The Issue The issue is whether Petitioner may terminate the professional service contract of Respondent due to a failure to correct performance deficiencies during the 90-calendar-day probationary period.
Findings Of Fact Respondent entered the teaching profession after working 17 years as a bartender. She earned her undergraduate degree in education--specifically, learning disabilities and varying exceptionalities--and obtained her first teaching job at Gulfstream Elementary School in 1995. For her first eight years at Gulfstream, Respondent taught a physically impaired class. These are small classes of less than ten students with health or medical disabilities. Many of the students cannot walk or talk. With a paraprofessional and sometimes a fulltime aid, Respondent taught substantially the same students from year to year. The focus of much of the instruction was upon daily living skills, such as reading the signs on restrooms and businesses. In 1996, Respondent developed inoperable Stage IV nasopharyngeal carcinoma. Eight months of radiation therapy scarred Respondent's airway. When Respondent returned to school after a five-month leave of absence, she, like many of her students, wore a feeding tube and relied on a vocal amplification device. Respondent made the most of these characteristics that she now shared with some of her students, encouraging them to overcome their disabilities as she was doing. In the physically impaired class, Respondent taught most of the students on a one-on-one basis. Rarely did she have to address the entire class as part of classroom instruction. For this reason, Respondent was little handicapped by her speech difficulties, which arose due to the cancer treatment. Even today, loud speech is nearly impossible for Respondent, who, to generate speech, must press against her throat to produce a gaspy speech that requires close attention to understand. A new principal arrived at Gulfstream for the 2002-03 school year. The new principal, who had previously been an assistant principal for eight years and a teacher for nine years, found Respondent's performance unsatisfactory in several respects. Respondent was often late arriving to school and failed to perform her duties on the bus ramp. Respondent often left her paraprofessional alone with the physically impaired class. To monitor the behavior of the child, Respondent sometimes brought her high-school aged daughter to school without permission. Overall, the principal found that Respondent seemed unenthusiastic about teaching. Believing that Respondent might have been depressed, the principal referred Respondent to the Employee Assistance Program. Thinking that a change in assignment might rekindle Respondent's enthusiasm for her job, for the 2003-04 school year, the principal switched the assignments of Respondent and another teacher, so that the other teacher would teach Respondent's physically impaired class, and Respondent would teach a varying exceptionalities class. Neither teacher had requested a new assignment. Respondent's varying exceptionalities class began the 2003-04 school year with 14 students. Eventually, the principal reduced the class to nine students. Respondent had the help of only a part-time paraprofessional. The wide range of cognitive abilities of the students meant that some students could only identify their names in print, and some students could read and write. Students in the varying exceptionalities class were in several classifications, such as educably mentally handicapped, traumatic brain injury, and autistic. By sometime in October 2003, the assistant principal had twice observed Respondent teaching her class. The assistant principal had concerns about Respondent's classroom management and recordkeeping. The assessments and evaluations in this case are based on the Petitioner's Professional Assessment and Comprehensive Evaluation System (PACES). In conjunction with the statutory 90-calendar-day probationary period, as discussed in the Conclusions of Law, the PACES assessments follow a format. A PACES-trained evaluator conducts an initial observation not of record. If the teacher fails to meet standards, the evaluator goes over the findings with the teacher, offers a Professional Growth Team to provide assistance in eliminating any deficiencies, and advises that she will conduct another evaluation in a month. If the teacher meets standards on the second evaluation, which is known as the first observation of record, the teacher reverts to the normal evaluation scheme applicable to all teachers, and the first negative observation is essentially discarded. If the teacher fails to meet standards on the first observation of record, she is placed on performance probation for 90 days. The evaluator conducts a Conference for the Record and gives the teacher a Professional Improvement Plan (PIP). During the probationary period, the evaluator conducts other observations, and, at the end of the period, the evaluator conducts a final observation. If the teacher still fails to meet standards, then the evaluator conducts a confirmatory observation within 14 days after the end of the probationary period. If the teacher still fails to meet standards, the principal may recommend termination to the Superintendent. PACES assessments cover six domains: Planning for Teaching and Learning (Domain I), Managing the Learning Environment (Domain II), Teacher/Learner Relationships (Domain III), Enhancing and Enabling Learning (Domain IV), Enabling Thinking (Domain V), and Classroom-Based Assessments of Learning (Domain VI). Each of these domains comprises three to five components, for which the evaluator determines whether the teacher meets standards. If the evaluator determines that the teacher fails to meet standards as to a component, the evaluator circles a listed indicator, so that the teacher may readily identify authoritative sources of information, such as the PACES binder provided to each teacher or videotapes in the District office, that will assist her in curing a particular deficiency. The assistant principal conducted the initial observation not of record on October 14, 2003. She determined that Respondent failed to meet standards for 18 of the 21 components. Respondent met standards only in Components III.A, IV.C, and VI.A. Respectively, these are Interpersonal Relations, which is the teacher's respect for the students; Resources for Learning, which is the teacher's use of teaching aids and learning materials; and Monitoring Engagement and/or Involvement in Learning, which is the teacher's monitoring of the student's engagement during learning tasks. Among the more significant deficiencies reflected in the October 14 evaluation are that Respondent lacked lesson plans and failed to manage the learning environment. To help with these and other deficiencies, the assistant principal offered Respondent a Professional Growth Team and referred her to her PACES binder, which would describe each deficient item and suggest strategies to eliminate each deficiency. For her part, Respondent had tried to deal with her new assignment by grouping the children, where appropriate, by cognitive ability. In September or October, she was able to send one student to regular education. On November 5, 2003, the assistant principal returned to perform the first observation of record. She found Respondent reading a Thanksgiving story to the eight students who were present in her class. Respondent would read one sentence and ask a question about it. By using this approach, Respondent took one hour to read a story that should have taken five minutes to read. Each time that she stopped and asked a question about the preceding sentence, Respondent undermined the continuity of the story. Also, all of her questions tested the students' memory; none of them required higher-order thinking, as would be required by questions asking how or why something happened. Despite these shortcomings in Respondent's teaching, the assistant principal determined that Respondent had met standards in all of Domains I, II, III, and VI. However, Respondent failed to meet standards in all components of Domains IV and V, including the one component in Domain IV for which she had previously met standards. However, Respondent performed considerably better in this observation than in the previous observation--meeting standards in 13 of 21 components as opposed to meeting standards in 3 of 21 components three weeks earlier. In the ensuing Conference for the Record, the assistant principal prepared a PIP for Respondent and again recommended that she take advantage of the Professional Growth Team for assistance in eliminating the deficiencies. Dated November 14, 2003, the PIP is a detailed documentation of each deficiency noted in the November 5 observation. The November 14 PIP describes what Respondent did or did not do, as to each deficiency. The PIP also contains specific recommendations to eliminate each deficiency. The number of deficiencies is misleading, at least as an indicator of the scope of the teaching that was subject to the evaluation. The Thanksgiving story, described above, spawned all eight of the observed deficiencies. Respondent's reliance exclusively upon simple recall questions yielded five deficiencies. (One of these deficiencies also relies on Respondent's failure to correct a child who replied to the question of what sound that turkeys make, by answering, "quack, quack." Absent more context, it is possible that Respondent's failure to correct this answer was an attempt not to reward attention-getting behavior.) One of the remaining three deficiencies criticizes Respondent for introducing the Thanksgiving story with an open-ended question, "This is November. What do you think happens in November?" Another deficiency, which focuses on the one-sentence, one-question approach of Respondent to the story, faults Respondent for omitting hands-on activities. The last deficiency notes that Respondent held up a small piece of paper showing the months of the year, but she failed to post the paper for the children to see. (This deficiency implies that Respondent's classroom lacks a posted calendar.) The detail of the November 5 PACES evaluation and November 14 PIP are undermined by the oddly narrow factual basis upon which they rest. Intended as a comprehensive statement of the deficiencies of an experienced teacher, these documents reveal that Petitioner has placed Respondent on probation because of an awkward reading of a Thanksgiving story to eight students over a period of about one hour. On December 11, 2003, the principal performed an observation. The principal found that Respondent met standards in Domains I, II, III, V, and VI, but not in three components of Domain IV: Initial Motivation to Learn, Teaching Methods and Learning Tasks, and Clarification of Content/Learning Tasks. Respectively, these components involve the identification of the learning objective, the use of logically sequenced teaching methods and learning tasks, and the use of different words or examples when clarification is required. The two components within Domain IV for which Respondent met standards are: Resources for Learning and Knowledge of Content and Pedagogy. The former component involves the use of learning materials to accommodate the range of individual differences among learners, and the latter component involves the creation of an opportunity to allow different learners to learn at different cognitive levels. The basis of the deficiencies was in Respondent's presentation of another story, Little Miss Muffet, although, this time, the problems centered more around her lead-in and follow-up activities. The PIP, dated December 17, 2003, which the principal prepared, notes that the pace of a writing activity worksheet was too slow for four of 11 students, who sat with nothing to do for ten minutes while waiting for their peers to finish; Respondent failed to correct a student who answered the question, "what are you afraid of," with "sock" (perhaps the same child who had said that turkeys quack); Respondent failed to correct a student who said that a paper was missing words when it was missing only letters; and Respondent failed to identify tasks associated with the story that would challenge all of the students, although Respondent used two worksheets-- one with missing words (presumably for the higher-functioning group) and one with missing letters (presumable for the lower- functioning group). On February 4, 2004, the assistant principal performed the next observation. She found that Respondent met standards in Domains I and III. She found that Respondent failed to meet standards in Components II.D, III.A, IV.A, IV.B, and VI.B. Respectively, these are Managing Environment in Learning, Interpersonal Relations, Initial Motivation to Learning, Teaching Methods and Learning Tasks, and Informal Assessment. During this observation, Respondent read a story on how to build a house. The reading level of the story was at least third-grade, but the students were in kindergarten and first grade. For 40 minutes, Respondent used actual house blueprints as a visual aid. As another visual aid, Respondent used blocks to depict a house, but she lacked sufficient blocks to finish the project. The story took one hour when it should have taken ten minutes. Consequently, students were out of their seats and trying to find something to do. On February 10, the assistant principal prepared a PIP. Although the contents of this PIP were not dissimilar to the contents of the previous PIPs, one new deficiency was Component III.A, Interpersonal Relations. The notes in the February 10 PIP state: "One learner was ridiculed by the teacher making remarks about her behavior to the classroom paraprofessional. Her remarks included, 'She's totally off the wall' and 'She has been horrendous today.' She also said to other learners not paying attention, 'I'm not going to talk to the air' and 'I'm waiting in case you didn't notice.'" The comments to the individual student were sarcastic and derogatory. In general, the principal found Respondent to be more enthusiastic in the 2003-04 school year than she had been in the previous school year. Respondent showed an improved attitude, but her classroom remained disorganized. Respondent had received considerable assistance from her Professional Growth Team, but the principal concluded that Respondent had still failed to meet standards. From Respondent's perspective, she felt that the principal had prejudged her and was running through the 90-calendar-day probationary period as an empty exercise. Respondent became increasingly nervous, as she repeatedly tried, and failed, to please the principal and assistant principal. At one point during the 90 days, Respondent restated her desire for a transfer, as she had made such a request the prior summer when she had learned of her new assignment, but the principal refused to give the request any consideration or determine if a transfer were feasible. At least once during the 90 days, Respondent's union representative asked the principal to transfer Respondent, but the principal refused, again without giving the request any consideration. In the meantime, Respondent's difficulties in the varying exceptionalities classroom were exacerbated by the removal, by October 2003, of her voice amplification system. On March 2, 2004, the principal, having determined that the 90 calendar days had expired, performed what she believed was the confirmatory observation. She found that Respondent failed to meet standards in eight components in Domains I, II, IV, and VI. Two days later, the principal informed Respondent that she would be recommending that the Superintendent terminate Respondent's professional service contract. Unfortunately, the principal had miscalculated the 90 days. Learning of this error, the principal discarded the March 2 evaluation and performed a new confirmatory observation on March 14 and again found that Respondent failed to meet standards. Two weeks later, Respondent failed to meet standards in six components in Domains II, IV, and V. Only three of the six deficiencies covered the same components in the March 2 observation: Components II.D, II.E, and IV.D, which are, respectively, Managing Engagement in Learning, Monitoring and Maintaining Learner Behavior, and Knowledge of Content and Pedagogy. In general, these were deficiencies at the start of the 90-day probationary period, but were eliminated during the 90-day probationary period, only to return again at the end. Following the March 14 confirmatory observation, the principal recommended that the Superintendent terminate the professional service contract of Respondent. On March 19, 2004, the Superintendent advised Respondent that he was going to recommend to Petitioner that it terminate her contract, and, on April 14, 2004, Petitioner did so. A recurring issue in this case is what is meant by failing to meet standards and, more importantly, unsatisfactory performance. Based on the testimony of Petitioner's witnesses, Petitioner contends that the failure to meet any single component within any of the domains of PACES is the failure to meet standards, and a failure to meet standards is invariably unsatisfactory performance, sufficient to place a teacher on 90- calendar-day performance probation or, if already on performance probation, sufficient to terminate a professional service contract. However, the PACES form does not so indicate, nor do Petitioner's online rules, of which the Administrative Law Judge has taken official notice. Petitioner has failed to prove what is an unsatisfactory performance under the PACES evaluation system. Absent the adoption of a rule to this effect, the isolated omission of a teacher, during a single observation, to provide suggestions to improve learning (Component VI.C) or to start a class or lesson precisely on time (Component II.A) would not constitute unsatisfactory performance, at least for the purpose of initiating the 90-calendar-day probationary period or terminating the professional service contract of a teacher already on performance probation. In this case, undermining the observations of the principal and assistant principal, especially where they appear to be based on discrete failures by Respondent, are the facts that neither supervisor has any significant training in exceptional student education, the principal has no experience teaching in exceptional student education, and the assistant principal has limited experience in teaching exceptional student education. By granting Petitioner's Motion for Official Recognition, the Administrative Law Judge acknowledges that, by letter dated September 24, 2001, the Florida Department of Education has approved PACES. (The identification of PACES is missing from the letter, but the Administrative Law Judge accepts the representation of Petitioner's counsel that PACES was the subject of this letter.) However, this letter approves PACES on its face, not as applied, and may have been based on more than two-page PACES evaluation form. The present record contains only the two-page form and testimony, unsupported by any documentation, that a single deficiency means that a teacher fails to meet standards and may be placed on probation, if the deficiency arises when the teacher is not on probation, or may be terminated, if the deficiency, even if different from the one that initiated probation, is present at the confirmatory observation. The record does not document the extent to which Respondent was in attendance at school during her 90-calendar- day probationary period. By her count, Respondent missed seven or eight workdays due to illness. Petitioner's calculation does not account for these missed days, and, if it had, the second confirmatory observation was premature too. The record contains some evidence of student achievement. As noted above, one student was transferred early in the 2003-04 school year from Respondent's varying exceptionalities class to a regular education classroom, but the proximity of this event to the start of the school year suggests that the student was probably misclassified at the start of the year. The mother of another student testified that Respondent helped her daughter make considerable academic progress. The student had undergone a tracheotomy and, consequently, speech delay. While in Respondent's class, the student was eager to attend school and learned to write her name for the first time. For the first time in school, the student was progressing. When the mother learned that Respondent was being terminated, she tried to contact the principal, but the principal declined to see her, claiming it was a personnel matter and implying that a parent had no role in such matters. The record contains the individual education plans (IEPs) of nine students. Typically, IEPs are prepared in the spring of each year, and, prior to the preparation of the next year's IEP, the IEP team closes out the preceding IEP by marking the extent to which the student has achieved the goals of his IEP. The IEP team also indicates progress during the year with respect to specific goals. A mark of "1" means mastery of the goal, a "2" means "adequate progress made; anticipate meeting goal by IEP end," a "3" means "some progress made; anticipate meeting goal by IEP end," and a "4" means "insufficient progress made; do not anticipate meeting goal by IEP end." The last relevant marks for some of the IEPs were January 2004, but some of them bore marks for March 2004. For all of the IEPs, exclusive of physical or occupational therapy, with which Respondent was not substantially involved, 11 goals were marked 2, 39 goals were marked 3, and 15 goals were marked 4. Five of the nine students for whom Petitioner produced IEPs received a mark of 4 on at least one goal in his or her IEP. But 11 of the 15 4's went to two students: one had four 4's, one 3, and one 2; and the other had seven 4's, two 3's, and one One student had two 4's, but also six 3's. Another student had one 4 and six 3's, and the fifth student had one 4 and three 3's. Thus, only two of the nine students were not making satisfactory progress while Respondent was teaching the class.
Recommendation It is RECOMMENDED that Petitioner enter a final order rejecting the Superintendent's recommendation to terminate Respondent for unsatisfactory performance during the 2003-04 school year. DONE AND ENTERED this 26th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2004. COPIES FURNISHED: Dr. Randolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
The Issue The issue presented is whether Petitioner should terminate Respondent's professional service contract for his failure to correct his performance deficiencies within his 90-calendar-day probation period.
Findings Of Fact At all times material hereto, Respondent, Jose L. Rojas, has been employed by The School Board of Miami-Dade County, Florida, as a teacher pursuant to a professional service contract. During the 2004-2005 school year, he taught regular sixth-grade math classes at Redland Middle School. Teachers employed by the School Board, including Respondent, are evaluated pursuant to the Professional Assessment and Comprehensive Evaluation System, known as PACES. PACES was collectively bargained with the teachers' union and approved by the Florida Department of Education in 2001 as being in statutory compliance for teacher evaluations in Petitioner's school district. PACES focuses on student learning and teacher professional development, as well as on teaching behaviors. In PACES, there are seven domains: six are to be observed during a classroom observation, and the seventh domain deals with professional responsibilities demonstrated outside the classroom observation. The domains reflect the required statutory competencies of Section 1012.34, Florida Statutes. Each domain has teaching and learning components, and each component has indicators, 44 of which are required to meet standards under PACES. The 44 indicators are fundamental units of observation that are used to make professional judgments about the quality of learning and teaching. They represent the basic level of teaching to be demonstrated by all teachers in Petitioner's school district, i.e., the minimum requirements. They are the objective standards described in the PACES manual. Teachers have PACES manuals and access to the PACES Internet website. The standards are also repeated in any professional improvement plan, known as a PIP. It takes only one unacceptable indicator for a domain to be rated below performance standards. One below-standard domain indicates a teacher's non-compliance with statutorily- required competencies. The Florida Comprehensive Assessment Test (FCAT) measures student performance on the State's objectives for Florida's required curriculum, the Sunshine State Standards. While Petitioner's school district, as a whole, must utilize the FCAT data and indicators of student performance, there is no similar requirement for evaluating teachers by the results of the performance of their students on the FCAT (or other local assessments for subject matters not covered by the FCAT). Individual evaluations of teachers, however, must address student performance. PACES addresses student performance in every domain. What is assessed is whether the teacher is monitoring and gauging student progress in the classroom, making sure that the students are mastering the required curriculum. Teachers are expected to use their students' FCAT scores from the prior year for planning, pursuant to PACES domain I, to meet the students' deficiencies. Redland utilizes FCAT results in this manner. Further, a teacher's teaching strategies and activities are required to address FCAT expectations. At the beginning of the school year, teachers at Redland receive copies of the scope and sequence for what the students are to learn during the school year. The teachers develop the curriculum and timelines for meeting benchmarks to be covered during the school year. PACES domain II, as another example, deals with the teacher's management of the learning environment. If time is not managed and is, instead, wasted, the students' achievement of the Sunshine State Standards will be impacted, which will affect FCAT scores. PACES domain IV, as yet another example, requires teachers to informally assess the students' engagement in learning to assess their performance to ascertain whether the students are mastering the Sunshine State Standards. All of the administrators who were PACES observers in this case have had extensive training in the standards to be observed and evaluated in teacher performance and student learning and are, therefore, authorized to perform PACES observations, which are based upon what the observer objectively observes while in the classroom. The performance probation process in Petitioner's school district, like the PACES teacher evaluation process, was collectively bargained with the teachers' union. The process is as follows: if there is an observation conducted by an administrator that indicates a teacher is performing below standards, it becomes the "initial observation not of record." The administrator meets with the teacher, goes over the observation, makes suggestions for improvement, and notifies the teacher that he or she will be observed again in approximately three weeks. The administrator offers the teacher the assistance of a professional growth team (PGT). Use of a PGT is voluntary on the part of the teacher at this point. The PGT is part of the professional development aspect of PACES. PGTs are composed of experienced peer teachers who are extensively trained in PACES and are authorized to give support and assistance to teachers to improve classroom instruction. The same administrator who conducted the "initial observation not of record" must conduct the next observation, the "kick-off observation," which is the first observation of record in that school year. If this observation reveals below- standards performance, a conference-for-the-record (CFR) is held. A PGT and a PIP are provided to the teacher. The performance probation period begins the day after a PIP is given to the teacher. The teachers' union and Petitioner then mutually agree on the calendar for counting the 90 days. There must be two official observations during the performance probation period. The teacher must meet all 44 required indicators in order to meet performance standards during the teacher's performance probation. If any indicators are below performance standards, PIPs are again given. There are four levels of PIP activities, which are progressively more complex. A "confirmatory observation" takes place after the 90th day to determine whether the teacher has corrected his or her deficiencies. The "confirmatory observation" must be completed within 14 days after the conclusion of the performance probation, and the evaluator must forward a recommendation to the Superintendent of Schools. Within 14 days of receiving the evaluator's recommendation, the Superintendent must notify the teacher whether he will recommend to the school board that the teacher's employment be continued or terminated. It is not sufficient for the teacher to improve on only some of the deficient indicators. It has been the custom and practice under the collective bargaining agreement that remediation occurs only when the teacher meets standards in all of the required indicators. Respondent's initial observation was conducted by Assistant Principal Fahringer on September 23, 2004. Respondent was teaching a class of 20-23 students. Respondent told the students to take out their agenda books which contained their homework. As Respondent went around the classroom checking each student's homework, the remainder of the students just sat and talked, waiting for a lesson to begin. They were not working on math. Out of the two-hour block of class time, the class was off-task about 25 percent of the time. Respondent failed to meet performance standards in components and indicators of domain II, managing the learning environment, and domain IV, enhancing and enabling learning. Pursuant to the agreed-upon procedures, the observation became "not of record." Assistant Principal Fahringer met with Respondent September 28, 2004, went over the evaluation, and explained why Respondent had not met performance standards. Fahringer gave Respondent suggestions for improvement and advised him that she would return to do a follow-up observation. She offered Respondent a PGT, which he accepted. On October 19, 2004, Fahringer performed Respondent's first observation of record, the "kick-off observation." Respondent was giving a lesson on fractions, decimals, and percentages to 32 students using cups of M&Ms and a chart. Respondent told the students to divide into groups of four. There followed much noise and confusion. As Respondent went from group to group, he did not monitor the other seven groups. Students threw M&Ms and paper wads. Respondent did not meet performance standards in components and indicators of domains II and IV. He did not meet standards in domain II because the learning did not begin promptly. After a five-minute delay, another five minutes were wasted while Respondent counted out the M&Ms. Ten minutes wasted at the beginning of the class is a significant amount of time since time spent on-task improves achievement. There were delays in the organizational and teaching/learning activities. When Respondent told the students to divide into groups of four, some students appeared uncertain as to what group they were in and, instead, milled around talking noisily. Some students remained off-task throughout the lesson. Respondent did not address the off-task behavior because he did not appear to even notice it while he focused on one group at a time. Students came to Respondent with their agenda books, "visiting" other students and talking with them on the way. Eight students were distracted, noisy, and off-task, but Respondent failed to redirect them. Respondent's expectations about acceptable behavior had apparently not been made clear to the students. Although he told them to raise their hands and not to talk, they continued to talk noisily to each other for 50 minutes. Respondent failed to effectively monitor the class throughout the lesson. When he was with one group, he did not use management techniques to diffuse the unacceptable off-task behavior of the other groups. The remaining seven groups did not work (no learning took place) while they waited for Respondent to come to them. Respondent did not meet standards in domain IV because he did not introduce the purpose of the lesson. The students were told how to count the M&Ms and complete a chart, but there was no explanation as to what they were to learn. The students did not understand that they were learning the relationship among fractions, decimals, and percentages. Respondent did not give clear and complete directions. He told the students that they were going to "integrate" decimals, percents, and fractions, a meaningless word choice. The directions did not include any explanation of content or integration of mathematical concepts. Respondent did not demonstrate accurate content knowledge. He gave inaccurate and unclear information to the students. He counted the various colored M&Ms and put the numbers on the chart. On the chart, he explained that the decimals--.35, .10, .25, .17, .03, and .71--equal one, when in fact they equal 1.61. Also on the chart, Respondent explained that the percentages--35%, 10%, 25%, 17%, 3%, and 71%--equal 100%, when in fact they equal 161%. The students accepted the inaccurate information. On the line of the chart indicating the fractions, Respondent reduced some of the fractions leaving different denominators, which made the addition of those fractions difficult. On October 29, 2004, Principal DePriest and Assistant Principal Fahringer held a CFR with Respondent to address Respondent's sub-standard performance, his performance probation, recommendations for improving the specific areas of his unsatisfactory performance, and Respondent's future employment status with Petitioner. Respondent's input was sought, and he was formally assigned a PGT. Respondent was given a copy of the summary of the CFR and a PIP on November 1, 2004. The PIP required him to read and summarize pertinent sections from the PACES manual by November 22, 2004. Respondent's performance probation period began November 2, 2004, the day after he received the PIP. He was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed time. Respondent's PGT provided assistance to him throughout his performance probation. Respondent failed to complete his PIP activities by the November 22 deadline. On December 2 he was given another 24 hours to comply, which he did. On November 24, 2004, Respondent was formally observed in his classroom by Principal DePriest. Respondent was presenting a lesson to 19 students, but the classroom was too chaotic for learning to take place. Respondent again did not meet performance standards in domain II. Learning did not begin promptly. Respondent wasted 12 minutes reprimanding students, taking roll, and answering his personal cell phone while the students were not engaged in learning. There were also inefficient delays in organizational and teaching/learning activities. The students went to the board, one by one, to solve math problems. Respondent spent approximately five minutes with each student at the board while the rest of the class became noisy, walked around, or slept. Respondent failed to monitor off-task behavior or the behavior of the entire class. As Respondent focused on the one student at the board, the other students were off-task for up to five minutes at a time throughout the lesson, talking, putting their heads down, tapping their pencils, and making inappropriate comments such as "Can someone choke me?", "Can someone kill me?", and "Can I die now?". One student simply played with her hair for six minutes. Essentially, everyone was talking, and no one was listening to Respondent. Yet, Respondent did nothing to redirect the students. He did not appear to have classroom conduct rules in place. Thus, Respondent failed to make his expectations about behavior clear to the students. He instructed them not to talk without raising their hands. Nevertheless, eight of the students talked out-of-turn for 20 minutes without raising their hands. DePriest met with Respondent on December 2, 2004, to review the observation. DePriest provided assistance through a PIP to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes on the PACES Internet website. Respondent was to maintain a log and discuss techniques and strategies with DePriest. Respondent's deadline to complete his PIP was January 6, 2005. On January 10, 2005, Respondent was formally observed by Assistant Principal Janice Farrell. Respondent was presenting a lesson on perimeters and surface areas to 22 students. The lesson was disorganized, and there was an "air of confusion" in the class. Many students were being unruly and exhibiting off-task behavior. Therefore, not much learning was taking place. Respondent still did not meet performance standards in domains II and IV that had been previously identified. He also failed to meet performance standards in components and indicators not identified in the kick-off observation of October 19, 2004, and, therefore, not the subject of Respondent's 90-day performance probation or this Recommended Order. Respondent caused inefficient delays in organizational and teaching/learning activities. The learners were instructed to complete a "bellringer" activity, i.e., an activity that is used at the beginning of the class period to engage the students in learning as soon as they enter the room. Although they were instructed to complete it, eight of the 22 students did not receive a bellringer worksheet. Students were asking for materials and attempting the activity unsuccessfully on their own. Respondent appeared unaware of the problem Respondent failed to monitor off-task behavior and disengagement from learning throughout the lesson. One student continuously called out Respondent's name, louder and louder, for five minutes. Students talked and copied each other's answers. While a student walked around stamping the other students' agenda books, they became off-task. A group of three students at a back table remained off-task throughout the lesson, talking, copying each other's answers, and throwing papers. Respondent did not redirect any of these students until the last five minutes of the class. Respondent failed to monitor the whole class effectively. When he went to the back of the room to address a tardy student without a pass, he turned his back on the other 21 students who changed seats, threw papers at each other, and hit each other with rulers. Respondent did nothing to redirect his students. He failed to make the purpose or importance of the learning tasks clear to the students. He did not give a rationale for the bellringer activity, which consisted of answering questions about perimeters and areas of geometric shapes. He also gave the students inaccurate information. He incorrectly calculated the perimeter of a square as 3+3+3+3=15. DePriest and Farrell met with Respondent to review the observation. Farrell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP to help Respondent correct his deficiencies. Respondent's PIP required him to complete self- assessment activities through the PACES website. He was to watch vignettes provided by the website in order to understand what the PACES indicators required of him. Respondent's deadline to complete his PIP was February 11, 2005. Because Respondent's second observation within the performance probation period was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether Respondent had corrected his deficiencies. Principal DePriest performed that observation on February 22, 2005. On that day, management of the learning environment and classroom discipline were non-existent. Respondent was presenting a lesson on geometric shapes to 18 students. While he did have instructions written on the board, there were still the same kinds of delays seen previously, and the students were still not engaged in learning. Overall, the class environment was chaotic. One-third to one- half of the class was off-task at any given time. The class was completely disorganized; the students were not engaged; the students did not pay any attention to Respondent, and very little learning took place. Each time supplies were distributed, commotion resulted. When colored paper was distributed so that the students could trace the shapes, they got into arguments over the different colors, negotiated the trading of colors, and asked Respondent for different colors. When rulers were passed out, the students were not instructed to use them to draw the geometric shapes. Some had already drawn the shapes freehand. Others were dueling with the rulers. Some tore the shapes, rather than waiting until they received scissors. Respondent again did not meet performance standards in domain II as identified in the kick-off observation. Learning did not begin promptly. Respondent spent 10-11 minutes taking roll and reprimanding tardy students. There were inefficient delays in organizational and teaching/learning activities. Respondent allowed students to talk and distract others. Students were not paying attention. Respondent accepted a phone call and made a phone call during the class. He failed to monitor the off-task behavior caused by the manner in which supplies were distributed and failed to redirect the students, including while they argued about paper, scissors, and rulers. DePriest notified Respondent on February 23, 2005, that Respondent had not satisfactorily corrected noted performance deficiencies during his performance probation period and that DePriest would recommend to the Superintendent of Schools that Respondent's employment be terminated. On that same day, DePriest transmitted such a memorandum. On March 9, the Superintendent notified Respondent that the Superintendent would recommend that the School Board terminate Respondent's employment contract for Respondent's failure to correct his noted performance deficiencies during his performance probation. Petitioner has met all procedural requirements and statutory time frames. The FCAT was administered to Florida students in late- February to early-March, 2005. Petitioner received Respondent's students' scores on May 17 and the district-wide FCAT results on May 19, 2005, the day before the final hearing in this cause. The district as a whole showed "tremendous" progress over the prior year. Even though Redland is a "low-performing" school, it likewise showed progress over the prior year in reading and mathematics. Respondent's students, however, failed to follow this trend. Petitioner does not use a teacher's current students' FCAT scores in assessing a teacher's performance because the scores are released too late in the school year. PACES, however, addresses student performance, as statutorily required. Where a teacher's students are observed as being noisy throughout lessons, being confused, not paying attention, and being given erroneous lesson content, there is a clear lack of student performance, and they are not engaged in learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent failed to correct his performance deficiencies and terminating Respondent's professional service contract, effective April 13, 2005. DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 29th day of July, 2005. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Rudolph F. Crew, Ed.D, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue The issue for determination is whether Respondent should be suspended without pay and terminated from employment with Petitioner for falsification of documentation and insubordination.
Findings Of Fact Mr. Chappelle has been employed with the School Board since around August 2002. His supervisor was John Dierdorff. At the time of the hearing, Mr. Chappelle had been a communications technician with the School Board for approximately five years.1 No dispute exists that, at all times material hereto, Mr. Chappelle was a non-instructional employee with the School Board. Additionally, his supervisor for the entire time of his employment in communications with the School Board was Mr. Dierdorff. Approximately one year after beginning his employment with the School Board, Mr. Chappelle was having attendance problems, i.e., absenteeism. Mr. Dierdorff attempted to assist Mr. Chappelle improve his attendance, but to no avail. At a point in time, Mr. Chappelle had exhausted all of his sick leave and had no available sick days. When Mr. Chappelle was absent due to illness, he was required to submit a doctor’s excuse. On December 17, 2007, Mr. Chappelle received a written reprimand for falsification of documentation from the School Board’s Director of the Department of Employee Relations. He had submitted to Mr. Dierdorff a “fraudulent or false doctor’s note that was purported to be from [his doctor].” Among other things, Mr. Chappelle was “directed to cease such conduct immediately” and “to desist from engaging in the same or similar conduct in the future” and was informed that his failure to do so would result in “further disciplinary action up to and including termination.” Mr. Chappelle acknowledged receipt of the written reprimand by signing it on December 17, 2007. The evidence demonstrates that the Director of the Department of Employee Relations had the authority to give Mr. Chappelle the directive. The evidence further demonstrates that the directive was reasonable in nature. Regarding the written reprimand, at hearing, Mr. Chappelle admitted that he had falsified the doctor’s note, submitted it to Mr. Dierdorff, and had received the written reprimand as disciplinary action. Moreover, Mr. Chappelle admitted that he had self-reported the wrongful conduct to the School Board; the School Board had no knowledge that he had falsified the doctor’s note. Mr. Chappelle further admitted that he engaged in the wrongful conduct because, at the time, he was suffering from health issues and having money problems, including no money to pay for a doctor’s services, and his wife was having mental health issues. Several months later, on or about September 29, 2008, Mr. Chappelle submitted a doctor’s note to Mr. Dierdorff. Among other things, the note indicated that Mr. Chappelle was medically cleared for work starting September 29, 2008; and that he was not to work from September 17, 2008, through September 29, 2008. Mr. Dierdorff believed that the doctor’s note had been altered or falsified because the note had whiteout on it and the date of the note appeared to be “9/24/98,” not “9/24/08.” As a result, he referred the matter to the Department of Employee Relations for possible investigation. Subsequently, Mr. Chappelle became the subject of an investigation by Employee Relations. The investigation was based upon the allegation that he had falsified the doctor’s note and had acted in an insubordinate manner by engaging in the same or similar conduct for which he had been previously disciplined. The doctor’s note that was contained in the medical file at the physician’s office was not the same as the doctor’s note submitted to Mr. Dierdorff. Instead of indicating that Mr. Chappelle was medically cleared for work on September 29, 2008, the doctor’s note in the medical file indicated September 25, 2008. Further, instead of indicating a period of time in which Mr. Chappelle was not to work, the doctor’s note in the medical file was blank and, therefore, did not indicate a period of time. However, the doctor’s note in the medical file did indicate that the date of the doctor’s note was “9/24/08,” the same as the doctor’s note submitted to Mr. Dierdorff. The evidence demonstrates that the doctor’s note submitted to Mr. Dierdorff on or about September 29, 2008, was altered and falsified. Mr. Chappelle denies that it was he who altered and falsified the doctor’s note. Mr. Dierdorff denies that he altered or falsified the doctor’s note. Mr. Chappelle does not deny that it was he who submitted the doctor’s note to Mr. Dierdorff. The evidence demonstrates that Mr. Chappelle altered and falsified the doctor’s note that he submitted to Mr. Dierdorff on September 29, 2008.2 Mr. Chappelle’s conduct on September 29, 2008, was the same as or similar to his previous conduct for which he was disciplined on December 17, 2007, by a written reprimand. Among other things, Mr. Chappelle was notified in the written reprimand that the same or similar conduct would result in further disciplinary action up to and including termination. The evidence demonstrates that Mr. Chappelle intentionally committed the same or similar conduct and intentionally failed to abide by the directive to no longer engage in such action. By letter dated April 24, 2009, the Superintendent, Arthur C. Johnson, Ph.D., advised Mr. Chappelle, among other things, that sufficient just cause existed to impose disciplinary action pursuant to Sections 1012.22(1)(f) and 1012.27(5), Florida Statutes; School Board Policies 1.013 and 3.27; and Article 17, Section 6 of the Collective Bargaining Agreement between the Service Employees International Union, Florida Public Services Union, and the School Board. Further, Superintendent Johnson advised Mr. Chappelle that he (Superintendent Johnson) was recommending to the School Board, as discipline, suspension without pay and termination from employment. Mr. Chappelle acknowledged that he received the letter by signing and dating it on April 25, 2009. Superintendent Johnson’s recommendation was submitted to the School Board. The School Board agreed with the recommendation. Mr. Chappelle timely requested an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Augustus Chappelle for 15 days and re- instating him at the expiration of the suspension. DONE AND ENTERED this 10th day of May 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2010.
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 20, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Audrey Larson-Kalich (referred to herein as Ms. Kalich, as she was called by her students and fellow teachers), holds Florida Educator Certificate No. 711981, covering the areas of elementary education (grades 1-6), English to Speakers of Other Languages (ESOL), and primary education (grades K-3), which is valid through June 30, 2008. At all times relevant to this proceeding, Ms. Kalich was employed as a kindergarten teacher at Tillman Elementary School ("Tillman") by the Manatee County School District (the "District"). Ms. Kalich began her teaching career in Texas in 1981. She taught second, third, fifth, and seventh grades during a three-year period at a parochial school. After the 1983-1984 school year, she got married and took a hiatus from teaching. Beginning with the 1986-1987 school year, Ms. Kalich taught for seven years in the public school system of San Patricio County, Texas, the last four as a kindergarten teacher. Ms. Kalich left Texas after the 1992-1993 school year to join her husband in Manatee County, where he had commenced working at a position in the university system in March 1993. Ms. Kalich spent the next three years as a substitute teacher in the District, all the while seeking a full-time position. She performed well in a long-term substitute position at Braden River Middle School, teaching science to sixth and seventh graders. Ms. Kalich also substituted three different times at the Adolescent Recovery Center, a residential facility for students in rehabilitation for alcohol or drug abuse. Near the end of the 1995-1996 school year, while substituting at Tillman, Ms. Kalich learned of a full-time vacancy for a kindergarten teacher at that school. She applied for the position, though she knew that Tillman was a "very, very rough school." At the time, Tillman had a disproportionately large percentage of students with a lower socioeconomic background, learning disabilities, and difficulties complying with ordinary classroom discipline. As the 1996-1997 school year approached, the position remained unfilled. Ms. Kalich drove to Tillman to speak personally with Principal Gloria Mitchell and resolve lingering questions regarding her certification to teach kindergarten. After her certification was verified, Ms. Kalich was hired for the 1996-1997 school year. She taught at Tillman for five years. Principal Mitchell's evaluations of Ms. Kalich for the 1996-1997, 1997-1998, 1998-1999, and 1999-2000 school years were all "satisfactory." Ms. Mitchell's comments regarding Ms. Kalich's job performance stated that she "creates a positive learning environment" and is "always searching for new ways to improve student progress." Ms. Mitchell retired after the 1999-2000 school year. She was succeeded as principal by Patsy Roberson. An assessment document completed by Ms. Roberson during the 2000-2001 school year indicated that Ms. Kalich "consistently meets and/or exceeds district competency standards of performance." Paula Rosario was a kindergarten teacher at Tillman with Ms. Kalich. She and Ms. Kalich were personal friends, as well as colleagues. Ms. Rosario testified that she became increasingly alarmed at Ms. Kalich's classroom behavior during the 2000-2001 school year. As she walked down the hall, Ms. Rosario often heard Ms. Kalich yelling at her class, "Shut up. Just shut up." Ms. Rosario discussed this behavior with Ms. Kalich, urging her to lower her voice and to ask for help with her class if she needed it. Dawn Stewart, a kindergarten teacher at Tillman whose classroom shared a wall with Ms. Kalich's, testified that she often heard Ms. Kalich raising her voice, even "yelling at the top of her lungs," and telling her class to "shut up." Karen Ammons, currently the magnet coordinator at Tillman, was assigned as Ms. Kalich's "peer teacher" when Ms. Kalich was hired. A "peer teacher" advises a new teacher during her probationary period. Prior to the 2000-2001 school year, Ms. Ammons had advised Ms. Kalich not to grab students. Ms. Ammons testified that there are ways of moving a child from one place to another without grabbing the child's arms, which the child can perceive as malicious. Ms. Ammons also advised Ms. Kalich against yelling at her students. Ms. Ammons believed that yelling at children is counterproductive because children tend to respond better to a calm, quiet voice. This opinion was supported by Ms. Rosario, who advised Ms. Kalich to be "fair, firm, and friendly" when trying to establish order in her classroom. Ms. Rosario also testified that if a situation in the classroom appeared to be escalating to the point where physical restraint would be necessary, she would phone the office for assistance. Ms. Stewart testified that if a child is out of control, she moves the other children away from the flailing child and calls for assistance from an administrator. Carolyn Furnbach, another teacher at Tillman, testified that she would call for help before attempting to physically restrain a student, even though she had been trained in safe methods of restraint. Ms. Ammons testified that during the 2000-2001 school year, she saw Ms. Kalich trying to line up her class in the hallway. Ms. Kalich's class was a loud, boisterous group, and Ms. Kalich was being very loud in trying to lay down the rules. Ms. Ammons saw Ms. Kalich grab one little boy by the arm and jerk him back into line. She then bent down and started talking to him very loudly, putting her finger near his face. The rest of the class became louder, seeing that Ms. Kalich was occupied with this boy. Ms. Ammons intervened and calmed the class down. After school, Ms. Ammons discussed the matter with Ms. Kalich. Ms. Ammons told Ms. Kalich that she could not handle children in that manner. Ms. Kalich claimed not to know what Ms. Ammons was talking about. At the hearing, it was established that the practice among the Tillman kindergarten teachers was to defuse emotional disciplinary situations by sending the offending student to a different classroom for a "time out." Ms. Rosario was the "team leader" for the Tillman kindergarten teachers and offered her classroom as the "time out" room for any teacher who needed a break from a certain student. Ms. Rosario testified that, while other teachers would send their "time out" students down to Ms. Rosario's classroom, Ms. Kalich often dragged them in by the arm. Ms. Rosario told Ms. Kalich to take her hands off the students, and that it was improper to pull on students' arms. D.W. was a female student in Ms. Kalich's class during the 2000-2001 school year. She was prone to throwing tantrums. She would freeze herself to one spot or fall to the ground kicking, screaming, flailing her arms, and refusing to be moved. Children in D.W.'s vicinity during one of these tantrums were likely to get kicked or hit by D.W.'s flailing arms. Ms. Rosario witnessed Ms. Kalich carrying or pulling D.W. into Ms. Rosario's classroom for "time out." Ms. Rosario conceded that D.W. was a "challenging" child and that Ms. Kalich had great difficulty in getting D.W. to listen or follow her classroom rules. Once in Ms. Rosario's room, D.W. would calm down and comply with Ms. Rosario's instructions. Ms. Rosario never asked D.W. about events leading to her being sent to Ms. Rosario's classroom, because her immediate goal was to get D.W. under control. Ms. Rosario testified that neither D.W. nor any other student sent to her class by Ms. Kalich ever reported abuse by Ms. Kalich. Prior to May 29, 2001, D.W. and Ms. Kalich had several confrontations that led either to allegations of abuse against Ms. Kalich or discipline against D.W. On April 10, 2001, D.W. alleged that Ms. Kalich hit her on the hand with a book. Assistant Principal Deborah Houston removed D.W. from the classroom pending an investigation of the allegation. After interviewing several teachers and a student, Ms. Houston determined that the allegation could not be sustained, and she returned D.W. to Ms. Kalich's classroom. On April 23, 2001, D.W. refused to report to a "time out" classroom and, later, pushed another child in the lunch line. When Ms. Kalich came near her in the lunch line, D.W. bit Ms. Kalich. Ms. Houston conferred with D.W.'s mother and imposed a three-day in-school suspension on D.W. On May 23, 2001, D.W. called Ms. Kalich "an ugly bitch," when Ms. Kalich told her to go to another classroom for a "time out." On this occasion, Ms. Houston imposed a two-day out-of-school suspension on D.W. Ms. Kalich testified at length concerning the events of May 29, 2001. This was the next to last day of the school year, and the children were therefore in a higher state of agitation than usual. Ms. Kalich was preparing her class to go out for physical education ("PE"). She called the children by name to line up in the classroom before walking down the hallway. When D.W.'s turn came to line up, she was displeased with her position and began pushing other children to make her way to the front of the line. Ms. Kalich ordered D.W. to go to the end of the line. D.W. refused. Ms. Kalich then informed D.W. that, if she would not go to the end of the line, she would walk to PE alongside Ms. Kalich. D.W. commenced a tantrum, throwing herself on the floor. She lay on her stomach, flailing her hands, and kicking her feet. Ms. Kalich closed the classroom door to minimize the disturbance to other classes. She then got down on her knees beside D.W. and rested her hands on D.W.'s calves and feet to stop her from kicking. She kept her hands in that position for "a few minutes," until D.W. calmed down. Ms. Kalich conceded that the position of her hands might have made it look as though she were dragging D.W. by the legs, but she denied dragging the child. After D.W. quieted down, Ms. Kalich helped her to her feet. They started out the door, with Ms. Kalich holding onto one of D.W.'s hands. As they went out the door, D.W. began hitting other students with her free hand. Ms. Kalich took both of D.W.'s hands and clasped them between her own, and in that way they walked down the hallway and outside the building. Another of Ms. Kalich's students, J.Q., was carrying a chair outside because she was to be disciplined with a "time out," while the rest of the class took PE. As Ms. Kalich and D.W. were rounding a corner outside the building, J.Q. dropped the chair, creating a loud crashing sound. Ms. Kalich testified that just as she was distracted by the crash, D.W. jerked away from her grip and hit her head on the wall. D.W. began to cry and ran away to the corner of a fenced area outside the school. Ms. Kalich joined Ms. Stewart in checking to see if J.Q. was hurt. After she was assured that J.Q. was not hurt, Ms. Kalich told the child, "That's what you get for acting silly." Ms. Kalich turned her attention back to D.W., ordering her back into the line. D.W. refused to come. Ms. Kalich testified that she told D.W., "Then I will go to the office and tell them you're not coming back." The PE coach, Michael VanSerke, came out and helped Ms. Kalich move D.W. from the corner to the PE area. Coach VanSerke told Ms. Kalich that he would have two of his first grade "helpers" take D.W. to a classroom for "time out" during the PE class. Ms. Kalich was skeptical that two first grade boys could handle D.W. She saw D.W. approach one of the boys and try to kick him. Ms. Kalich interceded. She carried D.W. under the arms and, with the help of the two first grade helpers, got D.W. to the "time out" classroom. Ms. Stewart's version of the events of May 29, 2001, was very different. Ms. Stewart walked with Ms. Kalich because some of the children in her class went to PE at the same time as Ms. Kalich's class. Ms. Stewart testified that she looked in the doorway of Ms. Kalich's class and saw D.W. sitting on the floor, flailing her arms and crying, refusing to get up. Ms. Kalich grabbed D.W. by the ankles and dragged her out of the room. Ms. Stewart asked Ms. Kalich if she needed help, but Ms. Kalich said she did not. Ms. Stewart recalled that J.Q. dropped the chair on her foot and was crying. Ms. Kalich still had D.W. by the arm, and D.W. was still flailing. Ms. Kalich jerked D.W.'s arm, presumably to make her stop flailing, and the child's head hit the wall and she began to cry. Ms. Stewart did not believe that Ms. Kalich deliberately pushed D.W. into the wall. Ms. Stewart recalled Ms. Kalich telling D.W. "something like, 'You never need to come to school again.'" Carolyn Furnbach, another teacher at Tillman, witnessed the portion of the incident that occurred outside. She recalled that there was "a lot of commotion" and that Ms. Kalich "had the child by the arm and was pulling her quite forcibly." Ms. Furnbach was concerned for D.W.'s safety. D.W. testified at the final hearing. She recalled being pushed into the wall by Ms. Kalich but could offer no further details of the incident. Ms. Stewart's testimony is credited as to Ms. Kalich dragging D.W. out of the classroom. Ms. Kalich's testimony that she was merely resting her hands on D.W.'s calves to calm her is not credible for several reasons. First, given the general descriptions of D.W.'s tantrums involving flailing arms and wildly kicking legs, it is not credible that Ms. Kalich's resting her hands on the child's calves would have the effect claimed by Ms. Kalich. Second, Ms. Kalich's placing her hands on the child's legs would not stop D.W.'s flailing arms. Third, it is not credible that Ms. Stewart would mistake hands resting on the child's calves for the act of dragging the child out of the classroom. Fourth, it is not credible that the rest of the class would stand by quietly for the "few minutes" Ms. Kalich claimed it took her to calm D.W. Ms. Stewart's testimony is credited as to Ms. Kalich's causing D.W.'s head to hit the wall. Ms. Stewart's testimony was bolstered by that of Ms. Furnbach, who also saw Ms. Kalich pulling on D.W.'s arm. Ms. Kalich's testimony is credited as to her statement to D.W. after the incident. Ms. Stewart's recollection of that statement was not precise and could have been consonant with Ms. Kalich's version of her statement. It is found that Ms. Kalich was trying to obtain D.W.'s cooperation by threatening to tell the office that D.W. was not coming back to school, not telling the child not to come back to school. Ms. Rosario did not witness the May 29 incident, but afterwards Ms. Stewart and Ms. Furnbach came to her, as their kindergarten team leader, with their concerns about Ms. Kalich's handling of D.W. Ms. Rosario advised them to go to Principal Roberson with their concerns. Ms. Roberson asked all three of the teachers to submit written statements outlining their observations of, and concerns about, Ms. Kalich's behavior in the classroom. Ms. Rosario opined that Ms. Kalich is a "great person" and a caring, hard-working teacher, but that she was teaching in the wrong school, because Tillman students are "hard on you." Ms. Rosario noted that there are many special needs children at Tillman, including some from bad homes and some who were "drug babies" or "fetal alcohol children." Because they have just started school, many of these children have not yet been identified for special services. Ms. Rosario stated that she would not send her own children to Tillman. She believed that Ms. Kalich tried everything she knew to deal with her students, but that nothing in Ms. Kalich's education or background prepared her for the type of students she encountered at Tillman. Ms. Furnbach testified that Tillman is a school with a "tough group" of students, many of whom have behavioral problems. She believed that Ms. Kalich always had the right intentions, was a good instructor, and cared about her students. Ms. Furnbach believed that Ms. Kalich should receive some help in classroom management and dealing with problem students before returning to Tillman or that she be assigned to work with less challenging students. Lisa Revell, another kindergarten teacher at Tillman, worried that Ms. Kalich was "too nice" to be working in the Tillman environment. Ms. Mitchell, the former principal, commented that certain children were able to take advantage of Ms. Kalich. In summary, the Department demonstrated by clear and convincing evidence that Ms. Kalich repeatedly yelled at the children in her kindergarten class, telling them to "shut up"; and that on May 29, 2001, Ms. Kalich dragged D.W. from the classroom by her ankles, pulled her by the arm, and jerked her arm in a manner that caused D.W.'s head to hit an outside wall. The evidence did not establish that Ms. Kalich told D.W., "You don't need to ever, ever come back to school again," or words to that effect. The evidence did not establish that any of Ms. Kalich's actions were motivated by malice or an intent to abuse the children. To the contrary, even those teachers who testified against Ms. Kalich spoke highly of her dedication and desire to provide the best possible educational environment for her students. The evidence established that Ms. Kalich was ill- equipped to deal with the unique needs of the student population at Tillman and that, in her desperation to maintain order, she would resort to yelling and rough handling of young children. Ms. Kalich submitted several letters attesting to her good character and her quality as a teacher. These have been considered, but are beside the point. Ms. Kalich's good character is not at issue. Specific acts were alleged. Eyewitnesses testified that they observed these acts, even as they continued to believe that Ms. Kalich was a person of good character who sincerely cared about the children in her charge. Grabbing students, jerking them by the arms, dragging them by the ankles, yelling at them, all are improper means of maintaining order in the classroom. Ms. Kalich's inability to cope with the behavior of the children in her classroom evokes some sympathy, but it must be noted that the other kindergarten teachers at Tillman managed to keep order in their classrooms without resort to such abusive methods.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e). It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation, subject to such conditions as the Commission may specify, including classroom supervision by another certified educator and completion of appropriate college courses in classroom management. DONE AND ENTERED this 9th day of January, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 January, 2004.
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Petitioner established “just cause” to terminate Respondent's employment as a custodian.
Findings Of Fact Ms. Robertson, a custodian, began her employment with the School Board in the 2008. For school years 2008-2009 and 2009-2010, Ms. Robertson received satisfactory evaluations concerning her job performance. She was praised by Principal Kelley as a hard worker and a good addition to the LaBelle High School custodial staff. In the beginning of the 2010-2011 school year, Principal Kelley and Mr. O'Ferrell, the head custodian for LaBelle High School and Ms. Robertson's direct supervisor, noticed a marked difference in Ms. Robertson's work performance. Specifically, Ms. Robertson began taking too many breaks, leaving campus, taking longer lunch hours, failing to be in her assigned work areas, and failing to properly clean her assigned rooms. Both Principal Kelley and Mr. O'Ferrell verbally counseled Ms. Robertson on several occasions about improving her work, and staying in her assigned work area. Principal Kelley credibly testified that she initially provided Ms. Robertson with verbal consultations, rather than a written reprimand, as a means to encourage Ms. Robertson. Principal Kelley decided to use verbal consultations initially because she believed that Ms. Robertson had been a good employee in the past, and that Ms. Robertson would correct her behaviors with the verbal counseling. Similarly, Mr. O'Ferrell credibly testified that he had spoken to Ms. Robertson four or five times about improving her work. During the fall of 2010 and spring 2011, rumors circulated at LaBelle High School that Ms. Robertson had begun or was developing an inappropriate relationship with a male student. The student, T.L., was a 17-year-old senior, whose classes were in the Building and Trade class areas. The Building and Trade class area was outside of Ms. Robertson's assigned work area; however, she was spending an inordinate amount of time there.1/ Principal Kelley and Mr. O'Ferrell became aware of the rumors concerning Ms. Robertson and T.L., and asked her about it. Ms. Robertson stated that the relationship was one of guidance, rather than inappropriate. On March 10, 2011, Principal Kelley decided to change Ms. Robertson's work hours. At the time, Ms. Robertson had worked the "day shift" which consisted of a 6:00 a.m. to 2:00 p.m. work schedule. Principal Kelley determined to change Ms. Robertson's work hours to the "night shift" which consisted of a 2:00 p.m. to 10:00 p.m. work schedule. Principal Kelley's reasons for changing Ms. Robertson's work schedule concerned meeting the school's needs, and Principal Kelley's desire to address the rumors around Ms. Robertson and T.L. Principal Kelley wanted to separate Ms. Robertson and T.L. before a problem developed. Pursuant to the Collective Bargaining Agreement, Principal Kelley provided Ms. Robertson with a required 21-day notice and met with Ms. Robertson. Ms. Robertson expressed that she was unhappy with the change in her work hours, and that it would cause a hardship with her children, ages 17, 16, and 11. Although unhappy with her re-assignment, Ms. Robertson did not file a grievance challenging the change. Beginning on March 31, 2011, Ms. Robertson started working the 2:00 p.m. to 10:00 p.m. shift. That same date, March 31, 2011, Principal Kelley provided Ms. Robertson with an annual evaluation. Overall, Principal Kelley found Ms. Robertson's work to be satisfactory, but indicated that Ms. Robertson's "work attitude" needed improvement. After the change in her work schedule, Ms. Robertson's work attendance began to deteriorate, as her use of sick leave increased. Further, Ms. Robertson's work performance deteriorated. Some time during the summer of 2011, after T.L. graduated from the high school, Principal Kelley had a "no trespass" warning served on T.L. The "no trespass" warning was to keep T.L. off of the campus because he was coming to visit Ms. Robertson during her work hours. The beginning of the 2011-2012 school year did not see an improvement in Ms. Robertson's work performance. Mr. O'Ferrell credibly described Ms. Robertson's work performance as "steady downward." She was leaving the school campus to smoke, not cleaning her assigned rooms, and her attendance became "deplorable" according to Mr. O'Ferrell. The record clearly shows that Ms. Robertson's attendance and use of sick leave became excessive. Most of her sick leave was not supported by any medical documentation. Moreover, many of the dates that Ms. Robertson called in sick occurred on Thursdays, Fridays, and Mondays. For example, the record shows that Ms. Robertson used sick leave on September 29, 30, and October 3, 2011, for a corresponding long weekend. Ms. Robertson's explanation at the hearing that the dates corresponded with her children's medical needs is not credited. The medical records introduced into evidence by the parties showed, at best, that Ms. Robertson's children received influenza vaccinations on October 3, 2011. There is nothing to suggest that the children's vaccinations required three full work days. Similarly, the record shows that on the week of October 31, 2011, through November 4, 2011, Ms. Robertson called in sick for what she described as the "stomach flu." Yet, there were no corresponding medical records supporting Ms. Robertson's testimony. After Ms. Robertson's absences in the week of October 31, 2011, Principal Kelley provided Ms. Robertson with a written reprimand, an special evaluation, and documentation of Ms. Robertson's absences. The written reprimand dated November 4, 2011, informed Ms. Robertson that her excessive absenteeism created a hardship for her co-workers, and was unacceptable. On November 8, 2011, Ms. Robertson signed that she received the reprimand and that she understood the contents. The fact that Ms. Robertson understood the seriousness of this written reprimand was corroborated by Ms. Steelman, the union representative for the Hendry School District support personnel. Ms. Steelman credibly testified that she was present when Ms. Robertson received the written reprimand from Principal Kelley, and that Ms. Robertson understood the concerns outlined in the reprimand. The special evaluation, dated November 8, 2011, showed that Ms. Robertson needed to improve her quantity of work, her dependability, attendance/punctuality, and work attitude. Following the November 8, 2011, special evaluation, Ms. Robertson's attendance marginally improved, but the quality and quantity of her performance decreased. Ms. Robertson's work in cleaning her assigned areas was inadequate. Mr. Carter, a custodian who worked the night shift with Ms. Robertson, credibly testified that other custodians were required to do Ms. Robertson's work. Ms. Robertson would be visiting friends or family members during the work times or taking smoking breaks. Similarly, Mr. O'Ferrell credibly testified that Ms. Robertson was not "dependable" and failed to properly clean her assigned area. Ms. Robertson's failure to properly clean restrooms and the library led to complaints, and a second written reprimand dated December 6, 2011. The December 6, 2011, reprimand was signed by Ms. Robertson, and Principal Kelley. Again, the testimony showed that Ms. Robertson's union representative was present when the reprimand was given. Unfortunately, after the December 6, 2011, reprimand, Ms. Robertson's work performance did not improve. The record shows that Ms. Robertson received two more written evaluations from Principal Kelley, one February 29, 2012, and the other April 1, 2012. They documented that Ms. Robertson's work continued to be unsatisfactory. In the comments for the April 1, 2012, evaluation, Principal Kelley noted that Ms. Robertson's work had not improved and that issues concerning her work remained unresolved. On the checklist for each evaluation, Principal Kelley indicated that Ms. Robertson needed to improve the quantity of her work, quality of her work, dependability, attendance/punctuality, and work attitude. Mr. O'Ferrell and co- worker, Ms. Gonzalez, credibly described Ms. Robertson's continued work performance problems. Although Mr. O'Ferrell did not work on the night shift with Ms. Robertson, he would inspect the areas and rooms that Ms. Robertson had been assigned to clean. Mr. O'Ferrell credibly testified that Ms. Robertson had not properly cleaned the rooms. Similarly, Ms. Gonzalez, a custodian on the day shift, credibly testified that when she got to work in the morning she would receive teachers' complaints, and that she had to clean and pick up trash from rooms that Ms. Robertson should have cleaned the night before. As a result of Ms. Robertson's failure to do her job, teachers complained about their rooms not being cleaned, and other custodial staff had to clean the rooms assigned to Ms. Robertson. Furthermore, Mr. O'Ferrell described that Ms. Robertson's poor work resulted in morale problems with some of the custodial staff, who resented having to do Ms. Robertson's work. In the April 1, 2012, evaluation, Principal Kelley checked a box indicating that Ms. Robertson should continue on probationary status. Ms. Robertson acknowledged receipt of the document on April 9, 2012, and that she understood the evaluation. From April 25, 2012, through May 8, 2012, the record shows that Ms. Robertson was on leave for a worker's compensation injury. Medical records introduced into evidence show that Ms. Robertson reported to a health care provider that on March 28, 2012, she had been "pushing a vacuum cleaner at work and felt something pop around her lumbar spine." Ms. Robertson reported that she was experiencing lower back and hip pain. The medical records show that she received physical therapy and was released to return to work without limitation on May 9, 2012. Ms. Robertson returned to work on May 9, 2012. On May 18, 2012, Principal Kelley informed Ms. Robertson that she was being suspended with pay, and that Principal Kelley would recommend to the School Board that Ms. Robertson's employment be terminated. At the June 12, 2012, meeting, the School Board terminated Ms. Robertson's employment. There was no credible evidence that the School Board or Principal Kelley decided to terminate Ms. Robertson's employment based on Ms. Robertson's leave of absence based on the worker's compensation injury leave of absence. Ms. Robertson's explanation, that her work difficulties were tied to Principal Kelley changing Ms. Robertson's work hours, is not credible. Ms. Robertson testified that some of her absences occurred because her children’s doctor’s appointments could only be made after 3:00 p.m., when she was at work. This explanation was not credible for two reasons: first, one would expect that a doctor's appointment could be scheduled in a morning; and, second, there was scant medical record evidence to support her claim that her absences were tied to doctor appointments. Ms. Robertson also testified that the night shift caused her hardship in that she could not properly supervise her 17-year-old son, who was getting into trouble with the law. It was undisputed that her son was having difficulties, and had even been removed from the high school. Those difficulties, however, cannot explain Ms. Robertson's poor work performance when she was at work. The credible testimony from Mr. O'Ferrell, her supervisor, and two co-workers showed that Ms. Robertson did not properly clean the classrooms and areas assigned to her because she was taking too many breaks and not working. Sadly, the evidence presented showed that Ms. Robertson's difficulties stem not from her work hours, but from her poor choices.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board terminate Ms. Robertson's employment. DONE AND ENTERED this 18th day of December, 2012, 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 18th day of December, 2012.
The Issue The issue in this case is whether a district school board is entitled to terminate the employment of a non-instructional employee whose performance is alleged to have been unsatisfactory.
Findings Of Fact At all times material, Ms. Dickerson was employed in the District as an education paraprofessional. For the 2000-01 school year, she was assigned to Meadow Park Elementary School (the "School"). That year, Ms. Dickerson worked under the supervision and direction of a special education teacher named Kimberly Vargas-Vila, whose half-dozen or so pupils, ranging in age from three to seven years, were children with autism. Ms. Dickerson was one of two paraprofessionals placed in Ms. Vargas-Vila’s classroom for the 2000-01 school year. In the discharge of her duties, Ms. Dickerson was required to feed students, help them in the toilet, assist the teacher in the classroom, assist children in play, watch them on the playground, make copies, and run errands for the teacher. Not long after the school year started, Ms. Vargas-Vila noticed that Ms. Dickerson resisted attempts by the other paraprofessional, who was a so-called "one-on-one" aide assigned to a specific student, to help Ms. Dickerson. Ms. Dickerson wanted to perform certain duties herself and often refused offers of assistance. Ms. Dickerson's unwillingness to share the work load was not initially disruptive but increasingly became so. In October 2000, another problem developed: Ms. Dickerson began to disobey Ms. Vargas-Vila's directions concerning the management of students' behavior. The teacher spoke with Ms. Dickerson about this issue, but Ms. Dickerson refused to discuss the matter with her. Instead, Ms. Dickerson sent a letter to the Board in which she unjustly accused Ms. Vargas-Vila of harassment. Unable on her own to resolve the problems she was having with Ms. Dickerson, Ms. Vargas-Vila sought the advice of the School's Principal, Elizabeth Cardozo. After conferring, they decided that the three of them (the principal, the teacher, and the paraprofessional) should meet together. Accordingly, a meeting was held between Ms. Dickerson, Ms. Vargas-Vila, and Ms. Cardozo on October 18, 2000. While the primary topic of discussion was Ms. Dickerson's allegation that Ms. Vargas-Vila had harassed her (which was groundless), other matters were discussed too, with the participants agreeing to reconvene if problems recurred. Despite this meeting on October 18, 2000, Ms. Vargas- Vila continued to have difficulties with Ms. Dickerson. Therefore, a few weeks later, on November 7, 2000, Ms. Vargas- Vila wrote a memorandum to Ms. Cardozo that related her concerns about Ms. Dickerson's ongoing failure to follow instructions relating to the behavior management techniques that she (the teacher) wanted to use with a particular student. In this memorandum, Ms. Vargas-Vila explained that she frequently had told Ms. Dickerson to ignore certain inappropriate behaviors in which the student in question was engaging, but Ms. Dickerson refused to comply. Rather than ignore the student, as directed, Ms. Dickerson would continue to talk and interact with the student. Ms. Vargas-Vila also had instructed that the student’s chair be placed slightly apart from the other students, but Ms. Dickerson, disobeying, had moved the student’s chair back towards the others in the group. Ms. Dickerson's defiance was causing friction in the classroom. When Ms. Vargas-Vila witnessed these insubordinate acts, she immediately discussed them with Ms. Dickerson, who either did not comment or expressed her opinion that the teacher's orders were inappropriate. Ms. Vargas-Vila's memorandum of November 7, 2000, reported as well that Ms. Dickerson continued to object when the teacher asked the other paraprofessional to handle duties that Ms. Dickerson felt were "her" tasks. As a result of Ms. Vargas-Vila's memorandum, a meeting was held on November 17, 2000, between Ms. Dickerson, Ms. Vargas-Vila, Ms. Cardozo, and a District official named John Stevens. The meeting was difficult because Ms. Dickerson became loud and angry, accusing the attendees, among other things, of plotting to violate her Constitutional rights. She also made the weird charge that Ms. Vargas-Vila had employed a "fake cough" to aggravate her in the classroom. Notwithstanding these impediments to productive discourse, Ms. Vargas-Vila reviewed "improvement strategies" with Ms. Dickerson, who said that she would follow this advice. Afterwards, Ms. Dickerson was provided a written summary of the November 17, 2000, conference, which specified the areas in which improvement was needed and the recommended improvement strategies. For a while after the November 17, 2000, meeting, Ms. Dickerson's performance improved. But before the month was out, Ms. Dickerson had resumed refusing to allow the other paraprofessional to perform certain duties, and she had begun once again to disregard the behavior management techniques that Ms. Vargas-Vila prescribed. These problems continued into the next calendar year. Throughout January 2001, Ms. Dickerson's performance- related problems persisted. Ms. Vargas-Vila talked specifically with Ms. Dickerson about the need for her to follow directions and allow other people to help out in the classroom, but Ms. Dickerson did not change her unsatisfactory behavior. As a result, another meeting with Ms. Cardozo was scheduled, for January 25, 2001. The January 25, 2001, meeting was attended by Ms. Cardozo, Ms. Vargas-Vila, and Ms. Dickerson. During the meeting, Ms. Dickerson was told that she had failed to follow the improvement strategies that had been recommended——and which she had agreed to implement——during the conference on November 17, 2000. Ms. Dickerson was notified that if she continued to disobey the teacher's directions, she would be subject to disciplinary action. Finally, more improvement strategies were discussed, and these were reduced to writing, as part of the principal's conference notes, a copy of which was provided to Ms. Dickerson on January 30, 2001. As of the January 25, 2001, meeting, Ms. Cardozo was convinced that Ms. Dickerson’s job performance was unsatisfactory and that her actions were interfering with the instructional process in the classroom. Consequently, Ms. Cardozo sought guidance from Diane Curcio-Greaves, a Professional Standards Specialist at the District's headquarters, in regard to the preparation of a performance evaluation of Ms. Dickerson. The conditions of Ms. Dickerson's employment were governed by a collective bargaining agreement called the Agreement Between the School District of Palm Beach County, Florida and the Association of Education Secretaries and Office Professionals, dated July 1, 1997 - June 30, 2000 (the "Union Contract"). The Union Contract forbade the recommendation of an employee for termination based upon an unsatisfactory evaluation unless that employee had been given at least 30 days to improve his or her performance. In view of this contractual provision, Ms. Curcio- Greaves and Ms. Cardozo decided that Ms. Dickerson would be afforded 30 days from the date she received an unsatisfactory performance evaluation within which to correct the identified deficiencies. On February 2, 2001, based on Ms. Vargas-Vila's input as well as her own observations, Ms. Cardozo recorded her assessment of Ms. Dickerson's performance on a Noninstructional Evaluation form used by the District. Ms. Cardozo rated Ms. Dickerson unsatisfactory under the categories of self motivation, adaptability to change, interpersonal effectiveness, and assignments (specifically, under the last heading, for failing to follow directions easily and effectively). Ms. Cardozo assigned Ms. Dickerson an overall rating of unsatisfactory. Ms. Cardozo, Ms. Curcio-Greaves, and Assistant Principal Diane Bell met with Ms. Dickerson on February 5, 2001, to discuss the unsatisfactory evaluation and to initiate a 30- day assistance plan. At this meeting, improvement strategies for each area in which her performance had been deemed unsatisfactory were recommended to Ms. Dickerson. These improvement strategies, together with a statement of the reasons why Ms. Dickerson's job performance was considered unsatisfactory, were set forth in a memorandum of assistance dated February 2, 2001, which Ms. Cardozo had prepared earlier. The evaluation and its attachments, including the memorandum of assistance, were presented to Ms. Dickerson on February 5, 2001. Ms. Dickerson acknowledged receipt of these documents, noting her disagreement with the contents and vowing to appeal "THIS FALSE PLOT!" In accordance with District policy and the Union Contract, Ms. Cardozo was responsible for monitoring Ms. Dickerson's progress during the 30-day assistance period and periodically meeting with Ms. Dickerson to review her performance and provide feedback. Ms. Cardozo scheduled several review conferences with Ms. Dickerson, to occur on Friday, February 16; Monday, February 26; and Monday, March 12, 2001. These dates were provided to Ms. Dickerson in a memorandum dated February 8, 2001, receipt of which was acknowledged by Ms. Dickerson that same day. The first review conference was held on February 20, 2001.1 Present were the same persons as on February 5: Ms. Cardozo, Ms. Bell, Ms. Curcio-Greaves, and Ms. Dickerson. Ms. Cardozo discussed each previously-identified area of deficiency with Ms. Dickerson and told Ms. Dickerson what was expected of her to correct these deficiencies, which persisted. Ms. Dickerson was not receptive to advice and indeed refused to acknowledge that her performance was unsatisfactory. Based upon Ms. Dickerson’s comments and the fact that she had not been following the implementation strategies described in the February 2, 2001, memorandum of assistance, Ms. Cardozo was of the opinion that as of February 20, 2001, Ms. Dickerson’s job performance had not improved. On February 22, 2001, Ms. Cardozo wrote a memorandum detailing the discussion that had taken place during the February 20, 2001, meeting. This memorandum specified the areas of Ms. Dickerson’s job performance that continued to be deficient, and spelled out the steps that Ms. Dickerson needed to take in order to improve. Ms. Cardozo gave Ms. Dickerson a copy of her memorandum on February 22, 2001, receipt of which was acknowledged by Ms. Dickerson. On February 23, 2001, Ms. Cardozo formally observed Ms. Dickerson in Ms. Vargas-Vila's classroom for one hour. She noticed that Ms. Dickerson continued to be performing unsatisfactorily in the area of interpersonal effectiveness. A few days later, on February 26, 2001, a second review meeting was held with Ms. Dickerson. In attendance were Ms. Cardozo, Ms. Curcio-Greaves, Ms. Bell, Jeanne Burdsall (a Manager in the District's Office of Professional Standards), and Ms. Dickerson. At this meeting, Ms. Dickerson informed the group that she had spoken with the "Assistant Superintendent" concerning her belief that people were trying to take her job away and give her a bad evaluation. Ms. Dickerson was reminded that on February 5, 2001, she had been advised about the grievance procedures available to union members. Ms. Dickerson was again informed of her right to contact a union representative if she wanted to file a grievance regarding her evaluation. It is evident that by the time of the February 26, 2001, meeting, Ms. Dickerson was not implementing previously- recommended improvement strategies and had no intention of doing so. She continued to deny having performance problems and stubbornly resisted attempts to help her improve. Ms. Dickerson repeated the now-familiar but utterly unsubstantiated accusation that Ms. Vargas-Vila and others were harassing her and plotting to take away her job. Ms. Dickerson's comments had become alarmingly irrational and paranoid. On March 6, 2001, Ms. Dickerson received a copy of Ms. Cardozo's detailed memorandum describing the February 26 meeting. Ms. Cardozo continued to hold the opinion that Ms. Dickerson had not improved her job performance to a satisfactory level. The next day, Ms. Dickerson refused to change a child's diaper at the direct request of Ms. Vargas-Vila, claiming that it was not her job and complaining that the teacher's directive constituted harassment. Ms. Vargas-Vila immediately brought this incident to Ms. Cardozo's attention. Within hours, the principal had notified Ms. Dickerson in writing that she wanted to meet with her the following day, March 8, 2001, in order to review the notes that Ms. Cardozo had made concerning her February 23, 2001, classroom evaluation of Ms. Dickerson. Later that afternoon, Ms. Dickerson appeared in Ms. Cardozo's office, ranting loudly that she was being harassed and asking why they needed to have a meeting. Ms. Cardozo advised Ms. Dickerson that the reason for the meeting was to go over the results of the February 23, 2001, observation. Ms. Dickerson alleged (again) that she could no longer do her job due to the supposed harassment. Ms. Cardozo asked Ms. Dickerson if she was refusing to meet with her, and Ms. Dickerson told her she was not. At that point, Ms. Cardozo told Ms. Dickerson that she would arrange to discuss the observation of February 23, 2001, at the upcoming assistance review meeting, scheduled for March 12, 2001. Thereupon, Ms. Dickerson left Ms. Cardozo’s office, only to return minutes later to tell Ms. Cardozo that she was sick and leaving for the day. In light of Ms. Dickerson's outburst and bizarre behavior, Ms. Cardozo began to worry that she or her staff might be in danger. Ms. Cardozo’s last meeting with Ms. Dickerson was on March 12, 2001. Ms. Cardozo gave Ms. Dickerson a copy of her memorandum of the observation that she had conducted on February 23, 2001. In the memorandum, Ms. Cardozo specifically commented on Ms. Dickerson's lack of interpersonal effectiveness. Ms. Cardozo also handed Ms. Dickerson a Noninstructional Evaluation form that she had completed on March 12, 2001, on which Ms. Dickerson was graded unsatisfactory in the areas of self motivation, adaptability to change, interpersonal effectiveness, and assignments——the same areas in which Ms. Dickerson's performance previously had been considered deficient. Overall, the evaluation was unsatisfactory. Because she had failed to correct the identified performance deficiencies within 30 days, Ms. Dickerson was informed via a letter from the Chief Personnel Officer, which she received on March 12, 2001, that effective March 13, 2001, she was being reassigned to her home with pay, pending the Board's next meeting on March 28, 2001, at which time action would be taken to dismiss her. By memorandum dated March 12, 2001, Ms. Cardozo notified the Director of Professional Standards that Ms. Dickerson had been given an unsatisfactory evaluation after the end of a 30-day assistance period. Based upon the unsatisfactory evaluation, Ms. Cardozo requested a District review to determine further action, up to and including termination of Ms. Dickerson's employment. In due course, pursuant to District policy, a competency hearing was convened before a committee of District employees, to review the evaluation process and Ms. Cardozo's recommendation that Ms. Dickerson's employment be terminated. The committee determined that all of the procedures for terminating a non-instructional employee for unsatisfactory performance had been followed, and it voted to uphold Ms. Cardozo's recommendation. The superintendent accepted the committee's recommendation, executing a petition on March 15, 2001, which urged the Board to suspend Ms. Dickerson without pay effective March 29, 2001, and to terminate her employment effective 15 days after the Board's decision or following an administrative hearing if timely requested. Although the record is not entirely clear, it appears that the Board suspended Ms. Dickerson without pay effective March 29, 2001, as recommended. Ultimate Factual Determination Ms. Dickerson's job performance was unsatisfactory, and she failed to correct the identified deficiencies within the 30-day period prescribed under the Union Contract, despite the provision of ample assistance to improve her performance.
The Issue Whether the Respondent's professional services employment contract should be terminated for the reasons set forth in the Petitioner's letter to the Respondent dated October 1, 2002, and in the Notice of Specific Charges of Unsatisfactory Performance dated October 25, 2002.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is the entity authorized to operate the public schools in the Miami-Dade County school district and to provide for the appointment, compensation, promotion, suspension, and dismissal of employees of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (2001). At the times material to this proceeding, Ms. Stern was employed as a teacher with the School Board under a professional services contract. Ms. Stern is a member of the United Teachers of Dade ("UTD"), and the terms of her employment with the School Board are governed by the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Ms. Stern first received her teaching certificate in 1952, and she began teaching in the Miami-Dade County public school system in 1987. The 2000-2001 school year was her first year teaching at Campbell Drive Elementary, and she was assigned to teach a regular second grade class. Campbell Drive Elementary was rated a "D" level school at the times material to this proceeding. Teacher Assessment and Development System. The Teacher Assessment and Development System ("TADS") had, prior to the 2001-2002 school year, been used in the Miami- Dade County public school system for 15 years to evaluate teachers employed by the School Board. The Joint Committee on Standards for Educational Evaluation ("Joint Committee") decided in 1996 that TADS should be replaced with a new evaluation system.2 As a result, the Professional Assessment and Comprehensive Evaluation System ("PACES") was developed and has been in use in the Miami-Dade County public school system since the beginning of the 2001-2002 school year. As will be discussed in more detail below, the observations and evaluations at issue herein were all performed using TADS. TADS is a performance-based evaluation instrument, which includes sixty-eight specific teacher behaviors that should be performed in the classroom. The TADS evaluation procedures set forth in the UTD Contract and established by the Joint Committee required that formal Classroom Assessment observations be performed, that any observed performance deficiencies be noted, and that professional growth opportunities be provided to teachers with noted deficiencies. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-Calendar Day Performance Probation period for teachers with professional service contracts. A Memorandum of Understanding was executed by representatives of the Miami-Dade County public school system and the UTD to implement procedures for the new system. Pursuant to the procedures adopted in the Memorandum of Understanding, the 90-Calendar Day Performance Probation period is commenced the day after a conference-for- the-record is held with the teacher to advise him or her of classroom performance deficiencies. At least two observations must be conducted during the 90-Calendar Day Performance Probation period, and the teacher must be provided assistance through prescription plan activities and through referrals to resource persons for further assistance. At the conclusion of the 90-Calendar Day Performance Probation period, a confirmatory observation is conducted to determine if the performance deficiencies have been corrected. Prescription plan activities have the status of administrative directives.3 The principal of Campbell Drive Elementary at the times pertinent to these proceedings was Betty Thomas, and the assistant principal was Claudia Brown. Both were trained to observe and evaluate teachers using TADS. Ms. Stern was first observed at Campbell Drive Elementary on October 10, 2001, by Ms. Brown. Ms. Stern received an overall acceptable rating on the CAI (Classroom Assessment Instrument) Post-Observation Report, as well as acceptable ratings on each of the six TADS rating categories. February 5, 2001, observation. Ms. Thomas conducted her first formal observation of Ms. Stern's classroom performance on February 5, 2002,4 when she observed Ms. Stern's second grade math class from 12:30 p.m. until 1:35 p.m. Ms. Thomas completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Thomas rated Ms. Stern's classroom performance acceptable in the categories of Preparation and Planning, Knowledge of Subject Matter, Teacher-Student Relationships, and Assessment Techniques. Ms. Thomas rated Ms. Stern's classroom performance unacceptable in the categories of Classroom Management and Techniques of Instruction. Specifically, Ms. Thomas rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, during the observation, instructional time was lost while Ms. Stern sharpened pencils for several students and wandered around the room without giving instruction to the students and that instructional time was lost when Ms. Stern told the students to put their heads on their desks approximately minutes before they were to leave the classroom for Spanish and Physical Education classes. Ms. Thomas rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students who were off-task and behaving inappropriately. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern ignored or failed to respond when two students yelled at one another during a test, when students talked and played with pencils during a lesson, when two students left the room and returned, when two students hit one another, and when a student crawled on the floor. Ms. Thomas rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, when virtually everyone in the class was talking, Ms. Stern asked those students who were talking to raise their hands; Ms. Stern praised the students who raised their hands for their honesty but did nothing to cause the students to stop talking. Ms. Thomas also noted several instances in which Ms. Stern responded to students with remarks that were either ineffectual or not to the point. Ms. Thomas rated Ms. Stern deficient in indicator III.C.1. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide the students with clear expectations regarding appropriate behavior. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that no class rules were posted in the classroom and that Ms. Stern did not refer to any class rules. Ms. Thomas also noted that, while students were being sent to the board to work math problems, 75 percent of the students in the class were talking and several students were wandering around the room, all without correction from Ms. Stern. Ms. Thomas rated Ms. Stern deficient in indicators III.C.3. and 4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to respond quickly or appropriately to students who acted inappropriately or interfered with the work of others. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not respond, and actually ignored, most of the students' inappropriate behaviors, which included a student dancing around the back of the room, students laughing and playing with a hat, students loudly asking how to do the assignment, and students yelling to one another. Ms. Thomas rated Ms. Stern deficient in indicators IV.G.3. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to emphasize potential areas of difficulty, specifically with respect to the math problems involving "regrouping," by either verbal or non-verbal clues. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern failed to assist a student who had difficulty with a math problem at the board.5 Ms. Thomas rated Ms. Stern deficient in indicators IV.H.1. and 2. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to clarify areas of potential confusion or to clarify areas of confusion after it became obvious that the students did not understand the assigned math problems involving "regrouping." Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern wrote problems on the board and directed the students to solve them without providing any explanation. When several students asked Ms. Stern how to do the problems, she told them she would go over it later, but she did not do so during the math lesson. It was Ms. Thomas's general impression during her February 5, 2002, observation, that Ms. Stern was unable to manage the students in her class. There were many disruptions in the classroom that distracted the students and made it difficult for them to learn. Ms. Thomas estimates that approximately 90 percent of the students in the class were off-task at some point during the observation. On February 20, 2001, Ms. Thomas held a Conference- for-the-Record with Ms. Stern.6 Also present at the conference were Ms. Brown, as well as Ms. Marcos and Ms. Rolle, Ms. Stern's union representatives. During the conference, Ms. Thomas discussed the February 5, 2001, observation with Ms. Stern, and they discussed the prescription plan activities that Ms. Thomas had developed to assist Ms. Stern in correcting the deficiencies identified in the Record of Observed Deficiencies/Prescription for Performance Improvement and the timelines for completion of the prescription plan activities. It was agreed that Ms. Stern would complete all of the prescription plan activities by March 15, 2001. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers that were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. The Summary of the Conference-for-the-Record and Prescription dated February 20, 2001, reflects that Ms. Stern was advised during the conference that her 90-Calendar Day Performance Probation period would commence the day after the conference, on February 21, 2001. Ms. Stern was also advised by Ms. Thomas that, after the conclusion of the probation period, she would determine whether Ms. Stern had corrected the cited deficiencies during the probation period and would make a recommendation to the Superintendent at the conclusion of the probation period that could lead to the termination of Ms. Stern's employment. On February 20, 2001, Ms. Stern signed the CAI Post-Observation Report, the Record of Observed Deficiencies/Prescription for Performance Improvement, and the Summary of the Conference-for-the-Record and Prescription, thereby indicating that she had seen and received a copy of these documents. Ms. Stern completed approximately 80 percent of the prescription plan activities in the February 5, 2001, Record of Observed Deficiencies/Prescription for Performance Improvement by the March 15, 2001, deadline. March 16, 2001, observation. Ms. Brown, the assistant principal at Campbell Drive Elementary, conducted a formal observation of Ms. Stern's classroom performance on March 16, 2001, when she observed Ms. Stern's second grade language arts class from 9:00 a.m. until 10:45 a.m. Ms. Brown's impression was that Ms. Stern was agitated and angry that day and was unable to control the class or to teach adequately. Ms. Brown completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Brown rated Ms. Stern's classroom performance acceptable in the categories of Knowledge of Subject Matter, Teacher-Student Relationships, and Assessment Techniques. Ms. Brown rated Ms. Stern's classroom performance unacceptable in the categories of Preparation and Planning, Classroom Management, and Techniques of Instruction. The TADS Monitoring Committee reviewed the Record of Observed Deficiencies/Prescription for Performance Improvement and gave Ms. Stern credit for indicators IV.F.1., 2., and 3.; this change resulted in Ms. Stern's being rated acceptable in the category of Techniques of Instruction. Specifically, Ms. Brown rated Ms. Stern deficient in indicator I.A.1. of the Preparation and Planning category on the CAI Post-Observation Report because Ms. Stern failed to include in her lesson plan assessment tools, homework, materials, and most of the lesson's objectives and activities. Ms. Brown rated Ms. Stern deficient in indicator I.B.1. of the Classroom Management category on the CAI Post-Observation Report because Ms. Stern failed to prepare content and instructional activities to fill the allotted classroom time. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, although the language arts block of instruction was scheduled from 9:00 a.m. to 11:00 a.m., Ms. Stern instructed the students to put their heads on their desks at 10:40 a.m., terminating the language arts instruction. Ms. Brown rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report because, throughout the observation period, Ms. Stern allowed unnecessary delays during instruction and transitions. The notes Ms. Brown included in the Record of Observed Deficiencies/Prescription for Performance Improvement reflect that Ms. Stern spent approximately 20 minutes of the language arts period making comments to the students about the quality of their work and attempting to get their attention. As reported by Ms. Brown: The teacher called out one comment and direction after the other, such as "I don't hear anything from table 4. excuse me, I just said your tables not talking. you did a beautiful job. thank you, Yrline, did you hear me?" "Salami, one, two, three, four. Now take your paper . . . everybody's eyes up here! Salami! Denise, table 1, your eyes up here, table 1, 2, 3, 4. Take your paper . . . Christian, Okoya, Desiree, Stanley, take your paper . . . excuse me." "Salame" is an acronym for "Stop and look at me," and its use is recommended as a technique for quieting students. Ms. Stern did not apply the technique correctly, however, because she talked very quickly and did not wait to give the students a chance to quiet down. Ms. Brown rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that students were talking and calling out to one another, making noises, and getting out of their seats while Ms. Stern read a story. Ms. Brown also noted that Ms. Stern told students to raise their hands, then accepted answers from students who had not raised their hands, and failed to correct a student who was out of his seat and sitting with a student who had been separated from the group for being disruptive. Ms. Brown rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that a student that Ms. Stern had separated from the class for being disruptive was allowed to spend 20 minutes building a house with word cards; that a student spent 15 minutes with his chin on his desk doing nothing without Ms. Stern's redirecting him, and, although she said she would return to help him, she did not do so; and that, in several instances, Ms. Stern either failed to correct students who were behaving inappropriately or ignored students when they failed to respond to her directions. Ms. Brown rated Ms. Stern deficient in indicator III.C.1. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to make her expectations regarding appropriate behavior clear to the students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, although Ms. Stern told students to raise their hands to answer questions, she accepted answers called out by students who did not raise their hands and failed to call on students who had raised their hands; that Ms. Stern re-enforced inappropriate behavior by telling a student that he was doing well when he was not working but was turned around in his seat talking to a student behind him; and that, although class rules were posted in the classroom, Ms. Stern did not refer to them. Ms. Brown rated Ms. Stern deficient in indicators III.C.3. and 4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to identify and deal quickly and appropriately with students who interacted with others inappropriately and interfered with the work of others. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern either did not notice, or ignored, students' inappropriate behavior, which included a student doing work in another student's phonetic workbook; students talking and making noises while Ms. Stern was talking or reading; students laughing at another student, who had been sent to the corner and responded to Ms. Stern's direction to get up by standing up and turning around and around. Ms. Brown also noted that Ms. Stern did not state the consequences for students who were continuously told to stop calling out or were continuously told to sit down. Ms. Brown rated Ms. Stern deficient in indicator IV.F.4. of the Classroom Management category on the CAI Post-Observation Report because, as noted in the Record of Observed Deficiencies/Prescription for Performance Improvement, during the observation, Ms. Stern failed to refer back to the objective of the lesson, to relate one part of the lesson to other parts of the lesson, and to summarize the lesson and apply it to past or future lessons.7 A conference was held on March 23, 2001, with Ms. Stern, Ms. Thomas, and Ms. Brown in attendance. No written summary of the conference was prepared, but Ms. Stern signed the CAI Post-Observation Report and the Record of Observed Deficiencies/Prescription for Performance Improvement on March 23, 2001, acknowledging that she had seen and received a copy of the documents. At the March 23, 2001, conference, Ms. Thomas, Ms. Brown, and Ms. Stern discussed the results of the March 16, 2001, observation and the prescription plan activities that Ms. Brown had developed to assist Ms. Stern in correcting the deficiencies identified in the Record of Observed Deficiencies/Prescription for Performance Improvement, as well as the timelines for completion of the prescription plan activities. It was agreed that Ms. Stern would complete all of the prescription plan activities by April 20, 2001. The April 20, 2001, deadline was extended until May 18, 2001, because of Ms. Stern's absences, as discussed below. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers that were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. May 17, 2001, Conference-for-the-Record. In a memorandum dated May 7, 2001, and directed to Dr. Thomasina O'Donnell, a District Director in the School Board's Office of Professional Standards, Ms. Thomas requested that Dr. O'Donnell take control of the "re-entry" of Ms. Stern. Ms. Thomas asked for Dr. O'Donnell's intervention because Ms. Stern had been absent a total of 22 personal and sick days and because Ms. Stern was on 90-Calendar Day Performance Probation. As a result of Ms. Thomas's request, Dr. O'Donnell sent a memorandum dated May 7, 2001, to Ms. Stern telling her that she needed to contact the Office of Professional Standards before she returned to work so that a clearance conference could be scheduled. The clearance conference was held on May 16, 2001, at the Office of Professional Standards. Dr. O'Donnell, Ms. Thomas, Clemencia Waddell, Director of Region VI, and Dia Falco, Ms. Stern's UTD representative, attended the conference. As reflected in the Summary of the Conference-for-the-Record, the purpose of the conference was to address Ms. Stern's performance assessments, her attendance, and her medical fitness to perform her duties and to review Ms. Stern's record and her future employment status with the Miami-Dade County public school system. As of May 15, 2001, Ms. Stern had used more sick time than she had accrued, and Dr. O'Donnell advised her that her absences, which consisted of 21.5 sick and personal days and 1/2 days of unauthorized leave without pay, were considered excessive. Ms. Stern's performance evaluations were also discussed at the conference, and it was noted that she had been provided prescription plan activities to assist her in correcting the deficiencies identified in the March 16, 2001, observation report, which activities were to have been completed by April 20, 2001. Ms. Stern had not provided the required materials to Ms. Thomas or Ms. Brown, but, because she was absent beginning on April 18, 2001, Ms. Stern was directed to provide all of the required materials for the prescription plan activities to Ms. Thomas by the end of the workday on May 18, 2001. Ms. Stern was advised that the failure to provide these materials within the time specified would be considered a deficiency in Category VII, which is the Professional Responsibilities category of TADS, and that she would be placed on a Category VII prescription. Several directives were included in the Summary of the Conference-for-the-Record, and Ms. Stern was advised that she was cleared to return to work on May 17, 2001. May 22, 2001, observation. Ms. Brown conducted a formal observation of Ms. Stern's classroom performance on May 22, 2001, when she observed Ms. Stern's second grade language arts class from 9:00 a.m. until 11:00 a.m. Ms. Brown's overall impression was that Ms. Stern 's performance was worse than it was during the observation on March 16, 2001. Ms. Brown completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Brown rated Ms. Stern's classroom performance acceptable in the categories of Teacher-Student Relationships and Assessment Techniques. Ms. Brown rated Ms. Stern's classroom performance unacceptable in the categories of Preparation and Planning, Knowledge of Subject Matter, Classroom Management, and Techniques of Instruction. Specifically, Ms. Brown rated Ms. Stern deficient in indicator I.B.1. of the Preparation and Planning category on the CAI Post-Observation Report because Ms. Stern had failed to plan content and instructional activities to fill the classroom time allotted for the language arts block. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern took the students to the library at 10:30 a.m., but had completed her planned classroom activities at 9:55 a.m. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to present information in a meaningful or orderly manner. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that "[t]he sequence of the ideas did not flow into one another. The teacher asked questions and talked about whatever came to her mind, . . ." Ms. Brown also noted that there was no logical sequence of activities or framework established for the activities. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to tell the students the most important topics in the lesson or various applications of the topics introduced in the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not tell the students what they would be doing and did not relate the lesson to the students' experiences. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to present information using analysis or comparisons. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not ask open-ended questions, that she limited her questions to those that were simple and basic, and that she failed to challenge the students beyond one cognitive level. Ms. Brown rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report. The notes Ms. Brown included in the Record of Observed Deficiencies/Prescription for Performance Improvement reflect that Ms. Stern wasted 12 minutes of instruction time because of delays attributable to her repeatedly consulting her lesson plan during class and failing to use student helpers to pass out papers to the class, causing the students to wait without instruction until she passed out all of the papers. Ms. Brown rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not notice or noticed but chose not to re-direct a student who was making a paper airplane and rearranging his desk and the inside of his book bag for a period of 15 minutes and that Ms. Stern did not speak to a student who, for a period of 10 minutes, sat with her knees to her chest. Ms. Brown also noted that Ms. Stern thanked two students for no apparent reason. Ms. Brown rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not notice for two minutes that a student had slid his chair halfway across the room to place it beside that of another student and that, when she noticed, she merely told the student to sit down. Ms. Brown also noted that a student fell asleep at 9:45 a.m.; after about 10 minutes, Ms. Stern noticed the student, asked if he had stayed up late the night before, and left him to sleep until he awoke at 10:25 a.m. Ms. Brown rated Ms. Stern deficient in indicator of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to make her expectations regarding appropriate behavior clear to the students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern told the students that she "love[d] the way everyone is talking at once but it doesn't help" and that Ms. Stern continued to accept answers from students who called out, accepting more answers from these students than from the students who raised their hands. Ms. Brown rated Ms. Stern deficient in indicator of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide the students with appropriate and correct verbal feedback regarding specific behaviors. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern ignored two students who had their hands up for several minutes and accepted answers called out by other students. Ms. Brown also noted that Ms. Stern praised the class for working well together when the activity was an activity that each student worked on alone. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to give the students necessary background about their activities. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not tell the students the ideas or skills they were to learn from the two stories that she read to them, one about a bear with a toothache and one about an octopus; she merely told the students that she was going to read a book. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to tell the students how each activity related to the other activities. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not emphasize the important topics in the two stories or link the topics in the stories to future activities. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to sequence activities and failed to point out any logic to the order in which she presented components of the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern went from one activity to the next without having an apparent goal or order to the lesson. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide closure to the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not summarize, recapitulate, or apply any of the concepts in the lesson to any past or future lessons. Ms. Brown rated Ms. Stern deficient in indicator IV.H.2. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to clarify the students' confusion. Ms. Brown relates in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern asked a student a question about an octopus; when the student answered, "The end of one of the octopus' tails is the mouth," Ms. Stern's only response was "OK. I don’t quite understand but OK." Ms. Brown also noted that Ms. Stern passed out word cards to the students but never told them what to do with the cards. Ms. Brown rated Ms. Stern deficient in indicator IV.H.4. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to answer quietly the questions of individual students but would address the entire class when answering the questions of one or two students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern interrupted the entire class several times to answer the questions of two students, with the result that the class did not have enough quiet time to read and complete the activity. A Conference-for-the-Record was held on May 23, 2001, which was attended by Ms. Thomas, Ms. Brown, and Ms. Stern.8 During the conference, the deficiencies noted by Ms. Brown during her observation on May 22, 2001, were discussed, as well as the prescription plan activities that Ms. Stern was to complete to assist her in correcting the deficiencies. The timeline for completion of the prescription plan activities was also discussed, and it was agreed that Ms. Stern would complete all the prescription plan activities by June 13, 2001. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers who were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. Ms. Stern's failure to complete the prescription plan activities included in the March 16, 2001, observation by the May 18, 2001, deadline was also discussed at the May 23, 2001, Conference-for-the-Record. The Summary of the Conference-for- the-Record reflects that Ms. Brown went over with Ms. Stern the prescription plan activities that were not completed. As a result of her failure to complete the prescription plan activities, Ms. Thomas placed Ms. Stern on prescription for Category VII, the TADS Professional Responsibilities category. Ms. Stern had been advised at the May 17, 2001, Conference-for- the-Record at the Office of Professional Standards that a Category VII prescription would be the consequence if she failed to complete the prescription plan activities by the May 18, 2001, deadline. Ms. Stern ultimately completed the prescription plan activities in the March 16, 2001, Record of Observed Deficiencies/Prescription for Performance Improvement, although Ms. Brown had a difficult time determining that Ms. Stern completed all of the activities because the materials she submitted to Ms. Brown were very disorganized. Ms. Stern also turned in by the June 13, 2001, deadline all of the written materials required in the prescription plan activities assigned as a result of the May 22, 2001, observation. She did not, however, turn in her weekly lesson plans to Ms. Brown prior to implementing them, as she had been instructed; rather, she turned in her lesson plans late, and, near the end of the 2000-2001 school year, she did not turn in any lesson plans. September 13, 2001, Confirmatory Observation. In a letter to Ms. Stern dated April 26, 2001, Dr. O'Donnell acknowledged having received a request for medical leave from Ms. Stern for the period extending from April 18, 2001, through May 4, 2001. In the letter, Dr. O'Donnell clarified for Ms. Stern the School Board's position with respect to the impact of her absences on the calculation of the days remaining in her 90-Calendar Day Performance Probation period. Dr. O'Donnell confirmed in the letter that Ms. Stern's probation period began on February 21, 2001, and that the prescription plan activities arising out of the March 16, 2001, observation were due to be completed on April 20, 2001. Dr. O'Donnell further advised Ms. Stern that the first 10 days of absence were included in the calculation of the 90 calendar days of the probation period and that, accordingly, the end of her probation period would be extended from May 31, 2001, to June 6, 2001, both of which dates fell within the final 10 days of the school year. Dr. O'Donnell acknowledged in the April 26, 2001, letter that, normally, no observations were performed during the first and final 10 days of a school year, but she advised Ms. Stern that her 90-day probation period must be concluded by June 16, 2001, because the Miami-Dade County public school system was to change from TADS to PACES for teacher performance evaluations, effective at the beginning of the 2001-2002 school year. Accordingly, Dr. O'Donnell put Ms. Stern on notice in the April 26, 2001, letter that her confirmatory observation would take place after her 90-Calendar Day Performance Probation period ended on June 6, 2001. In a letter dated May 9, 2001, Ms. Falco, on behalf of the UTD, advised Dr. O'Donnell that, first, she had misstated the rule regarding the treatment of absences. According to Ms. Falco, the UTD Contract provided that the first 10 days of absence were not to be counted in calculating the 90 days. Nonetheless, Dr. O'Donnell's calculation of June 6, 2001, as the last day of Ms. Stern's probation period was correct. Ms. Falco also took issue with Dr. O'Donnell's decision to complete Ms. Stern's probationary period on June 16, 2001, and she advised Dr. O'Donnell that the then-current observation procedures prohibited any formal observations during the first and final 10 days of the school year and that the UTD would appeal any formal observation of Ms. Stern conducted during the final 10 days of the 2000-2001 school year. Finally, Ms. Falco advised Dr. O'Donnell that the Joint Committee had not yet determined how to treat teachers whose probation periods carried over into the 2001-2002 school year, when teachers were to be evaluated under PACES. The Joint Committee considered Ms. Stern's case individually and decided that Ms. Stern's confirmatory observation was to be conducted using TADS rather than PACES. Ms. Stern was not disadvantaged by having this observation conducted under TADS because it is easier for a teacher to get an acceptable evaluation under TADS than under PACES. In accordance with the position taken by the UTD and because Ms. Stern could not be observed during the first 10 days of the 2001-2002 school year, the end of Ms. Stern's 90-Calendar Day Performance Probation period was finally determined to be September 10, 2001. On September 13, 2001, Ms. Thomas conducted a formal observation of Ms. Stern's classroom performance when she observed Ms. Stern teach a second grade math class from 1:30 p.m. to 2:30 p.m. This observation was the required confirmatory observation conducted to determine whether Ms. Stern had corrected the performance deficiencies identified in the February 5, 2001, March 16, 2001, and May 22, 2001, observations. Ms. Thomas completed a CAI Post-Observation Report in which she reported that she found Ms. Stern's classroom performance unacceptable in all five categories of TADS, Preparation and Planning, Knowledge of Subject Matter, Classroom Management, Techniques of Instruction, Teacher-Student Relationships, and Assessment Techniques. Ms. Thomas based her determination that Ms. Stern's classroom performance was unacceptable on several factors. During the September 13, 2001, observation, Ms. Thomas noted that Ms. Stern was not teaching the lesson identified on her lesson plan; one of the students repeatedly threw paper across the room into a garbage can without re-direction by Ms. Stern; students were talking to one another and moving around the room during the entire lesson, to the extent that it was difficult for Ms. Thomas to hear Ms. Stern; Ms. Stern did not remind students who were misbehaving of the class rules; Ms. Stern appeared not to notice a student crawling around on the floor; Ms. Stern told students to raise their hands, but she did not call on the students who did so; and Ms. Stern had only two grades for the students in her grade book at a point in the school year when she should have had two grades listed for each student for each week of school in each the five subjects she taught in her second grade class, or over 40 grades. Recommendation for termination. On September 17, 2001, Ms. Thomas notified Ms. Stern that she had failed to comply with the Category VII prescription imposed on May 23, 2001, because she had failed to turn in any lesson plans during the first weeks of the 2001-2002 school year. On September 17, 2001, Ms. Thomas also presented to Ms. Stern for her signature a form that Ms. Thomas intended to submit to Dr. George M. Koonce, Regional Superintendent, containing Ms. Thomas's recommendation that Ms. Stern's employment contract be terminated because she had not satisfactorily corrected the noted performance deficiencies within the 90-Calendar Day Performance Probation period. Ms. Stern refused to sign the form to acknowledge that she was aware of the recommendation. Dr. Koonce indicated his approval of Ms. Thomas's recommendation and forwarded it to the Deputy Superintendent for Personnel and Management Services, who, in turn, forwarded the recommendation to the Superintendent of the Miami-Dade County Public Schools. In a letter dated October 1, 2001, the Superintendent notified Ms. Stern that he was recommending to the School Board that her employment contract be terminated at its October 24, 2001, meeting. Ms. Stern timely contested the recommendation, and this administrative proceeding commenced. Summary The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Stern failed to correct the deficiencies identified in her classroom performance within the 90-Calendar Day Performance Probation period, that School Board personnel adhered to the applicable evaluation procedures in assessing Ms. Stern's teaching performance and in reaching the decision to terminate her for unsatisfactory teaching performance, and that the School Board adhered to all statutory timeframes. Throughout the duration of Ms. Stern's 90-Calendar Day Performance Probation period, Ms. Thomas and Ms. Brown offered Ms. Stern assistance to help her correct the deficiencies in her classroom performance. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that, although Ms. Stern completed many of the prescription plan activities identified in the Record of Observed Deficiencies/Prescription for Performance Improvement for the observations of February 5, March 16, and May 22, 2001, she was unable or unwilling to implement in the classroom the techniques and lessons included in the prescription plan activities and failed to correct the deficiencies in her classroom performance. In her testimony, Ms. Stern did not dispute any of the facts included by Ms. Thomas and Ms. Brown in the Record of Observed Deficiencies/Prescription for Performance Improvement for the formal observations of February 5, March 16, and May 22, 2001. Rather, Ms. Stern presented in her testimony justifications for and explanations of her classroom performance during the formal observations. This testimony has been considered and found insufficient to rebut the evidence of unsatisfactory performance presented by the School Board: Ms. Stern's second grade class was composed of students of varying abilities and ethnic backgrounds, but so were all of the second grade classes at Campbell Drive Elementary. Ms. Stern's classroom may not have provided an optimum environment for teaching, but the shortcomings of the physical and technological facilities provided to Ms. Stern do not justify the noted deficiencies in her teaching and classroom skills. Finally, Ms. Stern's laissez-faire attitude regarding the inappropriate behavior of her students is difficult to reconcile with her obligation as a teacher to maintain a classroom environment in which opportunities for learning are maximized.9
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order terminating the professional services contract of Joanne T. Stern. DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2002.
The Issue The issue in this case is whether Petitioner, Department of Children and Families (Department), should impose a $75 fine on Respondent, Jumpstart Enrichment Program, Inc. (Jumpstart), and place it on probation for up to six months for not complying with child care facility staff-to-children ratio requirements for the fourth time.
Findings Of Fact The Department has issued Respondent license C09OR0629 to operate a child care facility in Orlando under sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. The statutes and rules have minimum staff-to-children ratio requirements that are clear, but not uncomplicated, and not always easy to implement. It is necessary to have one staff person for every four children from birth to age one, for every six aged one to two, for every ten aged two to three, for every 15 aged three to four, for every 20 aged four to five, and for every 25 aged five or older. Generally, the ratio requirement for a mixed group of children aged two or older is dictated by the age group with the largest number of children in the group. However, if children under the age of two are present, the ratio requirement for a group is dictated by the age of the youngest child. It was undisputed that staff-to-children ratio requirements are Class II standards under the Department's rules. Citation Issued January 6, 2012 The Administrative Complaint alleges that a citation for insufficient staff was issued to Respondent during a Department inspection on January 6, 2012. It alleges that this was the fourth violation of the standard, justifying a $75 fine and probation for up to six months conditioned on being subject to unannounced visits to ensure compliance with all statutes and codes and on ensuring the maintenance of appropriate staff-to- children ratio. On January 4, 2012, Sabrina Hayles and Conswela Green were the staff on duty at Jumpstart. Eight children were present that morning when Ms. Hayles left the facility to go to lunch. She took two of the children with her so that Ms. Green would meet ratio requirements for the remaining six. While Ms. Hayles was gone, a grandmother dropped off another child, which put the facility out-of-compliance with staffing ratio requirements. Ms. Green asked the grandmother to stay until Ms. Hayles returned, but she said she had an appointment and could not stay. Ms. Green accepted the child into the facility and telephoned Ms. Hayles to tell her to return to the facility because they were out-of-compliance. Ms. Hayles, who already was on her way back, arrived several minutes later. The facility's being out- of-compliance was observed by staff from the Early Learning Coalition of Orange County (ELCOC), who happened to drop some paperwork off at the facility at that time. ELCOC reported the ratio violation to the Department, which investigated the allegation on January 6 and issued a citation. The Administrative Complaint alleges that this was Respondent's fourth insufficient staff violation and that the previous violations were on September 9 and April 14, 2011, and on August 20, 2010. Alleged Violation on September 9, 2011 There was no evidence of a staffing ratio violation on September 9, 2011. Actually, there was a staffing violation on September 7, 2011. One staff was caring for an infant and five toddlers; two staff were required. ELCOC reported the violation to the Department. When apprised of the violation, Michael Collins, the owner and director of the facility, took immediate action to increase staffing and bring the violation to an end as soon as possible. The Department investigated on September 9, 2011, verified the violation through interviews with Shawnda Bernard, and cited Respondent for the violation on September 9, 2011. Alleged Violation on April 14, 2011 Another entity involved in child care and school readiness, referred to in the hearing as Devoreaux, reported to the Department on April 12, 2011, that there was one staff caring for 13 children, when two staff were required. The Department investigated on April 14, 2011, determined from interviews with staff that the violation had in fact occurred, and cited Respondent for the violation. There was hearsay evidence of another staffing violation after the Department's inspection on April 14, 2012. The second alleged violation was not proven by any direct evidence or by any hearsay evidence that would be admissible over objection in a civil action. See § 120.57(1)(c), Fla. Stat. Alleged Violation on August 20, 2010 On August 20, 2010, the Department conducted a routine inspection and cited Respondent for having six children at its facility and no staff, just the owner/director, Mr. Collins. Two qualified staff were required for the six children. There was an unscreened volunteer there, who would have counted and made the staffing ratio sufficient prior to August 1, 2010, when the law changed to require staff to be screened. First Affirmative Defense In May 2011, the Department filed an Administrative Complaint against Respondent charging staffing ratio violations on August 20, 2010, and on August 6 and December 28, 2009, plus numerous other kinds of violations, including some on August 20, 2010. In October 2011, the Department and Respondent settled the charges in that Administrative Complaint by payment of a $500 fine (reduced from $2,205) and a reduced period of probation, through August 15, 2011. The alleged facts and charges were not admitted as part of the settlement. The settlement included a provision that the Department would "make no further orders and will take no further action on the Administrative Complaint and underlying violations in connection with this proceeding that is being settled." It also including a provision in the next numbered paragraph saying: However, if in the future, the Petitioner should have to take administrative action against the Respondent, the Respondent agrees that the Petitioner shall not be estopped from using the facts set forth in the Administrative Complaint in this case as additional basis' [sic] for any future denials, revocations or other administrative actions, taken against the Respondent by the Petitioner resulting from any future non- compliances with applicable statute, code or agreements, by the Respondent. Since one of the "facts set forth" in the settled Administrative Complaint was that Respondent had insufficient staffing on August 20, 2010, the Department was not estopped from using those facts as it does in this case--i.e., as one of the three staffing violations that preceded the one in January of 2012. Second Affirmative Defense Because of the insufficient staffing on January 4, 2012, ELCOC withheld payment for that day under the federal school readiness program it administers, which requires qualified staff to be present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order: finding Respondent guilty as charged; fining Respondent $75; and placing Respondent on probation for six months, with unannounced visits to ensure compliance with all statutes and codes, including the maintenance of appropriate staff-to-children ratio. DONE AND ENTERED this 17th day of September, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 17th day of September, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Jack P. Caolo, Esquire 131 East Woodland Drive Sanford, Florida 32773 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
