The Issue Whether Petitioner, Lee County School Board (School Board), has established "just cause" to terminate the Respondent, Patricia Slade (Ms. Slade), as a teacher.
Findings Of Fact Ms. Slade is a teacher at Lehigh Acres Elementary School and has worked for the Lee County School District since August 19, 1997. As a teacher, Ms. Slade is an instructional employee and her employment is governed, in part, by the collective bargaining agreement between the School Board and the Teachers Association of Lee County (TALC). The School Board is charged with the operation of the free public education in Lee County, Florida, and has the authority to terminate or suspend instructional employees. See § 1012.22(1)(f). The record shows by preponderance of the evidence that Ms. Slade has fallen asleep in her classroom during the school day on several instances and on one occasion left her classroom unattended. The record shows that for school year 2010-2011, Ms. Slade was a teacher for pre-kindergarten children, who are four-years-old. The School Board witnesses credibly testified that they had observed Ms. Slade asleep in the classroom on different dates. Ms. Sanchez, a grandmother of one of the students in Ms. Slade's classroom and school volunteer, credibly testified that she had observed Ms. Slade asleep three or four times during the school year. In one instance, Ms. Sanchez observed Ms. Slade asleep during the children's naptime for a period of approximately 30 minutes. Ms. Sanchez's testimony was corroborated by the credible testimony of Ms. Hicks, a former teacher and two teacher aides, Ms. Serrano and Ms. Kinney. Ms. Hicks credibly testified that she observed Ms. Slade on three occasions. Ms. Hicks described one of the occasions when she walked into Ms. Slade's classroom during the afternoon and found her asleep on the floor. Similarly, Ms. Serrano credibly testified that sometime in January 2011, during the students' naptime, Ms. Kinney had come to her classroom and asked Ms. Serrano to watch Ms. Slade's class while Ms. Kinney left to use the restroom. Upon entering Ms. Slade's classroom, Ms. Serrano found Ms. Slade asleep on the floor. Ms. Serrano credibly testified that she woke Ms. Slade up, because Ms. Serrano had to go back to her own classroom. Finally, Ms. Kinney, who was Ms. Slade's teacher aide, credibly testified that Ms. Slade had fallen asleep once before the winter break and more frequently after the winter break. In a written statement provided by Ms. Kinney to the school, Ms. Kinney indicated by February 2011, Ms. Slade was falling asleep in the classroom "once a week to every other week." During one of Ms. Slade's midday naps after the winter break, Ms. Kinney took a picture with a cell phone of Ms. Slade sleeping on the floor. The photograph, which was admitted into evidence, clearly shows Ms. Slade asleep on the floor of the classroom with the students asleep on their mats around her. The record also shows that on February 15, 2011, Ms. Slade fell asleep in the classroom. Mr. Dworzanski, assistant principal for the school, credibly testified that he went to Ms. Slade's classroom after being called by Ms. Kinney, because Ms. Slade was asleep. Mr. Dworzanski credibly testified that he found Ms. Slade "sitting underneath where the smart board was propped up against the wall and she was asleep." Mr. Dworzanski further testified that Ms. Slade was difficult to wake and that she was incoherent when she was finally aroused. Based on her incoherence, Ms. Slade was taken to the school nurse and paramedics were called. After this February 15, 2011, incident, Ms. Slade did not return to the class. Ms. Slade offered that she had "passed out" on the February 15, 2011, incident as the result of acute bronchitis. While Ms. Slade testified that she had acute bronchitis, her testimony was not credible for showing that her diagnosis of acute bronchitis was the cause for her being asleep or in an unconscious state on February 15, 2011. Therefore, the undersigned finds that there was no competent evidence to explain why Ms. Slade slept during the school day. Mr. Dworzanski credibly explained that a teacher is not permitted to sleep during the pre-kindergarten student's naptime, because the teacher must monitor the students and keep them safe. Apparently, not all four-year-old students sleep during naptime and the teacher needs to keep an eye on the students. Next, the record supports the finding that on one instance Ms. Slade left her class unattended. Ms. Kinney credibly testified that on one occasion Ms. Kinney went to the cafeteria to retrieve the school lunches. Upon returning to the classroom, Ms. Kinney did not see Ms. Slade in the classroom. Further, there was no adult supervision in the classroom when Ms. Kinney entered the class with the lunches. When asked by Ms. Kinney, the students informed her that Ms. Slade had gone to the bathroom. Ms. Slade returned "several minutes" after Ms. Kinney had returned to the classroom. Ms. Slade does not have any prior disciplinary record with the school, and was an effective teacher when she had been observed teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating the employment of Patricia Slade, as a teacher. DONE AND ENTERED this 15th day of November, 2011, 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 15th day of November, 2011.
The Issue The issue presented is whether Respondent's employment by the School Board of Miami-Dade County, Florida, should be terminated.
Findings Of Fact At all times material hereto, Respondent was employed as a teacher at Van E. Blanton Elementary School, pursuant to a professional service contract. Van E. Blanton is a typical elementary school within the Miami-Dade County school system, except that it is classified as a "D" school. As in any school, some students engage in disruptive behavior. Respondent holds a Bachelor of Science degree from Florida International University and is certified to teach English as a second language. Pursuant to her certification, she is eligible to teach elementary school students in grades one through six. She has taught for seventeen years. During the 1998-1999 school year Respondent taught third grade. During the 1999-2000 school year she was assigned to teach first grade. Teachers employed by the Miami-Dade County School Board are evaluated pursuant to the Teacher Assessment and Development System (hereinafter "TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and the United Teachers of Dade (hereinafter "UTD"). The same TADS documents are used for all grade levels, subject areas, and teachers, whether new or veteran. TADS objectively measures 67 minimal behaviors necessary for teaching. At all times material hereto, TADS was used to evaluate Respondent's performance. TADS includes in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. All teachers are informed of the criteria and procedures. All new teachers receive a copy of "Mini-TADS," a reduced photocopy of the publication entitled "Teacher Assessment and Development System." At the beginning of each school year, school principals are required to review the assessment criteria at faculty meetings. TADS observations and ratings are performed by school principals and assistant principals. TADS observers are trained and certified. The TADS training takes four days and includes the following components: strategies for pre-observation, classroom observation, decision-making with the Classroom Assessment Instrument, post-observation interview, prescription/probation of professionals, recommendations for improvement (prescriptive activities), assisting teachers in the design of instruction and improvement activities, practical activities such as video assessment, and actual classroom teacher assessment under the supervision of a trainer. The observer records deficiencies observed during the observation period and provides a prescription (a plan) for performance improvement. A post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response, either in the space provided in column 3 of the "Prescription for Performance Improvement" or by separate document that becomes part of the teacher's file. The teacher is required to comply with the activities provided in the prescription plan, which are usually obtained from the "Prescription Manual," and to meet the deadlines set forth in the column designated "Timeline" in the prescription performance improvement plan. As a result of the statutory amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedure to comply with the new statutory requirements. Under the amended procedures, a conference for the record initiates a 90 calendar-day performance probation period. Each observation stands on its own, and there must be periodic observations during the performance probation period in which the employee is apprised of his or her progress and is provided assistance through prescription plans. After the performance probation period is concluded, there is a confirmatory observation without a prescription plan. On March 30, 1999, Respondent was formally observed by Principal Edith Hall during math class. She was rated unsatisfactory in Category III, Classroom Management, and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in classroom management because she did not effectively use verbal or non- verbal techniques to redirect off-task learners. Several students misbehaved and violated classroom rules continuously. Respondent did not use techniques effectively to maintain the attention of off-task learners. Clear expectations of student behavior and a systematic approach to proper classroom discipline were not evident. Classroom rules were not referred to, and students who were disruptive were not dealt with quickly and appropriately. Respondent was rated unsatisfactory in techniques of instruction because Respondent did not provide background information and information as to why the topic of surveys was being taught. Respondent started with the wrong textbook and abruptly changed books without explanation and without setting the stage for the lesson. Lesson components were not appropriately sequenced. Activities were not in her lesson plans. Respondent and her students read material together, and students were told to copy a chart. There was no closure to assist the students in understanding the concept of surveys. Little or no instruction or learning took place. During the post-observation conference for the record held April 14, 1999, Respondent was advised that her performance was unacceptable, that starting on that date she was placed on a 90 calendar-day performance probation period, and that at the end of her probation period she had to demonstrate that she had corrected the identified deficiencies. This conference took place within 10 calendar days excluding spring recess, which started April 2 and ended April 9, 1999. Principal Hall made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. Respondent provided her written responses in column 3 of the prescription plan, basically explaining her unsuccessful efforts to control students' disruptive behavior. The assistance provided included observing a lesson taught by a fellow teacher and submitting a summary of the verbal and non-verbal discipline techniques used by that teacher to redirect off-task learners. Respondent was also directed to read specific pages from the TADS Prescription Manual, to complete certain activities in that Manual, to develop instructions for proper student behavior, and to submit those activities to the assistant principal for review. Recommended resources, such as administrators and fellow teachers, were also made available to Respondent. Respondent had until May 14, 1999, to complete the prescription activities listed in the April 14 prescription plan. She submitted her completed activities in a timely manner. On May 20, 1999, Respondent was formally observed in her science class by Assistant Principal Christina Miracle as a periodic evaluation to apprise Respondent of her progress. Respondent was found unsatisfactory in Category I, Preparation and Planning, Category III, Classroom Management, and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in preparation and planning because her lesson plans failed to state the objectives, activities, homework, or method of monitoring student progress and because she did not fill the allocated time with instruction. Twenty minutes were wasted waiting for a video that was never shown, which video was not reflected in Respondent's lesson plans for that day. Respondent was rated unsatisfactory in classroom management because there was too much time when there was no instruction taking place. Instructional activities did not begin promptly and did not continue until the end of the allocated time period. Approximately half of the students were not engaged in learning activities. Respondent did not effectively use verbal and non-verbal techniques to redirect the off-task behavior. Respondent was rated unsatisfactory in techniques of instruction because she did not follow a sequence of instruction and did not refer to any previous information that students should possess to facilitate learning the lesson. In addition, the lesson components were not appropriately sequenced. First, Respondent stated that they would be learning about animals but when the video was not shown, she proceeded to discuss natural resources. No explanation or connection was made between the two topics. Respondent made no provision for lesson closure. The students told Respondent it was time to go home and started leaving the classroom. During the post-observation conference on May 27, 1999, Miracle made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The assistance included preparing detailed lesson plans identifying objectives, activities, assessment and homework, submitting her lesson plans to the assistant principal on a weekly basis, and observing a fellow teacher to note verbal and non-verbal techniques. The prescription also required Respondent to submit to the assistant principal a classroom management plan to implement in Respondent's classroom. Respondent was also directed to complete several specific activities from the TADS Prescription Manual and to discuss them with the assistant principal. Recommended resources from the administration and the TADS Prescription Manual were also made available to Respondent. Respondent's prescription plan activities were due on September 10, 1999, but she did not submit them. Respondent was given until September 27 to complete those activities, but she again failed to complete them. On September 15, 1999, Respondent was formally observed in her language arts class by Principal Hall. Respondent was rated unsatisfactory in the categories of Preparation and Planning, Knowledge of Subject Matter, Classroom Management, Techniques of Instruction, and Assessment Techniques. Respondent's performance was unsatisfactory in the area of preparation and planning because the content of the lesson and the activities were not related to the objective listed in the lesson plan. Respondent did not follow the lesson plan as written. Respondent was rated unsatisfactory in knowledge of subject matter because she did not present information in a sequentially-logical manner. The information presented was disjointed and in an illogical sequence. Respondent failed to present information at more than one cognitive level. The students were asked to trace and color without any probing or higher-level questioning. Respondent was rated unsatisfactory in classroom management because there were no clear expectations for behavior. Students ignored the classroom rules, and Respondent did not refer to those rules when students misbehaved. She did not deal appropriately with off-task students. Many students talked out of turn, got out of their seats without permission, and talked with classmates during instruction. Respondent failed to engage those students in learning. Respondent was rated unsatisfactory in her techniques of instruction because the lesson components were inappropriately sequenced. Respondent began with color words, then discussed time, and then gave directions for heading the paper. She interrupted students by constantly referring to the time remaining to complete the assignment. She did not provide for lesson closure and did not recap any of the activities of the day. Respondent was rated unsatisfactory in assessment techniques because there was only one grade in her grade book and no evidence of more than one kind of assessment. There was no evidence of a variety of test formats. There were no samples of student work on file. During the post-observation conference on September 21, Principal Hall made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the Prescription Plan for Respondent to correct her deficiencies. The assistance included preparation of detailed lesson plans, with objectives, activities, and student assessment, to be submitted to the assistant principal for review on a weekly basis. Respondent was told to follow her lesson plans for each subject each day, to prepare her classroom activities prior to teaching the lesson, and to review those activities with the assistant principal. Arrangements were made for Respondent to observe fellow teachers. Respondent was to prepare a summary of her observations as to how other teachers encouraged their students to improve their behavior and the strategies those teachers used for verbal interaction. Respondent was to include in that summary the manner in which she could incorporate her observations into her own lessons and discuss her summary with the assistant principal. Respondent was told to use the standard teacher grade book to record student attendance and student assessment and to submit her grade book to the assistant principal on a weekly basis. Respondent refused to sign the Prescription Plan and did not submit any written response. The activities required by the Prescription Plan were due September 24, 1999, but Respondent failed to submit them. She was given until September 27 to do so, but again failed to submit them to the assistant principal as directed by the Prescription Plan. On September 29, 1999, Respondent was formally observed in her math class by Principal Hall and was rated unsatisfactory in Classroom Management and Techniques of Instruction. This observation was made within 14 days of the close of Respondent's probationary period and was made for the sole purpose of determining if Respondent's deficiencies had been corrected. This confirmatory observation does not require a prescription plan. On September 30 Respondent was notified that she had failed to submit her prescriptive activities, had failed to meet the Prescription Plan requirements, and had failed to correct her performance deficiencies. On that date Principal Hall forwarded to the Superintendent of Schools her recommendation that Respondent's employment be terminated. On October 5 the Superintendent notified Respondent that he was recommending to the School Board that her employment contract be terminated because she had failed to correct her performance deficiencies during her 90 calendar-day performance probationary period. The School Board's contract with UTD provides for a joint labor/management committee commonly known as the TADS monitoring committee. That committee serves as a forum to resolve complaints regarding observation and evaluation issues. Respondent did not register any complaint with the TADS monitoring committee and did not file any grievance under the UTD contract as a result of any dispute or objection concerning the TADS criteria or procedures or her assessments under TADS. On September 28, 1999, Respondent did file a grievance with UTD claiming harassment by Principal Hall. That grievance did not articulate any dispute with the TADS criteria or procedures used to evaluate Respondent. Respondent's complaint of harassment was based solely on frequent classroom visits by her principal. At a meeting held on October 8, 1999, Principal Hall explained that it was her duty to make classroom visits because Van E. Blanton was rated as a "D" school and that she regularly visited every classroom. Respondent's grievance was filed only after the close of her performance probationary period, and the meeting occurred after the Superintendent had recommended to the School Board that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her cited deficiencies. Respondent was also provided assistance in the form of workshops, monthly grade-level teacher meetings, in-service workshops and classroom demonstrations. Respondent was observed in two of the workshops eating potato chips and not taking any notes. Despite the assistance given to Respondent, she did not improve sufficiently at any time subsequent to April 14, 1999, to obtain a satisfactory rating under TADS. Respondent could have taken the Summer 1999 In-service Program for elementary teachers, or the Dimensions of Learning Program, or the Substitute Teacher Training: Classroom Management and Effective Teaching Techniques, or any of the workshops offered by the Teacher Education Center but did not do so. Under the UTD contract, teachers cannot be required to attend in-service programs held during the summer recess. Participation by teachers in those programs is voluntary. For whatever reasons, Respondent chose not to participate in order to correct her deficiencies during her performance probationary period. Respondent claims that Principal Hall inappropriately performed one of her observations when testing was scheduled. The alleged testing was a diagnostic survey that is done on an individual basis. Teachers are still required to provide learning activities for the other students while such testing is being performed. Further, Respondent failed to perform that required testing, and other teachers had to test Respondent's students. Respondent also claims that the September 29, 1999, observation was performed during a time when she was not scheduled to teach. However, Respondent's class schedule belies that claim. All TADS requirements were completed, and all TADS procedures were properly executed regarding the formal observations of Respondent and the evaluations of her teaching performance. Further, Respondent was not harassed by Principal Hall regarding the formal observations of Respondent pursuant to TADS requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent's employment and denying Respondent's claim for back pay. DONE AND ENTERED this 5th day of May, 2000, in Tallahassee, Leon County, Florida. 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 5th day of May, 2000. COPIES FURNISHED: Dr. Roger Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132-1308 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Lisa N. Pearson, Esquire United Teachers of Dade 2929 Southwest Third Street Miami, Florida 33129 Ana I. Segura, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Kenneth Ingber has been employed by Petitioner and assigned under a continuing contract to West Little River Elementary School. During Respondent's 23 years of employment by Petitioner, he resigned/retired twice. He was rehired by Petitioner after each resignation, the last rehiring taking place for the 1985/86 school year. His then-principal, Glenda Harris, hired him with the knowledge that he was an admitted recovering alcoholic. He told her that he was under control. She told him that she would give him a chance but that he would have to meet the expectations that all teachers have to meet. From the 1985/86 school year through the 1990/91 school year, Harris rated Respondent acceptable on his annual evaluations; however, during the 1989/90 school year, Respondent had an attendance problem when he began drinking again. Harris tried to get Respondent to obtain help, but he felt he could do it on his own. He deteriorated during that year but improved during the 1990/91 school year. During the time that Harris supervised Respondent, she had a problem with his not having lesson plans. He felt that he did not need them. For the 1991/92 school year, Respondent came under the supervision of Principal Lillian Coplin. Coplin was never advised of Respondent's alcoholism. On January 29, 1992, Respondent left school early without permission. He also failed to attend a Global Awareness Workshop scheduled for that day. Coplin discussed these failures with him on January 30, 1992. On January 31, 1992, Respondent arrived at work late and left early. The official working hours are from 8:15 a.m. to 3:20 p.m., but Respondent only worked from 9:47 a.m. to 2:50 p.m. On February 7, 1992, Coplin directed Respondent to observe the working hours set by the collective bargaining agreement between the Dade County Public Schools and the United Teachers of Dade (Labor Contract). On February 27 and March 2, 1992, Respondent failed to have lesson plans. On February 27, 1992, Assistant Principal Edith Norniella observed Respondent smoking outside of his classroom, but within view of his students. Prior to that date, Norniella had observed him smoking on school grounds on August 30, 1991, November 14, 1991 and February 18, 1992. On each of these occasions, she told him not to smoke on school grounds. Coplin had also told him several times not to smoke on school grounds. On March 3, 1992, Coplin directed Respondent to adhere to Petitioner's non-smoking rule. Norniella saw him smoking on school grounds at least two more times after that. On March 3, 1992, Coplin also directed Respondent to develop lesson plans according to the Labor Contract. On March 27, 1992, all teachers were given a site directive to turn in parent logs, gradebooks, and daily schedules before leaving for spring-break on April 3, 1992. On April 3, 1992, Respondent reported to work at 9:25 a.m. in spite of the directive given on February 7, 1992. On that same date, Respondent also failed to comply with the directive to turn in parent logs, gradebooks, and daily schedules. Moreover, by April 22, 1992, he still had not complied with that directive. On April 22, 1992, a conference-for-the-record was held with Respondent to discuss his attendance problems and other failures to comply with School Board rules, Labor Contract provisions, and administrative directives. During the conference, he stated that he lost the gradebook but that the principal would not like it anyway. He also admitted that he did not maintain a parent log. Respondent was warned that any further violation of directives would be considered gross insubordination. He was also issued a written reprimand and directed to comply with School Board rules, Labor Contract provisions, and site directives. He was advised of the School Board's Employee Assistance Program (EAP), a program which offers assistance to employees in overcoming personal problems that may be affecting their work. Respondent declined the assistance and treated the matter as a joke by posting the EAP referral on his classroom door. On May 27, 1992, Respondent was formally observed in the classroom by Norniella, using the Teacher Assessment and Development System (TADS). Respondent was rated unacceptable in preparation and planning and in assessment techniques. He did not have lesson plans, student work folders with tests, or a gradebook. It was impossible to assess his students' progress. Respondent was given a prescription to help him correct his deficiencies. Prescriptions are activities which the employee is directed to complete. He was directed to write detailed lesson plans and to turn them in to Norniella weekly. He was to prepare two teacher-made tests and submit those to Norniella for review. He was also to complete some activities concerning assessment techniques from the TADS prescription manual. His prescription deadline was June 16, 1992. On June 2, 1992, Respondent was wearing a "pocket-knife" on his belt. Both Coplin and Norniella considered the pocket-knife to be a weapon in violation of the School Board rule because, although Respondent did not physically threaten anyone with the knife, the wearing of such a knife was intimidating to students and to Coplin. The matter had come to Coplin's attention through a complaint from the parent of a student. In addition, both administrators believed that wearing a knife set a bad example for the students and did not reflect credit upon Respondent and the school system. On June 3, 1992, a conference-for-the-record was held to address the knife incident. Respondent was issued a written reprimand and directed to cease and desist from bringing the pocket-knife to school. He was further advised that any re-occurrence of that infraction would result in additional disciplinary action. On June 5, 1992, a conference-for-the-record was held to address Respondent's performance and his future employment status. During the conference, he admitted to not having had a written lesson plan during the May 27 observation. He was told of the Labor Contract provision which requires weekly lesson plans reflecting objectives, activities, homework, and a way of monitoring students' progress. He was also warned that if he did not complete the prescription from that observation, he would be placed on prescription for professional responsibilities and given an unacceptable annual evaluation. On June 19, 1992, a conference-for-the-record was held with Respondent. He had failed to correct his deficiencies and had failed to complete his prescription. Moreover, he still had not turned in his gradebook, parent log, and daily schedule, as directed on March 3, 1992. He was given an unacceptable annual evaluation because of his deficiencies in professional responsibility. Respondent verbally disagreed with that decision stating that the unacceptable evaluation was for simple paper-pushing requirements. The prescription for professional responsibilities required Respondent to review from the faculty handbook School Board policy on grading criteria, to submit his gradebook on a weekly basis to Coplin, to maintain a gradebook and a log of parent conferences, to maintain daily attendance, to submit student assessment records to Coplin for review prior to submission of the nine-week grade report, and to complete the prescription from the May 27 observation by September 15, 1992. Respondent's annual evaluation for the 1991/92 school year was overall unacceptable and was unacceptable in the category of professional responsibility. On September 20, 1992, a conference-for-the-record was held with Respondent because he was still wearing a "pocket-knife" in spite of the prior directive. He was directed not to wear the knife or the knife case. Respondent stated that he would not do as directed. On October 9, 1992, Respondent was formally observed in the classroom by Coplin and was rated unacceptable in preparation and planning and in assessment techniques. He did not have a lesson plan, student work folders, tests, or a gradebook. It would not be possible to evaluate the students' strengths and weaknesses. Moreover, if an administrator were called upon to explain to a parent why a student got a particular grade, the administrator would not have been able to do so. Respondent was prescribed activities to help him correct his deficiencies. He was directed to write detailed lesson plans and to turn them in to Norniella weekly. He was directed to complete specific activities in the TADS prescription manual dealing with lesson planning and assessment techniques and to prepare two teacher-made tests and to submit all to Coplin for review. The prescription was to be completed by October 30, 1992. By November 13, 1992, Respondent was exhibiting a pattern of excessive and unauthorized absences. The absences were unauthorized because he failed to call the school prior to his absences as required by directives contained in the faculty handbook. He was advised that his absences were adversely impacting the continuity of instruction for his students and the work environment. He was given directives to report his absences directly to the principal, document absences upon return to the worksite, and provide lesson plans and materials for use by the substitute teacher when he was absent. On November 13, 1992, it was noted that Respondent had not met the prescription deadline of October 30, 1992. Coplin gave Respondent a new prescription deadline of November 30, 1992. In addition, she made a supervisory referral to the EAP because of Respondent's excessive absences, unauthorized disappearance from work, poor judgment, and failures to carry out assignments. By the end of November, 1992, Respondent had accumulated 21 absences. While he was absent, there were no gradebook, lesson plans or student folders for the substitute teacher. The substitute teacher was told to create a gradebook, lesson plans, and student work folders. All was in order when Respondent returned to work. On December 11, 1992, Respondent was formally observed in the classroom by Norniella and was rated unsatisfactory in preparation and planning, in techniques of instruction, and in assessment techniques. Because his techniques of instruction were also rated unacceptable, Respondent recognized for the first time that his teaching performance was being criticized. He had dismissed the prior criticisms as simply problems with creating a "paper-work trail". Respondent was rated unacceptable in preparation and planning because he did not have a lesson plan. Norniella gave him a chance to turn in the lesson plans the following Monday, but he failed to do so. Respondent was unacceptable in techniques of instruction because he used the same materials and methods for all students regardless of their individual needs. Respondent failed to establish background knowledge before beginning the lesson. The sequence of the lesson was confusing to Norniella. Respondent covered three different subjects (vocabulary, science, and math), all within a period set aside for language arts. Respondent was given a prescription to help correct his deficiencies. He was directed to write lesson plans and to turn them in to Norniella on Fridays. He was to observe a reading/language arts lesson by another sixth- grade teacher. He was directed to maintain at least two grades per week in each subject for each student. He was also directed to complete specific activities in the TADS prescription manual relating to preparation and planning, techniques of instruction, and assessment techniques. He was directed to complete the prescription by January 15, 1993. He failed to complete any of the prescription activities. On January 4, 1993, a conference-for-the-record was held with Respondent to address his performance and future employment. His absences and reporting procedures were also discussed as was his failure to comply with his prescription and prior directives. During the conference, Respondent was rude, agitated, and disrespectful. He yelled at the principal. His behavior did not reflect credit upon himself and the school system. He treated the conference as a joke. As of January 20, 1993, Respondent still had no gradebook. On January 25, 1993, he was notified that upon his return to the school site, there would be a conference-for-the-record to deal with his noncompliance with the directives to maintain a gradebook and to complete his prescription activities. A conference-for-the-record was held with Respondent on March 3, 1993. It was noted that because of his absences, he had failed to meet the prescription deadline on January 15, 1993. Coplin gave him a new deadline of March 11, 1993. Respondent failed to meet the March 11, 1993, prescription deadline. Moreover, he still had not completed his prior prescription for professional responsibility. Because of these failures, Coplin extended the 1992 professional responsibility prescription through June 1993. On March 26, 1993, Respondent was formally observed in the classroom by Coplin and was rated unsatisfactory in preparation and planning and in assessment techniques. While Respondent had some lesson plans, he did not have one for each subject taught during the day. The student folders contained no tests. Respondent was prescribed activities to help him correct his deficiencies. He was directed to develop weekly lesson plans and to submit them on Wednesdays for the principal to review. He was also to complete an assessment techniques activity from the TADS prescription manual and was to submit the activity to Coplin for review. His prescription was to be completed by April 23, 1993. On April 1, 1993, Respondent was placed on prescription for professional responsibilities for failure to comply with School Board rules, Labor Contract provisions, and school site policies and directives concerning lesson plans, student assessment, record keeping, and maintaining a gradebook. He was directed to develop weekly lesson plans for each subject taught and to submit those to the principal for review. He was directed to read Article X of the Labor Contract and to submit a summary to the principal for review. He was directed to review the section of the faculty handbook concerning maintaining a gradebook. He was directed to maintain an updated gradebook with at least two grades per week per subject and to label the grades. He was directed to maintain a parental conference log in the gradebook. He was directed to submit his gradebook to the principal for weekly review. On May 12, 1993, Coplin advised Petitioner's Office of Professional Standards (OPS) that Respondent had failed to comply with the directive of November 13, 1992, concerning procedures for reporting absences. He had been absent on April 13, 16, 23, 27, and May 5, 6, 7, 10, and 11, 1993, without calling the principal in advance. Respondent claims that he called the school secretary at her home before 7:00 a.m. every time he was absent, except for one time. Although the secretary told him he would have to speak directly to the principal, he chose not to call the school when Coplin was there. Calling the secretary does not absolve him from his responsibility to comply with the principal's directive to speak to her personally. On May 19, 1993, Respondent was sent a letter directing him to schedule a conference at OPS. Respondent did not do so. On that same day, Coplin was advised by EAP that EAP was closing Respondent's case due to his noncompliance with the program. Respondent was absent without authorized leave from April 23 - June 17, 1993. Moreover, he had 106 absences for the school year. Nine of these were paid sick leave, and 97 were leave without pay. The school year has 180 student contact days. Because of Respondent's absences and failure to follow leave procedures, Coplin was not able to secure a permanent substitute teacher. Respondent's students were subjected to frequent changes in substitute teachers and a lack of continuity in their education. Respondent's annual evaluation for the 1992/93 school year was overall unacceptable and unacceptable in the categories of preparation and planning, assessment techniques, and professional responsibility. Because of Respondent's absences, the usual conference-for-the-record could not be conducted, and Respondent's annual evaluation was sent to him by mail. Respondent failed to complete all prescriptions given him by Coplin and by Norniella. By letter dated June 15, 1992, OPS notified Respondent that he was willfully absent from duty without leave. He was given an opportunity to provide a written response and was advised that failure to do so would result in the termination of his employment. On July 6, 1993, a conference-for-the-record was conducted by Dr. Joyce Annunziata at OPS. The conference was held to discuss the pending dismissal action to be taken by Petitioner at its meeting of July 7, 1993. During the meeting, Respondent was extremely disoriented, turned his back on Annunziata, did not take the meeting seriously, made irrelevant comments, carried a stuffed purple animal which he talked to and through, and had watery, bloodshot eyes. He also wore his "pocket-knife" to the conference. Petitioner suspended Respondent and took action to initiate dismissal proceedings against him on July 7, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's suspension without pay and dismissing Respondent from his employment with the School Board of Dade County, Florida. DONE and ENTERED this 12th day of January, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 12th day of January, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-3963 Petitioner's proposed findings of fact numbered 1, 3-27, and 29-56 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 28 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 1-4 and 7-9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5 and 14-16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 10-13 have been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: William DuFresne, Esquire Du Fresne & Bradley 2929 S.W. 3rd Avenue, Suite 1 Miami, Florida 33129 Madelyn P. Schere, Esquire Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132 Mr. Octavio J. Visiedo, Superintendent Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132 The Honorable Doug Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact At all times material to this case, Respondent was a School Board charged with the duty to operate, control, and supervise all free public schools within the Dade County school district. Such authority includes, but is not limited to, the employment of appropriate staff for the Dade County schools. Geographically, the Respondent's district covers a span of approximately seventy-eight miles. Petitioner is an unmarried 41 year old male citizen of the United States of America. In August of 1992, Petitioner applied for a teaching position with the Office of Personnel Staffing (the personnel office) in the Dade County school system. The personnel office is responsible for staffing instructional staff: teachers and teacher's aides. The personnel office receives approximately fifty thousand applications annually from individuals seeking employment with the Respondent. Many of the applications are for employment as teachers for the Dade County school system. The personnel office hires approximately three to four thousand people a year. Of that number, approximately two thousand people are hired as teachers. The operational procedures of the personnel office regarding the application and hiring process for teachers are set forth in the instructions for completing the teacher application package. The instructions are in the front of the application package. Completion of the teacher application process requires that all applicants submit a completed application package, including the submission of all official transcripts. An applicant's official transcripts are always required; all teacher applicants must submit these documents to the personnel office. In this case, Petitioner signed the application package attesting to the fact that he received the package in its entirety. Petitioner was familiar with all of the contents of the application package, including the instructions to the application package. Before submitting his application package to the personnel office, petitioner knew or should have known that official transcripts were a required portion of the application package. Petitioner failed to provide the personnel office with his official transcripts when he submitted his application package. Official transcripts are required to avoid the submission of transcripts that reflect altered and/or forged grades and subject areas. Additionally, the submission of official transcripts facilitates the analysis of the applicant's individual subject performances, possible secondary areas of certification, and additional experiences, subjects or classes that may enhance or decrease the written assessment of the applicant. Examination of an official transcript is the only reliable available means of receiving the information. The personnel office does not seek an applicant's official transcripts, nor does the office have the authority to request such documents from the Florida Department of Education. Official transcripts are confidential documents and once submitted to the State such documents will be released only to the applicant once the applicant's file has expired. Additionally, the Board does not have the capability, nor is it required, to confirm or cross reference the existence of an applicant's official transcript with another agency for purposes of assessing the applicant's qualifications. All applicants seeking employment as a teacher with the Board must meet the application criteria established by the personnel office. All of the requirements for completing an application package are chronicled in the instructions to the application package. Once an application is received, the personnel office has a standard procedure of immediately reviewing an application to verify that it is complete. In this case, Petitioner's application was deemed incomplete because it lacked Petitioner's official transcripts. Based on the preceding, Petitioner's application was not processed. Because the application was not completed, Petitioner was not eligible for employment. An applicant may call for an appointment for an interview after the applicant has submitted a completed application package and the applicant's file is processed. If the applicant's file is not completed and processed, the applicant cannot be scheduled or considered for an interview. The personnel office did not interview Petitioner because his application was incomplete and unprocessed. The only reason Petitioner was not interviewed was because his application was incomplete. No other factor influenced this matter. The Petitioner's marital status did not impact the decision to deem his employment application incomplete. The Board does not take issue with employing single men. Other than Petitioner's complaint, the Board has not received a charge of marital status discrimination in the last ten years. Staff from the personnel office spoke with Petitioner regarding his incomplete application package. The personnel office offered to assist Petitioner. Petitioner was advised that if he furnished the personnel office with his original set of official transcripts, that Dr. Garner would personally copy his originals, attest to their authenticity, return the originals to Petitioner, and proceed with Petitioner's interview (presuming the transcripts were as Petitioner represented). Petitioner never submitted the official transcripts for review and copying. Additionally, Petitioner did not seek a certified copy of his records from the Florida Department of Education. Only at the hearing was Petitioner willing to allow his set of the official transcripts to be reviewed. A statement of eligibility or certification from the Florida Department of Education does not make an applicant automatically qualified for, and entitled to, a teaching position with the Board. Completion of the teacher application package also includes the submission of a completed W-4 tax form. The information solicited on a W-4 form is not considered or even reviewed by the personnel office when they assess an applicant's credentials and overall qualifications for employment. The personnel office does not use a W-4 form to screen applicants by marital status. Additionally, the personnel office requests the tax information, along with other information, before the actual date of hire, in order to avoid operational delays. Past experiences have demonstrated that it is inefficient and impractical to have a newly hired employee mail the W-4 form to the wage and salary office after the individual's actual date of hire. The personnel office processes the paperwork but does not hire teacher applicants. The office is a clearing house that gets applicants ready for hire. The actual hiring of an applicant occurs at a school. The application procedures and all of its requirements have been in effect for approximately thirteen years. The application procedures and all of its requirements are essential in order to facilitate the procedure of hiring the most qualified personnel, regardless of their marital status. It is also essential in order to expedite the process for providing newly hired employees with immediate compensation and benefits. Administrative procedures, regulations, directives and guidelines are permissible methods of implementing School Board policies. The Board received notification from the EEOC that Petitioner had filed a charge of sex and marital discrimination against the School Board. On May 23, 1995, the EEOC issued a letter of determination as to the merits of Petitioner's allegations of sex and marital status discrimination, finding, in pertinent part, that Examination of the evidence of record shows that (Petitioner) was not considered for any position because he failed to submit all the material required with the application. Evidence further shows that all applicants must submit the required material to be con- sidered for vacancies. The (Petitioner) was unable to provide and the Commission's inves- tigation did not disclose any evidence which would show Respondent considered the (Petitioner's) sex or marital status when reaching its decision.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint against the Dade County School Board. DONE AND ENTERED this 11th day of June, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-5316 Rulings on the proposed findings of fact submitted by the Petitioner: None submitted. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1, 2, 3, 4, 6, 8, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 23, 25, 27, 29, 30, 33, 34, 35, 37, 50, and 54 are hereby accepted and adopted by reference. Paragraph 5 is accurate but irrelevant to the resolution of the issue of this case. Paragraphs 19 and 20 are accurate but unnecessary to the resolution of the issue of this case. Paragraphs 24, 26, 28, 31, 32, 36, 38, and 44 are accepted. All other paragraphs not listed above are irrelevant. COPIES FURNISHED: Heidi N. Shulman, Esquire School Board of Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Steve J. Longariello 9999 Summerbreeze Drive, Number 422 Sunrise, Florida 33322 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Building Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Building Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is 45 years of age. He is married and has two children. In 1968, following his graduation from college, Respondent began his career as a classroom teacher with the Dade County School Board. He remained with the Board until 1974, when he went to work for the Xerox Corporation. Respondent was rehired by the Board during the 1987-88 school year and assigned to teach sixth grade at Highland Oaks Elementary School in North Miami Beach. Virginia Boone has been the Principal of Highland Oaks for the past 27 years. At all times material hereto, Barbara Cobb has been her Assistant Principal. Respondent was reassigned to the fifth grade at Highland Oaks at the beginning of the 1988-89 school year. He taught fifth grade for the remainder of his stay at Highland Oaks, which ended during the 1990-91 school year. As a fifth grade teacher at Highland Oaks during the 1988-89, 1989-90 and 1990-91 school years, Respondent was a member of a team consisting of four other fifth grade teachers: Terri Lynne, Arnold Pakula, Virginia Valdes and Betty Kravitz. Each member of the team had a home room class and was responsible for teaching math and language arts to the students in that class. In addition, each team member was assigned a special subject, such as health, science, social studies, maps/globes or spelling/handwriting, to teach to all of the fifth graders. All such instruction took place simultaneously in a large open area shared by the five fifth grade teachers, rather than in separate rooms. In accordance with the Board's Teacher Assessment and Development System (TADS), principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance. The categories of classroom performance that are assessed are preparation/planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. For the 1987-88 and 1988-89 school years, Respondent received an acceptable rating in all seven assessment categories on the TADS annual evaluations he received. There was a precipitous decline, however, in Respondent's overall performance, which began during the first half of the 1989-90 school year and continued the following school year until his suspension. Respondent's attendance was irregular at best. He was frequently absent. When he was not absent, he often came late and left early. As a result, he did not participate with his team members in a number of early morning and late afternoon parent-teacher conferences that were held during his scheduled workday. Respondent did not adequately plan his lessons as directed. His failure to prepare sufficient written lesson plans was a particular problem because of his frequent absences. Without such plans, substitutes were unable to provide Respondent's students with any substantial continuity in instruction. Respondent also failed to grade and record his student's work and to prepare progress reports and report cards as directed. On a daily basis, Respondent would leave his class unattended without notifying any of his team members. Invariably, the students would become boisterous in Respondent's absence and disrupt the instruction that was taking place in the other fifth grade classes. Very little instruction occurred in Respondent's classroom. He appeared more interested in amusing his students with his antics than in teaching them. He sang, danced, told jokes, balanced boxes on his head, hung bags from his ears, made guttural noises and engaged in other childish behavior unbecoming a teacher. The laughter these antics generated made it difficult for the students in the other fifth grade classes to learn. Respondent regularly ate in the classroom in front of his students when he was supposed to be instructing them, notwithstanding that such conduct was clearly prohibited. To make matters worse, he often did not clean up after eating. At times, Respondent fell asleep in class and had to be awakened by his students. Although it was his responsibility to do so, Respondent frequently failed to pick up his students in a timely manner from their physical education, art and music classes which were held in areas of the school outside the fifth grade pod. Respondent's dereliction of his responsibilities placed an additional burden on the other fifth grade teachers. They tried to offer him advice and counsel, but Respondent was not receptive. Principal Boone and Assistant Principal Cobb, who received complaints about Respondent from his team members and from the parents of his students, also met with Respondent in an effort to make him a more productive member of the fifth grade team. During these meetings, they reminded Respondent of what was required of him as a teacher at Highland Oaks. Respondent, however, defied their directives and continued to act irresponsibly. Among the conferences that Boone had with Respondent was one held on October 26, 1989. Cobb, as well as Respondent's union steward, were also present. During this conference, Boone specifically directed Respondent to record for each of his students a minimum a three grades per week per subject, to prepare appropriate lesson plans for substitute teachers to use during Respondent's absences, to prepare daily lesson plans reflecting the day's activities, to ensure that his students were under supervision at all times and to participate in scheduled parent-teacher conferences. On December 1, 1989, Boone referred Respondent to the Board's Employee Assistance Program (EAP), which is a program designed to help employees who are having personal problems that are interfering with their work performance. On the form she submitted to the Coordinator of the EAP, Boone indicated that the referral was being made because of the following: "excessive absences;" "excessive tardiness;" "absences on Mondays and/or Fridays;" "changes in personal appearance;" "marked changes in mood;" "marked changes in activity level;" "frequent trips to restroom;" "poor judgment:" and "assignment failures" on Respondent's part. On the bottom of the form, Boone added the following comments: Mr. Long has not set the world on fire with his teaching since he came to our school, but he did receive acceptable evaluations. However, this year presents a different story. He has been absent 16 days out of 60 since 9/5/89, papers are not graded, tests are not given, lesson plans are not done and, if they are, very little. His discipline is poor, pals with students telling jokes. He has a long list of excuses for being late to work or not coming at all. I know I have given him every inch of rope I can. I must have someone who cares about the students to teach. On December 6, 1989, Respondent slept throughout a faculty meeting at which the Board's "Drug Free Workplace" rule was discussed. Following this meeting, Boone met with Respondent and reiterated the directives she had issued during their October 26, 1989, meeting. On the following day, Cobb attempted to conduct a formal observation of Respondent's classroom teaching. Cobb noted many deficiencies in Respondent's performance, including his failure to have a written lesson plan. She left after only sixteen minutes in the classroom. Instead of completing a formal post-observation report with prescriptions and handing it to Respondent, Cobb spoke with Respondent after the observation and informed him of those things that he needed to do to improve his performance. On December 12, 1989, Cobb reviewed Respondent's grade book. Her review revealed that Respondent still had not complied with the specific directives concerning grading that Boone had first issued Respondent on October 26, 1989, and had reiterated on December 6, 1989. Cobb therefore ordered Respondent to comply with these directives by January 2, 1990. Cobb reexamined Respondent's grade book on January 2, 1990. She found that the directed improvements had not been made by Respondent. On January 12, 1990, while in the cafeteria with his students, Respondent playfully held a straw to his nose as one would do if he was snorting cocaine. This incident was reported to Boone. It was further brought to Boone's attention that Respondent had been derelict in his responsibility to properly supervise his class that day. Boone reacted by relieving Respondent of his duties for the day. On June 18, 1990, a conference-for-the record was held. In attendance were Respondent, his union representative, Boone, Doretha Mingo, the Coordinating Principal for the Board's Region II and, as such, Boone's supervisor, and James Monroe, who, at the time, was the Director of the Board's Office of Professional Standards. Respondent was advised of the various complaints that had been made against him. Among the matters discussed was the January 12, 1990, incident with the straw, Respondent's repeatedly falling asleep in class and at meetings, his failure to properly supervise his students, his refusal to record student assessment data in accordance with established procedures and grading criteria, his lack of planning and preparation of written lesson plans, his erratic attendance and his unwillingness to attend scheduled conferences as required. Another subject of discussion was an incident that had occurred the month before during which Respondent had conducted a search, in contravention of Board policy, of two students on school property. Respondent had been aware of this Board policy at the time he conducted the search. At the June 18, 1990, conference-for-the-record, Respondent was directed by Mingo to return his grade book to Boone no later than the following day. Respondent did not comply with this directive. Directives were also issued by Monroe at the June 18, 1990, conference-for-the-record. He ordered Respondent to remain on alternate assignment at home, beginning the next day, and while on such assignment to be accessible by telephone during his seven-hour and five-minute workday between 8:15 a.m. and 3:20 p.m. Monroe further informed Respondent that Respondent was required to undergo a medical examination and drug test to determine his fitness to perform his assigned duties. On January 19, 1990, Monroe telephoned Respondent at home. He directed Respondent to report for his medical examination on January 22, 1990. He further instructed Respondent that, following the completion of the medical examination, Respondent was to remain at home during the remainder of the workday. On January 19, 1990, Respondent submitted to a drug test. The results were positive for cocaine. Respondent failed to appear for his medical examination on January 22, 1990. The examination was rescheduled for Saturday, January 27, 1990. On January 23, 1990, and again on January 24, 1990, Monroe made various attempts to reach Respondent at home by telephone during the workday. Respondent, however, was not at home and therefore Monroe was unable to contact him. Monroe finally got in touch with Respondent on January 25, 1990. He advised Respondent that Respondent was expected to report for his rescheduled medical examination on January 27, 1990, and to remain at home by the telephone during the rest of the workday. He further informed Respondent that he considered Respondent to have been insubordinate and that any further acts of noncompliance on Respondent's part would be deemed gross insubordination and result in a recommendation that Respondent's employment with the Board be terminated. On Monday, January 29, 1990, Monroe received a report from the physician who was to have examined Respondent that Respondent had not kept his January 27, 1990, appointment. That day, January 29, 1990, and the next, Monroe tried telephoning Respondent at home during Respondent's scheduled work hours, but was unable to reach him. 1/ Monroe tried again on January 31, 1991. This time he was successful in reaching Respondent. He ordered Respondent to report immediately to a new alternate assignment at the Board's Region II administrative office. While on this assignment, Respondent was to be supervised by Mingo. Respondent reported to the Region II administrative office later that day. He met with Mingo who provided him with the following written instructions: Effective January 31, 1990 you are directed to report to the Region II office for your assignment. Your work schedule is from 8:15 a.m. to 3:20 p.m. You are to sign in upon arrival and sign out when leaving in the Region II office. If you are going to be absent, you are to call 891-8263 and report your absence to Mrs. Escandell. You may take one hour for lunch between the hours of 11:30 a.m. to 1:00 p.m. You must be back from lunch by 1:00 p.m. You are not to make any personal calls. Requests to make emergency calls must be forwarded to Mrs. Escandell or any secretary in the front office during her absence. Any deviation from this schedule must be approved by Mrs. Mingo. During the Conference for the Record with you on January 18, 1990, you were directed to return your grade book to your school on the following day, January 19, 1990. As per your principal, Mrs. Boone, you have failed to provide the school with the official grade book for your class as of this date. You are directed to turn your grade book in to this writer [Mingo] effective February 1, 1990. Additionally, you will be supplied with a box of ungraded papers from your class which are to be corrected and grades recorded while you are assigned to this office. A schedule for completing this task will be discussed with you on February 1, 1990. Further, during this assignment, you are directed not to report to or call Highland Oaks Elementary School. If there is a need to communicate with anyone at the school, discuss the need with me. Respondent turned in his grade book the following day. That same day, Mingo established a deadline of February 6, 1992, for Respondent to complete his grading of the uncorrected papers with which he had been supplied. On February 5, 1990, Monroe conducted another conference-for-the- record with Respondent. As he had done during the previous conference-for-the-record, Monroe discussed with Respondent the provisions of the Code of Ethics of the Education Profession and Principles of Professional Conduct for the Education Profession in Florida and directed Respondent to comply with these provisions. He emphasized that it was imperative that Respondent maintain the respect and confidence of colleagues, students, parents and other members of the community, that he make every reasonable effort to protect his students from conditions harmful to learning and safety, and that he not expose students to unnecessary embarrassment or disparagement nor violate their legal rights. Respondent was placed on authorized medical leave effective February 5, through June 21, 1990, to enable him to receive treatment for his drug abuse problem. He was advised that his failure to pursue such treatment would be grounds for dismissal. At the time he was placed on authorized medical leave, Respondent had not completed the grading of the uncorrected papers he had been given. Shortly after being placed on authorized medical leave, Respondent was admitted to Mt. Sinai Hospital where he participated as an inpatient in the hospital's 28-day drug abuse treatment program. He remained in the program for the entire 28 day period. After leaving Mt. Sinai, Respondent went to a halfway house, where he stayed until late April, 1990. On April 26, 1990, Respondent enrolled as an inpatient in the drug abuse treatment program at Concept House. He transferred to Concept House's outpatient program three months later. As an outpatient, Respondent was required to meet with his counselor once a week and to attend group therapy sessions twice a week. On August 21, 1990, the Board's Office of Professional Standards received a sworn statement from Respondent's counselor at Concept House that Respondent was "in treatment and [was] employable at this time." That same day, Joyce Annunziata, Monroe's successor, gave Respondent clearance to return to work as a fifth grade classroom teacher at Highland Oaks. Respondent's continuing employment, however, was conditioned upon his remaining in treatment for his drug abuse problem. It became evident, following Respondent's return to Highland Oaks, that he had not mended his ways. From the outset, he was embroiled in controversy. During the teacher planning days before the opening of school, Respondent loudly argued, without reason, with team members over his spelling/handwriting assignment and declined to participate with them in planning for the upcoming school year. After school opened, Boone began receiving the same type of complaints about Respondent that she had received the previous year. There was no improvement on Respondent's part. If anything, his conduct and performance were worse than the 1989-90 school year. Particularly disturbing were the disparaging remarks Respondent directed to individual students during class in front of their classmates. On or about December 5 or 6, 1990, it was brought to Annunziata's attention that Respondent was no longer participating in the outpatient program at Concept House. He had been terminated from the program on December 3, 1990, because of noncompliance with his treatment plan. Respondent had started missing required individual and group counseling sessions in September. At the time of his termination from the program, he had not had any face-to-face contact with his counselor for at least 30 days. On December 6, 1990, Annunziata prepared a memorandum directed to Respondent which read as follows: At the conference in the Office of Professional Standards on August 21, 1990, you were cleared to return to full classroom duties at Highland Oaks Elementary School. This release was contingent upon your compliance with program requirements structured by the District's support agency. It has been brought to my attention that you are not complying with program requirements and are thus jeopardizing your employment. Please be advised that if you do not contact the District's referral agency within forty-eight hours of receipt of this memorandum and prepare to contract with the District to participate in a structured program, this office will pursue disciplinary measures. By copy of this memorandum, Ms. Boone is advised to provide to OPS all documentation relating to your performance during the 1990-91 school year. Future noncompliance with program directives will be considered an exhaustion of assistance and engender district action. Respondent received the memorandum on December 28, 1990. On or about December 17, 1990, Respondent's behavior was such that he had to be relieved of his duties for the day. He sang and danced in the cafeteria during lunchtime and slept in the classroom when he was supposed to be teaching, despite a student's attempt to wake him. When awake, he was unable to stand to conduct his class. Instead, he remained slumped in his seat. While seated, he sucked on a candy cane and his fingers making loud, exaggerated noises. He also swung his arms and kicked his legs in all directions. At the request of one of the other fifth grade teachers who reported that Respondent was "out of it," Cobb went to Respondent's classroom. After confirming that Respondent, who appeared glassy-eyed and unaware of his surroundings, was in no condition to continue teaching, she approached Respondent and told him that she wanted to speak with him in her office. In Cobb's office, Respondent told Cobb that he was tired because he had not gotten any sleep the night before. He then went on to tell Cobb a bizarre story about what had purportedly occurred at his house the prior evening. By all appearances, the story, which he repeated for Boone's benefit, was a product of Respondent's imagination. Respondent was supposed to exchange student progress reports with the other fifth grade teachers on December 17, 1990. He was unprepared to do so, however, on this date. On December 29, 1990, Respondent was arrested for possession of cocaine and drug paraphernalia. 2/ He remained in jail until January 18, 1990, when he was released on his own recognizance. On Sunday, January 6, 1991, the day before classes were to resume after the winter holiday break, Respondent telephoned Cobb at home. He told her that he would be absent because he had to go out of town to attend his father- in-law's funeral and that he did not know when he would be able to return. He did not mention anything about his arrest and incarceration, which was the real reason he would be unable to report to work the following day. By misrepresenting his situation to Cobb, Respondent was laying the groundwork to obtain sick leave benefits to which he was not entitled. While Board employees are entitled to paid sick leave for absences resulting from the illness or death of their father-in-law, they are not entitled to such leave for absences resulting from their own incarceration. On or about January 11, 1991, Annunziata reassigned Respondent from Highland Oaks to the Region II administrative office, where Respondent was to be under Mingo's supervision. January 22, 1991, was Respondent's first day back to work after his arrest. He reported to the Region II office and met with Mingo. Mingo gave him the same instructions, which are recited in paragraph 38 above, that she had given him the prior school year when he had been assigned to her office. On January 24, 1991, Annunziata conducted a conference-for-the record with Respondent to address issues relating to his continued employment with the Board. She informed Respondent during the conference that no final decision would be made until the matter was further reviewed. On Friday, February 8, 1991, Respondent left the Region II office for lunch at 11:30 a.m. He did not return to work that day. It was not until around 2:00 p.m., well after he was supposed to be back from his lunch break, that he first called the office to advise that he was having car trouble. Respondent was also absent the following workday, Monday, February 11, 1991. He telephoned the office to give notice of his absence that day. On February 12, 1991, Respondent neither reported to work, nor telephoned the office to give notice of his absence. Respondent returned to work on February 13, 1991. Upon his return, Mingo spoke with him. She reminded him of the directives she had previously given him regarding leave and attendance matters and made clear to Respondent that he was expected to comply with these directives. Furthermore, she indicated that Respondent would not be paid for the time he was away from the office on February 8, 1991, and February 12, 1991, because she considered his absences on these dates to have been unauthorized. Mingo was concerned not only with Respondent's noncompliance with leave and attendance reporting requirements, but with his sleeping while on duty as well. She therefore directed him, at around 9:10 a.m. on February 13, 1991, to submit to a drug test. She referred him to the urine collection site nearest the office and ordered him to report back to work after he had dropped off his urine sample. Respondent went to the collection site, 3/ but did not return to work that day as directed. Respondent reported to work the next workday. Mingo had another meeting with him. She expressed her displeasure with his having again failed to comply with her directives regarding leave and attendance matters. She once again repeated what those directives were. At around 11:05 a.m. that same day, February 14, 1991, Respondent left the office without authorization at approximately 11:05 a.m. He did not return until around 3:40 p.m. As Respondent was signing out for the day, Mingo confronted him about his unauthorized absence from the office that day. In response to Mingo's inquiry, Respondent told her that, after leaving the office that morning, he had spent the remainder of the day in his car in the parking lot outside the office. Mingo conducted a conference-for-the-record with Respondent on February 20, 1991. She discussed with him his failure to comply with the directives she had given him. During the conference, she reiterated those directives and ordered Respondent to follow them. A month later, on March 20, 1991, the Board took action to suspend Respondent and to initiate dismissal proceedings against him. At the time of his suspension, Respondent was serving under a continuing contract. The directives referenced above that Cobb, Boone, Mingo, Monroe and Annunziata gave Respondent during the 1989-90 and 1990-91 school years and which Respondent refused to obey were reasonable in nature, consistent with Board rules and policies and within these administrators' authority to issue. Respondent's failure to comply with these directives was the product of his unwillingness, rather than a lack of capacity, to do so. Although Respondent may not have received a TADS annual evaluation for the 1989-90 and 1990-91 school years, nor received at any time during these school years a TADS Post-Observation Report reflecting unacceptable performance, he was certainly put on notice by the administration through other means of his deficiencies and what he needed to do to cure these deficiencies. He was given a fair and reasonable opportunity to improve, but simply failed to take advantage of the opportunity. During the 1989-90 and 1990-91 school years, Respondent did not teach effectively and efficiently in accordance with the prescribed curriculum. As a result, his students suffered. They were deprived of the education to which they were entitled. Respondent displayed little or no concern for the educational development and potential of his students. Nor did he appear particularly interested in protecting them against conditions harmful to their safety and general well-being. Respondent's behavior in the classroom during the 1989-90 and 1990-91 school years was inconsistent with the standards of public conscience and good morals. It has brought him notoriety among his colleagues, students and their parents. Such notoriety can only serve to impair his effectiveness as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the School Board of Dade County issue a final order sustaining the charges of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency against Respondent and dismissing him from employment. RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of February, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1992.
The Issue Whether Respondent should be denied issuance of a new professional service contract pursuant to Section 231.36(3)(e), Florida Statutes, on the grounds asserted in the Consolidated Specific Notice of Charges filed in these consolidated cases? If not, whether Respondent's employment with the Dade County School Board should be terminated pursuant to the Section 231.36(6)(a), Florida Statutes, on the grounds asserted in the Consolidated Specific Notice of Charges filed in these consolidated cases?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the facts to which the parties have stipulated: Respondent is 63 years of age. She is an English teacher by profession. She has been teaching since 1972, the year she graduated from the University of Maryland. Prior to her employment with the Board, she held various teaching positions in the States of Maryland and New Jersey and also taught at several private schools in Dade County, Florida. Respondent's employment with the Board began in 1985. For the entire period of her employment with the Board, she was assigned to Miami Carol City High School (hereinafter referred to as "Carol City"), where she taught English. Following the successful completion of her probationary period, Respondent was issued a professional service contract by the Board. The 1989-90 School Year In accordance with the Board's Teacher Assessment and Development System (TADS), school principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teacher's performance. The categories of classroom performance that are assessed are preparation/planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. On November 3, 1989, Respondent was formally observed and evaluated by Dr. Thomasina O'Donnell, an assistant principal at Carol City. Before becoming an assistant principal, O'Donnell had been a language arts regional coordinator for the Board and an English teacher. O'Donnell rated Respondent deficient in preparation/planning, techniques of instruction and assessment techniques. These unsatisfactory ratings were justified. O'Donnell prescribed the following remedial activities for Respondent: Ms. Pollack will submit her weekly lesson plans for each preparation by noon each Friday (or the last working day of the week) to Dr. O'Donnell. In weekly plans, Ms. Pollack will use a variety of methods designed to motivate students. In addition to lecture and questioning, she will use group work projects, student presentations, etc. She will denote in her weekly plans the method(s) to be used each day. Ms. Pollack will include supplemental materials at least two times each week. These aids will be clearly labeled in her plans. Ms. Pollack will assign, collect, grade and enter in her gradebook at least two grades per student per week. 2/ One assignment will be a Writing Enhancement product and the other will be a quiz or test related to literature or an oral presentation. Ms. Pollack will submit her gradebook to Dr. O'Donnell each Friday for review. Ms. Pollack will develop a unit test which includes a variety of test items. She will submit to Dr. O'Donnell for review prior to administering to students. These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that O'Donnell had observed during her November 3, 1989, observation. Respondent was again formally observed and evaluated by O'Donnell on April 23, 1990. She was rated acceptable in all six classroom performance categories. It was therefore determined that Respondent had corrected the performance deficiencies noted by O'Donnell during her November 3, 1989, observation. The 1990-91 School Year O'Donnell next formally observed and evaluated Respondent on October 4, 1990. She rated Respondent deficient in preparation/planning, knowledge of subject matter, techniques of instruction and assessment techniques. These unsatisfactory ratings were justified. Respondent did not follow her lesson plan. She presented ideas and information to the students in a disorganized and illogical manner without the use of supplemental materials which would enhanced the lesson. Students were obviously confused and did not understand the lesson, but Respondent made no adjustments to try to alleviate such confusion and lack of understanding. Adding to the students' confusion was Respondent's failure to indicate whether their responses to her questions were correct or incorrect. Many of the questions Respondent asked were not pertinent to the lesson. There was no closure to the lesson. The students' writing enhancement folders did not contain the requisite number of corrected and graded compositions. Although Respondent's gradebook indicated that she had given the students one test and two quizzes, the students' folders did not contain any evidence that this test and these quizzes had been given. 3/ Neither did O'Donnell see any indication that the students had evaluated their own or each other's work. O'Donnell prescribed the following remedial activities for Respondent: Ms. Pollack will submit her lesson plans to her department head by 2:30 p.m. each Friday. In the event of her department head's absence, she will submit her plans directly to Dr. O'Donnell. In the event of Ms. Pollack's absence, she will submit her lesson plans by 2:30 p.m. of the day of her return to work. On her weekly plans, Ms. Pollack will list, in order, the specific activities to be accomplished each day. In addition, she will estimate the time each activity will require and note that on the plan next to the activity. In her weekly plans, Ms. Pollack will briefly explain the connection of objectives to activities each day. Ms. Pollack will review information regarding questioning skills provided by Dr. O'Donnell. She will prepare a list of questions to be asked in a teacher selected lesson. Ms. Pollack will review the questions with Dr. O'Donnell prior to the lesson's delivery. Ms. Pollack will observe two mutually selected language arts teachers for one full class period each. She will provide Dr. O'Donnell with a list of techniques (at least 3) each teacher used to: a- measure students' understanding of a lesson b- deal with students' lack of understanding. Ms. Pollack will develop or use commercially prepared supplementary material at least two times per week. She will note the use in her lesson plans and provide a copy of all supplementary material to Dr. O'Donnell at the same time she submits her lesson plans. In her observations of other language arts teachers Ms. Pollack will note and list words used by these teachers when students answer incorrectly. She will review this with Dr. O'Donnell at a scheduled conference. In a meeting with the department head, they will discuss how the teacher can make suggestions to learners regarding improving their performance while maintaining positive feelings within the classroom. Ms. Pollack will provide Dr. O'Donnell with a list of at least three methods developed in conjunction with the department head. In her meeting with the department head, Ms. Pollack will discuss what to look for in order to determine if adjustments to a lesson are needed. She will also discuss appropriate adjustments that can be made. Ms. Pollack will provide Dr. O'Donnell with a list of at least three signals that lesson adjustments are needed and three appropriate adjustments the teacher can make for those signals. In her observation of other language arts teachers, Ms. Pollack will note how the teacher prepares student's for the day's lesson. Ms. Pollack will summarize this information and provide it in written form to Dr. O'Donnell. In her weekly lesson plans, Ms. Pollack will number the exact order in which she will present each topic activity. Ms. Pollack will include on her weekly plans each day's closure activity/statement. Ms. Pollack will provide one class set of the Writing Enhancement assignment to Dr. O'Donnell each Monday by 9 a.m. Dr. O'Donnell will notify Ms. Pollack by note in her mailbox by 7 a.m. each Monday which class set she will review that week. Papers must be available for at least 85% of the students in the class and there must be teacher input on each paper. Ms. Pollack will provide Dr. O'Donnell with a note regarding type of grading used- holistic, primary trait, intensive, etc. She will vary the type of grading criteria. The list of questions that Ms. Pollack will provide will include a notation regarding the level of each question based on Bloom's Taxonomy. The teacher will provide at least one opportunity per week for students to evaluate their own or each other's performance. Ms. Pollack will note when the opportunity takes place on her lesson plans. Ms. Pollack will develop a unit test for students. She will review it with the department head before administering to students. She will provide Dr. O'Donnell with a copy of the test and a scoring analysis within three days of the test's administration. These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that O'Donnell had observed during her October 4, 1990, observation. By memorandum dated October 30, 1990, James Hunt, the principal of Carol City, referred Respondent to the Board's Employee Assistance Program. The referral was made after Respondent had been involved in an altercation with a student in one of her classes and the student's parent. Hunt believed that Respondent had exercised poor judgment in handling the situation. Upon learning of the referral, Respondent conceded that she was having a difficult and stressful time in attempting to deal with the students in this particular class. After attending one Employee Assistance Program meeting, Respondent declined to further participate in the program. On November 30, 1990, Hunt formally observed and evaluated Respondent. He rated Respondent acceptable in all six classroom performance categories. During his November 30, 1990, observation Hunt examined neither Respondent's gradebook nor the students' folders. He subsequently conducted such an examination and discovered that the gradebook and the folders were incomplete. On December 7, 1990, Hunt held a conference-for-the-record with Respondent. Following the conclusion of the conference-for-the-record, Hunt prepared the following memorandum which accurately summarized what had occurred during the conference: On December 7th a mid-year Conference-for-the- Record was held in my office. Present at the conference were Thomasina O'Donnell, Assistant Principal, Ron Pollack, UTD Steward, you and I. I began by asking you if you had received notification. You replied that you had. I explained the purpose of this mid-year Conference-for the-Record. We will review your performance to date and your future employment with Dade County Public Schools. Your first observation was conducted by Dr. O'Donnell on October 4th [and] you were found unacceptable in Categories I [preparation/planning], II [knowledge of subject matter], IV [techniques of instruction], and VI [assessment techniques]. You were placed in prescriptive mode. You met your timelines and satisfied your prescription. I conducted a second observation on November 30th. You were acceptable in Categories I through VI. However, you were placed in the prescriptive mode for Category VII [professional responsibility] due to your non-compliance with the Jack Gordon Writing Act. Also, the summative of observation 1 and 2 yields an unacceptable summative. Therefore, at least one more observation will be required. It is our intent to assist you in every way possible. You have been provided with information about the Gordon Act and as part of your prescription you are to meet with Dr. O'Donnell to review all aspects of it. I reviewed the fact that as schools are held accountable for class size, 4/ teachers are held accountable for student writing products. Respondent was next formally observed and evaluated on February 21, 1991. O'Donnell was the observer and evaluator. She rated Respondent deficient in preparation/planning, classroom management and assessment techniques. These unsatisfactory ratings were justified. The lesson plan was not followed. Almost one half of the period was used, not for instruction, but for "housekeeping" matters, such as taking roll and having the students "update" their folders and copy the day's "agenda" from the board. The students' writing enhancement folders did not contain the requisite number of corrected and graded compositions. There were no graded tests in any of the students' folders. O'Donnell prescribed the following remedial activities for Respondent: Using the packet of information provided by Dr. O'Donnell, Ms. Pollack will write appropriate daily objectives for the weekly lesson plans. She will provide her weekly plans to Dr. O'Donnell each Friday by 2:30 p.m. Ms. Pollack will place the plans in Dr. O'Donnell's mailbox in the main office. In the event of Ms. Pollack's absence she will submit her plans by 7:15 a.m. of the day of her return. In her weekly plans Ms. Pollack will include an estimate of the time for each activity for each day. She will limit folder maintenance or any similar "housekeeping" task to no more than 5 minutes at the beginning or end of the period. After the last class each day, Ms. Pollack will review [her] written plan. She will mentally review the degree to which she followed all [the] plan. She will adjust her plan for the next day as needed. She will invite a colleague to observe one full class period. She will provide the colleague with her lesson plan. After the class she will discuss the extent to which she followed the plan. The colleague will provide Dr. O'Donnell with a brief written description of the observed lesson. Ms. Pollack will include in her daily plans a brief written instructional activity to begin each day. Ms. Pollack will submit to Dr. O'Donnell two different sets of graded paper[s] per week, not including the writing enhancement assignment. She will post in her gradebook at least three (3) grades per week. One grade must be a composition, another must be a quiz/test (at least 10 questions) based on literature and the third grade will be of Ms. Pollack's choosing. Ms. Pollack will submit her grade book to Dr. O'Donnell for review each Friday by 2:45 p.m. Additionally, Ms. Pollack will develop and, after clearing with Dr. O'Donnell, administer a unit test. The unit test will contain multiple-choice, matching, true-false and essay questions. This unit test will contain at least 30 questions. These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that O'Donnell had observed during her February 21, 1991, observation. On April 17, 1991, the Superintendent of Schools sent Respondent a letter which read as follows: This is your official notification that I have reviewed your assessments and I am hereby charging you with unsatisfactory performance during the 1990-91 school year in the following categories: I Preparation and Planning and VI Assessment Techniques. These performance deficiencies may result in termination of your employment if not corrected prior to April 1, 1992. Upon written request, a meeting will be scheduled with Dr. Joyce Annunziata, Director, in the Office of Professional Standards to review the determination of your unsatisfactory performance. That meeting will also address your statutory entitlement to request consideration of transfer. Assessment of your performance will continue through the balance of this school year, and the Office of Professional Standards will continue to monitor your progress during the 1991-92 school year. On May 24, 1991, Hunt held a conference-for-the-record with Respondent to review her performance and her future employment with the Board. During the conference, Hunt advised Respondent that she would be receiving an overall rating of unacceptable on her annual evaluation and that she would have the following year to attempt to improve her performance. Respondent received her annual evaluation for the 1990-91 school year on May 31, 1991. She was rated unacceptable in the categories of preparation/planning, classroom management and assessment techniques and, as promised, she received an overall rating of unacceptable. Respondent believed that she had been treated unfairly at Carol City, particularly by O'Donnell. 5/ She therefore asked her collective bargaining representative, the Untied Teachers of Dade, to request a transfer for her, which it did. The request was denied because the Board determined that it was not administratively feasible to transfer Respondent to another school given the glut of high school English teachers in the school system. The Board, however, agreed that during the 1991-92 school year Respondent would be formally observed and evaluated by as many non-site administrators as possible. It also reassigned her to teach ninth grade, an assignment which involved less paperwork. The 1991-92 School Year Respondent remained at Carol City during the 1991-92 school year. The first formal observation and evaluation of Respondent's classroom performance that year was conducted on October 8, 1991, by Dr. Judith Margulies, an assistant principal at Miami Edison High School. Margulies, like O'Donnell, had been a language arts regional coordinator for the Board and an English teacher before becoming an assistant principal. Margulies rated Respondent deficient in classroom management and techniques of instruction. These unsatisfactory ratings were justified. Respondent did not appropriately address off-task behavior, of which there was a considerable amount. Some of the few students who expressed an interest in actively participating in the lesson by raising their hands were totally ignored by Respondent. Respondent gave unclear and confusing instructions to her students that she simply repeated and failed to clarify when it should have been obvious to her that the students did not understand what she wanted them to do. Repeating these instructions unnecessarily wasted valuable instructional time. By the end of the class period, Respondent had not gotten done what, according to her lesson plan, she had hoped to accomplish. Margulies met with Respondent after the end of the class period and discussed with her the deficiencies she had noted. She also prescribed the following remedial activities for Respondent: Ms. Pollack will develop a set of classroom rules, review them with Dr. O'Donnell and post conspicuously in her classroom. Also, she will give individual copies to all students. Dr. O'Donnell will make all arrangements for Ms. Pollack to observe a 9th grade teacher at MESH [Miami Edison Senior High] for one entire class period. Before leaving MESH, Ms. Pollack will discuss what she has observed with the teacher. She will list at least 5 techniques the teacher used to address off task behavior. She will also describe at l[e]ast two methods the teacher employed to redirect students who were off task. Ms. Pollack will meet with Dr. O'Donnell to review the observation within 3 days of the observation. Ms. Pollack will observe one of Ms. Baum's [a fellow English teacher's] class for one entire period; she will look for and list 3 techniques Ms. Baum used to either prevent or redirect inappropriate student behavior. Within 48 hours of the observation, Ms. Pollack will meet with Ms. Baum to discuss the observation. Ms. Pollack will also schedule a meeting with Dr. O'Donnell to review the list and the discussion with Ms. Baum. Dr. O'Donnell will make all necessary arrangements. Ms. Pollack will register for and successfully complete the TEC Course "Classroom Management" to be held as follows: . . . Ms. Pollack will develop a detailed lesson plan for each of the following dates: Oct. 23 and 30. She will submit her plans to Dr. O'Donnell the Friday previous to those dates by 3:00 p.m. The plans must include the production of a completed student work product. Ms. Pollack will attach to her plans an example or model of the product she expects from her students. While observing Ms. Baum's class and/or through the follow-up discussion, Ms. Pollack will determine and list at least 3 techniques Ms. Baum employs to be aware of all students. Ms. Pollack will provide this list to Dr. O'Donnell. Ms. Pollack will plan one day's lesson specifically for group work. She will ask a colleague to observe her teach a class. They will discuss the observation. The teacher will provide Dr. O'Donnell with a brief written summary of the activities and discussion. Dr. O'Donnell will make all arrangements. These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that Margulies had observed during her October 8, 1991, observation. Two or three days following the observation, Margulies met briefly with Respondent to discuss the prescription. On November 4, 1991, Hunt held a conference-for-the-record with Respondent to review her failure to timely comply with prescription deadlines, which also had been the subject of an informal conference he and Respondent had had the previous month. Following this conference-for-the-record, Hunt determined that Respondent was "in violation of Category VII of TADS, Professional Responsibilities." He so advised Respondent and indicated he would be preparing and presenting to her an additional prescription dealing with this violation. Hunt warned that "[f]ailure to comply with this prescription will result in further disciplinary action." The prescription was prepared and presented to Respondent on or about November 12, 1991. It set forth the following remedial activities for Respondent to perform: Read the Code of Ethics of the Education Profession in Florida (6B-1.01) and the Principles of Professional Conduct for the Education Profession in Florida (6B-1.06) [copies of which were provided to Respondent]. Delineate applicable sections and submit a summary to Dr. O'Donnell for review and discussion. Read the UTD Contract sections relating to TADS. Outline these procedures and submit to Dr. O'Donnell. Ms. Pollack is directed to meet all remaining timelines of her current prescription. In the event of any additional prescriptions, she is also directed to meet all timelines. Respondent was next formally observed and evaluated on November 19, 1991, by Charles Houghton, a site administrator at another Board-run facility. Before assuming this position, Houghton, like O'Donnell and Margulies, had been a language arts regional coordinator for the Board and an English teacher. Houghton rated Respondent deficient in preparation/planning, knowledge of subject matter, techniques of instruction and assessment techniques. These unsatisfactory ratings were justified. Respondent did not follow her lesson plan. The entire period was consumed by only one of the four activities identified in the plan. This lone activity was simply to review material that had already been covered during a prior class period. What was identified in the plan as the lesson's objective was in reality an activity. Moreover, it was an activity that the students did not have the opportunity to complete. Although knowledgeable regarding the subject matter of the lesson, she was unable to impart her knowledge to her students. She failed to make the topic under discussion relevant to the students. Respondent did not ask questions that were sufficiently challenging. Most of the students were inattentive and not involved in whatever instruction was taking place. Respondent made no effort to draw them into the lesson. Almost all of the grades in Respondent's grade book were for classwork. There were very few grades for tests, quizzes or writing assignments. Of the student folders Houghton examined, none contained more than two graded assignments. The folders consisted primarily of written classroom assignments that involved merely copying on a piece of paper material that was on the blackboard. The students had already received their report cards for the first nine-week grading period of the school year, but the folders did not contain sufficient documentation to substantiate the grades she had given. The remedial activities Houghton prescribed for Respondent included the following: Ms. Pollack will keep a daily log in which she will note the degree to which she accomplishes the activities she had planned according to her prepared lesson plan. She will submit the log and the weekly lesson plan on each Monday for the previous week to Dr. O'Donnell. In her weekly lesson plans, Ms. Pollack will develop at least 3 activities with direct relevance to students' lives or interests. She will clearly identify these activities in her plans. She will submit her weekly lesson plans to Dr. O'Donnell each Friday, before 3:00 p.m. Ms. Pollack will review the packet of information concerning question strategies previously provided. She will provide Dr. O'Donnell with a list of at least 5 advantages to pre-planning questions and at least 4 advantages to asking questions at higher cognitive levels. Ms. Pollack will arrange for the Region I Language Arts coordinator to observe informally at least one full class period. Ms. Granat will provide feedback to Ms. Pollack concerning the students' understanding of the lesson concepts. She will also provide Ms. Pollack with feedback regarding how closely she followed her planned lesson and any adjustments made on any which should have been made. Ms. Granat will also provide written feedback to Ms. Pollack and Dr. O'Donnell. Ms. Pollack will assign, collect and grade at least 3 student assignments each week in all of her classes. One assignment must be a literature quiz/test, one must be a writing assignment of at least one paragraph and the third will be the teacher's choice. Each Monday during 1st period Ms. Pollack will present the student work and her gradebook in order to determine that the grades have been posted. Dr. O'Donnell will select one class each Monday for examination. These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that Houghton had observed during his November 19, 1991, observation. Houghton had a post-observation meeting with Respondent at which he went over the prescription with her. On December 6, 1991, Hunt had a mid-year conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance to date and the status of her future employment with the Board. Hunt reminded Respondent that if her performance, as measured by formal observations and evaluations, did not improve sufficiently, she would not be retained. Two union representatives were also in attendance at the conference. Hunt gave them permission to informally observe Respondent so that they would be in a better position to assist her. He also offered Respondent the opportunity to solicit assistance from any Board employee in whom she had confidence, regardless of whether the employee had been identified as a resource in any of the prescriptions she had received. Respondent was next formally observed and evaluated on February 7, 1992, by Dr. Matthew Welker, an assistant principal at Carol City. Welker rated Respondent deficient in preparation/planning, classroom management and teacher-student relationships. These unsatisfactory ratings were justified. Respondent did not follow the lesson plan. The students spent a significant amount of time copying the day's agenda from the blackboard. The agenda written on the blackboard was not consistent with the lesson plan. Respondent arrived late to class and therefore did not have a full period in which to instruct her students. The time she did have to provide instruction she did not use efficiently. An excessive amount of time was spent on "housekeeping" tasks. Of the 20 students in attendance that day, 6/ six were persistently off-task. Respondent made no real effort to prevent or to redirect their off- task behavior or to involve them in the lesson. Most of Respondent's interactional time during the lesson was spent with only six or seven students located on the right side of the classroom. Respondent made no attempt to verbally or nonverbally reward or recognize the students who did actively and appropriately participate in the lesson. Welker prescribed the following remedial activities for Respondent: Ms. Pollack will maintain a daily log indicating the degree to which she has accomplished the activities described in her weekly lesson plan. Ms. Pollack will also indicate in writing any changes she has made to align her actual lessons during the week with her weekly lesson plan. Ms. Pollack will submit these materials along with her weekly lesson plan to Dr. Welker for review and discussion on Monday of the following week . . . . Ms. Pollack will invite one of her colleagues or the Language Arts Department chairperson to observe her class. During that time the visitor is to record the time she spends on various activities while in class. Using the record prepared by the visitor, Ms. Pollack will then analyze her instruction on the basis of how much time she spends on instructional versus noninstructional activities. Once that information is known, Ms. Pollack will develop a strategy to reduce her percentage of noninstructional time while in class. This strategy will take the form of detailed lesson plans that indicate how Ms. Pollack is using time in her classroom. Ms. Pollack will submit her lesson plan to Dr. Welker for review and discussion on each Monday within the timeline established herein [March 30, 1992]. Ms. Pollack will invite one of her colleagues or the Language Arts Department chairperson to observe her class. During that time, the visitor is to record the frequency of off-task behavior observed in her class. Using the record prepared by the visitor, Ms. Pollack will then analyze her instruction and planning to formulate a plan to significantly reduce the frequency of off-task behavior observed. This strategy will take the form of detailed lesson plans that Ms. Pollack will submit to Dr. Welker for review and discussion on each Monday within the timeline established herein [March 30, 1992]. Ms. Pollack will invite a colleague or the Language Arts Department chairperson to observe her class in order to determine the frequency and distribution of verbal communication she makes with students in the classroom. Once that information has been recorded, Ms. Pollack will analyze the data and develop a treatment strategy to increase the frequency and distribution of her verbal communication with students in her classroom by at least 50 percent. Ms. Pollack will submit in writing to Dr. Welker for review and discussion the following information: Pretreatment interactional analysis showing both frequency and distribution of verbal student contact Treatment strategy to increase both frequency and distribution of verbal student contact during class. Posttreatment interactional analysis showing both frequency and distribution of verbal student contact. Ms. Pollack will make a tape recording of herself teaching a lesson involving interaction with students. Once the recording has been prepared, Ms. Pollack will play back the tape and record the frequency of reinforcement statements made to the students. She will also analyze her verbal statements to determine the total number of positive and negative reinforcement statements made during the class. She will then develop a treatment plan to increase the frequency of positive reinforcement by 50 percent. Ms. Pollack will submit in writing to Dr. Welker for review and discussion the following information: Pretreatment interactional analysis showing the total number of positive and negative reinforcement statements made toward students in your class Treatment strategy to increase the number of positive reinforcement statements while decreasing the number of negative reinforcement statements made toward students in your class Posttreatment interactional analysis showing the total number of positive and negative reinforcement statements made toward students in your class. These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that Welker had observed during his February 7, 1992, observation. Welker also provided Respondent with excerpts from a book that he recommended Respondent read to help improve her classroom performance. Hunt had another conference-for-the-record with Respondent on March 4, 1992. Hunt advised Respondent that since she had not corrected her performance deficiencies, he was going to recommend to the Superintendent of Schools that her professional service teaching contract not be renewed. He added, however, that he would reconsider his decision if Respondent "demonstrate[d] acceptable performance in the near future." Although, in explaining his decision to Respondent, Hunt specifically mentioned only the formal evaluations Respondent had received, 7/ informal observations of Respondent's classes revealed similar deficiencies in her performance. Perhaps the most glaring of these deficiencies was in the area of classroom management. Administrators often had to be called to her classroom because she was unable to maintain control over her students. 8/ Respondent's inability to maintain such control resulted in a classroom environment that not only was not conducive to learning, but at times was unsafe. 9/ Respondent was provided ample assistance to help her perform satisfactorily as a classroom teacher, but such help was to no avail. Notwithstanding that she was given notice of her deficiencies and a reasonable opportunity to correct them, her performance remained unacceptable. Some time shortly after his March 4, 1992, conference-for-the-record with Respondent, Hunt submitted to the Superintendent of Schools his recommendation that the Board decline to renew Respondent's contract. The Superintendent, without providing any notice to Respondent, submitted an identical recommendation to the Board. On April 22, 1992, the Board adopted the Superintendent's recommendation. The following day Respondent was formally observed and evaluated by O'Donnell and Jean McCauley. At the time, McCauley was the principal of Redland Middle School. Like O'Donnell, she had a language arts background. This was an external review. External reviews are conducted jointly by a site and non-site administrator in instances where a teacher has received multiple unacceptable performance evaluations. The administrators rate the teacher's performance independently and, if there are deficiencies, prepare a prescription together. Both O'Donnell and McCauley rated Respondent deficient in knowledge of subject matter, classroom management, techniques of instruction and assessment techniques. These unsatisfactory ratings were justified. Although the lesson could have benefited from the use of supplemental materials, none were used. The lesson was presented in an illogical and disorganized fashion at the lowest cognitive level. No critical thinking or synthesis of ideas was required of the students. Respondent's instructional methods were clearly inappropriate for the needs and abilities of the students. Different learning styles were not accommodated. Respondent did not monitor the students' understanding of the lesson. Respondent did not interact with any individual student notwithstanding that there were only 12 students in attendance. Respondent made no adjustments although it was obvious that the students were not taking part in the lesson. Respondent did not intervene when students engaged in off-task, inappropriate or disruptive behavior. During the lesson, the students did no written work for Respondent to examine and assess. Because of the ill-suited nature of the questions asked by Respondent during the lesson, the responses given were not useful in providing student assessments. There were no grades in the gradebook, nor were there any student folders available, for the class Respondent was teaching that period. Respondent presented two student folders from another of her classes. These folders did not contain the materials they should have. They were devoid of any quizzes, tests and essays. O'Donnell and McCauley prescribed the following remedial activities for Respondent: Ms. Pollack will submit her weekly lesson plans to Dr. O'Donnell by 2:30 p.m. each Friday. In the event of Ms. Pollack's absence, she will submit her plans by 2:30 p.m. of the day of her return. Her plans are to include a list, in order, of specific activities to be accomplished each day. In addition, she will estimate the time each activity will require and note that in the plan. In her weekly plans, Ms. Pollack will briefly explain the connection of objectives to activities each day. She will plan at least 2 separate but related activities each day. Ms. Pollack will review the packet of Questioning Techniques information previously presented to her. Using that information she will develop at least 5 higher level question[s], she will attach the questions to her lesson plans and meet with Dr. O'Donnell to review and discuss. Ms. Pollack will observe a mutually selected colleague for one free class period. She will note how the teacher makes clear his/her behavior expectations. She will present a list of at least 5 observed techniques to Dr. O'Donnell for review and discussion. During the observation of a colleague, Ms. Pollack will also note techniques the teacher employs to provide students with feedback about appropriate or inappropriate behavior. She will present this list to Dr. O'Donnell for review and discussion. During the observation and through discussion with her colleague, Ms. Pollack will note at least 5 techniques employed by her colleague to become aware of off-task student behavior. She will present this list to Dr. Welker for review and discussion. Ms. Pollack is to register for and attend the TEC course "Research on Student Motivation." The class dates are 5/13, 5/19, 5/27. Ms. Pollack will use commercially prepared supplementary material at least two times per week. She will attach copies of the supplementary material (or see Dr. O'Donnell if it cannot be attached to the submitted lesson plans) to the weekly lesson plans. While observing a colleague's class, Ms. Pollack will note at least 3 instances where the teacher corrects a student's incorrect response. Ms. Pollack will briefly describe in written form and present to Dr. O'Donnell for review and discussion. Ms. Pollack will meet with a mutually agreed upon colleague. She will discuss what to look for in order to determine if adjustments to the lesson are needed. She will also discuss appropriate adjustments that can be made. Ms. Pollack will provide Dr. O'Donnell with a list of at least 3 signals that lesson adjustments are needed and 3 appropriate adjustments a teacher can make. Ms. Pollack will invite a mutually agreed colleague to observe her teach a lesson. She will ask the colleague to keep a tally of interactions between her and individual students. Ms. Pollack will discuss this with her colleague and present the tally sheet to Dr. O'Donnell. Ms. Pollack will prepare and give a short quiz at least 2 times per week to determine areas of student confusion. She will make these available for review by Dr. O'Donnell. Ms. Pollack will assign, collect, grade and post in her gradebook at least 3 assignments per week. At least one of these must be a literature quiz/test, one must be a writing assignment of at lest one paragraph and the third is the teacher's choice. Every Monday Ms. Pollack must meet with Dr. O'Donnell to present the student work and her gradebook for review. Ms. Pollack is to report to Dr. O'Donnell's office at 7:45 a.m. In her weekly plans, Ms. Pollack must plan at least one activity that requires students to work together.. Ms. Pollack is to prepare a unit test for Call to the Wild and present it for review to Dr. O'Donnell before giving it to students. Ms. Pollack is to make and keep a student folder for each of her students. The folder must contain a representative sample of the student's work. Ms. Pollack is to submit a class set of these folders to Dr. O'Donnell for review. These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that O'Donnell and McCauley had observed during their April 23, 1992, observation. On May 20, 1992, Hunt had another conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance to date and her employment status. Hunt informed Respondent during the conference that, inasmuch as her performance remained unacceptable, as reflected by O'Donnell's and McCauley's evaluation, his recommendation to the Superintendent that her professional service teaching contract not be renewed would stand. (He apparently was unaware, as was Respondent, that the Board had already taken action on the matter.) Hunt further advised Respondent that she would be receiving an overall unacceptable rating on her annual evaluation for the 1991-92 school year. Although the Board had acted on the Superintendent's recommendation not to renew Respondent's professional service teaching contract on April 22, 1992, it was not until May 26, 1992, that the Superintendent sent Respondent a letter notifying her of the Board's action. The letter read as follows: This is your official notification that on April 22, 1992, The School Board of Dade County, Florida, acted upon my recommendation to withhold authorization for your future employment beyond the 1991-92 contract year. On April 17, 1991, I notified you that you had unsatisfactory performance and if no remediation were determined by April 1992, termination actions will be pursued. During the 1991-92 school [year], your performance was assessed deficient despite remediation efforts. You have been apprised of the deficiencies and subsequent employment actions in conferences-for-the-record on November 4, 1991, December 6, 1991, and March 4, 1992. Your employment with the Dade County Public Schools will terminate at the close of the 1991-92 contract year, and your last day of employment will be June 19, 1992. If you wish to contest your nonreappointment, you have fifteen calendar days from your receipt of this notice to request, in writing, a hearing. The written request for a hearing should be submitted to the School Board Clerk, Room 317, 1450 N.E. Second Avenue, Miami, Florida 33132. If you believe there is false information in your file which led to this decision, and wish to challenge this information, you should follow the procedures in Article XIV, Section 1.A.4 of the UTD collective bargaining agreement. Your written request must identify the false statements you wish cleared and should be addressed to the Assistant Superintendent, Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, Florida 33132, within fifteen calendar days of your receipt of this notice. Please be advised that even if you should prevail, there is no entitlement to reemployment. Respondent received her annual evaluation for the 1990-91 school year on or about May 29, 1992. She was rated unacceptable in the categories of knowledge of subject matter, classroom management, techniques of instruction and assessment techniques and, as promised, she received an overall rating of unacceptable. In addition, the evaluation indicated that Hunt had not recommended her for further employment. By letter dated June 3, 1992, Respondent, through her attorney, requested a "Chapter 120 Administrative Hearing before the Division of Administrative Hearings" on the nonrenewal of her professional service teaching contract. Pursuant to Respondent's request the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer on June 9, 1992. Following the close of the school year, Respondent was placed in a suspended-without-pay status pending the outcome of this administrative proceeding, notwithstanding that her professional service teaching contract had not been renewed. On July 22, 1992, the Board took action to formally suspend Respondent and initiate proceedings to dismiss her "for incompetency, just cause and gross insubordination." Respondent was advised of the Board's action and her right to request a hearing on the matter by a letter, dated July 23, 1992, from the Superintendent of Schools. Such a hearing was requested and the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer on July 27, 1992.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order (1) adopting the recommendation that Respondent not be issued a new professional service teaching contract, and (2) dismissing as moot the charges filed against Respondent pursuant to Section 231.36(6)(a), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March, 1993. STUART M. LERNER 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 8th day of March, 1993.
The Issue The issues are whether Respondent, Cynthia A. Foy (Respondent), committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(b), (c), (f), and (i), Florida Statutes (2003),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e) and (5)(d); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made: Respondent, Cynthia Foy, holds Florida Educator's Certificate No. 468641, covering the areas of early childhood education, elementary education, and English to speakers of other languages, which is valid through June 30, 2007. Respondent had been employed with the Hillsborough County School Board 17 years as of the 2002-2003 school term. At all times pertinent hereto, Respondent was employed as a first-grade teacher at Colson Elementary School (Colson) in the Hillsborough County School District (School District). Respondent worked as a teacher at Colson for about five years, beginning the 1998-1999 school year. During her employment in the School District, including her employment at Colson, Respondent never had any disciplinary action taken against her. From 1986 through 1996, Respondent consistently received satisfactory ratings on her annual teacher evaluations, except for one school year when she had three deaths in her family, including the sudden death of her father and of her 38-year-old brother. Respondent's Absences Respondent was absent from work 22 days during the 1998-1999 school year, her first year at Colson. Some of the absences were related to Respondent's health issues. However, most of Respondent's absences were related to her mother's illness. During the 1998-1999 school year, Respondent's mother was confined to a nursing home and had become very ill and frail. Due to her mother's failing health, Respondent wanted to be with her mother, to watch and take care of her. Also, even though Respondent's mother was in a nursing home, Respondent was responsible for taking her mother to her own doctors to make sure she got the proper care. During the 1999-2000 school year, Respondent was absent from work 13.5 days. Respondent's mother died during that school year. As a result, Respondent missed 13.5 days to deal with matters related to her mother's death. During the 2000-2001 and 2001-2002 school years, Respondent was absent from school for 19.45 and 16 days, respectively. These absences were because of Respondent's own health issues. During these school years, Respondent was under an extreme amount of stress due to what she perceived to be a hostile work environment at school. Mary Clark, principal of Colson, was concerned about Respondent's absences and specifically noted this concern on all of Respondent's evaluations, which are at issue in this proceeding. The reasons for Respondent's absences were not disputed, and there is no assertion that the absences were unauthorized. However, Mrs. Clark believed that Respondent's absences resulted in the lack of continuity of instruction and negatively impacted the learning of students in Respondent's first-grade classes. Mrs. Clark testified that because of their concern about their children's progress, some parents requested that their children be transferred from Respondent's class to another first-grade class. Records of such requests and actual transfers were not presented at hearing. However, Mrs. Clark recalled that at least one student had been transferred from Respondent's class. Whether the only reason for the transfer was Respondent's absences is unclear. Notwithstanding Mrs. Clark's concern and belief that Respondent's absences had a negative impact on the students in her class, no basis for this concern was established. To the contrary, during Respondent's tenure at Colson, her students consistently performed well academically as reflected by their scores on the Stanford Achievement Test, a nationally normed test. At all times relevant to this proceeding, the Stanford Achievement Test was used by the School District to assess first-grade students' achievement in the areas of mathematics and reading. At all times relevant to this proceeding, the test was administered to first-grade students at Colson in March or April of each school year. In March 2000, there were four first-grade classes at Colson. Of those four classes, Respondent's students made the highest scores in both the reading section and the math section of the Stanford Achievement Test. The results of the Stanford Achievement Test administered in April 2001, reflect that of the four first-grade classes, the students in Respondent's class made significantly higher scores in both reading and mathematics than the students in the other three first-grade classes. As of April 2002, Colson had six first-grade classes. Of the six first-grade classes, Respondent's class ranked first on the reading section and second on the mathematics section of the Stanford Achievement Test. Respondent's Annual Performance Evaluations The School District utilizes the Classroom Certificated Instructional Effectiveness Evaluation Form (Evaluation Form), which has been approved by the Hillsborough County School Board (School Board) as the instrument by which its teachers are evaluated. Typically, tenured teachers with professional service contracts are evaluated annually, but if the tenured teacher is experiencing difficulties in the classroom, the school administrator may evaluate the teacher more than once a year. At all times relevant to this proceeding, the Evaluation Form consisted of the following categories in which teachers are evaluated: Category I, Planning and Preparation, which includes six subsections or areas; Category II, Professional Behaviors, which includes 12 areas; Category III, Techniques of Instruction, which includes 15 areas; Category IV, Classroom Management, which includes seven areas; and Category V, Instructional Effectiveness, which includes one area. The Evaluation Form requires that the teacher's performance in each area be rated as "satisfactory," "needs improvement," or "unsatisfactory." The highest possible rating is "satisfactory," and the lowest rating is "unsatisfactory." In addition to the areas under the various categories in which teachers are rated, the evaluation requires that the teacher be given an "overall rating" of "satisfactory" or "unsatisfactory." As principal of Colson, one of Mrs. Clark's responsibilities was to supervise and evaluate the teachers at the school. Consistent with that responsibility, Mrs. Clark supervised and evaluated Respondent. Mrs. Clark evaluated Respondent once in the 1998-1999, 1999-2000, and 2000-2001 school years, usually in April. During the 2001-2002 school year, Mrs. Clark evaluated Respondent twice, in December 2001 and in March 2002. Mrs. Clark decided to evaluate Respondent twice in the 2001-2002 school year. Given Respondent's status as a tenured teacher and Mrs. Clark's "concerns over the years with her performance," by evaluating Respondent in the fall, Mrs. Clark would be able to give Respondent notice of the areas in which she still needed to improve. During the period between the fall evaluation and the spring evaluation, Respondent would have an opportunity to work to improve in those areas.2/ The ratings assigned to Respondent's performance on each of the Evaluation Forms are based on data that is collected by Mrs. Clark through her observations and while "walking into [the] classroom on a regular basis." The Administrative Complaint alleged that Respondent's evaluations for the 1998-1999 through the 2001-2002 school years indicated that she needed to improve in specified areas under the following categories: Category II, Professional Behavior; Category III, Techniques of Instruction; and Category IV, Classroom Management.3/ Although Respondent worked at Colson during the 2002-2003 School year, there is no evidence that she was evaluated that year as required by law. If an evaluation was completed for that school year, the Administrative Complaint does not allege that the evaluation indicated any areas in which Respondent needed to improve. Professional Behavior The Administrative Complaint alleges that Respondent received several evaluations from 1999 through 2002 that indicated she needed to improve in the following areas under the Professional Behavior category: 1) observes confidentiality related to students; 2) works cooperatively and supportively with school staff; and 3) responds reasonably to and acting appropriately to constructive criticism. With regard to the first area of concern, "observes confidentiality related to students," none of Respondent’s evaluations for the relevant time period, 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, indicated that she needed to improve in that area. In fact, contrary to the allegations in the Administrative Complaint, all five of Respondent's evaluations for that time period indicate that her performance in that area was rated as "satisfactory." The second area under Professional Behaviors in which it is alleged that Respondent's evaluations indicated she needed to improve is "works cooperatively and supportively with school staff." Respondent's evaluations for her first three school years at Colson--1998-1999, 1999-2000 and 2000-2001--reflect that her performance in the area, "works cooperatively with school staff," was "satisfactory." However, after receiving "satisfactory" ratings in this area for three consecutive years, for the first time, Respondent's evaluation for the 2001-2002 school year indicated that Respondent needed to improve in this area.4/ The evaluations gave no reason for the "needs improvement" rating in the area, "works cooperatively with school staff," on Respondent's December 2001 and April 2002 evaluations. Although no specific basis for the rating is given on the evaluation, it is noted that these evaluations coincide with the area supervisor's observations. The third area under the Professional Behavior category in which it is alleged that Respondent received several evaluations that indicated she needed to improve is the area, "responds reasonably to and acts appropriately upon constructive criticism." Contrary to this allegation, none of Respondent's evaluations indicated that she needed to improve in this area. Rather, Respondent's performance in the area, "responds reasonably to and acts appropriately upon constructive criticism," was rated as "satisfactory" on all five of the evaluations she received during the relevant time period. Techniques of Instruction The Administrative Complaint alleges that Respondent received several evaluations that indicated she needed to improve in the following areas under the Technique of Instruction category: (1) uses instructional time efficiently; presents subject matter effectively; and (3) uses praise appropriately. Respondent's evaluations for the 1998-1999, 2000-2001, and 2001-2002 school years indicated that Respondent needed to improve in the area, "uses instructional time efficiently." As a possible rationale for the rating assigned in the 1998-1999 evaluation, Mrs. Clark wrote on the evaluation, "I am concerned about the slow pace of her lesson as well as the pacing through reading." The evaluations for the 2000-2001 and the 2001-2002 school years gave no rationale for the "needs improvement" rating in the area, "uses instructional time efficiently." Additionally, there is no indication that Mrs. Clark told Respondent the basis of the rating or offered any recommendations as to how Respondent could improve in this area. Upon Respondent's receiving the December 2001 and the March 2002 evaluations, she requested, in writing, a detailed written explanation of the basis for each of the "needs improvement" ratings, which included the area, "uses instructional time efficiently." There is no evidence that Mrs. Clark ever provided the requested explanation. Additionally, the evidence does not establish a basis for the "needs improvement" rating in this area. The next area at issue under the Techniques of Instruction category is, "presents subject matter effectively." Respondent's evaluations for the 1999-2000 and the 2000-2001 school years indicate that Respondent needed to improve in this area. However, neither the evaluation, nor any evidence at the hearing, offered or established a basis for this rating. On Respondent's evaluations for the 1998-1999 school year, and most recently for the 2001-2002 school year, her performance in the area, "presents subject matter effectively," was rated as "satisfactory." Clearly, the "satisfactory" ratings on the December 2001 and March 2002 evaluations, which were for the 2001-2002 school year, marked an improvement over Respondent's ratings in that category for the immediate prior two school years. Finally, it is alleged that the third area under the Techniques of Instruction category in which Respondent's evaluations indicated she needed to improve is, "uses praise appropriately." Respondent's evaluation for 1998-1999, her first year at Colson, indicated that she needed to improve in this area. The next three school years, however, Respondent's performance in this area improved to "satisfactory," as reflected by the four evaluations for the 1999-2000, 2000-2001, and 2001-2002 school years. Classroom Management Under the category, Classroom Management, it is alleged that Respondent's evaluations indicated that she needed to improve in the area, "enhances and maintains students' self- esteem." On Respondent's evaluations for the 1998-1999 and the 1999-2000 school years, her first two years at Colson, Respondent's performance in the area, "enhances and maintains students' self-esteem," was rated "satisfactory." Respondent's evaluation for the 2000-2001 school year indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. It is specifically found that the Administrative Complaint makes no allegations regarding the "unsatisfactory" rating. Accordingly, except for limited purposes, issues related to that rating will not be addressed. Respondent's performance in the area, "enhancing and maintaining students' self-esteem," improved in the 2001-2002 school year from "unsatisfactory" to "needs improvement," as reflected in both her December 2001 and April 2002 evaluations. Instructional Effectiveness The Administrative Complaint does not allege that Respondent's evaluations reflect that she needs to improve in the Instructional Effectiveness category. However, in order to present a more complete picture of Respondent's performance, as rated on her evaluations, this category and Respondent's ratings thereunder are considered. The Instructional Effectiveness category includes only one area, "promotes academic learning which results in improved student performance."5/ This area is concerned with and assesses whether actual learning is taking place as a result of the teacher's instruction. 39. For the 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, Respondent's performance in the area, "promotes academic learning which results in improved student performance," is rated as "satisfactory." Overall Rating Category Respondent's "overall rating" in all five of her evaluations for the 1998-1999, 1999-2000, 2000-2001, and 2001- 2002 was "satisfactory." 6/ Transfer of Student to Respondent's Class (January 2001) In January 2001, a student, F.R., was transferred to Respondent's class from another first grade class because of his behavioral problems. When such a transfer takes place, the teacher to whom the student is being transferred is given prior notice that the student is being assigned to her class. In this instance, that was not done. Respondent was not informed in advance that F.R. was being transferred to her class. On the first day the students returned to school from winter break, F.R. just "showed up" in Respondent's class. Later, Respondent was told that the child was transferred to her class because he was having peer conflict problems, and, as a result, he was acting out. Respondent was told that the student’s acting out behavior included such things as spitting on children, stabbing children with forks, knocking things off the children's desks, and having outbursts. Respondent thought this was a new chance for the child, and she attempted to make the new class assignment work. For example, rather than isolate the child, as his former teacher had recommended, Respondent assigned F.R. to a seat between two very well-behaved little girls, who she knew would never say anything mean to him. Despite Respondent's efforts to work with F.R., he exhibited lashing out and angry behaviors. Due to F.R.'s exhibiting lashing out behavior, Respondent was concerned for the safety of the other students in the class. In January or early February 2001, Respondent shared her concern with Mrs. Clark and asked that F.R. be removed from her class. Mrs. Clark responded that F.R. was just a little boy and said, "Let's see how he does." No offers for assistance were made, and Respondent felt that her request was simply ignored. Later, in January or early February 2001, as Respondent's class lined up and walked to the lunchroom, F.R. deliberately "high stepped and slid on the heels" of the child in front of him. When Respondent asked F.R. to stop, he just laughed, looked at Respondent, and repeated the behavior. Respondent told F.R. to stand out on the side of the line and walk with her. At first he complied, but then he started to get back in the line. Respondent then told F.R., "You're walking with me." After F.R. ignored Respondent, she took his hand so that he could walk with her. F.R. then yanked and pulled Respondent's fingers back, kicked Respondent "really hard" in the upper ankle, and "took off running." Respondent reported the incident to Mrs. Clark and the vice-principal and completed an incident report, reporting her injury and indicating her belief that F.R.'s behavior described in paragraph 44 constituted an assault/battery. After the incident, Respondent again asked Mrs. Clark to transfer F.R. from her class. Mrs. Clark never responded to Respondent's request. In fact, Mrs. Clark never talked to Respondent about the incident. Some time after the February 21, 2001, observation discussed below, there was a second incident where F.R. was physically aggressive toward Respondent. F.R. ran out of the lunchroom to return to the classroom to get the check he had forgotten. Concerned about his past behavior of destroying and "messing up" the other children's belongings, Respondent went to get F.R. Before Respondent could get to the classroom, F.R. had gotten the check and was running back to the lunchroom and toward Respondent. Respondent stuck her arm out to stop him and he continued running around her. Once in the lunchroom, Respondent "pulled" or "grabbed" the check from F.R.'s hand and asked the aides in the lunchroom to call Mrs. Clark. F.R. then seemed to explode, and he began punching Respondent with his fists and biting her. By the time the assistant principal got to the lunchroom, four students had pulled F.R. off Respondent, and Respondent was holding F.R.'s hand. When the vice-principal arrived, she did not discuss the incident with Respondent, but began screaming and told Respondent, "Go, get out of here, leave!" Following the lunchroom incident, Respondent filed another assault report and, for the third time, asked Mrs. Clark to transfer F.R. from her class. After there was no response to her verbal request, a union representative advised Respondent to make the request in writing. Initially, Mrs. Clark denied the request because it was not on the proper form, but once Respondent made the request on the appropriate form, F.R. was transferred from her class. Prior to the requests related to F.R., Respondent has never requested that a student be transferred from her class. Observations of Area Supervisor Ms. Daryl Saunders, an area supervisor for the School District, went to Respondent's classroom on five different occasions between February 21, 2001, and March 21, 2002, twice during the 2000-2001 school year, and three times during the 2001-2002 school year, to conduct observations. On a visit in February 2002, Ms. Saunders did not conduct an observation. With the exception of the first visit to Respondent's classroom, all of Ms. Saunders' visits were for the purpose of observing Respondent. Of the four times Ms. Saunders went to observe Respondent, she actually conducted observations three times. First Observation (February 21, 2001) Ms. Saunders' first visit to Respondent's classroom was on February 21, 2001. At the request of Mrs. Clark, Ms. Saunders went to Respondent's classroom to observe a student, F.R., who had been displaying inappropriate behavior in class and is described above.7/ During the time Ms. Saunders observed F.R., he did not have any outbursts, engage in any physically aggressive behavior, or display any disruptive or inappropriate behaviors. Ms. Saunders noted that the student delayed starting his assignment and took breaks between work, but did not bother any other student. Based on her observation of F.R. and the manner in which Respondent communicated with him, Ms. Saunders wrote in the summary letter to Mrs. Clark, "I believe F.R. is trying to survive in a room where he feels he is not valued." While Ms. Saunders was observing F.R., she also observed Respondent teaching and interacting with the students. Ms. Saunders was particularly concerned with Respondent's frequent verbal reprimands that were audible to the entire class. During the observation, Ms. Saunders also noticed that Respondent seemed to be easily frustrated and that when communicating with students, her voice vacillated between a friendly tone to an aggressive tone. Ms. Saunders expressed this and other concerns, not relevant to this proceeding, to Mrs. Clark in a letter dated February 22, 2001. According to the letter, a verbal reprimand to a particular student in front of the entire class is "damaging to [a] student's self-esteem." Ms. Saunders further noted that "considering the environment, I was surprised there were no behavioral issues while I was present." In the February 22, 2001, letter to Mrs. Clark, Ms. Saunders recommended that "we provide [Respondent] with some assistance so that the classroom environment is more conducive for instruction and learning." As a means of supporting Respondent in this effort, Ms. Saunders recommended that Mrs. Clark "have [Respondent] take two courses through the staff development office." The two classes that Ms. Saunders recommended were Cooperative Discipline and Effective Teaching Strategies. Finally, Ms. Saunders' letter stated, "the Language Arts Frameworks document should be reviewed with [Respondent]." There is no indication that Mrs. Clark discussed these recommendations. Second Observation (May 7, 2001) At Mrs. Clark's request, Ms. Saunders visited Respondent's classroom on May 7, 2001, to observe Respondent's teaching practices. This was about two weeks after Respondent received her evaluation for the 2000-2001 school year, which had rated her performance as unsatisfactory in the area of "enhancing and maintaining student's self-esteem." Pursuant to an earlier suggestion by Ms. Saunders, Respondent allowed herself to be videotaped in order that she could better critique her own behavior in the classroom. To implement this recommendation, the school's media specialist was in the classroom to set up the video equipment on the day of Ms. Saunders' observation. Soon after Ms. Saunders arrived, the media specialist asked Respondent if she should put the tape in the video recorder. Respondent answered, "Please, I don't want to be accused of using three minutes of my time up." Ms. Saunders believed that Respondent's tone of voice was "unprofessional" and that the comment was directed at her. During the May 7, 2001, observation, a student who was speaking to other students in a group had her back to them. Respondent's voice "became aggravated" as she told the student to turn around. Respondent placed her hands on the student's shoulders and physically turned her, but did not do so forcibly. During the May 7, 2001, observation, Ms. Saunders noted improvement in Respondent's communication with her students. In her written summary of the observation dated May 16, 2001, Ms. Saunders wrote: Based on that first encounter [February 21, 2001], I would say my greatest concern was how you communicated with both students and adults. However, this time your demeanor in front of the children was quite different than when I last observed in your classroom. I believe having the video camera present helped to keep you focused on appropriate communication with the children. I was pleased to hear more of a pleasant tone. Ms. Saunders' summary also stated that she counted four times when Respondent appeared to become frustrated and her tone of voice changed to a negative one. Ms. Saunders' summary of the May 7, 2001, observation included the following recommendations: One way to support and assist you regarding classroom environment, instruction and planning would be to have someone review with you, the six domains from the Florida Performance Measurement System. This information is based on research and would be beneficial to again cover. In addition, I recommend that you attend training provided by the elementary education department specifically in the area of writing. Enrollment can be done on-line. . . . There are many courses offered this summer. The Language Arts Frameworks document should also be reviewed. This will provide information about our district's curriculum and the writer's workshop model. Other staff development offerings related to classroom management are offered periodically through the staff development office. I suggest you take one of their courses to assist you with classroom management. You can register on line any time. . . . In the May 16, 2001, summary, Ms. Saunders notified Respondent that she planned to observe Respondent's classroom again soon. Additionally, Ms. Saunders indicated that she expected to see "appropriate and timely instruction and activities based on student need and planned from grade level expectations." Third Observation (December 6, 2001) Ms. Saunders conducted the third observation on December 6, 2001, seven months after the previous observation. Ms. Saunders summarized her observations in a letter dated December 17, 2001. In the letter, Ms. Saunders advised Respondent, for the first time, that the December 6, 2001, observation was part of a plan to assist Respondent with teaching practices. On December 6, 2001, Ms. Saunders arrived at Respondent's classroom at 8:30 a.m. and stayed until 9:10 a.m., when the children left the room for an activity. During the 40-minute observation, Ms. Saunders heard Respondent communicating with students and observed her conducting a review of telling time. Ms. Saunders was complimentary of Respondent's review of telling time. In the written summary to Respondent, Ms. Saunders wrote: You try hard to provide ways for students to remember abstract concepts. You use pneumonic devices, short stories, rhymes and other ways to assist with memorization. By calling the numbers bases and relating the time to the name of the base they passed, students more accurately read time when the short hand falls somewhere between two numbers. This seemed quite effective. Ms. Saunders observed an incident which she perceived to be negative. There was a student who was off task. Respondent directed her attention to the student and asked the student, "Would your mother [or family] be proud of you?" Ms. Saunders believed that when Respondent made this statement, her voice "sounded with disapproval." Ms. Saunders suggested that in the situation described in paragraph 66, Respondent should have "encouraged" proper behavior by asking the student a question that would have him participate so that he becomes on task rather than off task. In another situation, Ms. Saunders observed Respondent interact appropriately and effectively with a student she was reprimanding. In that case, Respondent asked the student, "What time is it?" Before that student could answer, another student shouted out the answer. Recalling Respondent's positive response in that situation, Ms. Saunders stated the following in the December 17, 2001, summary: A boy shouted out the answer and you began to reprimand him. You began to speak, stopped yourself, and continued with this carefully crafted sentence. "Tell me the rule about calling out." It was nice to see you stop yourself in mid-stream, rethink a way to correct this misconduct while still preserving the child's dignity. Based on the December 6, 2001, observation, Ms. Saunders had two areas of concern, only one of which is relevant in this case. That area relates to Respondent's "appropriate use of instructional time." Ms. Saunders' concern is stated in the summary as follows: In my opinion, a second area of concern relates to planning and appropriate use of instructional time. I entered your room at 8:30 and the instructional day begins at 8:00 a.m. Instruction in your room did not begin until 8:44 and the fifteen minutes suggested for calendar math was stretched to 21 minutes. I suggest you utilize time more wisely by beginning calendar math immediately after announcements. Then spend the rest of the morning on shared, guided and independent reading when youngsters are fresh and ready to learn. Beginning instruction nearly 45 minutes after the day begins will allow you to cover all the curriculum. Although the "instructional day," to the extent that term refers to Respondent's teaching a lesson to the class, did not begin at 8:00 a.m., or soon thereafter, there was a reasonable explanation for the delay. First, three students were assigned to Respondent's class that day because their regular teacher was absent. Prior to beginning instruction, Respondent met with those students, asked them their names, assigned them desks, and explained her classroom management system. Respondent's classroom management system involved giving each student a certain number of clothes pins at the beginning of the day. During the school day, the students could lose and/or earn clothes pins, depending on their conduct. The second reason for the delay in beginning the instructional day was that several students in Respondent's class had been allowed to go to the media center to "Santa's Book Fair." As Ms. Saunders noted in her written summary, several of Respondent's students did not return to the classroom from the book fair until 8:36 a.m. In light of the foregoing circumstances, it was reasonable that Respondent did not begin the "instructional day" at 8:00 a.m., or immediately after announcements were made. Admittedly, Ms. Saunders did not know what, if any, instructions or directions Respondent gave to students prior to 8:30 a.m. However, when Ms. Saunders entered Respondent's classroom, the students were actively engaged in various activities. For example, one student was working on math worksheets. Another student was at the computer taking an Accelerated Reading test. Respondent was working with the student at the computer. In addition to Ms. Saunders' concern that the instructional day did not begin until 8:44 a.m., she believed that Respondent spent too much time teaching the "calendar math" activity. Respondent began the activity at 8:44 a.m., and completed it at 9:05 a.m. Even though Ms. Saunders complimented Respondent on her presentation of the activity, as discussed in paragraph 65, she criticized Respondent for spending too much time teaching or reviewing the lesson. According to Ms. Saunders, the "suggested" time for "calendar math" was 15 minutes, but Respondent "stretched" the activity to 21 minutes, which was six minutes longer than the "suggested" time. Ms. Saunders offered no explanation of why or how Respondent's extending the calendar math activity by six minutes was not an "appropriate use of instructional time." At 9:10, a.m., five minutes after the calendar math lesson, Respondent's students had to leave the classroom to attend a health presentation. The five minutes between the end of "calendar math" and when the children left the classroom for the health presentation, allowed time for the children to return to their seats and for Respondent to pass out name tags to the students and have them line up before leaving the room. Ms. Saunders offered no suggestions as to a more appropriate or acceptable way Respondent could or should have used the extra six minutes that Respondent used teaching the calendar math activity. Ms. Saunders summarized the December 6, 2001, observation and made recommendations in a letter dated December 17, 2001. Based on Ms. Saunders' concerns about Respondent's teaching practices, Ms. Saunders recommended that Respondent "have someone review with [her] the six domains from the Florida Performance Measurement System." Also, she recommended that Respondent take training provided by the elementary education department and a classroom management course, both of which were offered "periodically" through the staff development office. Attempted Observation (February 2001) On an unspecified day in February 2002, Ms. Saunders went to Respondent's classroom to conduct her fourth observation. After Ms. Saunders entered the classroom, Respondent told her that she had no notice of the observation. Ms. Saunders then advised Respondent that Mrs. Clark knew that Ms. Saunders would be observing Respondent's class that day, but that "neither of us [Saunders nor Clark] chose to make you [Respondent] aware of the visitation." Respondent espoused the view that she should have received notice of the observation. Ms. Saunders disputed Respondent's view that she should have been given notice and indicated that the observation was part of the assistance plan laid out in May 2001. Respondent replied that an assistance plan could only last 90 days and, thus, this observation could not be part of any such plan. Ms. Saunders then asserted that she could do an observation any time as part of her normal duties. Respondent disagreed and requested that Ms. Saunders provide her with a written explanation of the reason why Ms. Saunders was visiting the class, the instrument she would be using, what she would be observing, and how long she would be staying. As the verbal interchange proceeded, Ms. Saunders thought that Respondent's voice became more aggressive and that she was also getting upset. Because Respondent's students were in the classroom, Ms. Saunders decided to leave the classroom and return at another time. Although students were in the classroom during the verbal exchange concerning whether Ms. Saunders' visit was authorized, there is no evidence that the students heard the conversation. Fourth Observation (March 21, 2002) On March 21, 2002, Ms. Saunders conducted an observation in Respondent's classroom. Upon Ms. Saunders' entering the room, Respondent advised her that she had no notice that Ms. Saunders was coming to her class. Respondent also told Ms. Saunders that the students were taking a school-wide writing assessment. Ms. Saunders acknowledged that, but still indicated that she would be seated and conduct an observation. Respondent then approached Ms. Saunders and asked why she was in the class, what instrument she was using, and what she was observing. Ms. Saunders reiterated her prior position that she was there as part of the assistance plan and that she would be taking anecdotal notes. Respondent then asserted her earlier position, that an assistance plan was only for 90 days. Consistent with Ms. Saunders' previous recommendation that Respondent tape herself in class as a way to critique herself, Respondent told Ms. Saunders and the class that she was turning on the tape recorder. Ms. Saunders began the observation at or about 8:58 a.m., and ended it at 9:16 a.m. In all, the observation lasted only about 18 minutes. During most of that time, Respondent's students were completing a school-wide writing assessment. As students finished the writing assessment, Respondent gave them books to read silently, while the other children continued to work on the writing assessment. Ms. Saunders summarized the March 21, 2002, observation in a letter dated April 18, 2002. Due to the duration of the observation, 18 minutes, and the fact that the students were taking a writing assessment, Ms. Saunders reported only a few specific observations. None of those observations concerned or were related to Respondent's teaching techniques or classroom management.8/ In the April 18, 2002, letter, Ms. Saunders summarized the March 21, 2002, observation and made conclusions. In the letter, Ms. Saunders stated she continued to see the "same behaviors" from Respondent. She further stated, Each time I visit your classroom I continue to see the same behaviors from you. Though discussion has occurred regarding ineffective practices, visitation were made to a number of other classrooms at Yates Elementary, suggestions regarding inservice courses have been made, yet your practices have not changed. I continue to see an emphasis on students being silent unless called upon. I continue to hear you speak gruffly to students. I continue to see you punish students for very minor infractions like wiggling or whispering. I continue to see you isolate students from the group. I continue to see you go over concepts, like vocabulary orally in order for students to memorize things rotely. I continue to see calendar math exceed the 15 minutes it is intended to occupy of the mathematics instructional time. I continue to see only one student engaged at a time. It was the intention of the assistance plan to have you reevaluate some of your ineffective practices and work to make some changes. I have yet to witness any of that nor do I think you are even trying to make strides toward improvement. Despite her recitation of areas in which Respondent still needed to improve, Ms. Saunders offered no recommendations in the April 18, 2002, summary letter to assist Respondent. However, Ms. Saunders stated that she "plan[ned] to make an unannounced observation in [Respondent's] class again soon," but she never did. The conclusions in Ms. Saunders' April 18, 2002, letter are inconsistent with some of her earlier observations discussed in paragraphs 59, 65, and 68 above. Moreover, there was no connection between the conclusion Ms. Saunders articulated in the summary letter and what she observed on March 21, 2002. Area Supervisor's Criticism of Respondent's Reprimand Method Ms. Saunders was critical of the way Respondent reprimanded students. During Ms. Saunders' observations, Respondent sometimes would call the name of the child who was being reprimanded and tell him what he should or should not be doing. At the hearing, Ms. Saunders testified to maintain order in the classroom, Respondent should have used "public praise" and "private criticism." Notwithstanding this position, Ms. Saunders admitted that this method or principle is not an established policy and procedure of the School District. While Ms. Saunders testified that the "public praise, private criticism" principle is simply an "educational belief that many people subscribe to," she acknowledged that other models exist. There was no evidence presented at the hearing that Ms. Saunders ever specifically discussed the "public praise, private criticism" philosophy that she believed Respondent should have used in the classroom. Observations of the School Principal Mrs. Clark frequently observed Respondent in the classroom as part of her routine of visiting all the classrooms at Colson. During her observation of Respondent, Mrs. Clark saw and heard Respondent sometimes use a "harsh desist" in reprimanding students. According to Mrs. Clark, the term "harsh desist" means "harshly reprimanding a child to stop doing something." Mrs. Clark described an example of a "harsh desist" by Respondent's saying, "Shhhh" to the class in a loud way, and talking to children in a way that was "derogatory." Mrs. Clark believed that the children were impacted by the way Respondent spoke to them. She based this belief on the expressions she saw on some of the children's faces. Mrs. Clark testified, "In some instances, they [the students] would cringe." Mrs. Clark testified that she talked to Respondent about her "harsh desist," but Respondent did not change this classroom management method. These discussions were not documented, and no reference to this issue was ever noted on Respondent's evaluations. The record fails to establish when or how often Mrs. Clark observed Respondent engaging in a "harsh desist," to whom any particular "harsh desist" was directed, and if and how the "harsh desist" affected the student. Mrs. Clark testified that she observed situations in which she observed Respondent talk to students in a derogatory manner. In one instance, the student referred to in paragraph 41 above, who had been transferred to Respondent's class because of behavioral problems he was having in another class, left Respondent's classroom without permission and was returned to the room by Mrs. Clark. The student told Mrs. Clark that he had left the room to look for a pencil or scissors. Mrs. Clark asked Respondent if the student could borrow one from another student or if she would give him the tool that he needed. Respondent said she would not give him the particular tool. Respondent continued, "He breaks them all the time. He doesn't deserve them." Although students were in the classroom when Respondent made the comments, there is no evidence that they heard the comments. The other incident in which Mrs. Clark described Respondent as using derogatory language when talking to a student involved T.B., a student in her class. On an unspecified date, Respondent was walking down the hallway with her students, taking them to the buses. Respondent was holding T.B. by his arm, presumably for misbehaving. At the time, Mrs. Clark was in the hallway, but some distance away. When Respondent saw Mrs. Clark in the hallway, she told T.B., "If you don't behave, you're going to get a referral to that lady over there," pointing to Mrs. Clark. Mrs. Clark testified that there is nothing wrong with reminding a child that he could have to go the principal's office if he or she misbehaves, "if it [is] handled in the appropriate way." The clear implication was that the manner in which Respondent handled the situation described in paragraph 98 was inappropriate. However, no evidence was presented to establish the appropriate way to remind the student that his behavior needs to improve and that there are consequences for misbehavior. Recommendations of Mrs. Clark Respondent's 2000-2001 evaluation indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. To address this rating, Mrs. Clark issued a letter to Respondent which made two recommendations to assist Respondent in improving in this area. The letter is referred to on the evaluation and was given to Respondent on or about April 24, 2001, the day she received the 2000-2001 evaluation.9/ The first recommendation was that Respondent attend a Cooperative Discipline Workshop that was offered by the School District or "something similar to that that was offered by the district." The other recommendation was that Respondent go and observe behavior management in classrooms at other schools. No specifics were given as to who would schedule the time, place, and number of observations. With regard to the classroom management course, no information was provided as to what, if any, approval would be needed prior to taking the course. In neither instance was a time specified that Respondent would have to complete the observations and/or the classroom management course. During Respondent's tenure at Colson, the only written recommendations she received from Mrs. Clark were the two made in the letter issued to Respondent. As reflected on the 2000-2001 evaluation, Mrs. Clark issued the letter to address the "unsatisfactory" rating Respondent received in that evaluation. In such a case, a tenured teacher who receives an "unsatisfactory" rating, a letter and/or form of assistance is required to be provided pursuant to Section 1012.34(3)(d), Florida Statutes. Respondent's Efforts to Comply With Assistance Plans and/or Recommendations In an effort to comply with Mrs. Clark's recommendation that she observe other classes, Respondent asked several teachers on her first-grade team, including one who was nationally-certified, if she could observe them. Some of these teachers had been held out by Mrs. Clark as using behavioral models that were ones that Respondent might use in her class. All of the teachers agreed to allow Respondent to observe their classes, but Mrs. Clark denied Respondent's request to observe any of the teachers at Colson. Eventually, someone, likely Ms. Saunders or Mrs. Clark, scheduled an observation for Respondent at Yates Elementary School (Yates). On an unknown date between May 7, 2001, and December 6, 2001, Respondent went to Yates to observe several first-grade classes pursuant to Mrs. Clark's April 24, 2001, recommendation. Ms. Saunders accompanied Respondent to the class for the observations. As Respondent and Ms. Saunders went to observe in the various classrooms, it appeared to Respondent that the teachers in those classrooms had no prior knowledge of the observations. During the observations at Yates, Ms. Saunders directed Respondent to write down anything positive she saw regarding classroom management, as well as anything she found pedagogically unsound.10/ Ms. Saunders referenced and discussed Respondent's observations at Yates in the summary letter dated December 17, 2001. In that letter, Ms. Saunders recalled the following: During the visit to Yates, we witnessed some wonderful classroom strategies and we also saw some things that perhaps would not be helpful. I know, based on our conversation, that you saw some things that you might like to try implementing. I hope that you will continue to reflect on that day and try some of the things you think might work well in your room. Ms. Saunders also noted in the December 17, 2001, letter that at the time of the visit to Yates, she asked Respondent to write a plan that included trying or applying some of the classroom management strategies that they witnessed. Respondent complied with this directive as reflected in Ms. Saunders' letter in which she stated, "A copy of that plan was to be given to Mrs. Clark[,] and I am aware that you submitted something to her." As requested by Ms. Saunders, Respondent submitted a classroom management plan to Mrs. Clark based on what she observed at Yates that she could implement in her classroom. However, there is nothing in the record to indicate whether Respondent's plan was ever reviewed or critiqued by either Mrs. Clark or Ms. Saunders. After Mrs. Clark recommended that Respondent take a classroom management course, she attempted to do so, but was unsuccessful. Respondent's initial failure to take the classroom management course after the April 2001 evaluation, was based on a misunderstanding, miscommunication, and/or no communication between Mrs. Clark and Respondent. Later, Respondent's efforts to take a classroom management course were thwarted by Mrs. Clark. The misunderstanding, miscommunication, and/or lack of communication between Mrs. Clark and Respondent is evident. Almost eight months after Mrs. Clark initially recommended that Respondent take a classroom management course, she wrote in the "comment section" of Respondent's December 19, 2001, evaluation that she was "not sure" if Respondent had taken the course. In response, Respondent wrote on the same evaluation, "It was my understanding that a workshop would be scheduled for me during the school year." Mrs. Clark testified that Respondent had "repeatedly kept asking" for which workshop Mrs. Clark had signed her up. Based on the apparent misunderstanding discussed in paragraph 109, Respondent selected at least two different classroom management courses. She then requested Mrs. Clark's consent, because the course required payment of a fee and a substitute teacher for the time Respondent would be attending the course. Both courses were approved by the Hillsborough County School Board. Although in the 2001-2002 school year, Respondent made several requests to take a management course, Mrs. Clark denied all the requests, indicating that no money was available. In one case, a person from the School District office called Respondent and told her that no money was available for her to attend the courses she had requested. The payment for one of the courses was about $135.00 and required that a substitute teacher be hired to cover Respondent's class on the day of the course. Having been unsuccessful in obtaining permission or approval to attend two School Board-approved courses, on September 20, 2002, Respondent wrote an e-mail letter to Mrs. Clark regarding Respondent's efforts to take a classroom/behavior management course. In the e-mail, Respondent indicated that she had looked to take the recommended course on a professional study day (when students are not present), but had not found any such course being offered. In light of Mrs. Clark's and/or the School District's failure to approve a course for Respondent to take, Respondent requested that Mrs. Clark provide Respondent with the name of the classroom/behavior management course that Mrs. Clark wanted her to take and the date and time of such course. There is no evidence that Mrs. Clark ever responded to Respondent's September 20, 2002, e-mail or ever provided Respondent with the name of a classroom management course to attend. Moreover, no evidence was presented that the School District actually offered the recommended classroom management course during the relevant time period. Despite the recommendation that Respondent take the classroom/behavior management course, she was not provided with the assistance and in-service opportunity to help correct or improve the noted performance deficiency. Nonetheless, through her own effort, she increased her performance area, "enhances and maintains students' self-esteem," from "unsatisfactory" in the 2000-2001 school year to "needs improvement." Incidents Involving Respondent and School Principal and Staff First Incident (January/February 2001) In January or February 2001, during the lunch break, Vicki Davis, one of the other first-grade teachers, was sitting near Respondent and noticed that Respondent was writing in a notebook. Ms. Davis then asked Respondent, "What are you doing? Writing about kids or something?" Respondent did not elaborate, but told Ms. Davis that it was a behavior book. Ms. Davis was concerned because she saw her name in the book, but beyond that, she could not say what was in the book. Exactly what Respondent was writing in the "behavior book," is unknown, but this incident occurred soon after the student referred to in paragraph 41 was transferred from Ms. Davis' class to Respondent's class. Respondent implied that she was writing down observations about the child. Even though the precise contents of the "behavior book" were not clearly visible, Ms. Davis felt uncomfortable when she saw what she believed to be her name in the "behavior book." Second Incident (July 2001) In July 2001, when school was not in session, Respondent telephoned the school and asked Mrs. Clark to provide her with a report that Ms. Saunders had prepared. Before leaving the school, Mrs. Clark advised Jennifer Connolly, her secretary, that Respondent was coming to get the report and told Ms. Connolly to put the report in Respondent's mailbox. When Respondent arrived at Colson, she checked her mailbox, but did not see the report that she had come to retrieve. At the time, no one was in the front office area so Respondent went into Mrs. Clark's office and looked on her desk for the document. While Respondent was in Mrs. Clark's office looking through papers in an effort to locate Ms. Saunders' report, Ms. Connolly saw Respondent and asked why she was in the office. After Respondent explained that she was looking for Mrs. Saunders' report, Ms. Connolly told Respondent the report was in Respondent's mailbox and to leave Mrs. Clark's office. Ms. Connolly left the office and walked down the hall. After Ms. Connolly left Mrs. Clark's office, Respondent turned out the light in Mrs. Clark's office and closed the door to the office as she exited. By the time Respondent got to her mailbox, Mrs. Saunders' report was on top of the stack of mail in Respondent's mailbox. After being informed about Respondent's going into her office, Mrs. Clark contacted the School District's Professional Standards Office. An investigation was conducted and based on the findings, a letter was issued to Respondent. It is unknown if the letter was a warning, reprimand, or other type of communication since the letter was not offered as evidence at this proceeding. There is no indication that Respondent was doing anything in Mrs. Clark's office other than looking for the report that she came to the school to retrieve; the report that Mrs. Clark had expected her to pick up. Nonetheless, Respondent's decision to go into the principal's office, without permission, reflected poor judgment on her part. This, however, was an isolated incident and is not indicative of Respondent's usual judgment. Except for this incident, Respondent's record indicates that she usually exercised good judgment as shown by her evaluations for the relevant time period. For example, for the three school terms immediately prior to the July 2001 incident, Respondent's performance in the area related to a teacher's judgment under the Professional Behavior category, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory."11/ The only evaluation that indicated Respondent "needed to improve" in that area was the December 2001 evaluation, the first evaluation she received after the July 2001 office incident. However, in Respondent's very next evaluation dated April 24, 2002, her performance in the area, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory." Third Incident (2001-2002 School Term) In or about the 2001-2002 school year, Respondent brought a tape recorder to a team meeting. When Ms. Davis, one of the team members, saw the tape recorder, she felt uncomfortable and told Respondent to turn off the tape recorder.12/ Ms. Davis knew that "something was going on between [Respondent] and Mrs. Clark" and seemed to suspect that Respondent's bringing the tape recorder into the meeting was somehow related to that. However, Ms. Davis did not want to be a part of that and told Respondent, "This [meeting] is not about anything. We're working together as a team." Respondent immediately complied with Ms. Davis' request and turned off the tape recorder. After that one incident, Respondent never again brought a tape recorder to a team meeting. Fourth Incident (February 25, 2003) On or about February 25, 2003, as part of her usual routine of visiting classrooms, Mrs. Clark went to Respondent's classroom, entering from the back door. At the time, Respondent was sitting with two students, working with them. When Respondent saw Mrs. Clark, she got up from her seat and walked over to where Mrs. Clark was standing. Respondent then asked Mrs. Clark, "Did you leave right after us?" Mrs. Clark correctly understood, and Respondent confirmed that the question referred to Respondent's grievance hearing that was held the previous day and attended by Respondent and her attorney, as well as Mrs. Clark and the area supervisor. Respondent apparently thought Mrs. Clark indicated that she had left immediately after the grievance hearing. Respondent challenged Mrs. Clark and indicated that Respondent and her attorney had waited outside for Mrs. Clark for 15 minutes. Respondent then moved closer to Mrs. Clark and whispered in her ear. Mrs. Clark understood Respondent to say, "You're a liar. You're devious. There is a God. I'm not through with you yet." Respondent denied that she made these statements. Given the conflicting testimony of Mrs. Clark and Respondent, both of whom appeared to be credible witnesses, there is no clear and convincing evidence that Respondent made the statements. Nonetheless, it is found that Mrs. Clark understood and believed that the statements in paragraph 130 were the ones Respondent whispered to her. Mrs. Clark responded to Respondent's statements in a voice that was not a whisper by asking, "You're not through with me yet?" According to Mrs. Clark, during this incident, she repeatedly kept turning to Respondent and kept telling her, "If you have something to say to me, we can meet in my office." There were children in Respondent's classroom during the incident described in paragraph 130, but Mrs. Clark's credible testimony was that the children could not hear Respondent's comments. Mrs. Clark described the comments Respondent whispered in her ear as "quite upsetting." While Mrs. Clark might have been upset, her conduct clearly indicated that she did not feel threatened by Respondent's comments. After the exchange between Respondent described in paragraphs 130 and 131, Mrs. Clark stayed in Respondent's classroom to continue her visit and look at the children's work. In fact, Mrs. Clark took time to talk to a student in the class who she believed was not working. Later, she asked the children about a large crayon that was on the floor. At some point during the visit, Respondent noticed that Mrs. Clark was holding something in one of her hands, both of which were behind her back. Believing that the object in Mrs. Clark's hand was a tape recorder, Respondent grabbed Mrs. Clark's hand and splayed it open in an attempt to completely display the object. As Respondent grabbed Mrs. Clark's hand, she asked Mrs. Clark if she had a tape recorder and if she were recording Respondent. Mrs. Clark stated that the object she was holding was a two-way radio. Even though the object Mrs. Clark was holding was a two-way radio, Respondent did not believe Mrs. Clark's explanation. After or as Respondent grabbed Mrs. Clark's hand, Mrs. Clark told Respondent, "Get your hands off me! Get away from me!" Respondent believed Mrs. Clark was going to strike her so she moved back, away from Mrs. Clark. Undoubtedly, Respondent's conduct, described in paragraph 134, grabbing her supervisor's hand, was inappropriate, unprofessional, and disrespectful. However, based on the record, this was clearly an isolated incident. Moreover, this conduct does not constitute any of the statutory or rule violations alleged in the Administrative Complaint. Mrs. Clark then left Respondent's classroom and continued visiting other classrooms. After completing her routine classroom visits, Mrs. Clark called the School District office to report the February 25, 2002, incident in Respondent's classroom. Respondent also called the School District office to report the incident. In addition to calling the School District Office, Respondent called a friend who was a retired teacher and reported that she believed Mrs. Clark had tried to record her and asked for advice on what she should do if Mrs. Clark returned to her room. The following day, an investigator with the School District went to the school to investigate the matter. School District Request for Fitness for Duty Evaluation By letter dated April 30, 2003, the School District referred Respondent to Dr. James Edgar, M.D., a psychiatrist, for an evaluation. In the referral letter, Linda Kipley, the general manager of the School District's Professional Standards Office, stated that the referral was due to the School District's "concerns for a pattern of personal and professional behavior which has negatively impacted her capability and competence to perform the duties and responsibilities of teaching." Ms. Kipley's letter went on to say, "After reviewing our most recent investigative report, there is a question if she is fit for her teaching responsibilities and to teach minor children." Also, Ms. Kipley requested that Dr. Edgar provide a written report of his assessment of Respondent's "capability to make sound professional judgments and her capability to safely instruct children." Opinion of James Edgar, M.D. Dr. James Edgar, who was qualified as an expert in the field of psychiatry, conducted an independent medical (psychiatric) evaluation of Respondent. Based on information provided to Dr. Edgar by School District staff, there were questions raised about Respondent's ability to safely instruct minor children and about her general mental health status. Along with the request for the evaluation, the School District provided Dr. Edgar with copies of all of Respondent's evaluations since she was employed by the School District and the February 22, May 16, and December 17, 2001, letters/reports from Ms. Saunders. For some reason, Ms. Saunders' last report dated April 18, 2002, and discussed in paragraphs 85 and 86, was not provided to Dr. Edgar. Dr. Edgar found that Respondent had normal motor activity and normal facial expressions; that she was polite and her appearance was neat; and that she was calm although anxious (which Dr. Edgar indicated was a natural reaction under the circumstances of an evaluation being ordered by her employer). He also found that Respondent's intelligence was normal, her memory was intact, her senses were good, her affect was appropriate, and there was no evidence of hallucinations. Notwithstanding the foregoing conclusions, in the "summary and recommendation" section of his report, Dr. Edgar opined, I do not feel [Respondent] is currently capable of safely instructing young children." As the basis for this conclusion, Dr. Edgar stated that when Respondent is stressed by routine events, such as constructive criticism, her ability to keep things orderly and controlled is impaired and she becomes anxious and depressed. He further stated that the combination of Respondent's "major depression and pre-existing personality disorder interfere with the usual psychological functions (i.e. judgment and problem solving ability, emotional stability, ability to conform to societal standards of behavior, interpersonal skills, integrity, responsibility, ability to cope with stressful situations, and decision making in a crisis). In the "summary and recommendation" section of Dr. Edgar's written report, he prefaces the above-quoted opinion by stating, "This summary is provisional because I have not had an opportunity to review medical records or mental health records." At the end of the report, Dr. Edgar states that "I may amend my report after reviewing the previously mentioned records." As of the date of this proceeding, Dr. Edgar had not yet reviewed any of Respondent's medical records and mental health records, although Respondent advised him that she was being treated for depression by a psychiatrist and was in counseling with a licensed mental health professional. Contrary to the School District's concern for Respondent's "competence to perform the duties and responsibilities of teaching," Dr. Edgar testified that his report made no finding that Respondent was incompetent to teach. Opinion of Gerald Mussenden, Ph.D. Dr. Gerald Mussenden was qualified as an expert in the area of psychology. On September 5 and 12, 2003, Dr. Mussenden conducted a comprehensive evaluation of Respondent to determine her overall mental functioning (i.e., whether she was mentally stable, well adjusted, and/or if she is a threat to herself or others). As part of the evaluation, Dr. Mussenden administered, among other instruments, the Child Abuse Potential Inventory, which has been developed and standardized since 1982. The Child Abuse Potential Inventory is valid in terms of content validity, construct validity, and predictive validity and is a tool used by psychologists who do testing specializing in abuse propensities. Based on the results of the Child Abuse Potential Inventory, Dr. Mussenden concluded that Respondent had no child abuse potential characteristics and was not a danger to children. Moreover, Dr. Mussenden opined that Respondent was emotionally stable, had good skills by which to relate and interact with others, and had no problems or difficulties that would endanger others around her. Dr. Mussenden's evaluation report accurately notes that at the time of the evaluation, Respondent was under the treatment of a psychiatrist and in counseling with a licensed mental health counselor. Dr. Mussenden's opinion is that this course of treatment contributed to Respondent's mental health status at the time of the evaluation. In his report, Dr. Mussenden states, "Due to their success [the psychiatrist and mental health counselor], [Respondent] is relatively well adjusted and without signs of mental difficulties." Dr. Mussenden's credible testimony was that a person can suffer from depression and still be competent to handle one's duties as a teacher. When Respondent was evaluated by Dr. Mussenden, she was taking medication for depression. The purpose of such medication is to help people suffering from depression become well-adjusted. The fact that there was no evidence that Respondent was suffering from depression during the September 2003 evaluation indicates that the medication she was taking was effective in that it masked any depression that may have been present. Dr. Mussenden saw Respondent within 60 days of the hearing and based on that visit, he did not change his opinion that Respondent posed no risk of harm to children.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2006.
The Issue The issue is whether Petitioner properly determined that Respondent's employment should be terminated.
Findings Of Fact At all times material here, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Taylor County, Florida. A Master Teacher Contract between Petitioner and the Taylor Education Association governs relations between Petitioner and its teachers. Respondent is an educator, with 35 years of teaching experience. She is certified by the Florida Department of Education to teach students enrolled in the Exceptional Student Education (ESE) program. Respondent has at least 20 years of experience in teaching ESE students. During the 2009-2010 school year, Petitioner employed Respondent as an annual contract teacher at Perry Primary School. Pursuant to the contract, Petitioner hired Respondent to work from August 17, 2009, to June 9, 2010. Respondent’s class during the 2009-2010 school year was made up of students with varying exceptionalities. The exceptionalities included handicaps such as specific learning disabilities, attention deficit disorder, autism, or emotional or physical handicaps. The class consisted of students in kindergarten, first, and second grades. At the outset of the 2009-2010 school year, Respondent was assigned eight students, two of which had a full-time personal assistant. Just prior to the Christmas break, Respondent was assigned another ESE student with a full-time personal assistant. The primary responsibility of the personal assistants was to help their designated students function successfully and safely in the classroom. Additionally, the personal assistants were supposed to support the classroom teacher as needed. In addition to the personal assistants, Respondent’s class utilized the services of Behavioral Management Center (BMC). The BMC consultants visited Respondent’s classroom frequently to develop and monitor the implementation of behavior modification plans for certain students. The school psychologist also visited the classroom frequently to assist the teacher and students. Petitioner uses many computer software programs for the testing and monitoring of student progress. The computer programs are necessary in order to comply with Florida Department of Education requirements. The computer programs are used throughout the state and require data entry and transmission at several points in the academic year. Gradequick is a program that enables teachers to electronically enter student grades. Among other tasks, the program calculates grade point averages. The grades and averages are then entered in the Edline program that is accessible by both parents and students. Administrators can access these programs to ascertain the level of progress by a particular class or student. For the 2009-2010 school year, the initial Gradequick and Edline training was conducted the first week of September 2009. Respondent attended the training session. Tienet is a computer program used to assist with the drafting of individual education plans (IEPs) for ESE students. It is a web-based program that also is used to monitor a student’s progress in accomplishing the goals and objectives on the student's IEP. Tienet generates a parent report that goes out with report cards. All students in Respondent’s 2009-2010 class were learning in accordance with an IEP. Aimsweb is a computer program that monitors compliance with state and federal guidelines regarding student achievement and progress in reading and math. Aimsweb requires that all students be tested at the beginning, middle and end of the school year. The teacher uses the initial test or “probe” to determine the child's baseline. Other probes are performed on a weekly basis throughout the school year. Petitioner can use the data to determine if a child is academically at risk and, if so, to implement interventions to address any deficiency. FAIR is a state-mandated assessment test in reading that also is given three times a year. FAIR provides for an exemption for students who are severely limited academically. However, Petitioner always completes the initial FAIR test for all students, regardless of academic ability. After assessing the results of the first probe, Petitioner can then determine whether students will be exempted from further testing. In the 2009-2010 school term, Jack Palaio was an ESE resource teacher and the Perry Primary School technology coordinator. As technology coordinator, Mr. Palaio had to make sure the teachers’ and students’ computers were up and running. He also trained staff and teachers on the use of the computer software programs referenced above. Mr. Palaio’s responsibilities included monitoring data collection and data transmission from the classrooms. On or about September 2, 2009, Mr. Palaio requested that Respondent provide him with a list of her students. Mr. Palaio needed the names to made sure the students were placed in the proper Gradequick files. As of September 14, 2009, Respondent still had not provided Mr. Palaio with the list of names. In addition to the training sessions taught when school began, Mr. Palaio offered to assist Respondent on several occasions starting at the beginning of the year. At times, Respondent sought help from Mr. Palaio in person or by email. By mid-year, it should not have taken Respondent but a few minutes per student to enter weekly data on Gradequick. Aimsweb should have required no more than five minutes per student on a weekly basis. The FAIR data requires very little time because the teacher enters it while testing the students. Tienet data entry takes even less time because it requires formulation of IEPs only once a year and review and maintenance quarterly. Pam Padgett was the assistant principal at Perry Primary School. On September 15, 2009, Ms. Padgett advised Respondent to provide Ms. Padgett with a copy of Respondent’s class schedule. The schedule was necessary to show the times that Respondent intended to teach specific subject areas. On September 15, 2009, Ms. Padgett also informed Respondent that her students would need to take the initial FAIR and Aimsweb probes in order to establish baselines. Ms. Padgett advised Respondent that other staff members would do this testing for Respondent. In September 2009, two of Respondent’s students were exempt from taking the initial FAIR reading probe because of their disabilities. The two students were supposed to be tested using an alternative assessment known as the Brigance. Petitioner’s staff decided to test the two students on the FAIR material, using a paper test, in addition to the Brigance test. The Brigance test, in booklet form, was supposed to be given three times a year. Teachers used a different color to score students’ tests each time it was administered. On September 17, 2009, Mr. Palaio requested Respondent to see him about testing her students using the Brigance. Mr. Palio also offered to help Respondent set up Edline for her class. Alise Thompson is the Intervention Resource Compliance Specialist at Perry Primary School. In the 2009-2010 school year, she was responsible for ensuring that teachers properly drafted IEPs using Tienet and for scheduling IEP meetings. On September 21, 2009, Ms. Thompson instructed Respondent to prepare the IEP (goals and objectives) for a student. She reminded Respondent that the IEP meeting for the student was scheduled for September 25, 2009. On September 22, 2009, Mr. Palaio advised Respondent that her class was set up in Gradequick so that she could start adding weekly grades. Mr. Palaio asked Respondent to see him for information about entering the grades in Gradequick. On September 29, 2009, Mr. Palaio again reminded Respondent that she needed to enter her grades in Gradequick so that she could send home midterm progress reports the next day. On September 30, 2009, Mr. Palaio advised Respondent that her kindergarten student needed to have grades entered in the computer on a weekly basis for reading now and for reading, spelling, and math beginning in January. He also reminded Respondent that her first and second grade students needed grades for reading, math, and spelling. As of September 30, 2009, Mr. Palaio had prepared the midterm reports for Respondent’s first and second grade students. He also offered to do the same for the kindergarten student if Respondent would send him the necessary information. Mr. Palaio reminded Respondent that she had been provided with additional computer training in Edline and needed to post her grades in Gradequick on a weekly basis. The September 30, 2009, email to Respondent told her to put her Brigance booklets back in the students’ cumulative folders in the school office. This was necessary in order to ensure their safekeeping. On October 26, 2009, Perry Primary School was preparing to send report cards home for the first nine weeks. Mr. Palaio offered to help Respondent in this regard if she encountered any difficulty. On October 28, 2009, Mr. Palaio offered to help Respondent with entering grades in Gradequick because she was late in doing so. Mr. Palaio advised Respondent that he had corrected some of her inconsistencies, but that he was more concerned with her failure to enter all required grades for her students. Specifically, Mr. Palaio noted that Respondent had not entered grades for some children for over two weeks. George Clayton was the principal of Perry Primary School for the 2009-2010 school year. Around the end of October or the beginning of November 2009, Mr. Clayton sent Respondent a reminder that she was two weeks behind in posting her grades to Edline and entering grades to Gradequick. Mr. Clayton told Respondent to "take care of this matter." Anne Sesock, as the Response to Invention (RTI) Specialist for the 2009-2010 school term, was responsible for monitoring teachers’ data for FAIR and Aimsweb testing at Perry Primary School. Over time, Ms. Sesock became aware that Respondent was behind on her FAIR and Aimsweb testing and/or data entry. On October 29, 2009, Ms. Sesock reminded all teachers that Thursday was the day they should monitor progress of their students in math using Aimsweb. Ms. Sesock had already entered the students’ names into the computer. Ms. Sesock then gave a brief description of how to perform the task. On October 30, 2009, Ms. Sesock reminded certain teachers, including Respondent, that they needed to enter their reading/literacy scores into Aimsweb. This was necessary for the school to prepare for a data meeting. On October 30, 2009, Mr. Palaio reminded Respondent that she needed to see about her Tienet progress reports that had to go home with student report cards. Mr. Palaio sent Respondent another message on October 30, 2009. In that message, Mr. Palaio stated that one of Respondent’s students still needed early literacy scores entered in Aimsweb. On November 2, 2009, Perry Primary School sent report cards home. Ms. Padgett asked Respondent to a meeting regarding Respondent’s failure to send Tienet parent reports out with report cards. On November 2009, Mr. Palaio responded to Respondent’s request for help in checking her students’ grades and parent reports. Mr. Palaio advised Respondent that he had corrected the grades in Gradequick so that she would now be entering grades for the second nine weeks. He stated that she had some grades missing and needed to be consistent in entering the grades. He also reminded Respondent that she needed to make corrections in the Tienet parent reports relating to student objectives, which should have been sent home with the last report cards. On November 17, 2009, Ms. Sesock directed Respondent to bring certain Aimsweb reading benchmark assessment sheets to a training session that afternoon. Ms. Sesock offered to enter them in the computer. In November 2009, Mr. Clayton became concerned with the lack of structure and student behavior problems in Respondent’s classroom. He subsequently initiated a plan to provide Respondent with help in this regard. On November 23, 2009, Ms. Padgett advised Respondent that a substitute would be available the next day so that Respondent could meet with school staff and the BMC consultant. The purpose of meeting was to develop a schedule and activities for Respondent’s class. On or about November 24, 2009, Respondent, the BMC consultant, and other school staff members met to develop a Tuesday/Thursday schedule for Respondent’s class. After the meeting, Respondent was supposed to develop a similar schedule for Monday, Wednesday, and Friday. There is no persuasive evidence that Respondent ever completed this task. The Tuesday/Thursday schedule provides for whole group time beginning at 8:00 a.m. As the day progresses, the personal assistants were assigned to work one-on-one with a student, in small groups, or large groups, while Respondent worked one-on- one or two-on-one with specific students. To supplement the Tuesday/Thursday schedule, Respondent and the BMC consultant developed a Tuesday/Thursday Lesson Plan of 1:1 or 2:1 Instructions. The lesson plan names specific students and the skills/materials to be used with that student. On December 1, 2009, BMC staff visited Respondent’s classroom to observe implementation of the new schedule. They advised Ms. Padgett that Respondent stayed on the schedule for part of the day, but failed to follow it for the rest of the day. On December 1, 2009, Ms. Padgett provided Respondent with a copy of a walk-through monitoring form to be used when she and other administrative staff visited Respondent's class. Ms. Padgett reminded Respondent to post her class schedule for all support staff during the times that Respondent and the personal assistants were working one-on-one with students and in group time. On December 2, 2009, Ms. Padgett shared BMC’s concerns with Mr. Clayton. On December 3, 2009, Ms. Padgett visited Respondent’s classroom to observe a reading lesson under the new Tuesday/Thursday schedule. Ms. Padgett noted that Respondent was behind schedule but appeared to be implementing the new plan. Ms. Padgett subsequently provided Respondent with written observations, setting forth strengths, missed opportunities, and something to work on. In December 2009, Ms. Padgett became aware that Respondent had not done the required mid-year FAIR testing or had done the testing but failed to enter the data in the computer. On December 3, 2009, Mr. Palaio advised Ms. Padgett that Respondent had not started a single FAIR test. The next day, Ms. Padgett directed Respondent to begin FAIR-testing her students and to get help from Mr. Palaio and/or Ms. Sesock, if needed. On December 4, 2009, Mr. Palaio advised Respondent and another teacher that they needed to complete the regress/recoupment forms for their students before Christmas break. The forms are used three times a year to record test data on the same specific skill. The data is used to determine whether a student requires an extended school year (summer school) as an accommodation. On December 7, 2009, Mr. Clayton responded to Ms. Padgett that he was disappointed in Respondent’s failure to adhere to the new schedule. Mr. Clayton stated that he would be visiting Respondent’s class that day. From December 8, 2009, through December 11, 2009, Respondent was absent from school because she had pneumonia. During that week, Respondent came to school one time for a meeting at Mr. Clayton’s request. The meeting related to a student that would soon be entering Respondent’s class. There is no record of Respondent receiving emails from school while she was home sick. Accordingly, the following emails dated December 8 through 11 may not have been read by Respondent until she returned to school on December 14, 2009. On December 8, 2009, Mr. Palaio sent Respondent an email. He advised her that certain students were missing a spelling score in the FAIR testing. On December 9, 2009, Ms. Thompson reminded Respondent that an IEP meeting was scheduled on December 11, 2009, for "O." Ms. Thompson had started the IEP but reminded Respondent to add the goals. The December 11, 2009, IEP meeting obviously had to be cancelled because Respondent was home sick and had not completed drafting the IEP. On December 10, 2009, Mr. Palaio sent Respondent an email. Once again, he reminded her that she needed to enter FAIR scores for spelling. On December 11, 2009, Mr. Palaio sent Respondent an email. Once again, he reminded Respondent to complete the regress/recoup form with all students that week. On December 16, 2009, Mr. Palaio advised Respondent that the initial regress/recoup testing had been done by another staff member the week before and that he had entered the scores. Mr. Palaio provided Respondent with a spreadsheet showing the results of the first probe that needed to be repeated the first day after Christmas break and then again two weeks later. On December 17, 2009, Mr. Palaio reviewed the policy at Perry Primary School regarding the need to check email three or four times a day. Teachers were supposed to read email before school, after reading, during lunch, and after school. Respondent was advised that teachers are held responsible for knowing the information contained in school emails, including requests for specific data. On December 17, 2009, Ms. Sesock reminded all teachers to complete their Aimsweb math and reading probes. Ms. Sesock wanted all teachers to enter the data that day or the next day so that the data would be available in January for intervention assistance team meetings. In an email dated January 3, 2010, Ms. Sesock wanted to know about missing scores in Respondent’s Aimsweb progress monitoring. Ms. Sesock could not run charts on the students until all scores were entered in the computer. January 4, 2010, was a teacher-planning day. During the day, Mr. Palaio sent Ms. Sesock a list of teachers, including Respondent, who had missing Aimsweb data as of December 18, 2009. Ms. Sesock responded with an email inquiring whether they could give Respondent an explicit instruction booklet on how to input scores so Respondent would learn to do it herself and quit bothering them. On January 4, 2010, Mr. Palaio reminded Respondent and other teachers that they needed to complete the second set of regress/recoup progress monitoring. He advised them to use the spreadsheet started before Christmas and to repeat the process on January 19, 2010. On January 5, 2010, Mr. Palaio requested that Respondent see him about Aimsweb and Brigance. He wanted to assist her with the Brigance books and Aimsweb probes. On January 5, 2010, Respondent injured her shoulder and knee when she fell after tripping over a student at school. She was prescribed pain medication (Vicodin and Celebrex) and required to wear a leg brace. Respondent claims that the medications made her sleepy and made it difficult for her to focus. However, she did not complain to anyone at Perry Primary School that the medications were interfering with her performance. On January 8, 2010, Ms. Thompson advised Respondent and other teachers about completing IEPs. Specifically, she reminded them that they needed to enter the accommodations for each child on an individual basis. On January 11, 2010, Mr. Palaio requested that Respondent see him that day. Mr. Palaio wanted to discuss Respondent’s scores for Brigance, Aimsweb, and Tienet. By January 2010, Mr. Clayton was aware that Respondent and the three personal assistants in her classroom were not working as a team. The personal assistants resented having to work with small or large groups of students while Respondent worked with students on a one-on-one or two-on-one basis. Mr. Clayton had a meeting with Respondent and her personal assistants on January 13, 2010. He gave the personal assistants a copy of their job descriptions. He reminded them that Respondent was the class leader and that they were her support staff. On January 13, 2010, Mr. Clayton told the personal assistants that they had to stay with their assigned students when BMC staff came to model implementation or observe implementation of a behavior plan. He did not want the assistants to think they could take a break every time BMC staff visited the classroom. During the January 13, 2010, meeting, Mr. Clayton discussed the Tuesday/Thursday schedule developed by BMC staff. He requested that Respondent develop a Monday/Wednesday/Friday schedule, using the same format, and give it to him. Mr. Clayton was concerned that there was not a consistent daily routine in Respondent’s classroom. Mr. Clayton also discussed Respondent’s lesson plans during the January 13, 2010, meeting. Mr. Clayton wanted Respondent to give him a copy of her lesson plans for the upcoming week every Friday before she left school. The first Friday that Respondent should have given Mr. Clayton her lesson plans was on Friday, January 15, 2010. As a general rule, teachers kept their lesson plans, two weeks in advance, in spiral notebooks provided by the school at the beginning of the school year. Teachers were supposed to keep the lesson plan books on their desks at all times. Mr. Clayton reviewed the lesson plans on a regular basis. Mr. Clayton made the special request on January 13, 2010, about Respondent’s lesson plans because he never saw her plan book on her desk. When he asked about the plan book, Respondent always said it was in her car or at home. During the January 13, 2010, meeting, Mr. Clayton instructed Respondent to provide each personal assistant with a copy of the IEPs and behavior plans for each student in the class. Mr. Clayton wanted the personal assistants to be familiar with all of the students’ IEPs and behavior plans so that they would know what to do in the absence of Respondent or a colleague. The greater weight of the evidence indicates that Respondent never complied with Mr. Clayton’s directive in this regard. Finally, Mr. Clayton told Respondent on January 13, 2010, that her class would be moved that weekend from a portable classroom to a classroom in the main building. The purpose of the move was to place the class closer to the school clinic to accommodate a student with medical issues. Mr. Clayton created written minutes of the January 13, 2010, meeting to share with Respondent and the personal assistants. Following the meeting on January 13, 2010, the assistants became more cooperative. On January 13, 2010, Ms. Sesock told Respondent how important it was for her to have up-to-date progress monitoring data for Aimsweb reading and math. At that time, Respondent had not entered the required weekly progress monitoring data, seven scores in math and five scores in reading. The second benchmark assessment for Aimsweb was due to be entered between January 11, 2010, and January 15, 2010. Ms. Sesock wanted to make sure that Respondent had all the materials she needed to perform the assessment. On January 13, 2010, Ms. Thompson reminded Respondent that "O's" IEP meeting was scheduled for Friday, January 15, 2010. Ms. Thompson requested that Respondent update his academic and behavior goals before the meeting. The next day, Ms. Thompson directed Respondent to update "O's" curriculum and behavior goals. On January 15, 2010, the IEP meeting had to be rescheduled because Respondent did not have “O’s” IEP properly drafted. Ms. Thompson sent an email to Respondent, stating that Respondent needed to separate goals and objectives on the IEP by subject area. For example, Respondent needed one goal and two objectives for reading, math, and behavior. After receiving a copy of Ms. Thompson’s January 15, 2010, email to Respondent, Mr. Clayton directed Respondent to complete “O’s” IEP goals by January 19, 2010. Mr. Clayton told Respondent to put the IEP in his mailbox before she left school on the 19th. On January 15, 2010, Respondent did not provide Mr. Clayton with the lesson plans for the upcoming week. Instead, she left school early for a doctor’s appointment and took the rest of the day off. On January 19, 2010, Mr. Clayton advised Respondent that he had reviewed her Aimsweb data and that it was not updated. He told her to update the reading and math data before she left school on January 21, 2010. During the 2009-2010 school year, Respondent had completed two IEPs before attempting the IEP for “O.” However, Respondent failed to complete “O’s” IEP and place it in Mr. Clayton's mailbox on January 19, 2010, as requested. On January 19, 2010, Mr. Palaio sent Respondent an internet link for Tienet. Apparently, Respondent had lost the website address. On January 21, 2010, Mr. Clayton issued Respondent a letter of reprimand for “insubordination” for failing to complete “O’s” IEP on time. Respondent received the January 21, 2010, letter of reprimand, concerning the IEP, in her mailbox at school. Respondent’s failure to timely complete the IEP was gross insubordination. Respondent had been given more than enough time and assistance to properly draft the IEP. There is no persuasive evidence that Respondent’s pain medication was responsible for her inability to complete the IEP. On January 21, 2010, Ms. Thompson advised Respondent that corrections still needed to be made to “O’s” IEP. Respondent was told that each area of the IEP needed a present- level statement followed by at least one goal and two objectives. Later that day, Mr. Palaio gave Respondent additional suggestions to make the IEP meet Petitioner’s ESE standards. On January 21, 2010, Mr. Palaio sent Respondent an email. The message reminded Respondent that most of her Aimsweb scores had not been entered. On the morning of January 22, 2010, Mr. Clayton shared some of his concerns with Respondent in an email. First, he discussed Respondent’s need to conduct Aimsweb progress monitoring probes in reading and math. Second, Mr. Clayton was worried about Respondent’s failure to enter grades in Gradequick, advising her to see Mr. Palaio by the end of the day to resolve this matter. Third, Mr. Clayton reminded Respondent that she needed to be using the school-wide behavior modification program. Fourth, Mr. Clayton noted some errors in “O’s” IEP. Fifth, Mr. Clayton told Respondent not to forget to do the ESE regress/recoup form. Finally, Mr. Clayton reminded Respondent that she was supposed to provide him with a copy of her lesson plans before leaving school that afternoon. Mr. Clayton wanted to make sure that Respondent received his January 22, 2010, email. He asked his assistant to call Respondent that afternoon. Realizing that Respondent was not in her classroom, Mr. Clayton requested the assistant to call Respondent’s cell phone and her husband’s cell phone. Because Mr. Clayton could not reach Respondent, he sent her another email at 3:55 p.m., telling her to contact Mr. Palaio if she and he were still on campus. Respondent left school on Friday, January 22, 2010, without giving Mr. Clayton her lesson plans. At 5:51 p.m. on January 22, 2010, Mr. Palaio sent Respondent an email. He reminded her to do her quarterly Tienet progress reports that were due to go home with report cards on January 27, 2010. On Monday morning, January 25, 2010, Mr. Clayton sent Respondent an email. The message stated that administration wanted to meet with her at 2:30 in Mr. Clayton’s office. Respondent was advised that she could bring union representation to the meeting. During the meeting on January 25, 2010, Mr. Clayton discussed Respondent’s failure to provide him with her lesson plans as directed. Mr. Clayton also told Respondent that her failure to complete a task by a given date constituted insubordination and served as grounds for termination. During the January 25, 2010, meeting, Mr. Clayton told Respondent that she had a chance to resign. Mr. Clayton stated that if she did not resign, he would contact the Superintendant and recommend her termination. Respondent could not make a decision to resign without talking to someone. Mr. Clayton told Respondent to let him know her decision by Wednesday, January 27, 2010. Respondent did not do so. At some point in time, Mr. Clayton placed a letter of reprimand, dated January 25, 2010, in Respondent's mailbox for failing to provide him a copy of her lesson plans on January 15, 2010, and on January 22, 2010. Mr. Clayton noted in the letter that he still had not received Respondent's lesson plans. Following the meeting, on January 25, 2010, Respondent got materials ready for her students for the remainder of the week. Respondent did not return to work until Monday, February 1, 2010. On January 26, 2010, Ms. Thompson advised Respondent by email that “O’s” goals and objectives were looking better. However, Ms. Thompson noted certain corrections needed to be made. Ms. Thompson placed a draft copy of the IEP, with notations, in Respondent’s mailbox. When Respondent returned to school on February 1, 2010, she gave Mr. Clayton a very detailed copy of her lesson plans for February 1, 2010, through February 12, 2010. The lesson plans were in a narrative form and not in a lesson plan book form that contains plans for a week at a glance. Even though the plans were not drafted according to Perry Primary School policy and were not the plans expected, Mr. Clayton provided Respondent with a lengthy critique of the lesson plans. On February 1, 2010, Mr. Clayton advised Respondent that she needed to complete the regress/recoup spreadsheet. He also told her that she still needed to fix “O’s” IEP by February 3, 2010, and before the IEP meeting on February 10, 2010. Mr. Clayton directed Respondent to complete the January Brigance testing before she left work on February 5, 2010. On February 1, 2010, Ms. Padgett sent Respondent an email regarding the reading programs in Respondent’s classroom. Ms. Padgett told Respondent that Ms. Padgett and the BMC staff had made certain decisions about the reading program while Respondent was absent from school. On February 2, 2010, Ms. Thompson advised Respondent that "O's" IEP was better. However, Ms. Thompson noted that Respondent needed to work on the reading goal and two objectives. On February 3, 2010, Ms. Thompson stated that she had met with Mr. Palaio and that he had offered some suggestions for “O’s” IEP. Ms. Thompson's message included a copy of a draft IEP prepared by Mr. Palaio. In a letter dated February 3, 2010, Mr. Clayton recommended that the Superintendant terminate Respondent’s employment. The letter references Respondent’s failure to provide him with lesson plans and the associated reprimand. The letter does not refer to Respondent’s reprimand for not completing the IEP goals. Mr. Clayton’s February 3, 2010, letter also included the following deficiencies: (a) Respondent never provided the personal assistants with the student behavior plans as instructed on January 13, 2010; (b) Respondent did not have her Brigance testing up to date; and (c) Respondent’s Aimsweb data was not up to date. In a letter dated February 5, 2010, Paul Dyal, Superintendant of Taylor County School District, advised Respondent that her employment was suspended with pay as of February 8, 2010. Mr. Dyal stated that the action was based on Respondent’s insubordination as outlined in Mr. Clayton’s February 3, 2010, letter. Mr. Dyal’s letter was hand-delivered to Respondent on February 5, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That The Taylor County School Board enter a final order terminating Respondent’s employment. DONE AND ENTERED this 22nd day of February, 2011, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 22nd day of February, 2011. COPIES FURNISHED: Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Paul Dyal, Superintendent Taylor County School District Alton J. Wentworth Administrative Office Complex 318 North Clark Street Perry, Florida 32347 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Respondent's employment with the Petitioner should be terminated as alleged in the Amended Notice of Specific Charges filed on July 31, 2000.
Findings Of Fact At all times material to the allegations of this case, the Respondent was employed as a math teacher at Mays Middle. As such, the Respondent was responsible for the day-to-day teaching assignment of the students enrolled in his class. The Respondent's duties also encompassed maintaining the appropriate records to be in order to fulfill his teaching responsibilities. These records included lesson plans, grade sheets, attendance records, class rosters, and time cards. The Petitioner is the agency charged by Florida law to administer the public schools within the Miami-Dade County School District. The Petitioner is authorized to hire and to, when appropriate, discipline teachers within the Miami-Dade County school system. Mays Middle is a public school within the Petitioner's district. At all times material to the allegations of this case, Mr. Cooper was the principal at Mays Middle and was the supervisor responsible for personnel performance at the school. He has been a principal at several schools within the Miami-Dade school district and is a candidate for a doctorate degree in educational leadership. Mr. Cooper met the Respondent in approximately 1997 when he became the principal at Mays Middle. The Respondent was already employed at Mays Middle as a math teacher. All teachers at Mays Middle are required to attend faculty meetings, to turn-in class lists, to maintain teacher logs, to compile grades for students, to arrive at work on time prepared to teach, and to prepare appropriate lesson plans to be followed for the instruction of the students in the event the teacher is absent from school. All teachers at Mays Middle are provided with a faculty handbook that outlines their responsibilities. All teachers are required to follow the directives and instructions issued by the school principal regarding their responsibilities. All teachers who are cited for a performance deficiency are issued a prescription to address the identified problem. The prescription requires the teacher to perform specific acts to encourage remediation of the deficiency within a specified time. On November 17, 1998, Mr. Cooper issued a reprimand to the Respondent. This reprimand cited the Respondent's failure to notify or report to the worksite on November 6, 1998, and his failure to submit grades with gradesheets in a timely manner. In connection with this reprimand, Mr. Cooper conducted a conference for the record (CFR) with the Respondent in order to review the professional responsibilities of reporting to school timely or notifying the school and of submitting required paperwork in a timely manner. On January 13, 1999, the Assistant Principal, Mrs. Kaloostian, went to the Respondent's classroom to perform an observation. The class was to run from 9:30 a.m. until 11:15 a.m. Instead of beginning class promptly with the bell, the Respondent left the room after observing Mrs. Kaloostian in the rear of the classroom. Instead of returning to teach the class, the Respondent returned to the room at approximately 9:40 a.m., removed his bags and announced he was going home. Thereafter the school administrators attempted to locate a substitute for the Respondent's classes. The Respondent did not leave emergency lesson plans for the classes. Emergency lesson plans are required of all teachers so that a substitute teacher has material to review with the class. In this case, the Respondent did not leave plans for the day he left or the two days that followed. On January 22, 1999, Mr. Cooper conducted another CFR with the Respondent. This time the Respondent was placed on prescription for his conduct of January 13, 1999, and his failure to report to work the next two days. The doctor's note submitted by the Respondent to justify the absence indicated the Respondent was able to return to work on January 14, 1999. The prescription issued on January 22, 1999, outlined directives regarding lesson plans, attendance guidelines, the teacher code of ethics, and employee conduct requirements. The timelines for the Respondent's completion of these prescription directives were defined, ample, and unambiguous. When the Respondent did not timely complete the prescription, he was afforded additional time within which to complete the prescription directives. On February 17, 1999, the Respondent arrived at a faculty meeting 20 minutes late. The Respondent later stated that the tardiness was unintentional. On February 25, 1999, the Respondent was given a reprimand. Mr. Cooper conducted a CFR to review the attendance requirements and to address the Respondent's continuing failure to meet his professional responsibilities. All teachers employed by the Petitioner are evaluated pursuant to a Teacher Assessment and Development System (TADS). TADS evaluators must be trained in the assessment tool and all teachers are advised of the categories covered by the instrument. Mrs. Kaloostian performed a formal TADS observation of the Respondent's class on February 18, 1999. This evaluation cited the Respondent with deficiencies in six categories covered by the assessment tool. The prescription issued with the TADS evaluation provided the Respondent with specific corrective measures to be completed by March 26, 1999. On March 1, 1999, the Respondent reported late to work. On March 23, 1999, the Respondent reported late to work and failed to attend a faculty meeting. On April 2, 1999, Mr. Cooper issued a reprimand to the Respondent for insubordination, failure to comply with attendance directives, and failure to comply with directives regarding tardiness or absences. On March 23, 1999, Mrs. Kaloostian performed a TADS observation in the Respondent's class. This assessment found the Respondent deficient in five categories of performance. The Respondent was provided a prescription to be completed by May 4, 1999. Under the terms of the teachers' contract, the successful completion of prescription requirements results in the remediation of the deficiency identified. Thus a teacher on prescription must complete the directives of the prescription in order to show remediation. The Petitioner makes personnel and other resources available to a teacher to assist the completion of the prescription. On April 12, 1999, the Respondent refused to sign a time card as directed by the Principal. The Respondent disagreed with the information on the card and refused to comply with Mr. Cooper's instruction to sign the card. Following this incident, the Respondent was given a written reprimand. On May 4, 1999, Mrs. Kaloostian wrote a memorandum to Mr. Cooper outlining the Respondent's failures regarding the prescription that was to be completed by that date. On May 5, 1999, Mr. Cooper gave the Respondent an additional 24 hours to complete the TADS prescription materials. On May 13, 1999, the Respondent asked to speak with Mrs. Kaloostian. At that time he gave her a letter describing his medical problems and represented that he would be seeking a medical leave effective the end of the school day. After completing papers regarding the leave, the Respondent refused to deliver his gradebook to Mrs. Kaloostian. He was asked several times to turn the gradebook in and each time he refused. The Respondent represented he would deliver it the next day at 9:00 a.m. He did not return the gradebook by 2:00 p.m., May 14, 1999. In addition to not delivering the gradebook, the lesson plans for Respondent's classes were not provided. As a result the math department chair had to provide lessons for the Respondent's classes. On or about June 14, 1999, the Respondent turned in his gradebook through another teacher. The gradebook was deficient in the information it was designed to log. On May 14, 1999, the Respondent did not attend a scheduled CFR. Accordingly, the record of the deficiencies cited by Mr. Cooper and the prescription for correction was provided to the Respondent by certified mail. Such prescription noted the Respondent's continuous failure to meet the prescription activities. During the 1998/1999 school year, the Respondent was absent from school 42.5 days. Nineteen of those days occurred prior to May 14, 1999. From February 6, 1998 through April 1, 1999, the Respondent received five prescriptions for Category VII deficiencies in professional responsibilities. On August 9, 1999, Dr. O'Donnell, director of the Office of Professional Standards, conducted a CFR with the Respondent. The conference addressed Respondent's performance assessments, attendance, medical fitness to perform his duties, noncompliance with directives, violations of the Code of Ethics, and future employment with the Petitioner. Following the CFR the Respondent was to return to Mays Middle to assume his responsibilities on August 26, 1999. In order to afford the Respondent with additional time to complete his prescriptions, the 90-calendar day probationary period was extended. Since he did not timely complete the prescription but effected medical leave commencing May 14, 1999, the time for formal observations was extended. All parties knew the observation would be conducted between September 13, 1999, and October 19, 1999. Moreover, the Respondent knew as a result of the CFR that he would be required to comply with his professional responsibilities. Nevertheless, on August 31, 1999, the Respondent failed to submit class counts; he did not submit emergency lesson plans on September 3, 1999; and he did not provide a class list on September 8, 1999. As a result, Mr. Cooper conducted a CFR on September 17, 1999. The Respondent was deemed insubordinate in all of the areas of professional responsibilities that had been previously delineated. He knew or should have known that the administration was not going to tolerate the failures to submit the required documents. Further, he knew or should have known that the untimely submission of the documents would also not be acceptable. If the Respondent had a medical condition that impaired his ability to timely complete and submit his records, he did not fully explain it to Mr. Cooper. On September 15, 1999, between 9:30 a.m. and 11:15 a.m., Mrs. Kaloostian observed the Respondent's class and performed a TADS assessment. The Respondent knew or should have known the assessment would be forthcoming. He had ample opportunity to be prepared for the assessment. He was not. The deficiencies cited in the September 15, 1999, evaluation required prescriptive remediations to be completed by October 1, 1999. Again the prescription identified persons available to the Respondent to assist in the prescription activities. The Respondent did not timely complete the prescription and was given 24 additional hours to complete the work. The Respondent failed to submit attendance cards on time on September 5, 1999, and September 7, 1999. The Respondent failed to timely submit Student Interim Progress Reports on October 6, 1999. On October 5, 1999, Mr. Cooper performed a TADS observation in the Respondent's class. Deficiencies were outlined and the Respondent was provided until October 19, 1999, to complete the prescriptive activities. On October 22, 1999, Mr. Cooper performed a TADS observation in the Respondent's class. This observation also established deficiencies in the Respondent's performance. Consequently, Mr. Cooper recommended that the Respondent's employment with the School District be terminated. On November 3, 1999, the superintendent of schools issued a letter advising the Respondent that the Petitioner would take action on November 17, 1999, regarding the recommendation to terminate the Respondent's employment contract. The Petitioner did approve the termination as outlined by the superintendent's letter. Thereafter, the Respondent timely challenged the action and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. At the hearing, the Respondent did not provide a credible explanation as to why he failed or refused to complete the prescriptions that were provided for him. He did not provide a credible response as to why he failed to be punctual with reports, attendance of meetings, or to comply with the directives provided by the principal and assistant principal. The directives and suggestions were reasonable in nature and should have afforded the Respondent with an ample opportunity to correct the performance deficiencies. At all times the Respondent was entitled to and had a representative from the union to advise him and to assist him for the CFRs conducted with school personnel. The Respondent was repeatedly offered additional time to complete prescriptive assignments. The Respondent was offered assistance and resources to complete the prescriptive assignments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the termination of the Respondent's employment with the Miami-Dade County School District be affirmed. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Room 912 Miami, Florida 33132-1308 Charlie L. Bradley 130 Northwest 193rd Terrace Miami, Florida 33169 John Greco, Esquire Miami-Dade County School Board 1450 North East Second Avenue, Suite 400 Miami, Florida 33132 Paul J. Schwiep, Esquire Aragon, Burlington, Weil & Crockett, P.A. Office in the Grove, Penthouse 2699 South Bayshore Drive Miami, Florida 33133
