6&11); 4(12); 5(13); 6(15); 7(23); 14(39); 15(35); 16(34); 18(42); 20(39); 22(40); and 24 & 25(14). Proposed findings of fact 8-13, 17, 21, 23, 28, and 29 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 19, 26, and 27 are irrelevant. Proposed finding of fact 30 is unnecessary. COPIES FURNISHED: Leslie Holland Attorney at Law 924 North Gadsden Street Tallahassee, Florida 32303 Franklin Harrison Attorney at Law 304 Magnolia Avenue Panama City, Florida 32402 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149
The Issue This is a case in which the Petitioner seeks to terminate the Respondent's employment contract as a teacher. The grounds upon which the proposed action is based are alleged in a Notice of Specific Charges of Unsatisfactory Performance dated May 13, 1998.
Findings Of Fact At all times material to this case, the Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida. At all times material to this case, the Respondent, Michael J. Akpan, was an employee of the School Board of Miami- Dade County, Florida. At all times material to this case, the Respondent possessed an annual employment contract as a teacher and was subject to the Memorandum of Understanding between United Teachers of Dade and the School Board. At all times material to this case, the Respondent was certified to teach middle grades science. This certification allows the Respondent to teach certain science courses to ninth and tenth grade students. During the 1997/1998 school year, the Respondent was teaching at North Miami Senior High School (NMSHS).1 The Respondent was placed in an alternative education assignment in which the students were at risk of dropping out of school. During that school year, the Respondent had difficulty controlling the conduct of students in his classroom. There were numerous instances of student misconduct and disruption of such gravity as to require intervention by school security personnel and assistant principals. Teachers employed by the Petitioner School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between the Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate the Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and teachers, whether new or veteran. TADS observers record deficiencies which are observed during the observation period and then provide a prescription for performance improvement.2 A post-observation conference is held with the teacher to discuss the prescription. Then the cycle of assessment/prescription begins again. Under the TADS procedure as incorporated into the labor contract between the School Board and UTD, teachers who are in Annual Contract Two status, such as the Respondent, must have a minimum of two observations during each school year. One of those two observations must be done by the principal. During its 1997 session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted the implementation of TADS, the Petitioner and UTD negotiated a Memorandum of Understanding with respect to the implementation of the new procedures required by the 1997 statutory amendments. The Memorandum of Understanding is an amendment to the labor contract between the Petitioner and the UTD. The Memorandum of Understanding reads as follows, in pertinent part: Performance Probation Period Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days, conduct a conference-for-the-record which addresses: results of the observation/assessment, or Category VII infraction, stipulations of the Performance Probation (90 calendar days excluding school holidays and vacations), which begins upon the employee's receipt of written plan of assistance (prescription), the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time, future required observations/assessments and possible employment actions. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation. The annual evaluation decision will be based upon the result of the last observation/assessment as illustrated in the chart titled, Examples of Assessments/ Observations and Annual Evaluation/Employment Contract Decisions for Employees on Performance Probation. In the event that an employee is absent on authorized leave in excess of 10 consecutive workdays, the Performance Probation is suspended until the employee returns to active duty, at which time it resumes. If the Performance Probation has not been completed during the current year of employment, the annual evaluation is withheld pending completion of the Performance Probation during the subsequent year of employment. Teachers who have not completed the requirements of the Performance Probation are ineligible for summer school employment. Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent. Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board continue or terminate his or her employment contract. If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing. On October 13, 1997, the Respondent was observed in his classroom by Assistant Principal Carrie Figueredo for one hour. The Respondent was found to be deficient in several categories and his performance was assessed as unsatisfactory. The observed deficiencies on this occasion included a failure to maintain appropriate classroom management. More than 90 percent of the students were "off task." Most of the students were either sleeping, filling out job applications, or otherwise inattentive. On October 20, 1997, Assistant principal Figueredo held a post-observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities, which it was hoped would help him improve his performance as a classroom teacher. On November 21, 1997, the Respondent was formally observed in his classroom by Principal Charles Hankerson. Principal Hankerson assessed the Respondent's performance as unsatisfactory. Among other things, Principal Hankerson observed that the Respondent continued to have serious deficiencies in the area of classroom management. On December 2, 1997, Principal Hankerson held a conference for the record with the Respondent to address his unsatisfactory performance. During that conference Principal Hankerson made recommendations as to how the Respondent might improve the specific areas of his unsatisfactory performance, and also discussed the Respondent's future employment status with Petitioner School Board. The Respondent was placed on a Performance Probation status in accordance with Section 231.29(3)(d), Florida Statutes, and he was provided with a plan of assistance to help him correct his deficiencies within the prescribed time frame. The Respondent's 90-day probation period began on December 8, 1997, which is the day on which he was furnished with a copy of the written plan of assistance. March 8, 1998. was the ninetieth day following December 8, 1997. During the Respondent's 90-day probation period there were at least 12 school holidays and school vacation days.3 Accordingly, the Respondent's probation period extended until at least March 20, 1998.4 On January 20, 1998, the Respondent was observed in his classroom by Assistant Principal William Henderson. Assistant Principal Henderson observed the Respondent for 60 minutes. During this observation, the Respondent was found deficient in techniques of instruction. Assistant Principal Henderson observed that the Respondent was not addressing the needs of the students, that there was confusion as to the assignment, and that the Respondent wasted too much time initiating the lesson. On January 27, 1998, Assistant Principal Henderson had a post-observation conference with the Respondent, during which he discussed the Respondent's deficiencies, and provided the Respondent with a number of prescriptive activities to assist the Respondent in correcting his deficiencies. Among those activities were, that the Respondent should meet with his department chairperson and review strategies which would be appropriate for the students assigned to the Respondent's classes. The Respondent was also directed to submit lesson plans to Assistant Principal Henderson. On February 27, 1998, the Respondent was observed in his classroom by Assistant Principal Figueredo for two hours. Assistant Principal Figueredo found the Respondent to be deficient in several areas, including classroom management.5 This was Assistant Principal Figueredo's second observation of the Respondent. While she noted some minimal improvement since her earlier observation, the Respondent's performance on February 27, 1998, was still not anywhere near an acceptable level. On March 5, 1998, Assistant Figueredo held a post- observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities in order to assist the Respondent in correcting his deficiencies. Among those prescriptive activities was a requirement that the Respondent develop lesson plans to be reviewed by Assistant Principal Figueredo's and by the Respondent's department chairperson. The Respondent was also directed to maintain a time log to determine when students arrived. Additionally, the Respondent was assigned several exercises in the Activities Manual to assist him in the area of teacher/student relationships. On March 27, 1998, Principal Charles Hankerson observed the Respondent in the classroom. On this occasion Principal Hankerson found the Respondent to be deficient in three categories: classroom management, techniques of instruction, and teacher/student relationships. This was the confirmatory observation, which did not require a prescription. The assistance provided to the Respondent through his prescriptions was appropriate assistance related to the Respondent's observed deficiencies. The Respondent completed all of the prescriptions. Nevertheless, the Respondent continued to fail to plan for lessons, continued to fail to manage his students, and continued to fail to interact appropriately with his students. These continued failures resulted in a failure of the Respondent to meet the instructional needs of his students. As a result of the Respondent's unsatisfactory performance during each of the last three observations described above, Principal Hankerson notified the Superintendent of Schools that the Respondent had not satisfactorily corrected his performance deficiencies during the probation period, and Principal Hankerson recommended that the Respondent's employment be terminated. On April 2, 1998, the Superintendent of Schools timely notified the Respondent that he was going to recommend that the School Board terminate his employment contract because he had failed to satisfactorily correct his performance deficiencies during his period of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999.
The Issue The main issues in this case are whether, as the district school board alleges, a teacher has given the district just cause to terminate his employment contract for incompetency, and, alternatively, whether the teacher failed to correct performance deficiencies during a 90-day probationary period, which would constitute separate grounds for dismissal if proven true.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all relevant times, Respondent Christopher Marshall ("Marshall") was employed as a math teacher in the Broward County school district, a position which he had held for some 15 years before this proceeding began. During that period, Marshall taught at a few different schools, the latest being McArthur High, where he worked for several years up to and including the 2013-14 school year. Marshall's teaching career, sad to say, has been mediocre. The greater weight of the evidence establishes that, at least as early as 2002, Marshall was identified by administrators and colleagues as a teacher of marginal ability. More than once over the years Marshall was placed on performance probation due to concerns about his unsatisfactory performance. Rather than terminate Marshall's employment, however, the district transferred Marshall from school to school, and somehow he managed to muddle through, doing enough to be rated "satisfactory" and avoid getting the sack. One of Marshall's defining characteristics has been the remarkably high percentages of Fs and Ds that his students consistently have earned, year in and year out. Frequently more than half of his students took home final grades lower than a C——and sometimes quite a bit more than 50 percent fell into this category. This was true across grade levels (Marshall taught grades nine through 12) and without regard to degrees of subject-matter difficulty (Marshall taught advanced as well as basic classes; he was not assigned only struggling students). It was not uncommon for Marshall to fail between one-quarter and one-third of his students. In the 2013-14 school year, for example, 31 percent of Marshall's Liberal Arts Math 2 students received a failing grade; 25 percent of his Math College Readiness students failed; and ten percent of his Algebra 2 students got Fs. This was consistent with a decade-long pattern. Needless to say, a teacher whose students in large numbers routinely get Ds or worse in his classes attracts attention from students, colleagues, parents, and administrators. In Marshall's case, students complained to other teachers——and to their parents. Parents, of course, complained to administrators and demanded that their children be placed in other classes. Often, to placate angry parents, Marshall's students were transferred, with the result that Marshall's classes were small, and other math teachers had to squeeze in additional students. Teachers complained about this. It must be acknowledged that poor grades are not necessarily a reflection of the teacher's ability or lack thereof. Certainly, as a general rule, each student bears substantial responsibility for his or her own grade, and no one should expect a teacher simply to hand out high marks that are unmerited and unearned. Sometimes, to be sure, an F or a D is as richly deserved as an A or a B. That said, the sheer persistence of Marshall's grade distribution under different conditions and through changing student populations implies that something other than resistance or indifference to learning, poor study habits, or lack of intellectual ability must be at work. The undersigned has combed the record for an explanation of his students' poor grades that might exonerate Marshall but can find none. There is no persuasive evidence, for example, that Marshall is a demanding teacher who sets the bar high for his students, administering tough but fair tests that are difficult for the unmotivated or unprepared to pass. To the contrary, Marshall had his students spend time on rote exercises, such as copying definitions and formulas from the textbook, which have little educational value. Nor did Marshall's students tend to excel in their next math classes. Rather, after being taught by Marshall, his students often had difficulty in their subsequent courses because they had not learned the prerequisite material. For years, administrators have tried to cajole or compel Marshall to reduce the number of students receiving Fs and Ds in his classes, not by the expedient of grade inflation, but by implementing different pedagogical techniques and strategies. Marshall, however, has ignored these importunings and directives, and nothing has changed. Marshall's apparent imperviousness to criticism has been an ongoing source of frustration to his colleagues and administrators. Marshall considers himself to be an "awesome" teacher, and therefore he concludes that anyone who has a different opinion——which unfortunately seems to be nearly everyone with whom he has worked——is either mistaken, lying, or treating him unfairly. This has led Marshall to file numerous grievances and complaints against his supervisors, none of which has been successful. He is not, however, confrontational, discourteous, or abusive in his workplace relationships. Rather, Marshall engages in passive-aggressive behavior. Faced with a demand or a directive, Marshall does not argue (although he might politely disagree); he simply does not comply. The greater weight of the evidence persuades the undersigned to find that the bad grades Marshall's students consistently have received are a symptom of Marshall's inability to teach. Although he knows his subject, Marshall lacks the skills necessary to impart his knowledge to his students, who consequently do not learn math in his classes. It is not that Marshall is deliberately trying not to succeed. He is not being insubordinate in this regard. He is simply not suited to the job of teaching high school math. In 2011, following a legislative directive then recently enacted, the school district adopted a teacher evaluation system known as the Broward Instructional Development and Growth Evaluation System ("BrIDGES"), which is based on Dr. Robert J. Marzano's strategies for educational effectiveness. When rating a teacher's classroom performance using BrIDGES, an evaluator inputs his or her observations into a database by filling out an electronic "iObservation" form. The iObservation tool contains 60 "elements," each of which represents a discrete strategy, action, or skill that a teacher might employ as appropriate: e.g., "Using Academic Games," "Identifying Critical Information," and "Displaying Objectivity and Control." The elements are organized under four separate "domains" as follows: Domain 1: Classroom Strategies and Behaviors (Elements 1-41) Domain 2: Planning and Preparing (Elements 42-49) Domain 3: Reflecting on Teaching (Elements 50-54) Domain 4: Collegiality and Professionalism (Elements 55-60). The 41 elements of Domain 1 are further subdivided into nine Design Questions, DQ1 through DQ9. On October 8, 2013, the school district and the Broward Teachers Union entered into a Memorandum of Understanding ("MOU") setting forth their agreements regarding the use of BrIDGES to evaluate teachers for 2013-14. Pursuant to the MOU, each classroom teacher was to receive at least three observations, including one formal (30 or more minutes), one informal (15-25 minutes), and one snapshot or walkthrough (3-10 minutes) observation. During an observation, the subject teacher receives a "datamark" (prescribed number of points) for each element that the evaluator chooses to rate. For 2013-14, the datamarks were as follows: Innovating (Highly Effective), 4 points; Applying (Effective), 3 points; Developing (Effective), 2.5 points; Beginning (Needs Improvement), 2 points; and Not Using (Unsatisfactory), 1 point. Each teacher was to receive at least 45 datamarks, comprising at least 25 datamarks in Domain 1 and 10 within Domains 2, 3, and/or 4. A weighted average of the datamarks assigned to a teacher's performance as recorded on the iObservation forms became the teacher's Instructional Practice Score ("IPS"). The IPS was equal to 0.68X plus 0.32Y, where X was the average of the teacher's Domain 1 datamarks and Y was the average of the teacher's datamarks for Domains 2, 3, and 4 combined. The IPS was reported as a number having three decimal digits, to the thousandths place. This created a false precision, for the calculated result could not possibly have been more precise than the number having the least number of significant figures in the equation, which would always be a one-digit integer (unless the teacher happened to receive strait 2.5s——possible, but unlikely, and not the case here). In other words, the numbers to the right of the decimal point in the teacher's IPS were mathematically insignificant, spurious digits, because the original data could not support a measurement beyond the precision of one significant figure. The IPS should have been (but was not) rounded to a single-digit integer to avoid reporting insignificant digits. For 2013-14, the BrIDGES Overall Evaluation Score equaled the sum of the teacher's IPS (weighted as 49%), Deliberate Practice score (weighted as 1.0%), and Student Growth score (weighted as 50%). Teachers at McArthur High (including Marshall) for whom no individual student data were available automatically received a Student Growth score of 3.0 for that school year, and all teachers (including Marshall) who completed a self-assessment received a Deliberate Practice score of 3.0. The Overall Evaluation Scale for 2013-14 was Highly Effective (3.450-4.000), Effective (2.500-3.449), Needs Improvement (2.000-2.499), and Unsatisfactory (1.000-1.999). As of February 4, 2014, Marshall had received eight observations: three formals, three informals, and two walkthroughs. He had received 56 datamarks in Domain 1 and five datamarks in Domains 2, 3, and 4. His weighted IPS, to that date, was 2.145 (but this computed score was precise to no more than one significant figure and therefore should be understood as a 2 after rounding off the spurious digits), or Needs Improvement. Pursuant to the MOU, once a teacher receives an average IPS of Needs Improvement or Unsatisfactory among other conditions that Marshall had met as of February 4, 2014, a Performance Development Plan ("PDP") may be written for that teacher. Accordingly, in early February 2014, a PDP was written for Marshall. As well, on February 12, 2014, the principal of McArthur High placed Marshall on performance probation for 90 calendar days, delivering to Marshall a notice of "less than effective performance" ostensibly pursuant to section 1012.34(4), Florida Statutes. The statute, however, authorizes 90-day performance probation only for a teacher whose performance is unsatisfactory, and Marshall's performance was not unsatisfactory; it was Needs Improvement. Needs Improvement is, to be sure, less than Effective performance, but it is better than Unsatisfactory. Indeed, none of the levels of performance besides Unsatisfactory denotes unsatisfactory performance and thus, logically, all teachers rated Highly Effective, Effective, or Needs Improvement fall within the range of satisfactory performance. In any event, between February 28 and May 7, 2014, Marshall received 12 more observations, which added 75 datamarks to his total in Domain 1 (making 131 in all) and six additional datamarks in Domains 2, 3, and 4 (for a grand total of 11). The iObservation forms for Marshall's last six observations, incidentally, are not in evidence. As of May 7, 2014, Marshall's IPS was 1.963. This number, by itself, would be Unsatisfactory on the Overall Evaluation Scale. Given, however, that the initial numerical data was captured (mostly) in single-digit integers, together with a handful of 2.5s, the decimal places are spurious in this result; there is no meaningful distinction between "1.963" (which is a textbook example of false precision) and "2" (which is what 1.963 should be rounded up to, to avoid the fallacy of overprecision). Thus, if the insignificant figures are ignored, Marshall's IPS, by itself, is actually Needs Improvement. But more important, Marshall's IPS was not his Overall Evaluation Score, and therefore it is improper and unfair to deem his performance Unsatisfactory on the Overall Performance Scale based on an IPS of 1.963 as the School Board wants to do. Marshall's Overall Evaluation Score, as calculated by the School Board, was 2.492 — Needs Improvement.1/ Again, Needs Improvement is less than Effective and clearly not ideal, but it is not Unsatisfactory. To the contrary, Needs Improvement is one of the levels of satisfactory performance. Going a step farther, if Marshall's IPS were rounded to 2, as it should be to eliminate the false precision, and his Overall Evaluation Score recalculated absent the spurious decimals, then his final score would be 2.51, which in turn should be rounded to 3 to avoid overprecision, but which equals Effective performance regardless. The point is, based on a final score of 2.492, Marshall's overall performance can as correctly be deemed Effective as Needs Improvement, for there is no real difference between 2.492 and 3 based on the original data used to make these calculations.2/ (To repeat for emphasis, computations cannot make the original data more precise.3/) Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Marshall is guilty of the offense of misconduct in office, which is defined in Florida Administrative Code Rule 6A-5.056(2).4/ The greater weight of the evidence establishes that Marshall is guilty of incompetency,5/ which is just cause for dismissal from employment. A preponderance of the evidence establishes that Marshall's performance as measured in accordance with the BrIDGES evaluation system was not Unsatisfactory during the 2013-14 school year. Therefore, the evidence does not support the termination of Marshall's employment contract pursuant to section 1012.34(4). The evidence does not support a determination that Marshall independently violated section 1012.53, apart from his incompetency, which affords a sufficient basis (as "just cause") for dismissal. The evidence does not support a determination that Marshall independently violated School Board Rule 4008(B), apart from his incompetency, which affords a sufficient basis (as "just cause") for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing Marshall from his employment as a teacher in the Broward County Public Schools for the just cause of incompetency as a result of inefficiency. DONE AND ENTERED this 24th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2016.
Findings Of Fact At all times material hereto, Respondent held active Teaching Certificate 485203 with certification in Political Science and History. She is a hard worker, who, when orphaned, put herself through school, achieving a Master's Degree in Social Justice from Lewis University. Respondent was employed by Petitioner School Board as a social studies teacher at Miami Central Senior High School for the 1981-82, 1982-83, and 1983- 84 school years. During Respondent's first year with the Dade County school system, 1981-82, she was formally observed by her principal, Mr. Hal Guinyard, and other administrators. Respondent had problems with discipline of tardy students, absenteeism, classroom management and noise level control in the classroom and with devising and carrying through variations of instruction. On Respondent's annual evaluation for 1981-82, Respondent was recommended for employment but was found lacking in the area of classroom management. The specific observations leading up to this evaluation were that: Several students entered and left the room at will, other students remained in the halls during class time, some students in the classroom disturbed others in Respondent's class and even nearby classes with irrelevant and extraneous discussions and excess noise. There was excess noise from the late arrivals and those in the halls, too. The Respondent rolled on copy work from the chalkboard or text book with minimal student conversational feedback. Mr. Guinyard suggested to Respondent that she minimize busy work, create an orderly classroom environment, and explore alternative instructional techniques. On October 26, 1982, Respondent was formally observed in the classroom by Assistant Principal William Matlack, using the Teacher Assessment and Development System (TADS) of objective analysis. Mr. Matlack rated Respondent as unsatisfactory in the area of techniques of instruction. Excessive time was used by Respondent in preparing her students to take a test. Mr. Matlack prescribed help for Respondent in the area of techniques of instruction by assigning Respondent to observe three effective teachers and list four teacher activities, three student activities, and to analyze the time spent in organizing the class and in instructional activities. He also suggested that she read the TADS chapter on acceptable classroom procedures and teaching techniques and attached 33 pages of reading material to her evaluation, giving suggestions for classroom management, effective planning, techniques of instruction, and techniques of student-teacher relationships. He further advised Respondent of an in-service course in techniques of instruction. While Mr. Matlack did not rate Respondent as unacceptable in classroom management, he found that she still did not control her class for all the reasons previously noted by Mr. Guinyard. Rather than rate her as unacceptable in this area, he directed a memorandum dated October 29, 1982, to Respondent's attention indicating problem areas that could lead to further discipline problems if uncorrected. One of the problems was that Respondent was selling doughnuts for the athletic department between classes, and Mr. Matlack made her aware of the fact that students would be tempted to eat in other teachers' classes and that this was against the school rules. Respondent also was admonished concerning the security danger existing in her leaving money and keys lying about. On February 28, 1983, Respondent was again formally observed in the classroom by Mr. Matlack using the TADS and was found to be deficient in the areas of knowledge of subject matter, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was rated unsatisfactory in knowledge of the subject matter because the topics were not covered thoroughly and there was too much digression. There were 11 topics discussed and few were related to each other. Some of the areas were irrelevant, e.g., the importance of obtaining a good lawyer if one is going to win a lawsuit, how to obtain a house in Chicago, and the five black Presidents in the United States. Only 6 minutes were spent on how a bill becomes a law. Only 25 minutes were spent on the prescribed curriculum topics of cabinet duties, income tax, social security, Veterans' Administration, Federal Housing Authority, Health and Rehabilitative Services, and the Equal Rights Amendment, and the irrelevant topics already mentioned. Techniques of instruction was rated unacceptable because Respondent presented the material in a lecture form. The assignment on the board was very similar in technique (copy work for listing and defining terms, outlining a chapter) to what was used during the October 1982 observation; content was, however, different. The students were not ready for the assignment. There appeared to be no scope and sequence to the lesson. The lesson was very disjointed. The students were not involved when questions were asked, and their response was minimal. No effort was made to identify those students not participating or off task nor to involve all of them in the lesson. One or two students carried the class. Respondent did not appear to be effectively using the suggestions made by Mr. Matlack during his prior observation. Mr. Matlack explained to Respondent the need to create inspiration, create interesting presentations, move around the classroom utilizing various techniques and media, direct questions for the purpose of involving students, and for motivational use of questions geared toward individual abilities of respective students. He recommended Respondent re-read the TADS booklet that he had prescribed before. Respondent was rated "improved" in keeping grades for a variety of types of assignments in her grade book, but she still was not making informal assessments of her students' learning. Respondent was rated unacceptable in teacher-student relationships because she was not involving the students in instruction. The students appeared to do as they pleased. The classroom still did not present a neat and orderly atmosphere. The students seemed surprised at Respondent's attempt to enforce rules and regulations. This indicated to Mr. Matlack that the control was for his benefit, being implemented only for the instant period of observation. At the conclusion of the 1982-83 school year, Mr. Guinyard recommended Respondent for continued employment, but rated her overall unacceptable. He found her unacceptable for the year in knowledge of subject matter and techniques of instruction. She would continue on prescription (prescribed remediation efforts). Mr. Guinyard testified that he gave Respondent an extra year on prescription and brought in more help so that she might yet improve. During the 1982-83 school year, Mr. Guinyard recommended that Respondent observe other teachers and that she contact Mr. Hanson for help, which she did. Mr. Hanson is the Social Studies Supervisor for Dade County Schools. Mrs. Felicia Accornero (hereinafter Mrs. Mendez), is Assistant Principal for Curriculum (APC). She is not a trained social studies teacher but is certified to teach biology, chemistry, and gifted children. She is certified to work as an administrator, supervisor, or guidance counselor. Additionally, Mrs. Mendez discussed social studies concepts with other social studies teachers in an effort to be of more assistance to Respondent. On October 18, 1983, Respondent was officially observed in the classroom by Mrs. Mendez. Using the TADS analysis system, Mrs. Mendez rated Respondent deficient in the areas of knowledge of subject matter, classroom management, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in knowledge of subject matter because there were substantial errors in her presentation: incorrect spellings, incorrectly defined terminology, and unnecessary use of lay terms rather than formal terms. Mrs. Mendez' perception was that neither the students nor she, personally, understood the lesson as represented by Respondent. Mrs. Mendez recommended that Respondent work with her. Mrs. Mendez also prescribed particular pages from the TADS prescription manual, which included a detailed subject matter inventory. This was a checklist so that Respondent could understand the different areas where she could become knowledgeable so that her subject matter would be more accurate and more relevant to the students. Mrs. Mendez discussed subject matter with Respondent and discussed one lesson a week with Respondent prior to its presentation. At this time, Mrs. Mendez also rated Respondent unacceptable in classroom management because there were too many delays in the class due to the same deficiencies observed previously by Messrs. Guinyard and Matlack, specifically repetitive tardies, disruption by tardies noisy off-task irrelevant extraneous discussions among students during teaching, 50% of the time spent in opening and closing class and other non-instructional activities, lack of discipline, disorganized classroom and disorganized lesson presentation by Respondent. The lesson plan which was in Respondent's 1982-83 lesson plan book for October 18, 1983, was not the one which Mrs. Mendez observed in the classroom. She was give a separate lesson plan. Mrs. Mendez prescribed a TADS chapter on structuring classroom time so that the teacher moves from one activity to another without delay. Mrs. Mendez suggested that Respondent work with both her and the department chairman, Mrs. Consuelo Pino, to improve Respondent's classroom management. Mrs. Mendez rated Respondent unacceptable in techniques of instruction because Respondent was not following a sequence, was not clarifying directions and explanations when necessary, did not give students background information that was necessary for them to understand the topic, and did not perceive when her students did not understand the lesson. Mrs. Mendez prescribed reading a section from the TADS chapter on sequencing lessons and also prescribed help from herself and Mrs. Pino. Mrs. Mendez worked with Respondent to help her place her lesson plans in an understandable sequence. At least weekly for the next ten weeks, Mrs. Mendez helped Respondent. Mrs. Mendez provided Respondent with a book on questioning techniques, helped Respondent organize her room, showed her how to position her desk so that she would have a better view of the students, explained how a seating chart would help her keep accurate attendance quickly, explained how to utilize student folders so that materials would be easily accessible and so that the classroom and instructional techniques and procedures would accordingly be better organized. The prescription deadline was extended to accommodate Respondent. On November 8, 1983, a conference for the record was held with Mr. Mathew V. Lawrence, Mrs. Mendez, and a field representative of United Teachers of Dade. Mr. Lawrence had been Assistant Principal the first two years Respondent taught at Miami Central Senior High and became Principal there for the 1983-84 school year. The purpose of the conference was to discuss the October 18, 1983 observation and the continuing deficiencies. The prescriptions were discussed. The ramifications of continued deficiency were discussed. Respondent's responsibility for basic skills such as reading and spelling was discussed. Respondent was reminded that she was responsible not only for her subject matter, (history, social studies, political science) but for students' basic skills (reading, writing, spelling, grammar). 24.. On November 12, 1983, Mrs. Mendez again formally observed Respondent in the classroom using the TADS analysis technique. Respondent was aware that she would be observed that day. Respondent showed some improvement over the prior observation in that she presented some accurate information for most of the period; however, Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in preparation and planning because her objective was too simple and she did not list activities and assessment techniques, as required. Thereafter, Mrs. Mendez worked with Respondent on writing lesson plans and helped her write lesson plans. Mrs. Mendez found Respondent unsatisfactory in knowledge of the subject matter because Respondent made inaccurate statements, used incorrect grammar, and gave opinions rather than presenting both sides of an issue to students. Mrs. Pino made the same observation. During some parts of the lesson, it appeared that Respondent did not know what she was talking about. While the students appeared to understand most of the lesson, at times they did not. Mrs. Mendez also concluded that Respondent was not adhering to a structured plan but for this formal observation for the last formal observation Respondent had prepared lesson plans for observation days separate and apart from her normal procedure/plan for non-observation days. To improve Respondent's knowledge of subject matter, Mrs. Mendez recommended that Respondent review and study the textbook chapters prior to teaching the lesson because it did not appear that Respondent was doing this. Mrs. Mendez also gave Respondent the opportunity to prepare lessons and to explain them to Mrs. Mendez ahead of the time Respondent would present the material to the class so that Mrs. Mendez could monitor whether or not the information would be clearly presented to the class. Mrs. Mendez rated Respondent unacceptable in techniques of instruction upon much the same grounds as she used to substantiate the unacceptable rating for the categories of preparation and planning and knowledge of the subject matter, all essentially relating back to inadequacy of Respondent's lesson plans, or that the lesson plans were created solely for observation or to satisfy a prescription and were not for actual use. Petitioner's Exhibit 12 does not reflect a specific written prescription in this category, but Mrs. Mendez' oral testimony indicated further emphasis and helpful work on lesson plans was initiated. Respondent was next formally observed by Mr. Matlack on January 19, 1984. Respondent showed improvement this time but Mr. Matlack noted that Respondent needed to record her students' grades in her grade book more promptly as she received them. He also rated her unacceptable in classroom management primarily because of continued disruptions from tardy arrivals. Mr. Matlack directed Respondent to establish rules and regulations for students about coming into the class on time, bringing the needed materials, staying until the period ends, and prohibiting visitors into the classroom. He gave her specific suggestions on how to make these improvements and provided her with a memorandum outlining the deficiencies and prescribed help. Respondent's lesson plan for January 19, 1984, in Respondent's 1983-84 lesson plan book was only partially covered in the period observed that day by Mr. Matlack. On February 8, 1984, Mr. Lawrence rated Respondent unacceptable in classroom management on her midyear annual evaluation for 1983-84. On February 10, 1984, Mr. Lawrence held a second conference for the record with Respondent to discuss her performance assessments to date and his recommendation that she not receive a fourth year of annual contract. He also advised her that if she cleared her deficiencies, he would rescind his recommendation and would recommend a continuing contract. Respondent agreed to a fourth year annual contract. On March 13, 1984, Mr. Lawrence made his first official classroom observation of Respondent according to the TADS and found her to be very deficient. He felt that no teaching and learning were taking place. He observed her to be deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Mrs. Lawrence found Respondent unsatisfactory in knowledge of subject matter because the definitions she gave for vocabulary words were not accurate and not appropriate. The students did not seem to understand the class work. Respondent was not gearing the lesson for all of her students. The lesson plan in Respondent's 1983-84 plan book for March 13, 1984, was not the plan Mr. Lawrence observed being implemented that date. Mr. lawrence prescribed for Respondent to prepare lesson plans for five days that detailed the sequencing of concepts and how each concept would be explained and implemented. Respondent was to include a minimum of five ideas and concepts and give the cognitive levels covered in each area. Mrs. Mendez and Mrs. Pino were recommended as resources. Respondent was rated unacceptable in classroom management because students were coming to the room late and being admitted without any evidence they had been detained elsewhere and without reprimand or punishment by Respondent. There was no evidence the students had any knowledge of the correct procedure. Step by step instructions for correcting her classroom management in this area were given to Respondent by Mr. Lawrence. Mr. Tom Shaw later helped her in this area. Mr. Lawrence rated Respondent unacceptable in techniques of instruction because the only two methods she used during the class period were writing definitions for 10 minutes and answering questions from the end of the chapter in the textbook for 45 minutes. The questions at the end of the chapter were unrelated to the vocabulary work. Respondent gave no introduction to the material. There was no evidence of the students understanding the materials, and no opening or closure to the lesson. In order to aid Respondent to improve her techniques of instruction, Mr. Lawrence recommended that Respondent develop a list of at least 10 teaching techniques or suitable teaching methods. He directed her to utilize a minimum of two methods permitting students to actively participate. He directed her to prepare lesson plans for a week that demonstrated these methods and how the students would be involved. He suggested that Mrs. Mendez and Mrs. Pino be used as resources. Respondent was rated unacceptable in assessment techniques based on four student folders selected at random, each of which contained only five test cares and one or two additional sheets of work. The work in the student folders was not representative of what should have been there so late in the school year and therefore students' work was not accurately documented and could not be properly assessed for grading the child. The help that Mr. Lawrence prescribed for Respondent was to prepare two written assessment items per week for three weeks. Each test was to contain a variety of at least three types of questions. He wanted other corrected items such as homework and class work to be contemporaneously placed in student folders. He assigned Mrs. Mendez and Mrs. Pino to help Respondent. Pursuant to Mr. Lawrence's March 13, 1984 prescription, Mrs. Mendez explained to Respondent in a memorandum what was required in the student folders. Subsequently, when Mrs. Mendez reviewed the student folders, she found a student paper consisting of one incomplete sentence fragment graded "A". The student's grammar was not graded (p 14). This one example was clearly contrary to the criteria established by Mrs. Mendez and contrary to the criteria established by Mrs. Mendez and contrary to the instructions for the assignment outlined by Respondent but it still had been graded "excellent." At hearing, Respondent denied that she gave the paper an "A" and asserted that she would require from this particular student two examples the next day. On April 24, 1984, Respondent was formally observed simultaneously by two administrators (Mrs. Mendez and Paul Hanson) and was found by both administrators to be unsatisfactory in the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent had lesson plans and objectives based on the county curriculum, but was rated unacceptable in preparation and planning because her plans were not effectively implemented. She did not fill the allocated class time although only about 10% of the planned material was covered. One of the nine listed topics was "Communism." Section 233.064, Florida Statutes, spells out the content and mandates 30 hours for curriculum in "Americanism vs. Communism." On eleven different occasions, Mr. Hanson noted students were totally off task, disruptive and loud, and discussing topics that were not relevant to the lesson on Communism. The students were talking in little groups and in Mr. Hanson's opinion nothing academic was learned by the students during the period and consequently the students might thereby fall short of the statutorily required 30 hours. As a means to help Respondent, Mrs. Mendez suggested that Respondent prepare lesson plans for one week and check with the Assistant Principal who would observe the class to see if the plans were implemented. She recommended that Respondent seek help from both herself and Mrs. Pino. Respondent was rated unsatisfactory in knowledge of subject matter because the information that she provided concerning Communism was not accurate. There were a number of errors made by Respondent during the course of the lesson. Mr. Hanson prescribed help for Respondent by working with Dan Jones, Social Studies Specialist, during the week of May 11, 1984. Respondent was rated unacceptable in classroom management because of the numerous disruptions, extraneous conversations, and constant movement. Student tardiness was noted yet again. Respondent appeared frustrated but was not able to effectively control the situation and did not take any steps to correct or penalize the tardy students. As a means of helping Respondent, Mrs. Mendez suggested that Respondent work with Mr. Shaw who is the assistant principal that generally monitors attendance and discipline problems. Respondent was rated unacceptable in techniques of instruction because she did not deliver the instructional program acceptably in many areas. Also, upon the same grounds, Mr. Hanson prescribed help from Mr. Jones on this element. By memorandum dated May 7, 1984, Mr. Lawrence changed his recommendation for extended annual contract to dismissal because Respondent had failed to remediate her deficiencies and she was now more deficient than when he had observed her in March. Pursuant to Mr. Hanson's prescription of April 24, 1984, Mr. Jones worked with Respondent on May 17, 1984. He brought her material to use and discussed a number of areas: lesson planning and format, techniques, the Dade County balanced curriculum objectives, the possibility of his visiting one of her classes to provide feedback to her about her techniques of instruction, a possible policy of limiting hall passes, a technique for engaging students in group activities, and the need for having at least two activities per class. He brought three books for her to use, Ideals and Ideologies, The Russians, and Practical Methods for the Social Studies. He assisted with her lesson planning for the week of May 21-25, 1984. On May 24, 1984, Mr. Lawrence completed the annual evaluation of Respondent, rating her as deficient in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. This constituted three more unacceptable areas than on her midyear evaluation. Mr. Jones returned to help Respondent on June 4, 1984. Based upon his visitation, he wrote several suggestions for Respondent. Subsequently, when Mr. Jones observed the class, Respondent was attempting to implement some of the recommendations he had made but the presentation was not well structured or organized. Approximately fifty percent of the class period was lost in digressions and expounding of Respondent's personal opinions. Mr. Jones testified that it is appropriate for teachers to get students to express their opinions; however, those opinions should be based on knowledge of the course concepts and should come from the students, rather than from the teacher so as to encourage students to think independently, to make rational decisions, and to not merely absorb their teacher's opinion. In time of confusion, Respondent unduly delayed clarification of instructions. Mr. Jones opined that if he had been a student, he would have had to have asked questions also and in his opinion, the students were being deprived of a minimum acceptable level of instruction. On June 7, 1984, Respondent was again formally observed by two administrators (Mr. Hanson and Mr. Shaw) using the TADS analysis system. Respondent was rated unacceptable in knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Respondent's performance had declined since Mr. Hanson's prior observation. She now was rated as having one acceptable category out of six. Mr. Hanson noted that the "students would have been better off to review without teacher's assistance." Respondent gave incorrect information and was very vague. She made several content errors and confused government forms with economic systems, using the terms synonymously. Mr. Hanson, under the impression that Respondent was still being recommended for a fourth year annual contract, recommended that she take course work over the summer in classroom management and subject matter. Respondent was rated unacceptable in classroom management because again there were at least nine interruptions of the same kinds as previously observed. However, where previously the Respondent had ignored inappropriate behavior, this time she indulged in a disruptive outburst reprimanding one student very loudly. There was a student in the room who had been withdrawn from school two weeks prior and recently readmitted. In returning this student to the office for a status check, Mr. Shaw missed several minutes of Respondent's class and his observation is somewhat impaired by this absence. It is to Respondent's credit that even during this period of suspension, this particular student sneaked into school to attend her class. At no time were more than half of the students observed to be on task. Mr. Shaw recommended that the Respondent work with Mr. Hanson to improve her classroom management. Respondent was rated unacceptable in techniques of instruction because there were only passive activities being pursued and there was little feedback from the students. Respondent's technique was ineffective in encouraging class discussion. There was inadequate use of media. Because the lesson was not in proper sequence, it created academic confusion. Again, Mr. Shaw recommended that Respondent seek help from Mr. Hanson. Respondent was rated unsatisfactory in teacher-student relationships because of the general lack of respect on the part of the students and because of Respondent's erratic reaction to the student's behavior. The observers prescribed the same help. Respondent was rated unacceptable in assessment techniques because there was no means of assessing whether or not the students were understanding the review process that was taking place. The observers prescribed the same help. In 1983 Respondent was referred to a nine-credit social studies course taught by Mr. Hanson at Nova University as part of the administration's attempts to help her master the subject matter of her course. She cooperated by taking the course but failed it. Complaints of misgraded, missing, and plagiarized papers arose among students in Respondent's classes. Administrators concluded that Respondent lacked an appropriate procedure for receiving, organizing, and monitoring papers for grading purposes. Students and parents complained that no effective teaching was going on and that the disorganization in the classroom even prevented individualized learning. On another occasion, Respondent was informally observed by administrators giving wrong information to students as to the number of municipalities in Dade County. Administrators also observed that her grammar, verb tenses and word choice were not a good example to her students. The undersigned observed this pattern at hearing. At the hearing, Respondent testified to an incorrect number of Florida counties. During her testimony, Respondent used the non-word, "malicy" instead of "malice." She used the word "connotatins" several times in contexts which more properly would have required either the word "confrontations" or "altercations." In no respect was "connotations" an appropriate word selection and Respondent defined the word "connotations" as meaning "disagreements." Respondent contended that her emphasis on rote copying from the board and reading aloud was an appropriate response to large classes the majority of whose members did not possess basic skills. Respondent explained that what her observers perceived as her poor grammar was actually "street talk" she intentionally used to reach culturally deprived students. While these may have been legitimate motivations, they do not excuse Respondent's never having progressed in the use of proper grammar and varied teaching techniques for communication with students when other teachers in the same school were able to do so. Respondent's explanation also does not ring true in light of Respondent's numerous grammatical and content errors during her own testimony. Mrs. Pino, the department head, offered additional help to Respondent during Respondent's three years at Miami Central Senior High School. She discussed classroom management, ways to diversify teaching, and other problems which came up on a daily basis. She discussed parent contacts in order to help with classroom management. She gave Respondent additional copies of some papers that Respondent has lost. She reviewed lesson plans with Respondent many times and on occasion would review a lesson plan with her prior to an administrator's observation. Pursuant to Mrs. Mendez' request, Mrs. Pino observed a whole period in order to help Respondent learn how to make smooth transitions from one classroom activity to another. Respondent testified that she encouraged students to borrow books from her even if it meant looking the other way when she knew they were removing them. Loaning or giving books away might be altruistic upon Respondent's part, and indeed, helpful to students' learning the subject matter or developing a love of history, reading, etc., but Respondent's practice of encouraging the fantasy of theft for learning's sake is hardly in the best interests of the child or the teaching profession. Respondent, a Negro, contended that it was her attempts to instill in her students pride in their Black heritage which resulted in her negative ratings. She based this primarily upon body language of Mr. Matlack she said she observed when she showed him the pamphlet "The Five Negro Presidents" (R-1). She claimed there existed a rehearsed "plot" by all the Petitioner's witnesses on the basis of either her minority heritage views or on the basis of her election as a steward in the union, United Teachers of Dade. This explanation is not credible. While "Black History" may certainly be a valid part or enrichment of a high school social studies curriculum, it cannot legitimately usurp all of the class time properly allotted to prescribed curriculum. Moreover, inaccurate history, even inaccurate Black History, serves no valid purpose. The undersigned finds that it was not this theme on a single occasion which observers were concerned with in rating Respondent, but the inaccuracy and confusion of her presentation of that theme which resulted in her negative rating on the one occasion to which she refers. Also this pamphlet was not used at every observation and cannot be attributed as the incentive for so many negative ratings by so many different observers. It is also noted that Mrs. Mendez and Mrs. Pino are of Hispanic background. Although Respondent has responded to criticism positively, was eager to improve, and cooperated readily in all of her observers' suggestions, she still never achieved the standards of competency required and expected by the Dade County School Board. This is so despite extensive efforts of her colleagues to help Respondent reach acceptable performance standards. Respondent has failed to teach efficiently and faithfully due to her failure to communicate and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience.
Recommendation Upon the foregoing findings of face and conclusions of law, it is RECOMMENDED that the Dade County School Board enter a Final Order in Case No. 84-3171 finding Respondent guilty of incompetency, affirming her suspension, dismissing her from her employment with the Dade County School Board, and denying her any claim for back pay. Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order in Case No. 84-3171A finding Respondent guilty of incompetency and incapacity and revoking her Florida Teacher's Certificate for ten years, subject to reinstatement as provided by law. DONE AND ENTERED this 27th day of March 1985 in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1985. COPIES FURNISHED: Craig R. Wilson, Esquire The Law Building, Suite 204 315 Third Street West Palm Beach, Florida 33401 Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Miami, Florida 33132 William Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent's employment with Petitioner should be terminated due to two years of unsatisfactory and unacceptable performance.
Findings Of Fact At all times relevant, the Respondent, Robert Nolan, Jr., was employed as a seventh and eighth grade math teacher at Rockway Middle School ("Rockway"). Nolan has been employed by the School Board as a math teacher since the 1987/88 school year. The School Board has adopted Rule 6Gx13-4A-1.21, V., which provides: Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, shall teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by the Rules of the State Department of Education. Article XI of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: Classroom teachers are required to develop weekly lesson plans which shall reflect one or more objectives, activities, homework assignments, and a way of monitoring student progress. Principals or supervising administrators may suggest, but not require, a particular format or organization. Only where a principal has documented deficiencies through classroom observation, using the Teacher Assessment and Development System (TADS), may a teacher be required to use a set form in preparation of lesson plans. Article XIII, Introduction, B., of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: The parties agree to the continuation of a developmental approach to improving teaching performance, using the TADS. In accordance with Florida Statutes, no disciplinary action shall be taken, based on incompetence in the absence of documentation and procedures required by TADS. Article XIII, Section 2, of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: Any teacher whose performance is assessed unacceptable in any observation category shall be entitled to a plan of professional growth practices which shall include reason- able timeframes for implementation. . . Teachers shall follow the growth practices required. Failure to implement required professional growth practices or to correct deficiencies for which professional growth was required shall constitute just cause for disciplinary action in accordance with the due process provisions in this Contract. Where an administrator has substantiated, through two formal observations, as stipulated above, that teaching is unaccep- table in any of the observation categories, DCPS may utilize diagnostic tests and assessment techniques to identify teaching weaknesses and strengths and to assist in selecting appropriate professional growth practices to improve teaching performance. . . Where teaching deficiencies are diagnosed as a result of tests or assessment techniques, DCPS shall require professional growth practices which shall be obligatory on the teacher. Respondent's employment history with the Petitioner includes numerous instances of unsatisfactory and deficient classroom performance reflecting an unwillingness or inability to fulfill his teaching duties and responsibilities. On June 2, 1993, Carole Abrams ("Abrams"), an assistant principal at Rockway at the time, reviewed Respondent's grade book and noticed that Respondent did not have complete grades for the four nine-week grading periods; Respondent was placed on notice that he was required to have a completed grade book by the end of the school year. Even though Respondent was directed to complete his grade book by the end of the school year and was offered assistance so that Respondent may complete his grade book, Respondent failed to complete his grade book as directed. On October 13, 1993, Abrams formally observed Respondent's classroom performance and found Respondent unacceptable in three categories of the Teacher Assessment and Development System ("TADS"): preparation and planning; knowledge of the subject matter; and techniques of instruction. At the time of the observation on October 13, 1993, Abrams concluded that Respondent was not following a particular lesson plan. When Abrams asked to see Respondent's lesson plans during the observation on October 13, 1993, Respondent produced lesson plans that were two years old and belonged to another teacher. During the October 13, 1993 observation, Respondent appeared confused, spent the entire lesson on one mathematical problem, was not able to demonstrate to his students how to complete the problem mathematically, and was unable to accurately answer students' questions regarding the math problem. Respondent was found unacceptable in the area of techniques of instruction due to his inability to answer students' questions, to demonstrate the mathematical process for arriving at the correct answer, or to address the necessary topics of the lesson that Respondent was attempting to give. As a result of Respondent's unacceptable classroom performance as demonstrated by the October 13, 1993 observation, Respondent was placed on prescription and was provided with assistance and activities for his performance improvement. Part of Respondent's prescription required that Respondent provide weekly lesson plans, but Respondent failed to do so, even after receiving memoranda from Abrams reminding Respondent of this requirement. On December 7, 1993, Respondent's classroom performance was observed by Patricia Duncan ("Duncan"), another assistant principal at Rockway; Duncan found Respondent unsatisfactory in the area of assessment techniques. Duncan found that Respondent's assessment of students' work was deficient because the grades in Respondent's grade book did not correlate with the days that class was in session, nor with work contained in the students' folders. During the December 7, 1993 observation, Duncan also noted that Respondent did not have the required work folders for some of the students listed in Respondent's classroom. In an effort to assist Respondent, Duncan provided Respondent with a prescription for Respondent's performance improvement which required that Respondent produce his grade book and student folders to Duncan for review and seek the assistance of the math department chairperson. On December 15, 1993, a mid-year Conference-for-the-Record ("CFR"), was held with Respondent and Jorge Sotolongo ("Sotolongo"), the principal of Rockway at the time, to address the results of Respondent's observations, Respondent's unsatisfactory performance, Respondent's failure to timely complete activities and assignments designed to help him reach an acceptable level of performance. At the CFR on December 15, 1993, Respondent was advised that if he had to remain on prescription, he would receive an unacceptable annual evaluation at the end of the 1993/94 school year. Although Respondent already had been reminded of the requirement that he complete his prescription, on February 4, 1994, Respondent again had to be notified of his failure to complete his activities and assignments as required by Respondent's prescription. On April 12, 1994, Sotolongo formally observed Respondent's classroom performance and found Respondent's performance unsatisfactory and unacceptable under TADS in: preparation and planning; and assessment techniques. During the observation on April 12, 1994, Sotolongo noted: that Respondent did not have lesson plans for the class Respondent was teaching; that Respondent's grade book showed that Respondent did not have the required two grades per week for each student; that Respondent had failed to note assignments contained in the students' work folders in his grade book; and that Respondent had failed to properly identify students in his grade book. Including the observation on April 12, 1994, Respondent had been formally observed four times during the 1993/94 school year, and Respondent's classroom performance had been found unacceptable in three out of the four observations. (An observation by Sotolongo on February 10, 1994, scored Respondent's performance as satisfactory.) Since Respondent had received three unacceptable observations during the 1993/94 school year, on May 5, 1994, Sotolongo requested that the School Board perform an external review of Respondent's classroom performance. On May 16, 1994, an external observation of Respondent's performance was conducted by: Billy Birnie, the School Board's Regional Director of Instructional Support; and the principal, Sotolongo. The external observation of Respondent's performance concluded with Respondent being rated, by both observers, unacceptable under TADS in: preparation and planning; knowledge of the subject matter; and assessment techniques. The Respondent questioned whether Birnie and Sotolongo improperly collaberated in completing their TADS observation reports on the observation on May 16, 1994. But both explained that their reports were completed separately, after which they conferred, as contemplated (and, indeed, required) by the TADS procedures. There was no evidence of any improprieties. During the external observation on May 16, 1994, Respondent failed to, and did not even attempt to, follow the lesson plans he had prepared for that day. In addition, the Respondent's lecture was not directed towards any of the objectives listed in Respondent's lesson plans, and Respondent was unable to properly present a lesson on the metric system. A review of Respondent's student work folders during the classroom observation on May 16, 1994, revealed that Respondent did not employ a variety of test formats as required by TADS; rather, Respondent used only those tests contained in the student textbook. As a result of Respondent's unsatisfactory performance and unacceptable observation of May 16, 1994, Respondent was provided with additional activities to assist him in improving his performance. Respondent failed to complete the required assignments and activities related to his unacceptable external observation of May 16, 1994. On June 8, 1994, a CFR was held with Respondent to address Respondent's continuing unsatisfactory performance, Respondent's failure to complete assigned activities, and Respondent's annual evaluation. In accordance with TADS, Respondent also was placed on prescription in the area of professional responsibility due to his failure to comply with directives regarding his assigned activities and his failure to complete the assigned activities. At the CFR on June 8, 1994, Respondent was informed that due to his unsatisfactory performance, he would stay on prescription for the remainder of the 1993/94 school year and that he would start the 1994/95 school year on prescription. By the end of the 1993/94 school year, Respondent had been formally observed five times and Respondent's performance had been rated unacceptable in four out of the five observations. On June 8, 1994, Respondent received an unacceptable annual evaluation for the 1993/94 school year, which reflected that Respondent had been rated unacceptable in: preparation and planning; knowledge of the subject matter; assessment techniques; and professional responsibility. On June 17, 1994, Respondent was notified by certified letter that, because he had received an unacceptable annual evaluation for the 1993/94 school year, Respondent was entitled to request a review of the evaluation. Respondent started the 1994/95 school year on prescription. On October 11, 1994, Respondent was again formally observed by Sotolongo and, in accordance with TADS, was found unacceptable in knowledge of the subject matter and techniques of instruction. During the observation on October 11, 1994, Respondent was unable to provide a correct answer to a mathematical word problem even after resorting to a calculator; the incorrect answer to the problem remained on the board for the duration of the class. Respondent also was found unacceptable in the area of techniques of instruction in the observation on October 11, 1994. Respondent failed to provide feedback to students who gave incorrect answers to the math problems being discussed. Respondent was prescribed activities to assist him in overcoming his deficiencies as identified in the classroom observation on October 11, 1994. He was directed to complete these activities by November 4, 1994. By November 22, 1994, Respondent still had not completed the activities. In a further effort to assist Respondent with his performance improvement, Respondent was referred to the School Board's Employee Assistance Program after Sotolongo learned that Respondent had been arrested for possession of cocaine. On December 1, 1994, almost a year after Duncan first formally observed Respondent's performance, Duncan again observed Respondent's classroom performance. Duncan found Respondent unacceptable and unsatisfactory under TADS in knowledge of the subject matter after Respondent was unable to correctly present a lesson involving graphs (instead giving inaccurate information to his students.) On December 7, 1994, a mid-year CFR was held between Respondent and Carmen Marinelli ("Marinelli"), the new principal at Rockway, to discuss Respondent's two unacceptable observations during the 1994/95 school year and Respondent's failure to complete the prescription plan activities assigned him, and to offer Respondent assistance in remediating his unsatisfactory performance. At the CFR on December 7, 1994, Respondent again was reminded that completion of his assigned activities was part of his professional responsibility, and Respondent was advised that if he did not remediate all of his deficiencies by April, 1995, his Professional Service Contract (PSC) would not be renewed. On February 13, 1995, Marinelli performed a formal observation of Respondent's classroom performance and, in accordance with TADS, found Respondent unsatisfactory in: preparation and planning; and knowledge of the subject matter. Respondent was again prescribed activities to assist him in overcoming the deficiencies identified in the classroom observation on February 13, 1995. During the observation on February 13, 1995, Marinelli noted that Respondent did not have lesson plans for his class and that Respondent was unable to correctly present a lesson which required the use of fractions. As a result of Respondent having been formally observed three times during the 1994/95 school year and because Respondent's performance had been rated unacceptable in all three observations, Marinelli requested another external observation. On March 27, 1995, Marinelli and Dr. Hector Hirigoyen, a regional mathematics coordinator, conducted an external observation of Respondent's classroom performance and found Respondent unsatisfactory in: preparation and planning; knowledge of the subject matter; and assessment techniques. During the observation on March 27, 1995, Respondent's lesson plans did not reflect any planned activities for his class, and Respondent's grade book did not contain any grades for a three-week period. Respondent also gave students incorrect information regarding a mathematics vocabulary lesson. After the observation on March 27, 1995, Respondent was prescribed still more activities to assist him in overcoming the deficiencies observed. He also was offered additional assistance from the district supervisor, assistant principal, or department chairperson. By letter dated March 28, 1995, Respondent was notified by the Superintendent of Schools that the deficiencies noted in Respondent's performance during the 1993/94 school year had not been corrected and that the Superintendent was recommending that Respondent not be issued a new PSC. Additionally, the Superintendent's letter of March 28, 1995, notified Respondent that assessment of Respondent's performance would continue for the remainder of Respondent's contract. On May 3, 1995, Marinelli held a CFR with Respondent to discuss the status of his prescription, to remind Respondent that if he remained on prescription he may not be reappointed, and to review Respondent's interim annual evaluation of unacceptable performance. On May 12, 1995, Martha Boden, an outside observer, conducted a formal observation of Respondent's classroom performance and found Respondent's techniques of instruction to be unsatisfactory. Boden cited Respondent's failure to allow students to answer questions and failure to determine whether students understood the lesson being given as the reasons for Respondent's unacceptable performance. During the observation on May 12, 1995, when the school year was close to ending, the outside observer also found that Respondent had only two grades per student in his grade book. On June 9, 1995, Marinelli held another CFR with Respondent to address Respondent's unsatisfactory performance during the 1994/95 school year and to advise Respondent that, since he had not remediated his deficiencies, he would receive an overall unacceptable annual evaluation, and that his PSC would not be renewed. On June 9, 1995, Respondent received an unacceptable annual evaluation for the 1994/95 school year in: preparation and planning; knowledge of the subject matter; techniques of instruction; and professional responsibility. The Respondent has argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of offense taken at his expression of "concern with the inadequacies of the textbooks that he was directed to use in his math classes." This argument is rejected. First, the Respondent's testimony on the textbook argument consisted of speculation that one assistant principal who evaluated him (Carole Abrams) might have taken offense when the Respondent went "over her head" and took direct action to have copies of textbooks delivered to the school. According to the Respondent's testimony, this argument would not apply to any of the other educators who observed the Respondent and judged his performance to be less than satisfactory. In addition, the Respondent did not testify that any offense was taken even by Abrams at the Respondent's insinuation that the textbooks were inadequate. There was no evidence that the textbooks were inadequate; rather, the evidence was that they were new and that the Respondent wanted to use his old textbooks because he was more accustomed to and comfortable with them. The Respondent also argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of envy on account of his successful application for grants from the School Board. Although this argument is based on testimony from the Respondent, that testimony is rejected. It is not found that any, much less all, of the educators who observed the Respondent and judged his performance to be less than satisfactory were envious of the Respondent's grants, or that any of their evaluations were affected by the Respondent's grant applications or grants. The Respondent also argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of TADS's inflexibility and inability to fairly evaluate the Respondent's performance under his grants. However, the Respondent's grants had no impact on lesson planning or grading, or on the evaluation of his performance in those areas under TADS. (Indeed, in response to criticism that he had no lesson plans, the Respondent produced another teacher's lesson plans from a time period that preceded the Respondent's grant by two years and claimed that he was following them. As for grading, the Respondent already had been cited under TADS for failing to maintain sufficient grades in his grade book during the 1991/1992 school year, which was before he started implementing his first grant.) As for teaching techniques, another area in which the Respondent consistently performed poorly, it is found that TADS was flexible enough to allow for a fair evaluation of the Respondent's performance under his grants. TADS was specifically formulated to allow for any type of effective teaching and for a variety of teaching methods, and the areas observed under the techniques of instruction category would not conflict with an individual teacher's teaching style or method. The problem was not that the Respondent was teaching under a grant; the problem was that he was not teaching well, grant or no grant. (Indeed, for most of the time the Respondent claimed to have been utilizing special teaching techniques under the grant to "teach down" to students in the "At Risk Program" to prevent them from dropping out, he testified that he actually was teaching mainstream students; the problem was the Respondent's inadequacies, not his students.) The Respondent also argued in his Proposed Recommended Order that he did not get the assistance to which he was entitled so as to improve his unsatisfactory performance. But the proof of the School Board's attempts to assist the Respondent was overwhelming. Indeed, in the face of the evidence, at final hearing, the Respondent testified to the exact opposite of what he then argued in his Proposed Recommended Order--he complained that he was given too much assistance, which hindered his attempts to improve his performance. 1/ Other arguments the Respondent attempted in the course of his testimony were not even argued in his Proposed Recommended Order. The Respondent testified that some of the people from whom he sought assistance seemed afraid to help, but he did not identify who these people were, and it is not found that anyone declined to help the Respondent out of fear of repercussions. He also testified that he was unable to take advantage of planning periods to prepare lesson plans because he was required to cover for other teachers who had to miss classes to coach softball, but softball season was in the spring and could not excuse the Respondent's failure to prepare lesson plans in the fall and winter. The Respondent also testified that he tried to avoid having to cover for teachers while he was on prescription and that the persistence of these teachers indicated that administrators had overridden the Respondent; but neither the teachers nor the admin- istrators were identified, and it is not found that any administrator required the Respondent to cover classes for those teachers while he was on prescription. The Respondent also testified that the grant required him to do extra work arranging field trips, leaving him less time for lesson planning, teaching and completing prescrip- tions; but, in the 1994/1995 school year, the Respondent used some of his grant money to hire a "para-professional" to help him.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Dade County enter the final order: (1) that Robert Nolan, Jr., not be issued a new Professional Service Contract; (2) that Robert Nolan, Jr., be dismissed as an employee of The School Board of Dade County, Florida; and (3) that Robert Nolan's suspension of April 12, 1995, be sustained and that he receive no back pay for the period of this suspension. RECOMMENDED this 24th day of October, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1996.
