The Issue Whether there exists just cause to suspend Respondent from his teaching position for five days, without pay, for "misconduct in office" and "immorality," as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Piper High School (Piper)), and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Enid Valdez was the principal of Piper; Patrick Lowe, Robert Godwin, and Sharon Grant were assistant principals at the school; and Donavan Collins was the school's social studies department chair. Respondent has been a social studies teacher at Piper since 2002. He presently holds a professional services contract with the School Board. During the first semester of the 2009-2010 school year, Respondent taught three American History classes at Piper (during the first, second, and fourth periods of the school day). The previous school year, in or around February 2009, Respondent had ordered, in his own name, a 25-copy per issue subscription for the upcoming 2009-2010 school year to "New York Times Upfront" (Upfront), a magazine for high school students published by Scholastic, Inc., that Respondent believed to be an "excellent [learning] tool" from which his students could benefit academically. The total cost of the subscription (Upfront Subscription) was $246.13. Respondent planned to use the magazine in the classes he would be teaching at Piper the following school year. After receiving, in or around August 2009, 25 copies of the September 2009 issue of Upfront, the first issue of the 2009-2010 school year, Respondent distributed them to the students in his three American History classes for their review. He told the students they each would have the option of using Upfront, instead of School Board-provided materials, for class assignments, provided they paid him $3.00 to help cover the cost of the Upfront Subscription. He subsequently asked each student in his three classes whether or not that student wanted to exercise this option and noted on the class roster those students who responded in the affirmative (Upfront Option Students). For the next two or so months, he collected money (in cash) from the Upfront Option Students and recorded each payment he received. On October 22, 2009, using his debit card, Respondent made an initial payment to Scholastic of $124.00 for the Upfront Subscription (that he had ordered in or around February 2009). He made a second and final payment of $122.13 (again using his debit card) on November 3, 2009. The money Respondent collected from the Upfront Option Students was insufficient to cover the $244.13 cost of the Upfront Subscription. Respondent paid the shortfall out of his own pocket. Sometime in early November 2009, Respondent gave the Upfront Option Students their first assignment from the magazine (copies of which Respondent had distributed to the students). During the 2009-2010 school year, Piper had the following policy concerning the collection of money (Piper Collection of Money Policy), which was published in the Piper 2009-2010 Faculty Handbook: Money is never to be left in any classroom, storage cabinet, or office desk. Collected money is the responsibility of the teacher and is deposited with the school bookkeeper by the end of the day. A receipt will be given when the money is deposited. Money cannot be collected by any teacher unless the collection and distribution of the money has been previously discussed, planned, and approved by the principal's designee and the bookkeeper has been informed. All money must be deposited daily with the bookkeeper. (The document referred to in paragraphs 7 and 8 of the Administrative Complaint as "Exhibit A" is a copy of the Piper Collection of Money Policy, as the parties stipulated at hearing.3 See pp. 66 and 67 of the hearing transcript.) Respondent was provided a copy of the Piper 2009-2010 Faculty Handbook prior to the beginning of the 2009-2010 school year. At all times material to the instant case, Respondent was aware of the Piper Collection of Money Policy. Nonetheless, in violation of that policy, he did not obtain, or even seek, the necessary administrative approval to collect money from the Upfront Option Students, nor did he deposit any of the money he collected from these students with the bookkeeper, much less inform her (or any school administrator, for that matter) of his money collection activities. The foregoing notwithstanding, his intent in acting as the conduit through which these students purchased issues of Upfront for use in his classes was to help the students achieve academic success, not to exploit them for his own personal gain or advantage. He never had any intention of doing anything with the money he collected from the students other than using it (as he ultimately did) to help cover the cost of the Upfront Subscription. It was not until on or about October 19, 2009, that the Piper administration first learned about Respondent's money collection activities as a result of discussions that Assistant Principal Lowe had with students in Respondent's classes. After having been briefed by Mr. Lowe regarding what these students had reported, Principal Valdez asked Assistant Principal Grant to speak with Respondent. During his meeting with Ms. Grant, Respondent admitted to collecting money from the Upfront Option Students to help pay for the Upfront Subscription, and he acknowledged that he had not sought approval from anyone in the school administration to do so. On or about October 26, 2009, Principal Valdez sent a Personnel Investigation Request to the School Board's Office of Professional Standards and Special Investigative Unit (SIU) through which she requested that SIU conduct an investigation of the matter. An investigation was authorized by SIU on October 28, 2009, and an SIU investigator was assigned the case a week later. On or about November 3, 2009, Respondent was provided with a letter from Craig Kowalski, the SIU Acting Executive Director, advising Respondent of SIU's "investigation into a complaint . . . regarding an alleged violation [by Respondent] of the Principles of Professional Conduct of the Education Profession in Florida, Rule 6B-1.006(2)(h) [sic],[4] to include the collection of money from students to purchase magazines." After the SIU investigation was completed, an investigative report was prepared and presented to the School Board's Professional Services Committee for its consideration. The Professional Services Committee found "probable cause." A pre-disciplinary conference was then held, after which the Superintendent, on August 10, 2010, issued an Administrative Complaint recommending Respondent's suspension, without pay, "for a period of five (5) days effective from June 3, 2010 through June 9, 2010."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order finding that the charges against Respondent have not been sustained, dismissing these charges, and awarding Respondent any "back salary" he may be owed. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 26th day of July, 2011.
The Issue The issue to be resolved in this proceeding concerns whether the Leon County School District has just cause, as defined in Section 1012.34(3)(d), Florida Statutes (2006), to end the Respondent's tenured employment as a teacher, due to allegedly deficient performance.
Findings Of Fact The Respondent, Mr. Waters, has worked as a Special Education Teacher in Leon County for approximately 13 years. He most recently has worked in the field of Special Education at Oakridge Elementary School (Oakridge), starting in the school year 2001-2002 and ending in December 2005. Mr. Waters is married and has two children by a former wife, with whom he shares custody of his children. He has volunteered for 18 years as a Troop Leader for a troop of disabled Boy Scouts in Tallahassee. He has been recognized for those efforts by being the recipient of the Tallahassee Memorial Hospital Foundation's "everyday hero" award. He has also been a finalist for the Tallahassee area "volunteer of the year award" in 2005. When Mr. Waters was hired at Oakridge Elementary School he was interviewed by the head ESE teacher or "team leader", Donna George. He was chosen for the available position from three or four final applicants, based upon her favorable view of the qualities he could bring to the position, which she still believes to be the case. During the 2001-2002 school year the principal at Oakridge was Michelle Crosby. Ms. Hodgetta Huckaby was the Assistant Principal. Sometime during that school year Mr. Waters encountered a problem involving two of his students being engaged in an after school fight. He apparently referred the students for discipline to the Assistant Principal, Ms. Huckaby, and she sent the students back to his class. He disagreed with this disciplinary decision and appealed the matter to the principal, Ms. Crosby. Ms. Crosby resolved the disciplinary matter in favor of Mr. Waters' position. Ms. Huckaby thereupon called Mr. Waters to her office to upbraid him and express her anger at his having "gone over her head." After a heated exchange between the two she told the Respondent to "never come back into my office for any reason." Thereafter, for the remainder of his tenure at Oakridge their relationship was very strained, especially during the time Ms. Huckaby was Principal, which began at the beginning of the following year, the 2002-2003 school year, after Ms. Crosby left Oakridge and was replaced by Ms. Huckaby. In order to replace Ms. Huckaby's vacant former position as assistant principal, the District assigned Kim McFarland as the new assistant principal in the fall of 2002. Prior coming to the assistant principalship at Oakridge, Ms. McFarland had served as a fifth grade regular classroom teacher for 10 years in the District. She had no prior administrative experience and had no experience in Exceptional Student Education. Her degree field is in the area of elementary education. After the events at issue in this case, Ms. McFarland left Oakridge, on July 1, 2006, to become the assistant principal at Swiftcreek Middle School. Ms. Huckaby and Ms. McFarland jointly performed the annual evaluation of the Respondent for the 2002-2003 school year. They used the "Accomplished Teacher Performance Feed Back Summary Form." Mr. Waters's overall rating for that year was "at expectancy level." Ms. McFarland wrote several positive comments concerning his performance on that document, but he also received ratings of "below expectancy" in two areas, teacher performance improvement and professional development. Also, in the Spring of 2003, Ms. McFarland observed his class on or about April 23, 2003. She was positive about that evaluation and wrote Mr. Waters a note wherein she indicated that he had "presented a great lesson" and that his students were engaged and on task. She praised him for monitoring student behavior using a behavior management point system and found his room "exciting" because he displayed a great deal of students work on the walls. In the 2003-2004 school year, specifically in November 2003, Ms. McFarland informed Mr. Waters that his lesson plans were not adequate because he was failing to incorporate a new component which required that notations of student remedial reading levels be made, represented by "lower case" roman numerals. She required him to submit his lesson plans to be reviewed each Monday while he was seeking to improve his lesson plans. Thereafter, on April 26, 2004, Ms. McFarland notified the Respondent that he had satisfactorily complied with lesson plan requirements and no longer needed to submit lesson plans for review each Monday. She also emphasized in that letter of April 26, 2004, that he should adhere to his lesson plans, as prepared, in his teaching presentation to the extent possible, so that when administrators observed his room they would be able to determine exactly what he was performing at the time simply by looking at his lesson plan book. In the meantime, Mr. Waters was given an improvement notice on February 20, 2004, by Ms. McFarland. This was because of her concern that he was not fully cooperating with procedures and recommendations concerning behavior management; recommendations made by behavior management consultants on contract with the School Board. Those consultants were working with him and his emotionally handicapped (EH) student class at that time. During their meetings and contacts with Mr. Waters and his EH student class that year he had exhibited a good level of agreement and cooperation with their recommendations to him regarding changes in behavior management methodologies for his class, but the consultant, Dr. Adams, perceived that he was slow or reluctant to actually carry them out. Later in the spring of that school year, Dr. Adams took Mr. Waters on a tour at Kate Sullivan Elementary and another school, to observe how behavior management models or methodologies were employed in EH classes at those schools and which Dr. Adams opined he was later reluctant to implement in his own class. They communicated these concerns about his perceived intransigence in changing his behavioral management style or methodology to the administration at Oakridge, which resulted in the February 20, 2004, improvement notice from Ms. McFarland. Significantly, however, Ms. Haff, in her observations of the Respondent's performance during the following school year found that he had received the higher level of training in the "Champs program" concerning behavioral management, and had been and was successfully implementing it in his class and with his students to a great degree, although, of necessity, adapting it to the needs of his students and his role then as a resource teacher, rather than as a discrete EH classroom teacher during the following 2004-2005 school year. Ms. Huckaby changed his assignment from duty as a direct class EH teacher to that of "resource teacher" after the 2003-2004 school year. Mr. Waters had a meeting with Ms. McFarland on February 20, 2004, to discuss that improvement notice, and her concerns that he was not fully cooperating with the recommendations of the behavior management consultants in terms of not carrying out their recommendations. During the course of that meeting she stated, "You know its not me that’s behind this" implying to him that Ms. Huckaby was actually the instigator of the improvement notice concerning this subject matter. Apparently Mr. Waters contacted union officials for the Leon County Teachers Association (LCTA) complaining that the improvement notice was too general and did not specifically point out what must be done to correct the perceived problem. In response to those concerns, in part, Ms. McFarland issued a subsequent improvement notice on April 27, 2004, with a few more specific expectations and which updated the status of Mr. Waters's efforts to address the concerns raised in the February 20th revised improvement notice. Ms. McFarland observed Mr. Waters' class on March 11 and March 16 and did a "part A" teacher's assessment document for each observation. Mr. Waters was due to be evaluated using the Accomplished Teacher Summary Form for 2003-2004 and so the assessment part A form was not required to be completed for him. Nonetheless, Ms. McFarland told Mr. Waters that these were really informal observations and she was completing these observation forms in order to get some practice using them since it was her first year as an administrator, formally observing and evaluating teachers independent of Ms. Huckaby. The Respondent did not get a copy of these assessment part A documents until June of that year and did not get an opportunity to discuss them with Ms. McFarland. Ms. McFarland also completed the Accomplished Teacher Feedback Summary Form for the 2003-2004 school year. That form states that overall assessments must be satisfactory if all the required areas are completed. Ms. McFarland described Waters' performance unfavorably in the "comments" section of the form and gave him an overall performance rating of "below expectancy level." He received this Accomplished Teacher Summary Form rating document on or about September 22, 2004. During the month of October he inquired of Ms. McFarland, union officials, and school district officials concerning the meaning of his overall "below expectancy" rating for the 2003-2004 school year. Apparently an attorney for the school district informed him that the evaluation was considered satisfactory on the Accomplished Teachers Summary Form, unless school administrators produced an evaluation document that indicated an overall "needs improvement" rating. Ms. McFarland had informed him that the Accomplished Teacher document reflecting the below expectancy rating was his only official evaluation. Although Mr. Waters received confirmation that the use of the Accomplished Teachers Summary Form rendered his 2003-2004 evaluation to be automatically a satisfactory one, it is also clear that Ms. McFarland intended to give him the below expectancy rating and for some reason mistakenly used the wrong form and procedure. During October 2004 the Respondent met with Ms. Huckaby to discuss some matter unrelated to his performance rating. During the course of that meeting, at which only Ms. Huckaby and the Respondent were present, Ms. Huckaby became angry at the Respondent and engaged in a tirade, calling him "the worst teacher she had ever seen, as well as making other unprofessional comments." Mr. Waters then stated to the effect that he did not think he was such a bad teacher since he had consistently received satisfactory evaluations. Ms. Huckaby then indicated that she felt he had received a needs improvement evaluation for the 2003-2004 school year, to which Mr. Waters retorted that based upon the Accomplished Teachers Summary Form being used his evaluation was deemed to be satisfactory overall. Ms. Huckaby then angrily threatened him with an unsatisfactory evaluation for the upcoming 2004-2005 school year. Only a week or two elapsed after this meeting and comment by Ms. Huckaby when, at Ms. Huckaby's behest, Mr. Waters inclusion class was changed to a "pull-out reading group," meaning that he then had to work with a new reading curriculum and plan his own reading lessons using that curriculum instead of relying upon and carrying out the regular classroom teacher's daily lesson plan reading goals, which had been the program he had been instructed to perform previously. Ms. Eydie Sands was dispatched by Ms. Huckaby to observe Mr. Waters' reading class and made critical observations during follow-up meetings with Mr. Waters and Ms. Huckaby; the team-taught writing group jointly taught by Mr. Waters and Ms. Wacksman, which had worked well in rendering progress to the students in writing, was abruptly separated into two sections by Ms. Huckaby with no explanation or apparent reason; thereafter on approximately November 6, 2004, Ms. Huckaby gave Mr. Waters a lengthy letter of harsh criticism as to almost all aspects of his teaching performance and directed him to immediately comply with 13 directives contained in the letter. Additionally, Mr. Waters' 2004-2005 school year resource teacher schedule was changed five times, adding further confusion to an already difficult year, which started with a new classroom assignment. The new room was piled high with boxes of materials for many teachers and classrooms other than his own. This circumstance required him to spend his entire pre-planning time moving and clearing out his newly assigned room so that he could use it. Significant changes and requirements were imposed for lesson plans, student progress monitoring requirements, and the new A3 computerized IEP technology, as well as a substantially increased amount of related paperwork burdens placed upon all teachers at the school, including Mr. Waters, through Ms. Huckaby's policy directives. One directive in the November 6, 2004, letter from Ms. Huckaby required Mr. Waters to again submit weekly lesson plans to school administrators by 8:00 a.m. every Monday morning. The normal procedure provided for having lesson plans to be examined from time to time, after advance administration notice to the faculty of their lesson plan review dates. Despite lesson plan component changes made unilaterally by the administration in both the 2004-2005 and 2005-2006 school years which added several time-consuming, ill-defined requirements to the previous less formal structure for lesson plans, the Respondent's lesson plans during those years remained detailed and organized when compared to those of his fellow special education teachers who apparently were deemed to have performed this task appropriately. In carrying out this instruction Mr. Waters tried to obtain model lesson plans and to incorporate the new requirements into his plans. They were consistently unacceptable to Ms. Huckaby, however, and ultimately cited as one of the reasons for his termination recommendation. Similar, and even less detailed lesson plans of his colleagues that had been found acceptable, were not reviewed or remained the same even after administrators provided plan improvement instructions, without those teachers being subjected to discipline therefor. In an effort to comply with the directive concerning his lesson plans and because the new lesson plan components imposed were difficult to understand and reasonably apply, especially for an ESE teacher and students, Mr. Waters sought to obtain model plans and lesson plan advice, but received little or no meaningful help. His mentor teacher assigned for 2004-2005, Michelle Smith, did not respond to his request for samples of her lesson plans. The Oakridge administration gave him only limited excerpts of two teachers' lesson plans for 2004-2005, which were confusing and did not themselves comply with the new lesson plan format imposed that year. In the 2005-2006 year the Respondent was not asked to submit lesson plans on a weekly basis and received no assistance with lesson plans until Ms. Palazesi, who was observing his class or classes that fall, in early November, wrote a model lesson plan, adapted from one of his actual lessons. Ms. Palezesi, however, was not aware of the lesson plan requirements in place at Oakridge then, and even her lengthy lesson plan sample, for just one class period, did not meet all of Oakridge's lesson plan criteria imposed for 2005-2006. It is noteworthy that the lesson plans for 2004-2005 and 2005-2006 of teacher Charles Robshaw, also a resource teacher for Special Ed at Oakridge clearly do not comply with the lesson plan requirements. This fact serves to corroborate the Respondent's contention that only he was held strictly accountable for the administration's excessively detailed and to some extent non-germane lesson plan requirements. In both pertinent school years the Respondent was deemed deficient by Ms. Huckaby and Ms. McFarland in terms of timely or fully complying with student progress monitoring test data compilation requirements. The Respondent did keep abreast of his students daily classroom progress and maintained files on their work and test papers. In the 2004-2005 school year, however, in the early part of the year (September thorough mid- November) he encountered problems in timely complying with submitting the "cover sheet" student progress test data information as part of the curriculum notebook he was required to supply the administration, through the mechanism of either monthly or bi-weekly progress monitoring meetings between teachers and the administration. He was given a needs improvement notice as to this issue, and as the year progressed, he complied with these requirements. In the 2005-2006 school year he inadvertently missed the initial progress monitoring meeting because he became confused as to when his fourth grade team was supposed to meet for the progress monitoring session and he candidly admitted that was his own mistake. Ms. McFarland did not criticize him for that, but simply reminded him that he had missed the meeting. A subsequent meeting early in the fall of 2005 was scheduled with Ms. McFarland and he did attend with his notebook (or other required data) for a 3:00 p.m. meeting. He had an pre-existing appointment after school at 3:30, which he could not miss, and he informed Ms. McFarland of that fact. She excused him from the meeting. After those two early progress monitoring meeting discrepancies in September 2005, however, the Respondent complied with his progress monitoring requirements and those issues were not again raised with him, until raised as one of the reasons in Ms. Huckaby's final decision in late December 2005 as to why she recommended his termination. Significantly, the school administration only checked to see that teachers other than Mr. Waters had completed similar student data compilations only once or twice early in each school year. Subsequently, each year the administration was less interested in actually inspecting such data and course test score charts plotted on spread sheets/graphs by most teachers. In neither of the two school years in question was Mr. Waters given a full planning period or a week after students arrived to prepare for his resource assignment ESE students. These are privileges which were customarily given to resource teachers in prior years. Despite the meager planning time he was accorded on the administrator's schedule, in reality he lost significant valuable planning time by escorting students to and from classes and due to his morning duties. Adequate planning time is crucial to the work of special education teachers, particularly if one is deemed to be struggling with lesson planning, IEP preparation and timeliness issues, and related A3 IEP technology time demands. The Respondent asked for schedule changes to improve his ability to meet the new administration demands, as, for instance, to allow time during the day to input IEP requirements into the A3 system to prepare IEP documents, instead of at the end of the school day when all the ESE teachers were on the A3 system, which slowed it down drastically. Ms. Huckaby, however, never agreed to provide such schedule changes so that he could more efficiently use his planning time. Indeed, in the 2005-2006 school year, Ms. Huckaby scheduled Mr. Waters to spend 26.25 hours teaching students each week which is more than the 25 hour per week maximum teaching time provided by the collective bargaining agreement while still providing him less than a full class period of uninterrupted planning time. Sometime in the 2003-2004 school year the system for generating individual education plans (IEP) changed from paper IEPs or the so called "gibco" IEP system (apparently a school based software operated system) to a district-wide computer net system called the "A3 IEP." This was a difficult system to learn and to use in completing IEP's without mistakes in the first effort. The District made training available in 2004, particularly in the summer of 2004 and subsequently. It can take as much as three hours to create IEP's "from scratch" on the A3 system and to input all the necessary student demographic and test score history data to upgrade a previously hand-written or gibco-generated IEP in converting it to an A3 IEP. This is especially so for newly trained or partially trained teachers. Complicating these time constraints were the Respondent's limited planning time, with competing meetings being held in the conference room area where cumulative ("cume") folders were housed at Oakridge, which are necessary to the student data research required to generate the IEP's. Thus teacher access to the demographic and testing information needed for IEP completion was somewhat restricted at times. Moreover, Mr. Waters had his only significant block of continuous planning time, when he could work on IEP's, immediately after school. This is the time of day when the A3 IEP computer network operates very slowly because most of the ESE teachers in the entire district are attempting to use it immediately after school hours. These factors are part of the reasons Mr. Waters in the Spring of 2004 had an occasion when IEP's were prepared somewhat late and computer-generated progress reports on one occasion were submitted several days late. It is also true that the Respondent and Ms. Wacksman were not formally trained on the A3 system until late January 2005. This delay in receiving the A3 system training appears to have been due to both the Respondent's and Ms. Wackman's delay in seeking the training and the district's and the school's inattention to scheduling the training sessions. With regard to the occasion testified to by Ms. Petrick concerning his late preparation of, or need to correct mistakes in some IEPs, the Respondent established that he immediately corrected the minor mistakes in several of the IEPs he prepared and that, when Ms. Petrick contacted him about the need for him to make corrections, in several instances the corrections had already been made on the original IEP in question but had not gotten corrected on her copy. Moreover, four or five of the students who had to have corrected IEPs, or whose IEPs were submitted slightly late were students who the Respondent himself had identified to his administration as being wrongly placed by the administration. The students were supposed to have been in a fourth grade level program and instead were in a first or second grade level program. This necessitated re-constituting their IEPs. The Respondent, after alerting the administration to its error also completed the new IEPs on these students. In any event, it is true that Mr. Waters could have begun sooner and more timely prepared the IEPs involved and the same is true of the occasion when the somewhat late progress reports caused his reprimand by Ms. McFarland. It is also true, however, that the requirement of using the cumbersome A3 system to prepare IEPs, more particularly the lack of adequate usable planning time, and the somewhat chaotic effects of five schedule changes during that school year imposed by Ms. Huckaby also contributed to the issue encountered near the end of that year concerning timeliness and corrected IEPs. Although the Respondent received less than satisfactory evaluation ratings as to professionalism and ethics because of the issue regarding delays and mistakes in the IEPs described above, these were a small number of occurrences, concerning very few students, at one particular period of time in the school year. They did not cause any delay or other adverse effect in the provision of ESE services to students nor the loss of any federal, state, or other special education funds, or adverse effects on the school's rating. Moreover, this aspect of Mr. Waters' performance improved after this occasion. Ms. Huckaby and Ms. McFarland made significant changes in required lesson plan and progress monitoring formats, and student progress charting. These requirements were considerably more time demanding and were accompanied by rigid reliance on upgraded, scripted reading and standardized math curricula with the advent of the 2005-2006 school year. These new requirements were to be applied by all ESE teachers for their students. Ms. Huckaby imposed a severely time-constrained, scripted reading curriculum for Mr. Waters' class and also a mandatory new vocabulary program that took up to 15 minutes more of his reading class time block each day. She also required an additional fluency probe-recording requirement to be carried out weekly in all reading classes, including Mr. Waters', which required an average time for completion of five minutes per student. Mr. Waters' reading mastery (RM) curriculum required class time scheduled during the first ninety minutes of his day in the 2005-2006 year. This was clearly impossible to carry out and remain consistent with the RM program's lesson sequence requirements, particularly with the addition of the fluency probe and vocabulary project requirements that Mr. Waters and all teachers were required to include in their reading classes that year. In fact, the reading mastery schedule for Mr. Waters was impossible to carry out within the allotted time period, even when one was not additionally delivering the required vocabulary project lesson and doing the reading probe requirement. In this regard one of the individuals asked to assist Mr. Waters in the 2005-2006 school year was Donna Haff, of the FDLRS staff. Ms. Haff, in working with Mr. Waters, tried to develop a better means for him to address the RM scheduling problem. She began that effort by "model teaching" his scripted RM classes in order to better understand his problem. This means that she simply tried to teach the RM class herself to see if it could be done within the mandatory curriculum and time period in which Mr. Waters was required to do it. Despite her extensive experience and familiarity with RM curriculum and her experience teaching it as a trainer for teachers, Ms. Haff was unable to complete the RM lesson in the time allotted to Mr. Waters, even without performing the mandatory new vocabulary program or any reading fluency probe requirements. She concluded that his RM schedule could not reasonably be carried out. She informed Ms. Huckaby of that conclusion. Ms. Huckaby expressed her frustration to Ms. Haff concerning this problem by asking, "Do you realize how much time we have put into this?" Ms. Huckaby decided not to act on Ms. Haff's advice and decided not to make any changes in Mr. Waters' 2005-2006 RM schedule. On or about June 3, 2005, Ms. Huckaby imposed an improvement notice on Mr. Waters, listing items in his instruction and teaching management that she felt needed improvement and concomitantly imposing a 90-day probationary period running from a date in September through early December 2005. Making only two observations of Mr. Waters' teaching herself, she relied upon reports of Margot Palazesi's 13 observations of Mr. Waters' classroom and teaching during the 2005-2006 school year from generally September through December. Ms. Palazesi's primary expertise, however, was in IEP compliance, IDEA compliance and grant funding compliance. She has a great deal of training in exceptional student education including a PHD degree, but she was not trained or qualified to work within and with regard to Leon County's performance observation and assessment for teacher evaluation, as either an administrator or a classroom mentor. Ms. Palazesi was unfamiliar with the lesson plan requirements at Oakridge and with the CHAMPS behavioral program requirements. She acknowledged that she understood Mr. Waters had the CHAMPS program implemented in the behavioral management aspect of his class and teaching, but she had little familiarity with what it entailed. She did acknowledge, however, that he had an award system for behavior and academic performance for his students built into and actively followed in his classroom. Ms. Palazesi also was not certified in reading and had not taught a reading mastery class in 20 years. Nonetheless, she made 8 of her 13 observations of Mr. Waters' teaching in his RM class. She did not have any understanding of the impossible double-scripted reading class schedule for his two reading groups that he was required by Ms. Huckaby to execute within the 90 minute time block. Through her interaction with Mr. Waters she came to understand from him that there was more material in the double-scripted reading curriculum than could be delivered in the 90 minute period, as Ms. Haff's testimony also showed. Ms. Palazesi, nonetheless, criticized his lecture teaching style, without acknowledging that that teaching method might have been effectively imposed on Mr. Waters in large part due to the impractical time constraints placed upon his delivery of the reading program, the vocabulary requirement and the reading fluency assessment requirement, imposed on him by Ms. Huckaby. Ms. Palazesi also noted, early in her observations, that Mr. Waters did not, in her view, engage in a review of material previously instructed, as, for instance, the day before, or inform the students what they would be learning in the lesson that day. Concerning one or more of her October observances, however, she acknowledged in her testimony that he had done that or started doing that. Moreover, one of her notations was acknowledged by her to be inaccurate in that she criticized him for not doing an introductory portion to his lesson, but then acknowledged that she had arrived some 10 minutes late, missing that portion of his lesson for that day. She also acknowledged that he was receptive to following her suggestions for improvements she thought should be made in his classroom management, in terms of assigning student desks, changing the arrangement of the room as to where a work table was placed, etc., and he did so. Ms. Palazesi also noted that he had a very good rapport with his students, and that his students behaved well and did their work in his classroom. They were on task much of the time. Although she criticized him for departing from his lesson plan on her first observation, in later observations she acknowledged he appeared to adhere more to his lesson plan. Ms. Palazesi was ostensibly dispatched to Mr. Waters' classroom to provide him technical ESE department-type assistance. However, she primarily engaged in making suggestions concerning ways that Mr. Waters could improve otherwise acceptable lessons and lesson plans and make improvements to his classroom management and the physical layout of his classroom. She acknowledges in her testimony that this was an exercise that she could have undertaken in any teacher's classroom and instructional regimen, and could have found ways to suggest improvements. Her suggestions, however, to the extent they were criticisms, appeared to have been relied on, and, inferentially, used to corroborate Ms. Huckaby's negative findings. During the second part of the 2004-2005 school year and the first half 2005-2006 school year Mr. Waters used computer technology in his classroom. He received advice from Ms. Donna Haff on how to incorporate it as a relevant and exciting way to reinforce his course curriculum and began doing so. In each of the 2004-2005 and 2005-2006 school years, he used power point technology in the form of game show question and answer formats ("Who Wants to be a Millionaire," "Jeopardy," and "Hollywood Squares/Tic Tac Toe"). He also employed other types of computer technology in his classroom on a regular basis, whether or not they were also noted in his lesson plans or were specifically observed by Ms. Huckaby, Ms. McFarland, or Ms. Palazesi. He demonstrated an ability to incorporate technology into his classroom instruction at least as effectively as most of his colleagues. Despite this fact and Ms. Huckaby's own praise for Mr. Waters' use of power point technology as a reinforcement tool in her December 14, 2005, observation, Ms. Huckaby still asserted to the Superintendent of the District in her letter recommendation for his termination that Mr. Waters did not adequately incorporate technology into his teaching and claimed that the December 14, 2005, lesson where she observed his use of technology marked "the first and only time he has integrated technology in the teaching and learning process." If Ms. Huckaby had made adequate observations of his teaching and his classes, or had even adequately conferred with Ms. Haff, she would have known of the extent of his use of technology in the classroom (or else perhaps she knew it and disregarded it). This statement to the Superintendent is one of the indicators of the level of bias Ms. Huckaby bore towards Mr. Waters. Most of the ESE teachers, including Ms. George, Mr. Waters, and Ms. Wacksman customarily do not employ computerized grading of their students because of the unique, singular nature of each ESE student's problems, learning styles, abilities, and each ESE student's goals and the varying curriculum and social needs of each ESE student. These and the other individualized differences among ESE students render a hand-written old fashioned grade book the most effective way to make a record of each student's progress toward that student's IEP- codified goals. Ms. Huckaby gave Mr. Waters a negative rating in the area of technology use partly because he did not use a computerized grading system, but neither did any other ESE teacher at Oakridge. Mr. Waters was singled out for criticism for that aspect of his teaching and the others were not. All teachers at Oakridge, particularly ESE teachers, during both the relevant school years, worked under increasing lesson plan requirements and student performance monitoring and documentation requirements and changes, as well as curriculum changes and related paperwork and time constraints. These were very stressful and no doubt were related in a significant part to the fact that the school had slipped from a "C" rating to a "D" rating on Ms. Huckaby's watch as principal. This no doubt caused significant tension and anxiety for all concerned on the instructional staff and in the administration. Only Mr. Waters, however, was held strictly accountable to all deadlines and all aspects of the burdensome documentation requirements and time constraints imposed during those two school years. In the context of his limited planning time, the excessive student contact time scheduled for him in 2005-2006, the delays he encountered in getting A3 IEP System training (some of which were self-inflicted), the difficulties encountered in gaining sufficient access to the conference room where the cume folders were maintained in order to comply with progress monitoring requirements, as well as the repeated schedule changes to his 2004-2005 assignment schedule and the time constraints of his 2005-2006 reading mastery schedule, put the Respondent in a position where it was impossible for him to timely and fully comply with every requirement imposed on him. Ms. Huckaby's close monitoring of the Respondent, as compared to other teachers, under such circumstances, is reflective of her bias in favor of a recommendation of termination. It impelled her, Ms. McFarland and Ms. Palazesi to document and exaggerate the significance of every minor error or omission that involved Mr. Waters. Arranging for ESE meetings, monitoring and complying with deadlines related to IEP's, monitoring ESE consult situations and completing all IEP-related paperwork are the responsibilities of the assigned ESE teacher. The carrying out of these tasks, however, often involves frequent communications among, and timely cooperation with several other people, such as other ESE teachers, regular classroom teachers, school administrators, the District Staffing Specialist, and the ESE students' parents. Mistakes, delays, and miscommunications concerning these ESE teacher responsibilities will occur and while they are not desirable they are not unusual. When such problems arise they are normally corrected by all persons involved as quickly and cooperatively as possible without resort to blame. Although Ms. Petrick became critical of paperwork problems and delays Mr. Waters was responsible for in the last half 2004-2005 school year, Oakridge school lost no federal funding because of them nor was it shown that any students suffered in academic or behavioral progress because of them. It is noteworthy that the IEP-related deficiencies concerning Mr. Waters began to arise only in the second half of the 2004- 2005 school year around the same time that critical memoranda from both Ms. Huckaby and Ms. McFarland were becoming the norm. In any event, Mr. Waters improved in these areas in the 2005-2006 school year. Mr. Waters received little of the help promised him in the September 2005 revised improvement notice document. He did not have a national board-certified mentor assigned him for 2005- 2006, did not get to meet with consultants from the Reading Mastery Plus Program, "Open Court," the "Great Leaps," or the Harcourt Brace Mathematics Programs. He did not meet with anyone from the Florida Inclusion Network. The administration did not provide adequate or meaningful assistance to him in either school year, but rather denied, delayed answering, or ignored his specific requests for more planning time, model lesson plans which would comply with Ms. Huckaby's lesson plan changes and requirements, relief from his impossible RM schedule for 2005- 2006, and his request for a transfer to another school. Instead of providing practical help to him (with the exception of Dr. Adams), the District focused its "assistance" mostly upon sending more staff and district employees to observe him and provide resulting reports to Ms. Huckaby. (Ms. Smith and Ms. Sands in 2004-2005 and Ms. Palazesi in 2005-2006.) During the 2005-2006 school year Mr. Waters work was being scrutinized over the 90 day performance improvement probationary period imposed by Ms. Huckaby which ended on December 8, 2005. During that time, however, his classroom activities were observed only once by Ms. Huckaby, on November 8, 2005. Ms. Huckaby's second observation of him took place nearly a week after the end of the probation period and was two and one- half hours long. It resulted in a critical observation report based primarily upon the last third of that classroom time when Mr. Waters had a formal lesson plan to take his writing class students to a "writing boot camp" session to be attended by all fourth grade teachers and students. Ms. Huckaby, however, refused to let him follow his lesson plan for that day's writing class and insisted that he teach the group there in his room. It was the last day his writing class would meet before the Christmas break which is why he planned to let them go to the writing boot camp with students from other classes on that day. There were no lesson plans for the rest of that week that he could adapt to the remaining one- third of his class that day, with the students unexpectedly present because of Ms. Huckaby's order; it was the last day of school before the Christmas break, and lesson plans for the next day or other days remaining in the week were thus unnecessary. Nevertheless, Ms. Huckaby made negative comments concerning allegedly inadequate planning for his writing group for the class that day after she concluded her observation. Ms. Huckaby had access to Mr. Waters' lesson plans for his December 14, 2005, class and before her observations that day. She had previously reviewed his lesson plans while observing his class to be sure he was precisely following those plans as he had often been instructed to do. She no doubt reviewed his plans for the December 14th lesson and had to have seen the writing boot camp entry. Nevertheless, she refused to let his students attend the writing boot camp. It was by this means that she was able to document a purportedly inadequately planned writing class activity for that day and then relied upon those negative comments in support of her termination recommendation to the superintendent which, inferentially, she had already decided to write. Ms. Huckaby only observed Mr. Waters classroom activities one time during the probationary period. Her only other observation of his classroom activities occurred on the December 14, 2005, occasion, approximately a week after the probation period ended. School administrators, however, are required to periodically evaluate and apprise teachers of their progress during such a 90-day probationary period, which Ms. Huckaby did not do.1/ The Respondent was confronted with a significant increase in time consuming paperwork/reporting requirements lesson plan requirements and the other burdens depicted in the above findings of fact, which Ms. Huckaby placed upon him. Other teachers and ESE teachers had to contend with some of these as well, although to a lesser extent and with less micro- management by Ms. Huckaby. Nonetheless, the Respondent made significant improvements in teaching methods, lesson plan quality and organization, classroom organization, the variety of planned classroom activities and his technology-supported lesson delivery methods. Mr. Waters was effective enough in his teaching and had made sufficient progress so that he received the second highest number of votes for "teacher of the year" from Oakridge's faculty and staff. He thus only ranked behind one revered teacher who had received the award before and who had more recently received the most votes, but declined the award in order to allow someone else to get it. Mr. Waters complied with all reasonable requests made of him, by and large, and in those areas of less than acceptable compliance made the necessary improvements in his compliance. He satisfactorily executed his job duties in both 2004-2005 and 2005-2006 school years as long as he was at Oakridge. Notwithstanding those improvements in performance, Ms. Huckaby continued to evaluate him as if he had made no improvements, pronouncing in June 2005 the results she had angrily promised him in their October 2004 meeting. She re- confirmed that negative assessment in December 2005 with her termination recommendation, made with only one observation by her during the actual period of his 90-day probationary status. Mr. Waters' teaching and classroom management performance in 2004-2005 as well as 2005-2006 and Ms. Huckaby's and Ms. McFarland's criticism of it, culminating in the termination recommendation by Ms. Huckaby, did not result and was not predicated on his students' FCAT scores. Ms. Huckaby admitted as much in her testimony as to both relevant years. The Petitioner attempted, in its rebuttal case only, to introduce test-related evidence that students of Mr. Waters in the 2004-2005 school year did not do well on standardized tests. That exhibit, and the information it was prepared from, however, were not made available at the hearing, during discovery, were not disclosed in the pre-hearing stipulation, and were not disclosed as a reason for Mr. Waters' performance criticism and termination by any charging document, notice or pleading by the Petitioner made a part of this record. The Petitioner in essence was using or attempting to use the proffered Exhibit 46 to buttress its case-in-chief because it was not rebuttal of anything raised or offered in the Respondent's case. Therefore, it was excluded on the basis that it constituted improper rebuttal evidence and, moreover, because of the non-disclosure problem referenced above, was not admissible on due process of law and "notice pleading" principles. Moreover, the information included in the charts in Petitioner's proffered Exhibit 46 is misleading with respect to comparative student progress issues by teacher. There is confusion as to which student was the pupil of Mr. Waters or another ESE teacher or teachers. It is difficult to determine based upon that exhibit, and the testimony proffered concerning it, an accurate comparison of student progress by the students depicted under Mr. Waters's teaching performance versus that of other teachers. Further, the "Writes Upon Request" chart comparison contained in Petitioner's Exhibit 48 and the testimony related to it, was clearly not a reason used or considered in lodging performance-related criticism against Mr. Waters or ultimately in the decision to terminate him. It clearly could not have been considered until several months after Mr. Waters had been removed from the Oakridge school. Had those Writes Upon Request chart results been considered by Ms. Huckaby in the context of this case, they would not serve as preponderant evidence of sub- standard performance by Mr. Waters, considering the other evidence of the circumstances and abilities of his students in conjunction with his performance. Mr. Waters is at minimum an adequate teacher and in some aspects of his performance a superior teacher, as, for instance, in his ability to advance his students' performance in writing and in terms of his ability to motivate his students and establish a good rapport, with an interest in learning, in his students. His classroom management skills, instructional methods and classroom demeanor fall within the parameters of acceptable performance and behavior as a teacher and an ESE teacher. He consistently and successfully relied upon his own behavior management reward system for his students, employed the Champs Program in his classroom and was successful at motivating his students to enjoy learning. In demonstrating a very good rapport with his students, he always created a classroom environment of mutual respect that is conducive to student learning and his students were learning. His overall performance for both school years at issue was objectively satisfactory despite Ms. Huckaby's biased assessment of his performance during those years and in her ultimate termination recommendation. In fact, the excessive number of areas of criticism by Ms. Huckaby concerning Mr. Waters job performance made it quite difficult to demonstrate mastery of every criticized area, much less to demonstrate it all in only two formal observation attempts by Ms. Huckaby. Ms. Donna George is a 21-year career ESE teacher. She has a master's degree in the areas of learning disabilities, emotional handicap, and varying exceptionalities. She has spent 13 of her teaching years at Oakridge school. She is the ESE Department Team Leader at Oakridge, as well as the "technology contact" teacher, who trains and assists other teachers in implementation of technology programs and equipment at Oakridge. She assists in teacher technology training. She is also a National Board Certified ESE Teacher. Ms. George is thus a leader on the staff at Oakridge. She has observed in ESE meetings and in school-wide faculty meetings, throughout Ms. Huckaby's tenure as Principal, that Ms. Huckaby has an autocratic, dictatorial management style, and an aversion to allowing commentary or questions regarding her policies, directives or programs at Oakridge. Ms. Huckaby has demonstrated little tolerance for questions or comments she perceives to reflect less than complete agreement with her positions or policies. Indeed, although Ms. George is the ESE team leader, she seldom has asked questions or sought clarifications of Ms. Huckaby during such meetings, because of her fear that she would be yelled at, treated with disdain, anger or even with reprisal. Such has also been the experience of Ms. Wacksman and others. Ms. George established that Ms. Huckaby's management style had driven many good teachers away from Oakridge. A survey by the district staff concerning long-term teacher retention rates showed that Oakridge had the lowest retention rate at 17 percent. The next lowest school in the survey had approximately 30 percent retention rate. This survey encompassed the period beginning with the 1999-2000 school year to present. Ms. George observed that Ms. Huckaby often responded to questions or comments from Mr. Waters with both verbal and non-verbal ques, such as eye rolling or turning away or other mannerisms, that generally showed disdain for his questions or his opinions. Ms. George unequivocally opined upon cross- examination by the Petitioner that Ms. Huckaby clearly does not like having Mr. Waters on her staff and was "out to get him." According to Ms. George, Mr. Waters asked questions more frequently than others in faculty meetings, but his questions generally were reasonable ones. He apparently also would attempt to make humorous comments, at times which often irritated Ms. Huckaby and other teachers as well. It is likely that some of his motivation to question Ms. Huckaby and her motivation to treat him with disdain, stemmed from their strained relationship starting with the student disciplinary incident described above. In any event, Ms. George's testimony is accepted in establishing that Ms. Huckaby had a bias in favor of removing the Respondent from her staff, which colored her judgment in making many of her criticisms of his teaching, which long pre-dated his probationary period and which, along with her scant actual observations of his instructional prowess, caused some of his improvements to be overlooked or disregarded, and which caused him to be evaluated more critically than his colleagues as to some performance requirements. In fact, the preponderant evidence establishes that in an objective sense his performance as a teacher, although not flawless, was acceptable and improved in a number of areas. As found in more detail above, in consideration of the circumstances imposed on him by the school administration, in his capacity as a resource teacher, with the time and schedule constraints and disadvantages that status entails, he performed in at least a satisfactory way in the 2004-2005 and 2005-2006 years at issue.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Leon County School Board re-instating the Respondent to a similar special education teaching position, with reimbursement for lost wages and benefits, in a manner so as to be "made whole" from the date of termination. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 31st day of July, 2007.
The Issue The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.
Findings Of Fact On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3 During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5 In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the student refused to comply with Petitioner's request and reported the alleged incident to school officials. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio administrative proceeding or the instant administrative hearing to establish this charge. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained: During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together. According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect." Petitioner then testified that "I don't really recall . . . that's what I vaguely recall." Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident. As a result of the October 7, 2000, incident, Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched Ms. Williams, and committed an act of violence against Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001." Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7 The testimony of Ms. Harris, Ms. Williams, Ms. Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9 Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs the student to conceal the fact that he engaged in such conduct. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and Ms. Williams, occurred at school. The incident involving Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 May, 2006.
The Issue Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis furnished). Respondent was first employed with the HCSD on August 18, 1986, and worked continuously through May 25, 1999, when she was terminated. Since Respondent achieved "continued employment status," she can only be terminated for "just cause." The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS. Respondent again was by herself in Internal Suspension and was not assisting a teacher. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part: These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out for their safety and welfare. (Emphasis furnished). The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip. Respondent's annual "Overall Evaluation" for the 1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement." Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise, Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory." Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!" Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of Respondent for failure to perform her assigned duties or other sufficient cause. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by Mr. Cooper when he arrived at LMS in March 1999. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal, Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms. Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance" Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999. DONE AND ENTERED this 6th of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 6th day of March, 2000. COPIES FURNISHED: Edward A. Upthegrove Superintendent Hendry County School District Post Office Box 1980 LaBelle, Florida 33935-1980 Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206 Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2989 Fort Myers, Florida 33902-2089
The Issue The issue for determination is whether Respondent committed the allegations set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Respondent began her teaching career as a substitute teacher in 1984 and has been an educator ever since. She holds a teaching certificate, issued by the State of Florida, Department of Education, and is certified to teach varying exceptionalities (VE), emotionally handicapped (EH), English speakers of other languages (ESOL), business, business education, mathematics, and middle school grades. Respondent was employed with Petitioner as a classroom teacher since the 1993-94 school year. For the 1993-94 and 1994-95 school years, Respondent's annual evaluations were satisfactory, with no areas of concern being listed. For the 1996-97 school year, Respondent's annual evaluation was satisfactory, with one area of concern being listed. The area of concern was "Adheres to and Enforces School Policies." Petitioner did not renew Respondent's contract at the end of the school year. Prior to the non-renewal of her contract at the end of the 1996-97 school year, no complaints were made and no issues were raised regarding Respondent's performance in the classroom. After her contract was not renewed, Respondent was prepared to file an unfair labor practice charge against Petitioner. Among other things, Respondent considered herself to be entitled, as a matter of law, to a professional service contract, because she had been employed as an annual contract teacher for more than three years. However, in lieu of litigation, on October 10, 1997, Respondent and Petitioner entered into a Settlement Agreement, enabling her to return to work. The Settlement Agreement provided in pertinent part: Ms. Windecker [Respondent] will be placed on a fourth year of probationary service for FY98 and will be issued an annual contract in accordance with Fla. Stat. Section 231.36(3)(c). Ms. Windecker's reinstatement will be effective . . . upon her return to work on the first Monday following the execution of this agreement. . . . * * * In the event, Ms. Windecker's performance for the FY98 school year is satisfactory she will be recommended for a Professional Services Contract. Satisfactory performance will be determined in compliance with the standards set forth in Florida Statutes Section 231.29, the Collective Bargaining Agreement between the Palm Beach County Classroom Teachers Association and the Palm Beach County School District, and the policies and directives of the Palm Beach County School Board. Ms. Windecker understands that her acceptance of the annual contract in 1 above is not a guarantee of continued employment in her position with the School District beyond the FY98 school year. The District understands that Ms. Windecker's satisfactory performance during the 1997-98 school year will require that she be recommended for and granted a professional services contract. In the event Ms. Windecker's performance for FY98 is determined by the District to be unsatisfactory, she will be entitled to a hearing pursuant to Fla. Stat. Section 231.36(6)(a) before the Division of Administrative Hearings. As a result of the Settlement Agreement, Respondent returned to work. Petitioner administratively placed Respondent at Indian Pines Elementary School (Indian Pines), effective October 13, 1997. At time of her placement, Indian Pines had a vacancy in VE and EH. Petitioner assigned Respondent to the VE position. Petitioner notified the principal of Indian Pines, Kenneth Meltzer, that Respondent was being placed at his school in the VE position. Principal Meltzer met Respondent for the first time on October 13, 1997. Principal Meltzer was not aware of the Settlement Agreement until approximately ten days after Respondent came to Indian Pines. When Respondent reported to Indian Pines on October 13, 1997, Principal Meltzer met with her and discussed, among other things, the VE class situation and the two individuals to contact should she need anything. The two individuals were Elizabeth Cardozo, assistant principal, and Jay Riegelhaupt, exceptional student education (ESE) coordinator and speech language pathologist. A pre-observation planning guide was usually provided to teachers at Indian Pines. Respondent did not receive a pre- observation planning guide. The evidence presented fails to show that the failure to receive the pre-observation planning guide was detrimental to Respondent. Respondent was required to turn-in her plan book to the administration at Indian Pines. Her plan book was approved by the administration at Indian Pines. Principal Meltzer performed a formal observation of Respondent on December 4, 1997. Prior to the observation, Principal Meltzer had received several complaints from the parents of students in Respondent's VE class regarding Respondent. When there are complaints from parents regarding a teacher, Principal Meltzer's usual procedure is to request the parents to place their complaints in writing and, after receiving the written complaints, to meet with the parents and the teacher to address the specific concerns. Principal Meltzer used this same procedure regarding the parents' complaints against Respondent. Some of the parents' complaints were based upon an allegation of battery of students lodged against Respondent. Principal Meltzer did not provide Respondent with any specific document to assist her in dealing with parents' complaints which may arise. Respondent met with each of the parents and their problems or complaints were resolved. During the investigation of the allegation of battery, Principal Meltzer met with Respondent and the parents of the alleged victim of the alleged battery. The meeting ended with the mother of the alleged victim apologizing to Respondent. In addition, prior to the observation of December 4, 1997, members of the crisis response team (CRT) complained that Respondent was making frequent, inappropriate CRT calls. These complaints were brought to the attention of Principal Meltzer. During the formal observation of Respondent on December 4, 1997, Principal Meltzer used the Florida Performance Measurement System (FPMS) Screening/Summative Observation Instrument. FPMS is the system adopted by Florida's Department of Education for measuring the performance of teachers, using domains and concepts for each domain. Principal Meltzer did not review the VE students' individual education plans (IEPs) prior to the observation. Principal Meltzer's observation of Respondent was that Respondent's teaching was unsatisfactory. On December 8, 1997, Principal Meltzer performed a mid-year evaluation of Respondent. The assessment instrument used by Respondent to evaluate its teachers was the Classroom Teacher Assessment System (CTAS). Using CTAS, teachers received a rating of either a one (a concern) or a two (acceptable) in 16 areas of teacher performance. Respondent was identified as an annual contract (AC) teacher on the CTAS. On the mid-year evaluation, Respondent received a score of 20 and was rated unsatisfactory, with 12 areas of concern being listed. The areas of concern are also referred to as deficiencies. Principal Meltzer based the evaluation on the observation of December 4, 1997, and all occurrences from October 13, 1997. The concerns listed were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; Demonstrates Knowledge of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; Demonstrates Self Control; Demonstrates Effective Working Relationship with Coworkers; Demonstrates Effective Working Relationship with Parents; and Adheres to and Enforces School Policies. Respondent was provided a copy of the FPMS observation and the CTAS mid-year evaluation. The observation of December 4, 1997, contained what can be considered written feedback, but, as written, the feedback could have been better prepared. The mid-year evaluation of December 8, 1997, provided Respondent notice of the deficiencies. At the request of Respondent's union representative, Principal Meltzer agreed to re-observe and re-evaluate Respondent. The union representative noted that it was humanly impossible to correct 12 deficiencies. Principal Meltzer agreed that the second observation and evaluation would replace the first observation and evaluation. Principal Meltzer had the discretion to grant the request and granted the request over the objection of Dr. Jeanne Burdsall, manager of Petitioner's Professional Standards. Principal Meltzer performed the agreed-upon formal observation on January 13, 1998. This observation was also not satisfactory. Respondent received her agreed-upon second mid-year evaluation on January 16, 1998. She received a score of 27 and was rated unsatisfactory, with six areas of concern listed. The areas of concern were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. These six concerns were the most important concerns to Principal Meltzer. Respondent was also placed on a School-Site Assistance Plan (School-Site Plan) on January 16, 1998. The School-Site Plan was developed to address Respondent's deficiencies, together with improvement strategies. No plan was developed for the concern of Demonstrates Effective Working Relationship with Parents because Principal Meltzer concluded that the parents' complaints had been effectively resolved through Respondent's meetings with the parents. Included in the School-Site Plan were agreed-upon dates for reviewing Respondent's progress. The School-Site Plan also provided, among other things, that observations would be conducted to determine whether the deficiencies were corrected. Principal Meltzer reviewed the School-Site Plan with Respondent on January 22, 1998. A copy of the School-Site Plan was provided to Respondent on January 28, 1998. The School-Site Plan was effective through March 10, 1998, which was the latest date that Principal Meltzer had to notify Respondent and Petitioner whether his intent was to recommend Respondent for reappointment. The School-Site Plan was essentially divided into two parts, which were for Respondent to engage in self-study and for her to perform her normal teaching duties. The parties agree that Respondent completed the self-study part of the School-Site Plan. Formal observations were conducted to determine whether Respondent performed her normal teaching duties. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 10, 1998, Pamela Tepsic, Petitioner's Program Specialist, who is also a certified FPMS observer, conducted an observation of Respondent to assist Respondent in improving management of student conduct. Ms. Tepsic's observation was not to be used for evaluative purposes. Some of the matters observed were discussed with Respondent on the same day of the observation. A follow-up conference was scheduled with Respondent for February 19, 1998. Ms. Tepsic made ten written recommendations, which were provided to Respondent on February 20, 1998. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 12, 1998, Linda Long, Petitioner's ESE Team Leader for Area 2, conducted an observation of Respondent for the purpose of assisting Respondent with grouping the IEPs of Respondent's students. Ms. Long wanted to observe Respondent's class before reviewing the students' IEPs. Ms. Long met with Respondent on February 26, 1998, to review the observation and the recommendations made. Ms. Long made four recommendations and provided Respondent with copies of strategies, which were from the State of Florida, Department of Education. During her meeting with Respondent, Ms. Long reviewed the students' IEPs and attempted to place them in groupings because it was difficult for Respondent to engage in direct teaching due to the many groups of children in Respondent's class. Ms. Long's observation was also not to be used for evaluative purposes. On February 17, 1998, Assistant Principal Cardozo conducted a FPMS formative observation of Respondent, focusing on the domain of Instructional Organization and Development, but she did not review the IEP's of Respondent's students prior to the observation. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made specific recommendations, and on February 18, 1998, she met with Respondent and reviewed the observation and recommendations. Assistant Principal Cardozo's recommendations included behaviors to continue or maintain and behaviors to increase. Assistant Principal Cardozo's observation was to be used for evaluative purposes. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 18, 1998, Hugh Brady, Petitioner's Instructional Support Team member of Area 2, conducted an observation of Respondent. He observed, among other things, that many of Respondent's comments to her class were not conducive to teaching VE students. Mr. Brady made several recommendations and conferenced with Respondent on February 25, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Mr. Brady's observation was not to be used for evaluative purposes. On February 19, 1998, Assistant Principal Cardozo conducted a formal FPMS summative observation of Respondent. She observed that Respondent continued to engage in ineffective teaching, including not teaching concepts completely and failing to give definitions, attributes, examples, and nonexamples. Assistant Principal Cardozo made several recommendations and conferenced with Respondent on February 23, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Assistant Principal Cardozo's recommendations included behaviors for Respondent to continue or maintain; behaviors for Respondent to increase; and behaviors for Respondent to reduce or eliminate. Her observation of Respondent was to be used for evaluative purposes. On February 26, 1998, Carol Parks was requested to serve as Respondent's peer teacher. On March 2, 1998, Ms. Parks met with Respondent and reviewed Respondent's lesson plans from which suggestions were made by Ms. Parks regarding planning and recording instructional objectives and improvement to Respondent's lesson plans. On March 5, 1998, Assistant Principal Cardozo conducted a formal FPMS formative observation of Respondent, focusing on the domain of Presentation of Subject Matter. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made recommendations, and on March 10, 1998, she met with Respondent and reviewed the observation and recommendations. Principal Meltzer failed to comply with the School- Site Plan as to having progress reviews on the specific dates which were set-aside. The dates scheduled for review of Respondent's progress were January 30, 1998, February 20, 1998, and March 6, 1998. On March 10, 1998, the latest date for Principal Meltzer to recommend non-renewal of an employee, Principal Meltzer conducted a CTAS annual evaluation of Respondent, who was identified on the evaluation as an AC employee. The observations considered by Principal Meltzer were the observations conducted by himself on December 4, 1997, and January 13, 1998; and by Assistant Principal Cardozo on February 17, 1998,1 and February 19, 1998. On the annual evaluation, Respondent scored 26 and was rated unsatisfactory, with the same six areas of concern listed as on the mid-year evaluation of January 16, 1998. The six concerns were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. Principal Meltzer determined that Respondent had failed to correct the six deficiencies. However, as previously indicated, the concern of Demonstrates Effective Working Relationships with Parents was no longer considered a concern, and, therefore, Respondent failed to correct five deficiencies. By letter dated March 10, 1998, Principal Meltzer notified Respondent that, in accordance with Section 231.36, Florida Statutes, and the Settlement Agreement, he was recommending that she not be reappointed for the 1999-2000 school year. In the letter, Principal Meltzer also encouraged Respondent to continue working to improve her performance and, if her performance significantly improved before the end of the 1998-99 school year, he may reconsider his decision. Respondent received this letter on the same date, May 10, 1998. No assistance was provided to Respondent after March 6, 1998. Even though Principal Meltzer had recommended non- reappointment for Respondent, he conducted an observation of Respondent on May 14, 1998. He observed that Respondent continued to need considerable improvement and made several recommendations for improvement. Had Principal Meltzer determined, as a result of his observation of May 14, 1998, that Respondent had made significant improvement, he could have rescinded his recommendation of non-reappointment and recommended reappointment of Respondent. By letter dated June 19, 1998, Petitioner notified Respondent that she was cleared of the allegation of battery of students made against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order and therein: Dismiss the Administrative Complaint filed against Betty Windecker. Reinstate Betty Windecker with a professional service contract, full backpay, and lost benefits. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2000.
Findings Of Fact Respondent is a school teacher who has earned an associate's degree from Miami-Dade Community College, a bachelor's degree in education from the University of Miami and a master of science degree from Florida International University. Respondent has a valid and current Florida Teacher's Certificate and is certified in the areas of science and social studies. Respondent has been employed for thirteen years as a teacher by the Dade County School Board. He was employed for one year in 1965-69 re-employed in 1972 and continued his employment until his suspension on July 25, 1984. The Dade County School Board has an official policy of annual performance evaluations of all teachers. The criteria established by the Petitioner for the teacher evaluations are: (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction, (5) assessment techniques, (6) teacher-student relationship, and professional responsibility. For the years 1972 through 1983 Respondent was annually evaluated by the Petitioner, his job performance was found to be acceptable, and he was annually recommended for continuing employment with Petitioner. For the school year 1983-84 Respondent received an evaluation of "acceptable" and he was recommended for employment. However principal Henry Pinkney later amended his "acceptable" evaluation recommending that Respondent continue his employment under prescription. During the 1983-84 school year Quentin Collins was a student attending North Dade Junior High School where Respondent was one of his teachers. On May 10, 1984, Quentin Collins was one of approximately 30 students in a class taught by Respondent. On that date Collins was repeatedly talking, misbehaving, and disrupting the class. After several warnings by Respondents the student was directed to go to the teacher's desk in the front of the classroom. For the next several moments while Respondent attended to the other students in the classrooms Collins was at various times sitting, kneeling, squatting and leaning on or against the teacher's desk. After he decided to sit on the floors his back was against the teacher's desk and his legs were extended straight out so as to block the aisle next to that desk. After Respondent finished walking around the classroom and talking with other students, he turned to return to the area of his desk and literally, almost stepped on Collins' legs. As Respondent stepped over (and not on) Collins' legs, Collins raised his knees and grabbed Respondent's legs in such a manner that Respondent feared he was going to be "tripped" by the student. In a brief and sudden instant, Respondent grabbed both of Collins' legs, lifted him in the air, and then lowered Collins back down. During this brief bodily entanglement, Collins' head may have bumped the linoleum floor. The incident was not reported to the school administrators until four days later and Collins did not tell his mother about these events until a later date. Collins was examined by a physician four days after the incident. There is no evidence that the student sustained any injury or has any medical problems as a result of the incident of May 10, 1984. Although Respondent was evaluated as "acceptable" and recommended for employment by the principal of North Dade Junior High School after the incident with Collins and after the principal had been advised of the incident with Collins the May 15, 1984 Annual Evaluation of Respondent was amended by the principal on June 7, 1984 to show that Respondent was unacceptable in the area of professional responsibility. Even the "amended" Annual Evaluation fails to recommend that Respondent be terminated from his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Specific Notice of Charges filed against him reinstating Respondent as an employee of the Dade County School Board and awarding to Respondent full back pay for the period of time that he has been suspended from his employment DONE and RECOMMENDED this 8th day of May 1986, at Tallahassee Florida. LINDA M. RIGOT 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 8th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2750 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 Dan J. Bradley Esquire 2950 Southwest 27th Avenue Coconut Grove Florida 33133 Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami Florida 33132 APPENDIX Petitioner's proposed findings of fact numbered 1-3 and 6 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, argument of counsel or conclusions of law. Petitioner's proposed findings of fact numbered 4 and 5 have been rejected as not being supported by the evidence herein. Respondent's proposed findings of fact numbered 1-11, 13, and 14 have been adopted either verbatim or as modified to conform with the evidence or style. Respondent's proposed finding of fact numbered 12 has been rejected as being immaterial. Respondent's proposed findings of fact numbered 15 and 16 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, argument of counsels or conclusions of law.
The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are 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 adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2015.
The Issue Whether the Respondent, Fitzroy Salesman, should be terminated from his employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is charged with the duty to operate, control, and supervise all public schools within the Miami- Dade County School District. As such, the employment of school personnel is encompassed among its myriad of duties. Further, the School Board is charged with the discipline of its employees. The Petitioner employed the Respondent on or about August 28, 1988. The Respondent was employed pursuant to a professional service contract. The Respondent was continuously employed as a full-time teacher assigned to Miami Lakes Educational Center (the Center). Throughout most of his employment, the Respondent's primary job assignment was related to his area of expertise: welding. Prior to the instant case, the Respondent has never been the subject of a disciplinary proceeding. Due to a decrease in enrollment for welding classes (such that a full-time welding position was not required), the Respondent was assigned responsibilities as a substitute teacher for other programs at the Center. Specific to the allegations of this case, the Respondent, on September 24, 25, 26, 27, 28, 29, and October 1, 2, 3, and 4, 2001, was assigned to serve as a substitute teacher in the Television Production Program at the Center. While being supervised by the Respondent, at least ten students participated in the production of a program depicting inappropriate activities. For example, the students were recorded using profanity, mimicking sex acts, and discussing "getting high." The students talked openly and without interruption or direction from the Respondent. During part of the tape, the Respondent stood within the glassed production area next to the studio set. Occupants of that room are able to see and hear the activities on the set. The Respondent knew or should have known what the students were doing as he was responsible for the class. Further, at one point, the Respondent appeared on camera and stated, "ain't that some shit." The Respondent was given an inadequate lesson plan for the days he substituted in the Television Production Program but did not seek assistance from administrators or the department head. Such assistance is readily available to any substitute teacher who advises he is in need of additional materials or plans. Further, the Respondent did not report the activities of the students. Specifically, he did not refer students to the office based upon their inappropriate activities. The Respondent does not deny that the students engaged in the activities described. He maintains that he was inadequately trained or prepared to lead the class. On or about October 19, 2001, an administrator at the Center discovered the tapes depicting inappropriate conduct. At that time the Respondent was reassigned to another location. Based upon the Respondent's failure to properly monitor the class, his effectiveness as a teacher has been impaired. On January 13, 2002, a conference-for-the record (CFR) was conducted with the Respondent. At the CFR, the Respondent was advised of concerns regarding the described conduct during the time he served as substitute teacher for the Television Production Program. On January 15, 2002, ten students from the television production class were suspended from school. The suspensions stemmed from their activities depicted in the videos described above. On March 19, 2002, the Respondent attended a meeting with the School Board's Office of Professional Standards. At that time the Respondent was advised that the School District would seek dismissal proceedings. On April 17, 2002, the School Board took action to initiate dismissal proceedings against the Respondent based upon the activities that had occurred in the Television Production Program during the Respondent's time as substitute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board affirm the suspension of the Respondent and dismiss him from employment with the School District. DONE AND ENTERED this 31st day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2003. COPIES FURNISHED: Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
