Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black male, was hired by Respondent on February 11, 1985. Petitioner was employed as a wet mill laborer at Respondent's Florida Plant located in Bradford County, Florida. Petitioner's primary duties consisted of washing spirals and performing general housekeeping. Petitioner, like all newly hired employees, was hired subject to a ninety (90) day probationary period. Petitioner was provided an orientation period, given training, and was informed verbally during his employment about the importance of good job performance during his probation period. Petitioner was terminated by Respondent on April 1, 1985 during Petitioner's probationary period. Petitioner reported to four (4) first-line supervisors during his short period of employment which was the result of Petitioner being primarily on the day shift while the supervisors worked on a rotating shift basis. Petitioner's supervisors and the dates under each supervisor are as follows: C. A. Baldree during the weeks ending February 17, 1985 and March 17, 1985; J. W. Sherrill during the weeks ending February 24, 1985 and March 31, 1985; D. W. Baldree during the weeks ending March 3, 1985 and March 24, 1985 and; W. J. Frick during the week ending March 10, 1985. Although Petitioner's testimony conflicted with all three (3) first- line supervisors who testified concerning the fact surrounding the incidents which eventually gave rise to Petitioner's termination, the more credible evidence shows: During the week ending March 17, 1985, Supervisor C. A. Baldree instructed Petitioner and another employee to clean handrails in a specific area where a management visitation group would be observing. Petitioner proceeded to clean handrails in an area other than the one specified by the supervisor and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner became abusive toward the supervisor and argued that he was following instructions. The Area Supervisor Gilberto Valazquez observed the incident and tried to resolve the matter with a meeting between Petitioner and Supervisor C. A. Baldree but Petitioner declined, commenting that he was afraid of losing his job. During the week ending March 24, 1985, Supervisor D. W. Baldree assigned Petitioner and another employee to wash some spirals in a specific area where visiting management would be observing. Again, Petitioner took it upon himself to clean spirals in a different area and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner responded that he felt that where he had started was as good as any place to start, notwithstanding that Petitioner was aware of the reason for starting where the supervisor had instructed him to start cleaning. Also, during the week ending March 24, 1985, Supervisor D. W. Baldree repeatedly instructed Petitioner concerning the replacement of hoses and cutters that may be disconnected during the washing of the spirals. However, on several occasions Petitioner failed to replace the hoses and cutters that were disconnected during the washing process as instructed. During the week ending March 31, 1985, Supervisor J. W. Sherrill instructed Petitioner to clean out a tail box that was plugged with sand and adversely affecting production. When the supervisor returned in approximately 20-30 minutes he found the tail box still plugged. When the supervisor attempted to inform Petitioner of his failure to unplug the tail box, Petitioner became argumentative and pointed out that he had unplugged the tail box and that it was only water from a clear water hose that was dripping, notwithstanding the fact that a large amount of sand had accumulated and that muddy water rather than clean water was running from the tail box. At the end of the work week ending March 31, 1985, Supervisor Valazquez met with Petitioner and Supervisor Sherrill concerning an alleged promise made by Supervisor Sherrill to allow Petitioner to leave work early which Petitioner felt Supervisor Sherrill had reneged on, notwithstanding that supervisor had explained to Petitioner why he could not leave early. During the course of the discussion, Petitioner became very belligerent towards Supervisor Sherrill which prompted Supervisor Valazquez to review Petitioner's overall employment record to determine whether Petitioner should continue in the employment of Respondent. Supervisor Valazquez, in investigating Petitioner's overall performance, discussed Petitioner's employment record with all of Petitioner's first-line supervisors and also asked each of them for written comments. Based upon his own observations of Petitioner's job performance and his attitude toward supervision, the supervisors' comments, and the fact that as a short service probationary employee Petitioner was making no effort to improve his job performance or his attitude toward supervision, Supervisor Valazquez felt that Petitioner may not be salvageable as an employee and questioned Petitioner's continued employment with Respondent. Supervisor Valazquez reviewed Petitioner's performance record with his superiors and the site's Employee Relations Supervisor L. H. Wood, who was the site's Affirmative Action Officer. Wood found no evidence of discriminatory motivation. Valazquez's superiors concurred in the discharge recommendation. On April 1, 1985, Valazquez met with Petitioner to discuss the potential discharge action but approached the meeting with the view that should Petitioner show a change in his attitude in regard to his job performance and in accepting supervision, then Valazquez would change his mind and give the Petitioner another chance. When Valazquez attempted to review Petitioner's poor job performance and attitude problems with Petitioner, Petitioner again became very defensive and argumentative. As a result of Petitioner's attitude in this meeting, Valazquez proceeded with the discharge action that had been approved by management. Although the record reflects that Petitioner did not receive any written or verbal warnings from any of his shift- supervisors that his performance was so unsatisfactory that if improvement was not made he would be terminated, Petitioner was made aware, by his shift-supervisors and area supervisor that poor job performance was a basis for termination, particularly during his probationary period. There was at least one (1) occasion, the incident which occurred during the week ending February 17, 1985 with C. A. Baldree, where Petitioner commented about the possibility of losing his job and Valazquez advised him that he would not lose his job so long as he performed properly and showed respect for his supervisors. On three (3) other occasions, his supervisors made the Petitioner aware of his poor job performance and poor attitude. Petitioner was not advised of any written memorandums concerning his job performance or possible termination had been prepared until April 1, 1985, the date Petitioner had a conference with Valazquez and, due to his defensive and argumentative attitude, was not allowed further opportunity to improve his job performance or his attitude and was terminated. No formal employee/supervisor conferences were held with Petitioner until April 1, 985, the date Petitioner was terminated. On the same date that Petitioner was hired, Robert McGee, a white male, was hired by Respondent as a laborer. McGee was assigned to a field laborer position, reporting almost exclusively to one (1) supervisor, Doris Cole. Field laborers work in an area separate and apart from the wet mill and report to different first-line supervisors than the wet mill laborers. On April 25, 1985, within McGee's probationary period, McGee received a formal employee/supervisor conference concerning his unsatisfactory job performance and his damaging of company equipment, warned that definite improvement in his job performance was expected or probation or possibly termination could be expected. On July 3, 1985, McGee received another employee/supervisor conference which involved McGee, Doris Cole and Valazquez and McGee was informed that his performance had improved slightly but significant improvement was expected in the next two (2) weeks or he could expect termination. McGee was placed on probation at this time. On August 2, 1985, another formal employee/supervisor conference was held with McGee wherein it was noted that McGee had demonstrated that- he could perform at a satisfactory level but that continued improvement was expected and that McGee would remain on probation until October 3, 1985. The final employee/supervisor conference record dated October 4, 1985 concluded that McGee could not consistently perform satisfactorily, therefore termination was recommended. McGee did not attend this conference but resigned by telephone on that date in lieu of being terminated. McGee reviewed each of the employee/supervisor conference reports with the exception of the one on October 4, 1985 and each of the reports were included in his personnel file, including the one for October 4, 1985. McGee was a marginal employee who tried to perform his job properly and was receptive to constructive criticism; however, he was unable to improve his performance to a point that was acceptable to Respondent's management. McGee worked on the wet mill for brief periods without incident. McGee had no history of refusing to follow instructions of his supervisor or of being argumentative with the supervisors. The Respondent had no stated policy that required written warnings of poor job performance to employees by their respective supervisors. It was the general policy of the -shift supervisors that during the probationary period, especially during the early part of the probationary period, warnings of poor job performance were given verbally to the employee and that a formal employee/supervisor conference was reserved for more severe matters such as violation of safety rules. However, the manner in which a supervisor handled a particular warning of poor job performance during an employee's probationary period was left to the discretion of the individual supervisor. The record reflects only two (2) other incidents where an employee/supervisor conference was held with an employee during the employee's initial probationary period: Kathy D. Sanders, a black female, on June 5, 1985 and; Bernard Brown, a black male, on March 27, 1984. C. A. Baldree, D. W. Baldree and J. W. Sherrill, three (3) of Petitioner's shift supervisors, were all white as were the supervisors of McGee. Respondent has, and had during Petitioner's employment, an aggressive Affirmative Action program which applied to all aspects of the employment environment. Respondent has in the past received national and local recognition for its Affirmative Action efforts. Respondent's employment of minorities has exceeded the availability of minorities in the labor supply area. Although the local availability of minorities was fifteen percent (15 percent), twenty to twenty-one percent (20-21 percent) of employees at the site were minorities. Of the forty three (43) individuals hired, closely related in time to Petitioner's dates of employment, ten (10) or twenty-three percent (23 percent) were black. Although at the time of Petitioner's initial employment, Respondent had some misgivings about Petitioner's failure to disclose certain information on his employment application, Respondent decided to hire Petitioner anyway because of its Affirmative Action efforts and Petitioner's tests results. The clear weight of the evidence shows that Respondent's reasons for discharging Petitioner was his poor job performance and his argumentative and abusive behavior towards the supervisors when instructed to correct a situation where Petitioner had failed to follow instructions, either intentionally or because he had misunderstood the instructions. The clear weight of the evidence establishes that Petitioner was treated in a dissimilar manner from the white employee, but the disparity of treatment resulted from a dissimilar attitude toward job performance and supervision rather than racial motivation. Area Supervisor Valazquez, the supervisor primarily involved in the decision to discharge Petitioner, is Hispanic.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Milton Baker, was not discharged due to his race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 16th day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3623 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-3. Adopted in Finding of Fact 1. The first sentence adopted in Finding of Fact 4. The second sentence rejected as immaterial and irrelevant. Adopted in Finding of Fact 3. 6.(a-c) Adopted in Finding of Fact 5 (a-d) but clarified. Adopted in Finding of Fact 10 but clarified. Adopted in Findings of Fact 6 through 9 and 27. Adopted in Finding of Fact 12. Rejected as not supported by substantial competent in the record. Adopted in Finding of Fact 12. Adopted in Findings of Fact 2, 13, 14 and 17. Adopted in Findings of Fact 15 and 18. Adopted in Findings of Fact 16 and 18. Adopted in Finding of Fact 17. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 22. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as immaterial and irrelevant. Respondent had no Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5(a) but modified. Adopted in Finding of Fact 5(b) but modified. Adopted in Finding of Fact 5(c) but modified. Adopted in Finding of Fact 5(d) but modified. Adopted in Finding of Fact 6 but modified. Adopted in Finding of Fact 7 but modified. Adopted in Finding of Fact 8 but modified. Adopted in Finding of Fact 9. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Facts 17 and 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Findings of Fact 10, 11 and 12. Adopted in Findings of Fact 14, 15 and 16. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25 but clarified. COPIES FURNISHED: John F. MacLennan, Esquire Kattman, Eshelman & MacLennan 1920 San Marco Boulevard Jacksonville, Florida 32207 Jerry H. Brenner, Esquire Legal Department E. I. du Point de Nemours and Company 100 West 10th Street Wilmington, DE 19898 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
The Issue Whether the Respondent should be terminated from her employment with the Dade County School District.
Findings Of Fact At all times material to the allegations in this case, Petitioner was authorized by Florida law to operate the public schools within Dade County, Florida. Such authorization includes, but is not limited to, the employment, control, and supervision of non-instructional employees of the school district. At all times material to the allegations of this case, Respondent was employed as a non-instructional employee of the school district. She was classified as a specialist II and, as such, was governed by the labor contract between the Miami-Dade County Public Schools and the United Teachers of Dade (UTD). Petitioner first employed Respondent in 1992. At that time, as a part-time clerk in the Office of Grants Administration at the Satellite Parent Education Resource Center in Region III, Respondent exhibited unacceptable work performance. Respondent’s interim and overall annual evaluations for her work as a clerk at the satellite center were unsatisfactory. Throughout the 1992/1993 school year Respondent was counseled as to her deficient performance areas. Additionally, she was offered assistance and strategies for improvement, yet failed to improve her work performance. As a result of this initial employment experience, Respondent was fully apprised of the evaluation and remediation process utilized by Petitioner. When Respondent did not improve during the 1992/1993 school year she could not be recommended for full-time employment. Her last day of work for that year was April 23, 1993. Over a year later, Petitioner employed Respondent as a data-input specialist at the Coral Gables AEC. On her May 30, 1995, evaluation, Respondent was advised of several areas of work performance that needed improvement. Among the areas needing improvement were attitudes toward other staff and the public as well as the quality of her work product. The next year, school year 1995/1996, Respondent’s work performance was no better. On May 23, 1996, a conference-for- the record (CFR) was held to review the problems with Respondent’s work performance. At the May 23, 1996, CFR, in addition to reviewing the unacceptable work performance issues, Respondent was given a referral to Petitioner’s Employee Assistance Program (EAP) due to her unacceptable behavior, her mood changes, and conflicts with staff and the public. When Respondent failed to attend two conferences with the EAP, her referral was closed. Respondent requested and was granted a one-year personal leave of absence for the 1996/1997 school year. On or about May 28, 1997, Respondent returned to Coral Gables AEC and was supervised by Alonzo Kilpatrick. On October 30, 1997, Respondent received a directive to adhere to her work schedule. This directive resulted from Respondent’s record of poor attendance or punctuality. On December 12, 1997, Respondent’s mid-year evaluation rated her work performance as unsatisfactory. The areas of work performance inadequacy were fully outlined and explained. Basic areas of performance such as attendance and punctuality were deficient. Additionally, the quality of Respondent’s work was inadequate. As a result of the unsatisfactory performance, Respondent was placed on prescriptive status and issued activities to improve her work performance. This prescription outlined deadlines and specific assignments to be completed by Respondent. On January 12, 1998 a CFR was conducted to address Respondent’s interim unsatisfactory evaluation. Respondent was advised that she had failed to comply with the prescription activities. This CFR ended when Respondent became agitated and refused to participate calmly. On January 23, 1998, Respondent was notified that she had failed to complete her prescription and was directed to attend a CFR for that day to discuss the matter. When she failed to attend, Respondent was notified that failure to attend conferences would be considered insubordination. On February 20, 1998, Respondent failed to attend a conference scheduled for that date to review her prescription activities. On March 6, 1998, Respondent was given notice of a CFR that was to take place on March 12, 1998. The agenda for this CFR was to cover Respondent’s failure to complete her prescription and to attend previously scheduled CFRs. Respondent did not attend the March 12, 1998, meeting. Based upon the failure to attend, on March 24, 1998, the Respondent was given a written reprimand and notice that advised her that continuing failures to complete the prescription, failure to attend meetings, and failure to comply with administrative directives would result in disciplinary action, including dismissal. Another CFR was scheduled for April 15, 1998. Respondent was given advance, written notice of the meeting, yet failed to attend. Consequently, Respondent received a written reprimand. Such reprimand cited Respondent for gross insubordination. Further, Respondent was again directed to comply with the administrative directives given to her to attend conferences and to complete the prescription for work improvement. Respondent was given written prior notice to attend a conference scheduled for May 8, 1998. This conference was scheduled to address her continuing failure to attend conferences as well as her prescription requirements and to review Respondent’s deficient work performance. She did not attend. Respondent’s failure to attend the May 8, 1998, CFR marked the third time Respondent failed to comply with the directive to attend. Moreover, she failed to complete her prescription and failed to offer any credible excuse for having not complied with the directives of the administrator. As a result of the foregoing, Respondent was given another written reprimand outlining the failures. On May 15, 1998, Respondent received an annual evaluation that noted her work performance was unsatisfactory. She was also advised she had failed to complete her prescription for improvement and had failed to offer an explanation for why the prescription activities could not be completed. On May 28, 1998, a district level (as opposed to school level- all previous CFRs had been at the school level) CFR was held with Respondent at the School Board’s Office of Professional Standards. At that time Respondent was advised that the school administration would recommend disciplinary action against Respondent. Respondent had still not completed the prescription activities assigned to encourage remediation of work deficiencies. On June 3, 1998, Dr. Pullum, the principal at Respondent’s work site, recommended that Respondent’s employment be terminated due to her failures to follow directives, to attend CFRs, to complete prescription activities, and to improve work performance. On August 26, 1998, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and to initiate dismissal proceedings for just cause, including incompetency, gross insubordination, and willful neglect of duty.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the suspension of Respondent and dismissing her from employment with the school district. DONE AND ENTERED this 9th day of November, 1999, 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 9th day of November, 1999. COPIES FURNISHED: Luis M. Garcia, Esquire Miami-Dade County Schools 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132-1308 Theslie Sessions 1348 Northwest 95th Street, No. 301 Miami, Florida 33147 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Roger Cuevas, Superintendent Miami-Dade County Schools 1450 Northeast 2nd Avenue, No. 403 Miami, Florida 33132-1308
Findings Of Fact At all times pertinent to the issues involved herein, the Respondent, Janna J. Goss, was employed by the Petitioner, School Board of Gulf County, Florida, as a first year biology teacher at Pt. St. Joe High School, Pt. St. Joe, Florida. The 1984-1985 school year is divided into six grading periods. Three are in the first semester and three are in the second semester. The grades for the third grading period in the first semester were due on January 10, 1985. This deadline was set out in the faculty handbook issued to all teachers, including Respondent, at the beginning of the school year, was contained in a bulletin published on January 7, 1985 and furnished to all teachers, and was announced over the school's loudspeaker system the same day, well in advance of the deadline date. Under the system employed by Pt. St. Joe High School, each individual teacher is responsible for grading each student's performance and recording the student's grade for the grading period on duplicate report cards in the school office on the deadline date so that the homeroom teachers can secure these grades and post them on the student's copy of the report card for issue on report card day. Since this was the end of the semester, semester grades were due as well. Mr. Williams, the school principal, took ill and went on sick leave on December 17, 1984 and did not return to duty until after the Christmas Holidays. However, on December 21, 1984, the Friday that school let out for the holidays, Mr. Williams came to school, attended a meeting with some teachers, heard a grievance complaint, and attended a faculty party in the teachers' lounge prior to dismissing them. At some time during this day, Mr. Williams made a comment regarding the requirement to turn in grades which was construed by several teachers, including the Respondent, as extending the time in which grades were to be turned in. Not only Respondent but two other teachers, Mrs. Harrison and Mr. Smith, indicated that they heard Mr. Williams state on that day, in response to a question about report cards by another teacher, that the teachers had worked hard up to that point, should have a good rest over the holidays, and not worry about school. He said words to the effect that they had ample time, said by some to have been "several weeks," after the holidays to get their grades in. Not only Respondent but also the other two teachers considered this to be an extension of the January 10th deadline as had been done at both previous grading periods this school year. This comment, which undoubtedly was not meant by Mr. Williams to extend the deadline for submitting grades, was nonetheless construed by Respondent and others as doing just that. Respondent failed to get her grades in on time and was, in fact, the only teacher to do so. As of January 10, 1985, there were some teachers other than Respondent who had not submitted all grades for all students, but every teacher, with the exception of the Respondent, had submitted some and did submit all grades required by the end of the school day on January 10. Respondent failed to submit any grades by January 10 or, for that matter, by the close of school on January 11. The failure of a teacher to get grades in on time to support a timely issue of report cards impacts on the school in several ways. The first is the response by parents who are concerned as to the reason for their children failing to get a particular grade. The second is that the students' grades determine their eligibility to participate in extracurricular activities and the absence of one grade can and does have a substantial impact on the students' averages. A third impact is the effect that the failure to submit has on other teachers who get their grades in on time. In this instant case, according to Mr. Williams, there was one additional impact that might not have transpired at another time. This was that the Honor Roll for Pt. St. Joe High School students for this semester was the only one from all district high schools that did not appear in the paper at the end of the semester. This was caused exclusively by Respondent not getting her grades in. As a result, the Pt. St. Joe High School Honor Roll was published approximately two weeks later. The requirement to get the grades in by January 10, as was stated above, was reiterated to the teachers by publication in the school bulletin and announcement over the school loudspeaker system on January 7, 1985. At no time between that date and January 9, 1985, did Respondent come to the office and indicate she could not get her grades in on time. On January 10, 1985, Respondent came into Ms. Ramsey's office to explain that her grades would not be ready on time because her activities with the girls' basketball team, which she coached, took up so much time, she was not able to get them done. According to Ms. Ramsey, Respondent made no mention at this time about her misunderstanding of the due date. Ms. Ramsey reported this to Mr. Williams who instructed her to advise Respondent that her grades must be in by close of school on January 11 or she would be suspended. Ms. Ramsey contacted Respondent early on January 11 and advised her that she had spoken with the principal who told her to advise Respondent as stated. At this point, Respondent again started explaining about her extra work involving the basketball team to which Ms. Ramsey responded that only Mr. Williams could excuse her failure. When this information was communicated to the Respondent, she became upset and left Ramsey's office advising the school secretary at the time to get a substitute teacher to come in because she, Respondent, was leaving. At this point, Ramsey, who had followed Respondent out of the office, told her to wait and do it right. As it was, a substitute teacher was called in and Respondent spent the time working on the grades. Later in the day Respondent again met with Ms. Ramsey. At this point, Respondent had two union representatives with her. At this meeting, Ms. Ramsey told the Respondent that if the grades were not in by the end of the day, the Principal would recommend a suspension. In response to this, Respondent indicated that as soon as that meeting was over, she was leaving. Ms. Ramsey asked Respondent to come to the school office at the end of the day to see the Superintendent. Respondent complied with this request and the two ladies went to his office that afternoon. During the meeting with Mr. Wilder, he asked Respondent if she had been informed of the need to get her grades in on time and the implications of her failure to do so. Respondent said she had been. Her explanation that she had too much to do with her extracurricular activities which interfered with getting her grades in on time was not persuasive to Mr. Wilder since other teachers in the system also were involved with extracurricular activities and, nonetheless, were able to comply with the grade deadline. He was, therefore, convinced that her excuse did not justify any extension. While Mr. Wilder does not feel that the Respondent would intentionally miss the deadline, the fact is that she missed it and no one else did and he is convinced that notwithstanding her extracurricular activities, she had plenty of time to complete the task. As a result, on January 11, 1985, Mr. Wilder advised Respondent by letter that she was suspended from all duties at the high school for five days from January 14 through January 18, 1985 inclusive. The letter indicated that his action was based on her willful neglect of duty and indicated, also, his intention to recommend to the school board that the suspension he imposed be without pay. Thereafter, on January 14, 1985, the school board, at a special meeting, approved the suspension imposed by Mr. Wilder and confirmed that four and one half of the five days suspension would be without pay. Respondent indicated that during the first two grading periods of the 1984 - 1985 school year, her grades were in on time and she has never been reprimanded for any reason while employed by the school system. Respondent contends that she was misled by the comments she and others heard the principal make in the library on the morning of December 21, 1984. She took her grade books and school work home with her for the holidays but due to what she interpreted Mr. Williams' comments to mean, she did not take them with her when she left town for a trip during the holiday. Among the work she took home were the student workbooks, projects, and semester tests. The six weeks exams had already been graded. However, because of the volume of the work, she was unable to get them completely done during the time prior to and subsequent to her trip. When she returned, the basketball team had several games in a row, some of which were away, as well as practices. Respondent has 150 students. She used all her planning periods and the hours after each school day from the time school began after the holidays until January 11 to work on the grades. In addition, she took the Wednesday of that week off as a personal leave day work on them. However, she did not work on grades during the ball games or during team practice times. When she heard of the "change" which, to her thinking, took place when she was advised the grades were due on January 10, she was surprised but nonetheless continued to lecture instead of assigning study work during the class period so that she could work on the grades. She knew other teachers who were behind who got help with their grading but she did not request help because, at least as to the science projects and workbooks, these items were the sort of thing that nobody else could grade for her. She admits that when on the morning of January 10 she told Ms. Ramsey she still had 50 projects to grade and would not get her grades in on time, she was given until the close of the school day on January 11 to get them in. Nonetheless, she failed to do so. Ms. Goss contends she did not intentionally fail to get the grades in. She would have gotten them in on time but for her belief that Mr. Williams had given an extra period of time to accomplish them. Had she had that extra week, her grades would have been on time. When she discussed with Mr. Williams on January 11, at the suggestion of Ms. Ramsey, that she would not get them in on time, she cited to him his comment as the primary reason for them being late. At this point, Mr. Williams denied making the statement and persisted in his denial at the hearing. No doubt Mr. Williams did not make a definitive statement extending the time as he had done on both previous grading periods. However, it is clear from Respondent's testimony, supported by that of Mrs. Harrison and Mr. Smith, that he did make some pleasant comment regarding the work schedule which was subject to and actually was misconstrued as authorizing an extension. To Ms. Goss, the extracurricular activities were subordinate to her academic endeavors which always come first with her. She admits she made a mistake by not discussing what she perceived as the error in times with Mr. Williams or Ms. Ramsey until January 10. In any event, she thought she could get all the grades done in time but just did not realize how long it would take her to grade her projects. Also in retrospect, she recognizes now that someone else could have coached the basketball games that she attended and coached in lieu of getting her grades done during the last week before the deadline. It was more an error in judgment, she claims, than a willful or intentional failure to conform to a school directive. She contends at this point that when she was asked by Mr. Wilder on January 11 if she had been warned or not, she misunderstood his question. When she answered in the affirmative, she meant she had not been singled out for warning but was one of the group of all teachers who were advised by the administration that the grades were due and that they had to be in on time. Both Ms. Harrison and Mr. Smith recall situations when, several years in the past, some teachers were late in getting their grades in. In recent years, however, there has been an emphasis placed on getting grades in on time and when it appears that grades are going to be late, the teachers are sent notes to remind them of the due date. It is clear, then, that Ms. Goss was late in getting her grades in and that she was the only teacher to fail to get them in by the close of the school day on January 11, 1985. It is equally clear, however, that her failure was occasioned at least in part by her misunderstanding, shared by other teachers, that the principal had extended the time when grades were due. This would not have been an unusual occurrence because he had done that on the two prior grading periods this school year.
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Teacher Karyn Cena (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a first grade teacher employed by the Petitioner to work at Tillman Elementary School (Tillman) pursuant to a professional services contract. On May 11, 2010, the Tillman first grade students were gathered in an auditorium to rehearse for a musical program to be presented in celebration of Memorial Day. The students had been rehearsing for several days prior to May 11, 2010. As might be expected, some first grade students required occasional redirection. Such redirection was generally communicated by a teacher delivering a "stern look" to the non-complying student. If the correction was not successful, a non-complying student was directed to go to the back of the room and sit on a bench that essentially served as a "time out" area. At one point in the program, the students were standing, singing, and holding up their arms, pretending to waive American flags. The flags had not yet been distributed to the students. During this portion of the rehearsal on May 11, 2010, the Respondent apparently thought that one of the students ("S.M.") was playing and not pretending to wave the non-existent flag appropriately. The Respondent grabbed the student by the arm and quickly walked the student to the back of the room, where the Respondent placed the student forcefully on the time out bench. The student did not resist the Respondent in any manner. There was no credible evidence that the Respondent provided any redirection to the student prior to her physical interaction with the student. There was no evidence that the student was unable to comply with a verbal directive delivered by the Respondent or any other teacher. There was no evidence that the student was acting out or posed any threat whatsoever to himself or any other student, or to the Respondent or any other school employee. There was no evidence that any force or physical contact was necessary whatsoever to correct the student's behavior or to direct the student to the time out area. At the hearing, the Respondent was described by witnesses as appearing "angry" during the incident. Although the Respondent denied that she was angry with the child, the Respondent's interaction with the student was clearly inappropriate under the circumstances, and it is not unreasonable to attribute her behavior to anger. Observers of the incident testified that the student appeared to be embarrassed by the incident, sitting with his head bowed after being placed on the bench. Some teachers testified that they felt personal embarrassment for the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Karyn Cena. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2011.
The Issue The issue is whether the district school board has just cause to dismiss one of its elementary school teachers for just cause during the term of his professional service contract, based upon the teacher’s having received three consecutive annual performance evaluation ratings of Needs Improvement.
Findings Of Fact The School Board is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant, it was Manset’s employer. During the three school years at issue, from 2015 to 2018, Manset taught second grade at Oakland Park Elementary School (“Oakland Park”), which had been his work location since November 2012. Manset had started teaching in the District in August 2003. This case arises from the District’s decision not to reinstate Manset to his former teaching position upon Manset’s return, in 2020, from an approved, two-year leave of absence. As grounds for this decision, the District relies upon the “three-strikes rule” prescribed in section 1012.33, which (i) makes it a disciplinable offense, referred to herein as “Poor Ratings,”1 for a teacher to be given three consecutive annual performance ratings of less than Effective, thereby subjecting the guilty party to dismissal for “just cause” during the term of his or her employment contract; and (ii) authorizes a district school board not to renew the professional service contract (“PSC”)— after the end of said PSC’s one-year term—of a teacher who has received three consecutive annual performance ratings of less than Effective. § 1012.33(1)(a), (3)(b), Fla. Stat. For some background, section 1012.34 requires school districts to evaluate the performance of every teacher they employ, at least once per year. Each district must develop an “evaluation system” for this purpose, which is required to differentiate between four levels of performance: Highly 1 Other disciplinable offenses, which, if proved, constitute just cause for dismissal, include misconduct in office, gross insubordination, and willful neglect of duties. See § 1012.33(1)(a), Fla. Stat. “Poor Ratings”—which is the undersigned’s shorthand for the full statutory definition of the offense, i.e., “three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34”—is thus comparable to, e.g., misconduct in office as a basis for terminating a teacher’s employment. Effective, Effective, Needs Improvement, and Unsatisfactory. § 1012.34(2)(e), Fla. Stat. At least one-third of a teacher’s evaluation must be based upon student performance, and at least one-third upon “instructional practice.” § 1012.34(3)(a), Fla. Stat. Accordingly, the District uses an evaluation system in which a teacher is given a numeric score of between 1 and 4 for each of three, separately-weighted indicators of performance: Instructional Practice (“IP”)—60%, Student Performance (“SP”)—35%, and Deliberative Practice/Growth Plans (“DP”)2—5%.3 The average of the teacher’s three weighted scores equals his or her Final Score for the school year. Because the SP score takes some time to process, the teacher’s Final Score for any given year is usually not available until the fall of the next school year. The teacher’s Final Score determines his or her level of performance according to the following scale: Label Highly Effective Effective Needs Improvement Unsatisfactory Details 3.4 – 4.0 2.5 – 3.399 2.0 – 2.499 1.0 – 1.999 The IP score, which contributes the most to a teacher’s Final Score, is based upon the firsthand knowledge of an eyewitness who has seen the teacher in action in the classroom. While observing the teacher instructing his or her pupils, an administrator, such as the principal or an assistant principal, measures the teacher’s performance against a broad menu of objective criteria, exercising judgment and discretion in determining how well the teacher is implementing best practices and strategies. Although arrived 2 The indicator DP, which is relatively insignificant given its low weight of just 5%, is basically a gimme for which most teachers receive the maximum score. Having no bearing on the outcome of this case, DP will not be discussed in depth. 3 For the 2015-2016 school year, indicators IP and DP were weighted a bit differently, at 64% and 1% respectively. This minor detail is immaterial to the instant case and, thus, will be ignored hereafter. at through the application of objective criteria, which confine the evaluator’s discretion, the IP score is inherently a subjective, empirical assessment reflecting the evaluator’s professional opinion of the teacher’s actual performance. The SP score, in contrast, results from a regression analysis of the scores of the teacher’s students on a standardized test or tests. The District uses a statistical model that is supposed to isolate, from the testing data, a quantum of student growth or academic achievement attributable to the teacher. The statistician(s) who determine the teacher’s student achievement quantum do so based solely upon the numbers, without seeing the teacher in action. In this sense, the SP score is objective and uninfluenced by any individual’s subjective opinion of the teacher’s performance. Manset received an annual performance evaluation for each of the relevant school years, namely 2015-2016 (“Year 1”), 2016-2017 (“Year 2”), and 2017-2018 (“Year 3”). His respective IP scores for each of these years were 2.809, 2.777, and 2.950, meaning that he was rated as an Effective teacher under this most telling indicator of performance. Manset’s SP score for each of the three subject years, however, was only 1.5, which translates to a low rating of Unsatisfactory for this significant performance indicator. Manset’s Final Scores for the years in question were as follows: Year 1: 2.253 Year 2: 2.391 Year 3: 2.495 Based on the foregoing Final Scores, which reflect the strong downward drag of his low SP numbers (worth 35%, remember), Manset received three consecutive annual performance evaluation ratings of Needs Improvement, pursuant to the Final Score Scale (reproduced above in paragraph 6). On or about May 16, 2018, some six months before Manset’s Year 3 Final Score would be known, when it was assumed that Manset would be returning to Oakland Park the following year, Manset received notification that he would be recommended for reappointment as an instructional employee for the 2018-2019 school year. Prior to the 2018-2019 school year, however, Manset requested, and was granted approval to take, personal leave without pay for a period of one year, in accordance with School Board Policy 4409. His last day of work in the District was in August 2018. After that, Manset relocated to Maryland, where he accepted a teaching position for the 2018-2019 school year. With his leave scheduled to end on June 30, 2019, Manset was required to notify the District, no later than March 1, 2019, of his plans for the 2019-2020 school year. Manset’s Final Score for Year 3 was ready in or around November 2018. Had he not been on leave at that time, Manset would have been subject to dismissal during the term of his then-current PSC on a charge of Poor Ratings, pursuant to section 1012.33(1)(a), because his performance rating of Needs Improvement for Year 3 was the third such rating in as many years. As it happened, however, Manset was not subject to dismissal in November 2018, because he was not then working in the District. Moreover, because Manset was on leave when his Year 3 evaluation was complete, the District elected not to provide him the Final Score (and rating of Needs Improvement) at that time. Rather, it was decided that Manset would receive his final evaluation for the 2017-2018 school year upon his return. Manset timely notified the District that he wanted to continue his personal leave for another year. The District approved Manset’s request, which is a little curious, in light of the three-strikes rule.4 This second, one- year leave would expire on June 30, 2020. Taking advantage of this 4 No explanation for this decision was given at hearing. additional leave of absence, Manset remained in Maryland and did not teach in the District during the 2019-2020 school year. Before March 1, 2020, Manset timely notified the District that he would be ready to return to work after his two-year leave expired, and he asked to be reinstated for the 2020-2021 school year. Shortly thereafter, District administrators phoned Manset to inform him that he would not be permitted to return to his former position due to the three-strikes rule. By letter dated May 27, 2020, the superintendent officially advised Manset that, under the three-strikes rule, Manset was “not to receive a contract” and, accordingly, would not be reinstated within the Broward County Public Schools. In this letter, the superintendent cited section 1012.33(1)(a) as supporting authority for his decision. He seems to have had section 1012.33(3)(b) in mind, however, which is on point with the assertion that Manset was “not to receive a contract.” As discussed below, teachers are “statutorily entitled to renewal of their PSC unless their performance [is] unsatisfactory.” Lewis v. Broward Cty. Sch. Bd., 298 So. 3d 672, 674 (Fla. 4th DCA 2020). The parties have stipulated that Manset “is currently employed as a teacher pursuant to Section 1012.33, Florida Statutes.” JT. PRE-H’G STIP. at 10. Ordinarily, as applied to a teacher, the term “currently employed” would be synonymous with “under contract.” There is no evidence, however, that Manset’s PSC was renewed for the 2018-2019 school year, much less for any subsequent year. Because Manset was on approved leave without pay and did not teach in the District at any time after August 2018, the undersigned infers that Manset’s 2017-2018 contract expired, leaving him without a PSC afterwards.5 5 If the District renewed Manset’s PSC for 2019-2020, then it did so with actual knowledge that he had previously received three consecutive ratings of Needs Improvement. Manset’s undisputed status as a current employee of the District is (as far as the evidence shows) a function of the personal leave that he took, not the result of his holding an unexpired PSC.6 Consequently, despite the fact that Manset is still a District employee, the undersigned cannot find, as a matter of fact, that the District is seeking to dismiss Manset during the term of his contract, because his last contract’s term expired sometime in 2018. On June 24, 2020, the District issued an Administrative Complaint against Manset, predicated on a charge of Poor Ratings. The District seeks, pursuant to the complaint, to terminate Manset’s employment for just cause. In his defense to the Poor Ratings charge, Manset disputes the validity of the SP score that he received for Year 1, but otherwise does not contest the IP and SP scores he was awarded for the years in question. His main argument, in brief, is that the Needs Improvement rating for Year 1 should be tossed out due to the allegedly faulty SP score, thereby compelling the ultimate determination that Manset, having been given only two, substantively true consecutive ratings of Needs Improvement, is not guilty of Poor Ratings. The facts forming the basis of Manset’s objection to his Year 1 SP score are straightforward and not disputed. In February 2016, Manset was injured in an automobile accident and could not work for more than two months. He was on approved sick leave for ten weeks starting February 20, 2016. Thus, as a result of the car crash, Manset missed 50 days of class out of a total of 166—or 30% of the school year. Looked at another way, Manset was absent (with permission) from his classroom for 60% of the spring semester. 6 If Manset had lost his status as an employee by taking leave, then he would have needed to be rehired (as opposed to reinstated) upon his return, costing him the right to a PSC. See § 1012.335, Fla. Stat. No one has suggested that that happened. On the contrary, but for the three-strikes rule, Manset doubtless would have received a new PSC when he returned from leave because, under Policy 4409, he was (and, as this is written, still is) employed by the District, albeit without a current contract. During most of Manset’s absence, his second-grade class was taught by a “pool sub,” i.e., a substitute teacher who worked only at Oakland Park and reported to that campus every day. The pool sub was in Manset’s classroom for approximately 30 days. Regular certified substitute teachers covered the balance. The regression analysis that the District uses to compute a teacher’s SP score does not factor in the contributions of substitute teachers as a predictor variable. Consequently, Manset’s SP score for Year 1 necessarily reflects the positive or negative impact, if any, that the substitute teachers (especially the pool sub) had on student growth or achievement. Manset argues, in effect, that his SP score for that year is, for that reason, unreliable and invalid, making his Year 1 Final Score untrustworthy and incapable of supporting a Poor Ratings charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against David R. Manset for lack of jurisdiction; alternatively, if Respondent currently holds an unexpired PSC, then he may be dismissed for just cause during the term of that contract. DONE AND ENTERED this 16th day of March, 2021, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2021. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, John R. Tenbroeck, held teaching certificate number 228148 issued by petitioner, Betty Castor, as Commissioner of Education. The certificate covers the areas of administration, bookkeeping, mathematics, physical education and biology and is valid through June 30, 1996. When the events herein occurred, respondent was employed as assistant principal at Westside Skills Center (Westside) in school year 1989- 1990 and as assistant principal at Raines Senior High School in school year 1990-1991. The schools are a part of the Duval County School District. In school year 1989-90, Angela McKenzie, who was born on May 15, 1974, was a tenth-grade student during the morning hours at Westside and attended Edward White High School during the afternoon session. Angela's schedule called for her to arrive by bus each day at the Westside campus around 7:45 a.m. She remained on that campus until 11:00 a.m. when she rode a school bus to the other campus. During the same school year, respondent held the position of assistant principal at Westside and occupied an office in an area designated as the office of student services. Angela first met respondent during school orientation in January 1990. Because of an impending divorce by her mother and stepfather, which ultimately became final in May 1990, Angela had occasion to speak with respondent, whose duties included counseling with students. Although Angela denied that their teacher-student relationship grew into a personal relationship, it is found that the two began seeing each other on a personal basis sometime during the spring of 1990. This finding is based on the findings below. She was then fifteen years old while respondent was forty-eight years of age. During the spring of 1990, respondent and Angela were observed on numerous occasions talking with each other at the bus stop from around 7:45 a.m., when she first arrived on campus, until 7:55 a.m., when respondent's duty of monitoring buses ended. On several occasions during the same time period, she was observed visiting respondent's office and speaking with him behind closed doors. In addition, the two were seen leaving campus together in respondent's car several times either at mid-morning or during lunch hour, and several times they were seen arriving together by car early in the morning. Further, on several occasions Angela telephoned respondent at his office after she had left campus. Finally, one member of the Westside faculty recalled periodically seeing the two riding in respondent's automobile off-campus during the evening hours while another faculty member described seeing the two spending an "unusual" amount of time together. While some of the observations of the two being seen together may have been occasioned by respondent giving Angela a ride to the Edward White campus at lunch hour (if she missed her ride on the school bus), or giving her rides to karate practice in the evenings where he served as her trainer or coach, collectively these observations, coupled with the fact that the two were later married, support a finding that their relationship was more than that of a teacher-student. However, there is no competent, credible evidence that the two engaged in sexual activities prior to marriage or otherwise acted in a romantic or otherwise inappropriate fashion while on the campus or in the presence of other students and faculty. After rumors concerning the two surfaced at Westside that spring, respondent met with the Westside vice-principal and principal on three occasions and was told that he must not engage in a personal relationship with a student. At those meetings, respondent steadfastly denied that such a relationship existed. Because school administrators had no evidence of wrongdoing, no action was taken against respondent. In school year 1990-91, respondent was transferred to Raines High School where he served as assistant principal until he was suspended in January 1991. It should be noted that after the last warning was given by the principal at the close of school year 1989-90, there is no evidence that the two were seen together in public until after their marriage. On December 18, 1990, respondent and Angela were married in Nassau County, Florida. Because of Angela's age (she was then sixteen), it was necessary for her natural father to give his permission for her to marry. Following the marriage, Angela withdrew from school. However, at the time of hearing, Angela had resumed her education. The two are still married and Angela now uses respondent's last name. Although Angela simply said they got married because "it was the appropriate thing to do", and denied that they were involved in a personal relationship before that time, this assertion is not deemed to be credible. On January 15, 1991, or after the marriage became publicly known, respondent resigned his position with the School Board. The resignation was subsequently rescinded by the School Board and he was then placed on administrative leave. Testimony by a school administrator accepted as an expert in school administration established that by having a personal relationship with a minor student, which culminated in marriage and thereafter gained some notoriety in the community, respondent's effectiveness as a teacher was seriously impaired. However, the same administrator pointed out that there is no policy or rule which prohibits a teacher from marrying a student, and that by itself would not serve as the basis for taking disciplinary action against the teacher. Rather, the loss of effectiveness here arises as a result of respondent's personal relationship with a student. In terms of respondent's performance as an administrator-teacher, his most recent evaluation reflects that he was "an excellent dean", he displayed "significant skills" in management competencies, and was "a perfect example of team work."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order finding respondent guilty of violating Subsections 231.28(1)(c), (f), and (h), Florida Statutes, that his teaching certificate be suspended for two years, such suspension to begin on January 15, 1991, that respondent receive a letter of reprimand from the Education Practices Commission, and that he be placed on three years probation after the suspension is completed with quarterly reports given to the Commission by his immediate supervisor. DONE and ENTERED this 12th day of August, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1992.
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
The Issue Whether Petitioner established “just cause” to discipline Respondent as a teacher.
Findings Of Fact Since 2004, Ms. Gardner has been employed by the Glades County School District as a teacher. During the 2009-2010 school year, she taught language arts to middle school students at West Glades School. During the relevant time period, Ms. Gardner worked under a professional service contract. A teacher's professional service contract automatically renews each year, and the contract can be terminated only by a showing of “just cause” or by performance deficiencies outlined in section 1012.34, Florida Statues. On April 16, 2010, Ms. Gardner was teaching language arts to seventh grade students. The students were supposed to be working on the language arts assignment. However, as Ms. Gardner walked around the class, she found some students working on their math homework. Frustrated by students doing math homework during her language arts class, Ms. Gardner confiscated the students' math work. In one instance, Ms. Gardner tore a student's math homework in half. One of the students whose math work Ms. Gardner confiscated was C.H. C.H. was generally described as a "good student." Ms. Gardner placed C.H.'s math workbook on a table near Gardner's desk at the front of the room, and redirected C.H. to the language arts assignment. At some point in the class, C.H. walked up to the front of the classroom and removed her math workbook from the table without Ms. Gardner's permission. As C.H. turned to walk back with her book, Ms. Gardner forcefully grabbed C.H.'s arm from behind. C.H. credibly testified that Ms. Gardner "grabbed my arm and turned me around and pushed me, and my books fell." C.H. started crying, and walked out of the classroom. As C.H. was leaving the classroom, Ms. Gardner told C.H. to return to her desk. C.H. stated that she was crying because she was "shocked." C.H. walked to the School's office, which is in the same hallway as Ms. Gardner's class. When she arrived at the office, C.H. was crying and visibly upset. The school guidance counselor took C.H. to speak with Principal Davis. Principal Davis found C.H. to be "distraught, crying, [and] shaking." Principal Davis spoke with C.H. to determine why the student was upset. C.H. informed Principal Davis that Ms. Gardner had become angry with C.H., and that Ms. Gardner had snatched C.H.'s books, grabbed her arm and pushed her. Based on the seriousness of the allegation, Principal Davis decided to immediately investigate C.H.'s claims by obtaining statements from C.H.'s classmates. After the language arts class, the next class for C.H. and her classmates was math taught by Ms. Wills. Before the math class began, Ms. Gardner came to Ms. Wills' class and gave her C.H.'s workbook and other students' papers. Ms. Gardner informed Ms. Wills that several of the students had been doing math homework when the students should have been doing their language arts work. Ms. Wills credibly testified that Ms. Gardner was "really upset" with students doing their math homework in her class, and appeared agitated. Shortly after Ms. Wills' class began, Principal Davis came to speak with the students. Principal Davis released Ms. Wills to take an early lunch, and then asked the students to write down anything "bothersome" that has happened in Ms. Gardner's class during the prior period. A majority of the students provided written statements that, in essence, corroborated C.H.'s story. After reviewing the students' statements, Principal Davis decided she needed to investigate further. Principal Davis met with Ms. Gardner and advised her about C.H.'s allegation that Ms. Gardner had inappropriately touched C.H. Because the investigation could result in discipline, Ms. Gardner decided to have a union representative present when she gave her statement. Further, Principal Davis informed Ms. Gardner that Ms. Gardner should go home until the investigation was completed. On April 21, 2010, Ms. Gardner gave her statement to Principal Davis. Ms. Gardner admitted to confiscating C.H.'s math notebook and calculator. Ms. Gardner indicated that later in the class C.H. walked across the room and retrieved her math notebook without permission. Ms. Gardner stated that she merely "touched" C.H.'s arm to redirect the student, and to put the math notebook back on the table. C.H. dropped the math notebook, and left the class. According to Ms. Gardner's interview, she did not forcefully grab C.H.'s arm. Ms. Gardner's testimony that she merely "touched" C.H.'s arm was consistent with the interview given to Principal Davis. The undersigned finds Ms. Gardner's characterization that she only "touched" C.H.'s arm without force not to be credible. Ms. Gardner's testimony concerning the events was often evasive on key points. For example, when asked if she recalled that C.H. was crying when leaving the classroom, Ms. Gardner indicated that she did not. Yet, in her deposition, taken just a week earlier, she testified that C.H. was crying when she left the classroom. Similarly, Ms. Gardner was evasive concerning questions about whether or not she acted in frustration or her understanding that the change in her contract status was the result of her touching C.H. As a result of Ms. Gardner's evasiveness, the undersigned found her credibility damaged. C.H. did not receive any physical injury from the incident on April 16, 2010. After completing her investigation on April 21, 2010, Principal Davis provided Wayne Aldrich, superintendent for Glades County School Board, with the following recommendation: As a result of a battery allegation by a student against Ms. Gardner, I have conducted a thorough investigation and found the allegation to be substantial. Ms. Gardner has been suspended with pay since the incident occurred on Friday, April 16. As a result, I have followed protocol required by the Florida Department of Education Office of Professional Practices and I am recommending the following action: Placement of a narrative of my investigation in her personnel file. Change of her contractual status to fourth year annual for 2010-2011 school year. Recommendation of termination if any further substantiated incidents of intentional physical contact with a student occur. I am requesting that she return to the classroom on Friday, April 23, 2010. Principal Davis testified that she considered the recommended change in Ms. Gardner's contract status from a professional service contract to a "fourth year annual contract" as less severe than termination or suspension. A "fourth year annual contract" would allow Ms. Gardner to return to professional service contract after being on an annual contract for one year. Principal Davis explained that Ms. Gardner had been evaluated as a high-performing teacher in the past, and it was hoped that she would return to that level after this discipline. At the end of the 2009-2010 school year, Principal Davis evaluated Ms. Gardner as "needs improvement." Under the comments section, Principal Davis noted "offer to wait for 2010 FCAT declined." There was no evidence tying this "needs improvement" evaluation to the incident that occurred on April 16, 2010. Superintendent Aldrich reviewed Principal Davis' investigation and recommendation. Based on his review, Superintendent Aldrich recommended that the School Board follow Principal Davis' recommendation, including the change in Ms. Gardner's contract status. Similar to Principal Davis, Superintendent Aldrich believed that the change in Ms. Gardner's contract status was less severe than a suspension. Superintendent Aldrich testified that a teacher should use physical force only "if the student was out of control and would be in a position to do physical harm to another student or themselves." However, no School Board Policy concerning the use of physical force was offered into evidence. The School Board, without notice to Ms. Gardner concerning her rights to an administrative hearing, adopted Principal Davis' recommendations. Ms. Gardner, subsequently, requested a formal administrative hearing and reconsideration of the School Board's decision. The School Board denied her request, finding that Ms. Gardner had waived her right to a hearing. Ms. Gardner filed an appeal. The Second District Court of Appeal found the following: It is undisputed that the Board did not give Ms. Gardner written notice of her right to seek administrative review and the time limits for requesting a hearing. Under these circumstances, the Board failed to provide Ms. Gardner with a point of entry into the administrative process before taking adverse action on her contract status. It follows that Ms. Gardner did not waive her right to request a formal hearing. Consequently, the appellate court reversed the School Board's decision, and remanded the case for further proceedings. Gardner v. Sch. Bd. of Glades Cnty., 73 So. 3d 314 (Fla. 2d DCA 2011). While Ms. Gardner's appeal was pending before the Second District Court of Appeal, Ms. Gardner worked under the fourth year annual contract for 2010-2011 school year. At the end of the 2010-2011 school year, Ms. Gardner's annual contract was not renewed. On remand, the School Board issued a May 16, 2012, letter, notifying Ms. Gardner of her rights to an administrative hearing. The School Board framed the issue as “to challenge the change in her contract status from a professional service contract for fourth year annual contract.” In the Joint Pre- Hearing Stipulation, the parties identified a factual issue for resolution as “[w]hether Gardner's physical contact with the student, C.H., constitutes “just cause” for discipline.” Further, the parties’ stipulation identified three disputed issues of law: 1) Whether the disciplinary options available to Petitioner included placement of Ms. Gardner on a fourth year annual contract status; 2) whether the placement of Ms. Gardner on fourth-year annual contract status was the appropriate discipline; and 3) whether the School Board's action in denying Ms. Gardner's request for a formal hearing in July 2010 renders the placement of Gardner on a fourth-year annual contract status for the 2010-2011 school year, and the non-renewal of her annual contract at the end of the 2010-2011 school year void ab initio. Before considering the legal issues identified by the parties, it is clear that the factual dispute of whether or not “just cause” exists must be addressed first. If “just cause” does not exist, then the issue of the penalty becomes moot. At the hearing, the parties presented testimony concerning the facts underlying the School Board's action here, and whether or not “just cause” existed to sanction Ms. Gardner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Glades County School Board enter a final order finding: The record contains insufficient evidence of "just cause" in order to discipline Ms. Gardner; and Pursuant to section 1012.33(6)(a), Florida Statutes (2010), immediately reinstate Ms. Gardner under her professional service contract and pay her back salary. DONE AND ENTERED this 11th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 11th day of February, 2013.
