Findings Of Fact At all times relevant hereto, respondent, Carlos C. Garay was a student in the school system of petitioner, School Board of Dade County. Most recently, he was a seventh grader at South Miami Junior High School until he withdrew from school on January 5, 1987. Petitioner proposes to reassign Carlos from the regular school program to J.R.E. Lee School. The basis for reassignment is Carlos' "disruptive behavior and failure to adjust to the regular school." This action was formalized in a letter dated December 17, 1986, a copy of which was forwarded to Carlos' mother. The reassignment prompted a request for a due process hearing. Carlos has been a student in the Dade County public school system since at least academic year 1984-85. That year he attended West Miami Junior High School (WJHS), and received final grades of F in all six subjects. His effort was generally rated insufficient, and his conduct was unsatisfactory in most classes for all grading periods. As a result of having a knife in his possession on or about June 7, 1985, Carlos was expelled from WJHS for the first semester of school year 1985- 86, and reassigned to another school for second semester. On February 3, 1986, he enrolled at South Miami Junior High School (SMJHS). At SMJHS, Carlos exhibited a continuing pattern of disruptive and rebellious behavior. This is documented in numerous case management referral forms received in evidence as petitioner's exhibits 2, 3 and 6. These forms are prepared whenever a student is referred by a teacher to the principal's office for disciplinary action. Carlos' conduct included incidents of disruptive behavior in class, hitting other students and refusing to obey his teachers. This conduct not only prevented Carlos from learning in the classroom, but also interfered with the educational process of other students. As a result of the above referrals, school officials held a number of conferences with Carlos' parents in an effort to improve his behavior. In addition, Carlos was given frequent counseling, and was referred to a child team study. None of these measures produced any positive change in his behavior. During 1986 Carlos did not demonstrate satisfactory academic progress. Indeed, he received more F's than any other grade. He also had numerous absences from class, and his effort in class was generally rated unsatisfactory. Because of his disruptive behavior and lack of academic progress, a reassignment of Carlos to an alternative school is justified.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Carlos C. Garay be reassigned to J.R.E. Lee School. DONE AND ORDERED this 23rd day of September, 1987, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Frank R. Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Ms. Carmelino Garay 6707 Southwest 215th Terrace Miami, Florida 33155 Dr. Leonard Britton Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1987.
The Issue Whether the Respondent should be dismissed from her employment as a teacher because of incompetency, as alleged in the Petitioner's letter to the Respondent dated November 16, 1999, and in the Notice of Specific Charges filed with the Division of Administrative Hearings on December 22, 1999.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). At the times material to this proceeding, Ms. Weinstein was an elementary school teacher employed under a continuing contract by the School Board and assigned to Miami Heights Elementary School ("Miami Heights Elementary"). Ms. Weinstein has been employed by the School Board since 1968. Ms. Weinstein is a member of United Teachers of Dade and is governed by the Contract Between the Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). During the 1998-1999 school year, Ms. Weinstein taught a second grade class at Miami Heights Elementary. She was placed on alternate assignment on February 9, 1999, and, in March 1999, she took medical leave, which was approved by the School Board. On October 13, 1999, Ms. Weinstein was advised that she must either resign or retire from her position as a teacher with the School Board by October 20, 1999, and that, if she did not do so, a recommendation would be made to the School Board at its November 17, 1999, meeting that she be dismissed from her employment. The decision that Ms. Weinstein could no longer teach in the Miami-Dade County public school system was based on two grounds. First, she had received an unacceptable evaluation for the 1998-1999 school year based on the determination that her teaching performance was not acceptable and that she had failed to remediate the deficiencies identified in the TADS formal observations conducted in September and November 1998 and in January 1999. Second, two psychologists had found Ms. Weinstein medically unfit for duty as an elementary school teacher as a result of psychological evaluations conducted in January 1999 and August 1999. Performance as a teacher Parent and teacher complaints Blanca M. Valle became principal of Miami Heights Elementary in June 1997. Soon after she assumed her duties, Ms. Valle received a letter from a parent complaining that Ms. Weinstein allegedly told her son he was "stupid"; the parent requested that her son not be assigned to Ms. Weinstein's class for the upcoming school year. At the time, Ms. Weinstein was teaching in a summer program at South Miami Heights Elementary School. Although the charge made by the parent was not substantiated, 1/ the child was assigned to a different teacher for the summer program, and Ms. Valle made sure that the child was not assigned to Ms. Weinstein's class for the 1997- 1998 school year. Ms. Valle assigned Ms. Weinstein to teach a kindergarten class during the 1997-1998 school year. Ms. Valle received several letters from parents in September 1997 complaining about Ms. Weinstein's treatment of their children. One parent complained that Ms. Weinstein ignored her son when he raised his hand to participate in class; another parent asked that his child be assigned to another kindergarten class because the child felt intimidated and frightened in Ms. Weinstein's class; another parent complained that Ms. Weinstein was not aware that her daughter was lost in the cafeteria for 45 minutes after lunch; another parent complained that her son's school supplies were stolen from the classroom, his homework was not collected by Ms. Weinstein, and his shirt was cut in several places by another student during the time he was under Ms. Weinstein's supervision. As a result of the complaints, Ms. Valle assigned Ms. Weinstein in October 1997 to teach a third grade class that had just been created at Miami Heights Elementary to accommodate a greater-than-expected number of students. In addition to re- assigning Ms. Weinstein, Ms. Valle assigned another teacher to act as her mentor, assigned the grade level chairperson to work closely with her, and referred her to the School Board's Employee Assistance Program. 2/ After Ms. Weinstein was transferred, Ms. Valle received several letters from parents of third grade students complaining about Ms. Weinstein and asking that their children be transferred to another class. One parent complained that, during a field trip the parent was chaperoning, Ms. Weinstein spent an inordinate amount of time berating students for misbehavior, to no effect; she lacked control of the class, and she was disorganized; another parent complained that, during a conference with Ms. Weinstein and Ms. Clayton, Ms. Weinstein lied about sending progress reports home to the parent and said that her daughter was crazy. During the 1998-1999 school year, Ms. Weinstein was assigned to teach a second grade class. Ms. Valle received several letters from parents complaining about Ms. Weinstein and requesting that their children be transferred to another class. Several parents stated that they wanted their children transferred to another class because they had received negative reports from other parents regarding Ms. Weinstein. One parent complained that her son cried every morning and did not want to go to school, that Ms. Weinstein told the parent that her son lied to the parent and to himself, and that Ms. Weinstein did not have a professional appearance; another parent complained that Ms. Weinstein ignored her daughter when she raised her hand to turn in her homework. Crystal Coffey was the assistant principal at Miami Heights Elementary during the 1998-1999 school year, which was her first year in the position at Miami Heights Elementary. It was not unusual for parents to approach her and ask that their child be transferred out of Ms. Weinstein's class. At the end of the 1998-1999 school year, when Ms. Weinstein was on medical leave, Ms. Valle received letters from three teachers complaining about Ms. Weinstein. The second grade level chairperson during the 1998-1999 school year complained that Ms. Weinstein was very difficult to work with and did not grasp the curriculum or understand how to present lessons. Another teacher commented that she had observed Ms. Weinstein engage in a pattern of unprofessional and often bizarre behavior over the years. A teacher who team-taught language arts with Ms. Weinstein wrote that, among other things, Ms. Weinstein would not let students go to the rest room, that on two occasions Ms. Weinstein sat at her desk during class and ate a chef salad and a tuna salad with her hands, and that Ms. Weinstein would put a "bad behavior" check mark beside children's names for the most minor offenses. Observations of Ms. Weinstein's teaching performance Ms. Weinstein's performance as a teacher was rated acceptable overall and acceptable in every performance category in each annual evaluation from the 1978-1979 school year 3/ through the 1997-1998 school year. Ms. Valle signed Ms. Weinstein's Teacher Assessment and Development System ("TADS") 4/ Annual Evaluation for the 1997-1998 school year based on a formal TADS observation conducted on April 13, 1998, by the then-assistant principal of Miami Heights Elementary, Alice Clayton. Ms. Clayton prepared a CAI-Post Observation Report for the April 13, 1998, TADS observation rating Ms. Weinstein's performance acceptable in each category assessed. She also rated Ms. Weinstein's performance acceptable for each indicator in each category. Ms. Valle conducted informal observations of the classroom performance of each of the teachers in Miami Heights Elementary; it was her practice to visit all of the classrooms in the school at least once a day. During her informal observations of Ms. Weinstein's classroom performance, she observed students who were not on task, discipline problems, and a general lack of teaching and learning in the classroom. Ms. Coffey made it a practice to informally observe each teacher's classroom at least three times each week. Ms. Coffey informally observed Ms. Weinstein's classroom an average of three times each week during the 1998-1999 school year. At the beginning of the school day, Ms. Coffey would often find Ms. Weinstein sitting at her desk in the classroom eating her breakfast or looking "spacey," apparently unaware that the classroom door was open and that a number of parents were trying to talk with her and/or trying to get their children organized for the day. On September 18, 1998, Ms. Valle, who was trained in the use of TADS, conducted a formal TADS observation of Ms. Weinstein's classroom performance and completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Valle rated Ms. Weinstein's classroom performance acceptable in three categories listed on the CAI Post-Observation Report: knowledge of subject matter, teacher-student relationships, and assessment techniques. Ms. Valle rated Ms. Weinstein unacceptable in three categories on the CAI Post-Observation Report: preparation and planning, classroom management, and techniques of instruction. The Record of Observed Deficiencies contains numerous references to Ms. Weinstein's failure to use verbal or non-verbal techniques to redirect students who were off task; rather, Ms. Valle observed that Ms. Weinstein ignored students who were talking and playing and generally behaving poorly, and she seemed to be unaware of the students' behavior in her classroom. Ms. Valle also observed that Ms. Weinstein ignored students who raised their hands with questions or to contribute to the class discussion, did not provide background information for her lesson or any explanation of how to do the problems assigned, did not acknowledge that many of the children were confused by the lesson, and did not provide closure to the lesson. On November 16, 1999, Ms. Coffey, who was trained in the use of TADS, conducted a formal TADS observation of Ms. Weinstein's classroom performance and completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Coffey rated Ms. Weinstein's classroom performance acceptable in two categories listed on the CAI Post-Observation Report: knowledge of subject matter and assessment techniques. Ms. Coffey rated Ms. Weinstein unacceptable in four categories on the CAI Post-Observation Report: preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Ms. Coffey observed that Ms. Weinstein did not follow her lesson plan and went beyond the time allotted for the lesson, leaving the teacher who was to teach the next lesson knocking at the classroom door for over five minutes. Ms. Coffey noticed that students already had completed the workbook page for the lesson, and, in Ms. Coffey's opinion, Ms. Weinstein was not teaching a new lesson during the observation but one she had already taught. Ms. Coffey observed that Ms. Weinstein did not use any verbal or non-verbal techniques to redirect the many students who were off task and that she put check marks for bad behavior and stars for good behavior beside students' names, which she had written on the chalk board, without providing any explanation to the students and often for no discernable reason. Ms. Coffey also observed that Ms. Weinstein often ignored students' inappropriate behavior, did not monitor whether the students were learning the lesson, did not provide feedback to the students, and did not respond to students who had questions. A Conference-for-the-Record was held on December 8, 1998, to discuss Ms. Weinstein's September and November performance assessments and related matters and her future employment status with the School Board. Ms. Valle and Ms. Coffey attended the conference, as well as Ms. Weinstein and two union stewards. Ms. Valle discussed the two TADS formal observations with Ms. Weinstein, as well as the prescriptive activities assigned in the observation reports and ways in which Ms. Valle and Ms. Coffey would assist her to improve her teaching performance. Ms. Weinstein was advised that disciplinary action would be considered if her performance did not improve. On January 25, 2000, Ms. Valle conducted her second formal observation of Ms. Weinstein's classroom performance, and she completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Valle rated Ms. Weinstein's classroom performance acceptable in three categories listed on the CAI Post-Observation Report: preparation and planning, knowledge of subject matter, and teacher-student relationships. Ms. Valle rated Ms. Weinstein unacceptable in three categories on the CAI Post-Observation Report: classroom management, techniques of instruction, and assessment techniques. At the time of the second observation, Ms. Weinstein had not remedied many of the unsatisfactory teaching behaviors Ms. Valle had observed in her formal observation in September 1998. The lesson observed by Ms. Valle on January 25, 1999, was on the concepts of solid, liquid, and gas, but Ms. Valle observed that Ms. Weinstein did not use any supplemental materials or hands-on activities to teach the students, nor did she provide necessary background information or closure for the lesson. Ms. Valle observed that Ms. Weinstein did not call on students who had raised their hands with questions or to contribute to the class discussion, did not provide feedback to help students who were confused by the lesson, failed to use verbal or non-verbal techniques to redirect students who were off task, and ignored students who were off task, seemingly unaware of their behavior. In addition, Ms. Valle found that Ms. Weinstein had virtually no documentation to support grades for the students: As of January 25, 1999, the most recent grade recorded in Ms. Weinstein's grade book was for December 9, 1998, and there were no assessments and very little work contained in the students' folders. On June 8, 1999, Ms. Valle prepared a memorandum regarding Ms. Weinstein's TADS Annual Evaluation for the 1998- 1999 school year, in which Ms. Valle rated Ms. Weinstein unacceptable in every category of classroom assessment; Ms. Valle rated Ms. Weinstein acceptable in professional responsibilities. The memorandum was prepared in lieu of conducting a conference-for-the-record because Ms. Weinstein was on extended medical leave. In the memorandum, Ms. Valle advised Ms. Weinstein that her performance was unacceptable because the deficiencies identified in the formal TADS observations in September and November 1998 and January 1999 had not been remediated. Ms. Valle advised Ms. Weinstein that the assessment process would continue when she returned to Miami Heights Elementary. Had Ms. Weinstein not gone on medical leave in March 1999, she would have been entitled to at least one, and perhaps two, formal TADS observations conducted by a School Board administrator other than Ms. Valle and Ms. Coffey. As it was, no external TADS observation was conducted, and the TADS assessment process was not completed. Fitness for duty as a teacher In a memorandum to the Office of Professional Standards dated January 13, 1999, Ms. Valle requested that Ms. Weinstein be given a fitness evaluation because she had observed Ms. Weinstein engage in behavior during the 1998-1999 school year that Ms. Valle considered unusual. Ms. Valle attached to the memorandum letters that Ms. Weinstein had prepared requesting that the parents of various students sign a statement "for her autograph book" to the effect that "Ms. Weinstein is a good teacher"; Ms. Weinstein passed the letters out to students and parents and disrupted classes when she took letters to other teachers and asked that they give them to the students whose names she had written on the letters. Both parents and teachers complained to Ms. Valle about these letters. Ms. Valle observed Ms. Weinstein engage in other behavior that Ms. Valle considered unusual: Ms. Weinstein came to school dressed in a manner that Ms. Valle considered inappropriate, and her hair was often untidy; during the winter, Ms. Weinstein sometimes wore a hat pulled down to her eyes the entire day; during a meeting with Ms. Valle and others, Ms. Weinstein took a pair of leopard-print gloves out of a box she carried and put on the gloves; Ms. Weinstein attended a PTA meeting wearing a black see-through skirt and blouse; Ms. Weinstein gobbled her food and ate food such as tuna salad with her hands; Ms. Weinstein walked in the school halls with a blank look on her face. In addition, Ms. Valle noted that Ms. Weinstein had excessive absences from school. Ms. Coffey observed Ms. Weinstein engage in behavior she considered unusual: When she had conferences with Ms. Weinstein, Ms. Weinstein would not look at her or respond to questions or statements except to say that "it's not true"; Ms. Weinstein wore a fur-like hat and long leopard gloves on hot days and sometimes walked around school under an umbrella when it was not raining; and Ms. Weinstein often had a "spacey" look and seemed not to understand what was being said to her. In response to Ms. Valle's request that Ms. Weinstein be referred for a fitness evaluation, a Conference-for-the- Record was held in the Office of Professional Standards on January 27, 1999, to consider, among other things, Ms. Weinstein's performance assessment and her medical fitness to perform her assigned duties. The Summary of the Conference- for-the-Record reflected that Ms. Weinstein was advised that her absences were considered excessive because she used more sick leave than she had accrued, and the two formal TADS observations completed in September and November 1998 were discussed. Ms. Weinstein acknowledged that the School Board had the right to require that she be evaluated to determine her fitness for duty, and she chose to be evaluated by Dr. Larry Harmon, whose name appeared on a list of psychologists approved by the School Board. Ms. Weinstein appended a two-page response to the Summary of the Conference-for-the-Record in which she admitted to some of the behaviors identified by Ms. Valle and Ms. Coffey but disputed the conclusion that these behaviors were unusual. Dr. Harmon's evaluation - January 1999 At the request of the School Board's Office of Professional Standards, Larry Harmon, who is a licensed clinical psychologist, performed a fitness-for-duty evaluation of Ms. Weinstein on January 28, 1999. In evaluating Ms. Weinstein, Dr. Harmon conducted a clinical interview and a mental status examination, administered several psychological tests, consulted with other mental health professionals, and reviewed materials provided to him by the School Board. Dr. Harmon issued a report dated March 10, 1999, in which he deferred his diagnosis with respect to Axis I "Clinical Disorders and Conditions." 5/ He diagnosed Ms. Weinstein with "Personality Disorder, Not Otherwise Specified" with respect to Axis II "Personality Disorders," 6/ commenting that she exhibited moderate to severe patterns of defensiveness, denial, projection, blame, rationalization, distorted thinking, suspiciousness, selective listening, inability to process and accept feedback, poor judgement, and lack of insight. Dr. Harmon deferred his diagnosis with respect to Axis III "Physical Disorders and Conditions" to her physician. Dr. Harmon concluded that Ms. Weinstein was not fit for duty as an elementary school teacher. This conclusion was based on his assessment that [h]er impaired interpersonal behavior and unacceptable work performance in Preparation and Planning, Classroom Management, Techniques of Instruction, and Teacher- Student Relationships is likely to continue and be considered below acceptable standards. Based on this assessment, there is insufficient supporting information to clear her to return to work. . . . Dr. Harmon's assessment that her interpersonal behavior was impaired was based on his observations that Ms. Weinstein was extremely defensive and almost in a state of denial that there were any problems with her interactions and performance; that she had difficulty processing information conveyed to her during the clinical interview and mental status examination; that her judgment was impaired and her problem-solving ability reduced; and that she had a low level of insight into the effect of her behavior on others. Dr. Harmon found that Ms. Weinstein generally had serious difficulties with job tasks requiring interpersonal interactions and stated that individuals with her [Ms. Weinstein's] level of defensiveness, distorted thinking, suspiciousness, denial, selective listening, inability to engage feedback, poor judgement, and lack of insight are likely to evidence significant work difficulties, especially if she is under stress. . . . [T]here appears to be a probability of significant risk that her inadequate interpersonal skills and inability to benefit from feedback will adversely affect her work performance . . . . Among other things, Dr. Harmon recommended in his report that Ms. Weinstein be placed on medical leave for at least one month to allow her to receive intensive mental health treatment to help her improve her interpersonal skills and work performance and that she participate in psychotherapy sessions and follow the recommendations of her psychotherapist. Another Conference-for-the Record was held in the Office of Professional Standards on March 17, 1999, for the purpose of discussing Ms. Weinstein's medical fitness to perform her assigned duties. At the time, Ms. Weinstein was temporarily assigned to the Region VI Office, where she had been placed in early February 1999. Dr. Harmon's report was reviewed at the conference with Ms. Weinstein and the union representative, and the recommendations in his report were accepted by the School Board as conditions for Ms. Weinstein's continued employment as follows: Obtain medical clearance from the Board approved evaluator to return to work within 29 working days of this conference or implement procedures for Board approved medical leave. Participate in psychotherapeutic sessions on a regular basis to be monitored by personnel from the District's support agency. Follow all recommendations of the health care professionals. Sign a limited Release and Exchange of Information for all of your mental health professionals which restricts the release and exchange of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to your fitness for duty determination. Upon the recommendation of the District's support agency, which will be based upon discussions with your treating mental health professionals, a re-evaluation will be scheduled for you with Dr. Harmon. Ms. Weinstein was advised that, if she did not comply with Dr. Harmon's recommendations, the School Board would be compelled to take disciplinary measures against her including suspension, demotion, or dismissal. In the School Board's opinion, Ms. Weinstein was not ready to assume her duties after 30 days, and she subsequently took School Board-approved medical leave through the end of the 1998-1999 school year. Dr. Feazell's evaluation - March 1999 After the School Board received Dr. Harmon's evaluation report, Ms. Weinstein sought a second opinion on her fitness to carry out her duties as a second grade teacher with the Miami-Dade County school system. David A. Feazell, a licensed psychologist, conducted a psychological evaluation of Ms. Weinstein on March 22 and 26, 1999, and prepared a report summarizing his findings. Dr. Feazell spent approximately two hours with Ms. Weinstein in a clinical interview and another two hours administering psychological tests, which included personality and intelligence tests. Ms. Weinstein provided Dr. Feazell a copy of Dr. Harmon's report; he did not have access to the information provided to Dr. Harmon by the School Board, although he had access to the summary of the information contained in Dr. Harmon's report. Dr. Feazell noted in his evaluation report that, during the clinical interview, Ms. Weinstein's account of her employment situation was relevant and detailed and consisted of explanations for her behavior and rebuttal of the complaints made about her. Ms. Weinstein believed that she had made an unduly negative impression on Dr. Harmon because she was ill at ease and defensive in answering his questions. The psychological tests given by Dr. Feazell revealed that Ms. Weinstein's MMPI-2 [Minnesota Multiphasic Personality Inventory-2] profile is defensive, going beyond that which is commonly seen in fitness for duty evaluations. She denies emotional discomfort and vulnerability, as well as common place human faults and frailties. She presents an unusually positive self-image, describes herself as self-controlled and quite socially responsible, and reports unusually low levels of depression or anxiety. In MMPI-2 item responses, she admits minimal social anxiety and characterizes herself as very outgoing, despite describing herself in the interview as shy. Individuals with Ms. Weinstein's MMPI-2 and Rorschach profiles are typically inclined to deny problems and not to have a high level of introspection or insight into their own feelings. They can be simplistic or inflexible into [sic] their approach to problems and tend to see things too much in terms of how others do not understand them or treat them unfairly. Ms. Weinstein actually shows several signs of a particular need for the approval and affection of others, so that she may find situations quite disconcerting in which others evaluate, criticize, or take a demanding, skeptical view of her. In terms of judgment, Ms. Weinstein is capable of thoughtful, perceptive analysis of situations. However, she also appears likely to overlook or misinterpret important details. Her judgment can be inconsistent, especially under conditions of emotional stress. She seems to react strongly to emotional stimuli. She could benefit from the support or guidance of others in learning to stop and to look at a situation from other points of view before she draws unwarranted or inaccurate conclusions. It is noted that testing shows no bizarre thinking or major distortion of judgment. Based on his clinical interview and testing of Ms. Weinstein, Dr. Feazell diagnosed her with an Axis I clinical diagnosis of "Adjustment Disorder with Mixed Disturbance of Emotions and Conduct in the face of occupational and personal stress." Dr. Feazell did not make an Axis II diagnosis, noting that "[a]lthough personality patterns predispose her to respond with some defensive inflexibility to certain interpersonal stresses, there may not be sufficient evidence of a formal personality disorder." Dr. Feazell did note, however, that, at the time of his evaluation, Ms. Weinstein was inclined to overreact to stress and to misunderstand things and form incomplete conclusions when she was under stress. Dr. Feazell finally observed that Ms. Weinstein needs continuing psychotherapy to develop better ways to recognize and deal with uncomfortable feelings, to learn better skills for hearing and taking in feedback and information without over-reacting and selectively misunderstanding it, and to learn better awareness of how her won style of judgment and interaction can hinder her problem solving under pressure. In Dr. Feazell's opinion, Ms. Weinstein was fit for duty at the time he evaluated her in March 1999 "as long as she has the support of treatment while working out her job issues with her principal. It is recommended that Ms. Weinstein return to work with continuing treatment." According to Dr. Feazell, Ms. Weinstein's prognosis is fairly good if she continues in treatment. Dr. Gibb's evaluation - August 1999 Ms. Weinstein was referred by the School Board for a follow-up fitness-for-duty evaluation, which was performed by Charles C. Gibbs on August 13, 1999. Dr. Gibbs conducted a clinical interview with Ms. Weinstein, administered several psychological tests, reviewed records provided by the School Board, and reviewed the evaluations of Ms. Weinstein performed by Dr. Harmon, Dr. Feazell, and Dr. Maurer, a psychologist who evaluated Ms. Weinstein at her request in June and July 1999. Dr. Gibbs tried to contact Ms. Weinstein's psychotherapist, Tyrone Lewis, but Mr. Lewis did not return several telephone calls. In Dr. Gibbs' opinion, Ms. Weinstein's most likely diagnosis would be an Axis I clinical disorder, such as depression, anxiety, or an adjustment disorder. Dr. Gibbs concluded that Ms. Weinstein was not fit to return to her job duties as an elementary school teacher as of August 1999, observing in the report of his psychological evaluation that [c]urrent test results and clinical data indicate that Ms. Weinstein is excessively defensive, guarded, substitutes fantasy for reality in stressful situations and she is plagued with poor judgment given her tendency to make decisions based on inadequate information. Furthermore she is not introspective and lacks insight into her behavior. As such she tends to project blame onto others and minimize the effects of her behavior on those in her environment. The aforementioned summary of the data in my professional opinion would make it difficult for Ms. Weinstein to counsel students when adjustment and/or academic problems arise. Further concern is raised in that she tends to make poor decisions based on inadequate information. Working with children requires a great deal of patience and as noted by results from Dr. Maurer with which I concur she is in a constant state of stimulus overload. Thus such typical stressors such as managing classroom rules and behavior of students will likely result in Ms. Weinstein becoming overwhelmed. Additionally, her unconventional and egocentric style will not allow her to meet the changing and challenging emotional needs of elementary children. I am further concerned that her defensiveness will prevent her from benefiting from constractive [sic] criticism which will impair her participating in professional meetings and being able to put into action new information obtained from conferences and inservice classes. Dr. Gibbs noted in his report that Dr. Feazell and Dr. Maurer had both concluded that Ms. Weinstein was fit for duty but that they had not reviewed the materials he received from the School Board. Dr. Gibbs also was concerned that Ms. Weinstein had some mild organic impairment, and he recommended that she have a full neuropsychological evaluation. He further recommended that Ms. Weinstein continue in therapy for at least three months before having another evaluation of her fitness for duty and that, if she were at some point allowed to resume her duties as an elementary school teacher, she "team teach with another professional for 3 months prior to teaching on her own." Ms. Weinstein's psychotherapy treatment Ms. Weinstein has been in treatment with Tyrone Lewis, a psychotherapist, since January 1999. Mr. Lewis sees Ms. Weinstein once a week and sometimes once every two weeks; he engages in what he describes as "supportive psychotherapy" with Ms. Weinstein, which is designed to provide her with insight into her current situation and to help relieve her depression and anxiety. Currently, he is working with Ms. Weinstein to help her deal with the uncertainty about her job and the possibility that she will not work as a teacher. At the time of the hearing, Mr. Lewis was of the opinion that Ms. Weinstein was much improved, specifically with respect to her cognitive skills, her depression, her anxiety, and her awareness of her current life situation. Final Conference-for-the Record A Conference-for-the-Record was held at the Office of Professional Standards on October 13, 1999, to review Ms. Weinstein's performance assessment and her medical fitness to perform assigned duties. Ms. Weinstein had been working in her alternate assignment in the Region VI Office since the beginning of the 1999-2000 school year. With respect to Ms. Weinstein's performance assessment, the results of the observations done by Ms. Valle and Ms. Coffey in September and November 1998 and in January 1999 were reviewed, and it was noted that her 1998-1999 TADS Annual Evaluation was unacceptable. Ms. Weinstein was advised that her teaching performance was not acceptable and that she had not remediated the cited deficiencies. With respect to Ms. Weinstein's medical fitness to perform her duties, the report of Dr. Gibbs was reviewed with Ms. Weinstein and her union representative. The School Board personnel acknowledged that Dr. Feazell and Dr. Maurer both concluded that Ms. Weinstein was able to return to work, while Dr. Harmon and Dr. Gibbs concluded that Ms. Weinstein was not able to return to work. The School Board accepted the assessment of Dr. Gibbs. Ms. Weinstein requested that she be evaluated by a fifth doctor, as a "tie breaker"; this request was denied, as were Ms. Weinstein's requests that she be transferred from Miami Heights Elementary and that the School Board authorize additional leave to allow time for her to have the neurological examination recommended by Dr. Gibbs. Ms. Weinstein was advised that she must either resign her job or retire because she had been unable to obtain medical clearance to return to her teaching duties and was not eligible for additional leave. Ms. Weinstein did not choose to resign or retire by the October 20, 1999, deadline, and the School Board suspended her and recommended her dismissal from employment at its November 17, 1999, meeting. Summary The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Weinstein is incompetent as a teacher because she failed to communicate with or relate to her students to such a degree that the students were denied a minimum educational experience. Based on the formal and informal observations of Ms. Valle and Ms. Coffey during the fall of 1998 and in January 1999, Ms. Weinstein exercised virtually no control over the students in her classroom and either indiscriminately reprimanded the students or ignored their inappropriate behavior. Ms. Weinstein did not present her lessons in a coherent fashion, did not respond to students who were either confused or wanted to participate in the class, and was seemingly indifferent to whether the students learned in her classroom. No improvement of Ms. Weinstein's classroom performance was noted by Ms. Valle in her formal observation in January 1999 even though Ms. Weinstein had completed the activities prescribed by Ms. Valle and Ms. Coffey with respect to the September and November 1999 observations. The School Board has shown by the greater weight of the persuasive evidence that Ms. Weinstein is unable to perform her responsibilities as an elementary school teacher as a result of inefficiency in the classroom. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Weinstein is incompetent as a teacher because she is not emotionally stable. Dr. Harmon, Dr. Gibbs, and Dr. Feazell reached virtually the same conclusions regarding Ms. Weinstein's psychological profile and personality traits. All three psychologists found that Ms. Weinstein is extremely defensive, shows little insight into her own behavior, is unable to accept and benefit from feedback, makes judgments based on incomplete or incorrect information, and processes information poorly when she is in a stressful situation. On the basis of their assessments, Dr. Harmon and Dr. Gibbs concluded that Ms. Weinstein is unfit to carry out the duties as a teacher of elementary school children; Dr. Feazell concluded that Ms. Weinstein was fit to return to her teaching duties as of July 1999, as long as she continued in treatment to resolve the issues he identified in his evaluation report. The psychotherapy treatment Ms. Weinstein is receiving is not, however, focused on developing her ability to interact with others, to process and benefit from feedback, or to improve her judgment and ability to react properly in stressful situations, and Mr. Lewis supported his opinion that Ms. Weinstein was fit for duty as an elementary school teacher with nothing more than the observation that she was "much improved." The School Board has shown by the greater weight of the persuasive evidence that Ms. Weinstein is not fit to discharge her duties as a teacher at Miami Heights Elementary as a result of emotional instability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the suspension without pay of Yvonne M. Weinstein and dismissing her as an employee of the School Board of Miami-Dade County, Florida, for incompetency. DONE AND ENTERED this 11th day of September, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2000.
Findings Of Fact Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level. Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto). Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year. Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings. During the 1979-80 school year the normal work day at Palmetto was 7:20 a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day. Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class. On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness. Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto. Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport. Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto. Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress. Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking. Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting. On June 9, 1980, Respondent failed to report for work until 8:15 a.m., 45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness. On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication. Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980- School Year The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable. That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments. In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers. For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week. Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety. Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance. The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued. Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m. On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation. On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback. Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student confusion would be avoided, and a more stimulating and organized presentation achieved. On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982. On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so. Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness. Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself. The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying. In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature." On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency. Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment. Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive. Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office. Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence. Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed. Respondent had simply taken a copy of the placement test and written "French I Final" on it. Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught. Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes. Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized. Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books. On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student. On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas: Accuracy and completeness of required record keeping. Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m. Compliance with district, area, and school level directives and policies. Improved classroom management procedures to insure the following: Classroom organized and neat; Attendance and tardy procedures enforced. Seating charts available and up-to-date. Rules and procedures consistently applied. Teacher-student relationships resulting in mutual respect. Consistent classroom performance resulting in continuous acceptable ratings. Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement. The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years. The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons. Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose. Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons. Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language. Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year. At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist. Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual. Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders. By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them. By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management. Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools." Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year. The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself. Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance. While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years. It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion. Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy. At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That: Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years. DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire The Law Building Suite 204 315 Third Street West Palm Beach, Florida 33401 Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde, Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Fred J. Miller, currently holds Florida teaching certificate number 150969, covering the areas of elementary education, business education and administration, which is valid through June 30, 1992. At all times material hereto, respondent was employed as a teacher at Miami Park Elementary School in the Dade County School District. In the summer of 1990, S.L., a minor female student, was in respondent's fourth grade class at Miami Park Elementary School. On one occasion during such term, respondent observed that S.L. was not doing her school work and was instead drawing, contrary to instructions he had given earlier in the day. In response, respondent grabbed the paper upon which S.L. was drawing, crumpled it up and directed S.L. to stand in the corner. S.L. then opened the top of her desk to put her books away, and while her head was under the desk top respondent pushed the top down striking the back of S.L.'s head. Such contact apparently hurt S.L., since she then began to cry, but there was no compelling proof offered at hearing from which any reasonable conclusion could be drawn regarding the severity of the blow or any injury sustained. S.B. a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. On two occasions during such term, respondent made physical contact with S.B. The first occasion arose when S.B. and the other students in the class were lined up to go to lunch. During such time, S.B. was apparently talking and whispering to other students and respondent grabbed him by the arm, above the elbow, yanked him out of the line, and made him walk on the side of the line. S.B. averred at hearing that such action hurt and embarrassed him; however, there was no compelling proof regarding the severity of any harm or the degree of any embarrassment beyond what one would reasonably expect from having been disciplined. The second occasion arose when S.B. was apparently not doing his school work and was instead drawing. In response, respondent tore up the drawing, grabbed S.B. by the ear, pulled him up from his seat, and made him stand in the corner. Again, there was no compelling proof regarding the degree of harm, if any, occasioned by such contact, and S.B. offered no testimony that such action on respondent's part caused him to suffer any embarrassment. A.S., a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. At hearing, A.S. offered testimony regarding two occasions on which respondent made physical contact with him. The first occasion arose when A.S. was talking when he should not have been, and respondent pulled him by the ear and made him stand in the corner. There was, however, no proof at hearing that such conduct harmed or embarrassed A.S. The second occasion arose when the respondent "jacked up" A.S.; a phrase used to describe respondent grabbing the front of A.S.'s shirt and pulling him up. No proof was offered regarding the circumstances which surrounded this incident, and no showing of harm or embarrassment to A.S. In addition to the foregoing incidents, S.B. and A.S. also offered testimony regarding other occasions during the summer of 1990 when respondent made physical contact with other students in their fourth grade class. In this regard, S.B. offered testimony that respondent "snatched . . . [E.W.] . . . out of line about two times and yanked his ear too." And, A.S. offered testimony that respondent also "jacked up" other students when they misbehaved in class. There was, however, no proof offered regarding the circumstances surrounding these incidents, and no showing that such students were harmed or embarrassed by respondent's conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which finds respondent guilty of having violated the provisions of Rule 6B-1.006(3)(a), Florida Administrative Code, and thereby Section 231.28(1)(h), Florida Statutes, with regard to his conduct toward S.L.; which imposes the penalty recommended in paragraph 5 of the foregoing conclusions of law; and, which dismisses all other charges against respondent. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of February 1992. WILLIAM J. KENDRICK 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 27th day of February 1992.
The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of August, 2009.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 28, 2011, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a contract that is subject to a collective bargaining agreement between Petitioner and the United Teachers of Dade, applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Near the end of the 2009-2010 school year, Respondent was placed on a 25-day suspension without pay for having inappropriate communications with students. Prior to serving her suspension, Respondent was issued directives that she was not to make personal comments to students and she was not to communicate with students via text and personal letters at any time. For the 2010-2011 school year, Ms. Yassin was assigned to South Miami Community Middle School (SMCMS), where she taught language arts to five classes. Ms. Alvarez was the principal of SMCMS for the 2010-2011 school year. Ms. Yassin's suspension ended in October 2010, at which time she reported for duty at SMCMS. Shortly after Ms. Yassin reported for duty at SMCMS, Ms. Alvarez received a complaint from a parent that Respondent had requested that students bring school supplies into class in exchange for receiving extra academic credit. Ms. Alvarez held a conference with Respondent. Ms. Alvarez instructed Ms. Yassin that School Board rules prohibit a teacher from giving extra academic credit in exchange for a student providing school supplies. Ms. Alvarez specifically told Ms. Yassin to cease and desist that practice. Ms. Yassin admitted that she had given extra academic credit to students who had brought in school supplies and told Ms. Alvarez that it would not happen again. In January 2011, Ms. Alvarez received a complaint from a student in one of Ms. Yassin's classes that Ms. Yassin had offered the students in the class assistance on a test in exchange for students bringing items of food to Ms. Yassin. There was a conflict in the evidence as to whether Ms. Yassin offered her students assistance on tests if they brought candy and other food items such as pastries to her. The greater weight of the credible evidence established that during the 2010-2011 school year, Ms. Yassin made such an offer to students in one or more of her classes on one or more occasions. Ms. Alvarez verbally informed Ms. Yassin of the allegations and told her that an investigation would be initiated. There was also a conflict as to whether Ms. Yassin quizzed her students as to the investigation and as to whether she made inappropriate comments to students about the investigation. The conflict is resolved by finding that Ms. Yassin made inappropriate comments to one or more students to lie about Ms. Yassin's conduct and told other students "to watch her back." Ms. Yassin also quizzed one or more students as to the discussion the student(s) had had with the investigator. On January 12, 2011, Respondent was removed from MSCMS and placed on alternative assignment. Respondent was specifically informed that she "must not contact, visit or exchange in any type of communications with faculty/staff/students/family of students from the work location to which you were assigned at the time of the incident leading to this administrative placement." Ms. Yassin violated that clear and unequivocal directive by communicating with parents and students by text and email between January 12 and February 3, 2011.1/ Respondent's misconduct, as described herein, has impaired her effectiveness in the school system. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2012.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact: The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education. The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978. Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986. 1980-81 SCHOOL YEAR During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class. For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences. 1981-82 SCHOOL YEAR The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility. The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships. Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing. During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students. During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints. On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students. In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status. 1982-83 SCHOOL YEAR On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year. During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program. 1983-84 SCHOOL YEAR During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required. A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints. As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable. On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner. A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics. For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom. 1984-85 SCHOOL YEAR At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment. 1985-86 SCHOOL YEAR On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected. On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control. After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription. On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence. Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences. In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital. Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes. During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days. At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility. Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation. It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida. DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274 The following constitutes my specific rulings pursuant to Section 120.59 (2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 3. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 11 8. Adopted in Finding of Fact 11. 9. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 15. 17. Adopted in Finding of Fact 16. 18. Adopted in Finding of Fact 17. 19. Adopted in Finding of Fact 18. 20. Adopted in Finding of Fact 19. 21. Adopted in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 25. Rejected as a recitation of testimony. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/orsubordinate. Rejected as a recitation of testimony and/orsubordinate. COPIES FURNISHED: Johnny Brown, Esquire Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132
