The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2006.
The Issue The issues in this case are whether Petitioner should discharge Respondent from her employment because of misconduct, gross insubordination, and willful neglect of duty that impaired Respondent's effectiveness as Petitioner's employee.
Findings Of Fact Petitioner is the School Board of St. Johns County, Florida. Until September 12, 1996, Petitioner employed Respondent as a non-instructional employee. Respondent was a janitorial custodian. Petitioner requested numerous employees, including Respondent and eight other custodians, to work on Saturday, August 24, 1996, at Nease High School. The purpose was to prepare the campus for the upcoming school year. Mr. Jody Hunter, the coordinator of school-based maintenance and custodial services, asked all nine custodians, including Respondent, to stop what they were doing and to immediately remove all of the empty boxes from the classrooms. The boxes needed to be outside the buildings so that they could be collected for disposal and so that furniture could be set up in each classroom. The crews in charge of collecting and disposing of the boxes and those in charge of furniture set-up were on precise schedules. The other maintenance tasks that needed to be performed by the custodians, including Respondent, could be performed at other times. All of the custodians except Respondent complied with the instructions of Mr. Hunter. Mr. Hunter repeated the instructions to Respondent several times. Respondent insisted on working in accordance with her own schedule and priorities. After a reasonable time, Mr. Hunter inspected the area for which Respondent was responsible. He found boxes in the area and saw Respondent walking down the hallway with a bag and supplies in her hand. Mr. Hunter asked Respondent why she had not complied with his instructions. She stated that she did not like to start another job before she finished the first job. Mr. Hunter repeated the need and the urgency of getting the boxes out of the area so that the other crews could stay on schedule. Respondent stated that she did not have to listen to Mr. Hunter because it was a Saturday and because he was not her supervisor. Respondent never removed the boxes in her area. Mr. Hunter had several conversations with Respondent regarding her refusal to follow his instructions. Respondent became very loud and obstreperous during at least one of those conversations. Other employees heard Respondent from different areas of the campus. Mr. Hunter conducted himself professionally during each of these conversations. During one of the conversations, Mr. Hunter requested Ms. Alice Powell, a teacher, to witness a portion of the conversation. Respondent left work before completing her assigned duties. She refused to answer questions from Mr. Hunter as to where she was going or if she would return. Respondent returned to the campus later in the day with her daughter. Respondent's daughter acted as an interpreter. Through her daughter, Respondent asked Mr. Hunter to write down everything he had said to Respondent during the day. When Mr. Hunter refused, Respondent threatened to sue Mr. Hunter for "violating her rights." Mr. Hunter asked Respondent to leave the premises. Respondent refused. Respondent stated that Mr. Hunter had never dealt with Puerto Ricans before and that they take care of their own problems. Mr. Hunter asked Respondent if she was threatening him, and Respondent said, "yes." Mr. Hunter telephoned Mr. Bill Mignon, the principal of the school. Mr. Mignon spoke to Respondent by telephone. Mr. Mignon asked Respondent to leave the campus and to discuss the matter in his office on Monday. Respondent left the campus but did not keep her appointment on Monday. Petitioner suspended Respondent with pay pending an investigation of the matter. Mr. Mignon and Mr. Clayton Wilcox, Petitioner's director of personnel, conducted an investigation into the matter. They interviewed witnesses, including Respondent, and reviewed written statements. On September 12, 1996, the Board voted to suspend Respondent without pay. Respondent now has a full-time position with another employer. Respondent was previously disciplined by Petitioner. In April, 1995, Petitioner verbally reprimanded Respondent for misusing time cards by leaving work and having another employee punch Respondent's time card at a later time. In May, 1996, Petitioner gave Respondent a written reprimand for taking excessive lunch breaks. In May, 1996, Petitioner issued a memorandum to Respondent for failing to comply with requirements for excused absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of gross insubordination and willful neglect of duty and terminating Respondent's employment. RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997. COPIES FURNISHED: Dr. Hugh Balboni, Superintendent St. Johns County School Board 40 Orange Street St. Augustine, Florida 32084 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dennis K. Bayer, Esquire Attorney at Law 306 South Oceanshore Boulevard (A1A) Post Office Box 1505 Flagler Beach, Florida 32136 Anna I. Oquendo, pro se 21 Madeore Street St. Augustine, Florida 32084
The Issue This is a case in which the Petitioner seeks to terminate the Respondent's employment contract as a teacher. The grounds upon which the proposed action is based are alleged in a Notice of Specific Charges of Unsatisfactory Performance dated May 13, 1998.
Findings Of Fact At all times material to this case, the Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida. At all times material to this case, the Respondent, Michael J. Akpan, was an employee of the School Board of Miami- Dade County, Florida. At all times material to this case, the Respondent possessed an annual employment contract as a teacher and was subject to the Memorandum of Understanding between United Teachers of Dade and the School Board. At all times material to this case, the Respondent was certified to teach middle grades science. This certification allows the Respondent to teach certain science courses to ninth and tenth grade students. During the 1997/1998 school year, the Respondent was teaching at North Miami Senior High School (NMSHS).1 The Respondent was placed in an alternative education assignment in which the students were at risk of dropping out of school. During that school year, the Respondent had difficulty controlling the conduct of students in his classroom. There were numerous instances of student misconduct and disruption of such gravity as to require intervention by school security personnel and assistant principals. Teachers employed by the Petitioner School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between the Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate the Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and teachers, whether new or veteran. TADS observers record deficiencies which are observed during the observation period and then provide a prescription for performance improvement.2 A post-observation conference is held with the teacher to discuss the prescription. Then the cycle of assessment/prescription begins again. Under the TADS procedure as incorporated into the labor contract between the School Board and UTD, teachers who are in Annual Contract Two status, such as the Respondent, must have a minimum of two observations during each school year. One of those two observations must be done by the principal. During its 1997 session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted the implementation of TADS, the Petitioner and UTD negotiated a Memorandum of Understanding with respect to the implementation of the new procedures required by the 1997 statutory amendments. The Memorandum of Understanding is an amendment to the labor contract between the Petitioner and the UTD. The Memorandum of Understanding reads as follows, in pertinent part: Performance Probation Period Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days, conduct a conference-for-the-record which addresses: results of the observation/assessment, or Category VII infraction, stipulations of the Performance Probation (90 calendar days excluding school holidays and vacations), which begins upon the employee's receipt of written plan of assistance (prescription), the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time, future required observations/assessments and possible employment actions. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation. The annual evaluation decision will be based upon the result of the last observation/assessment as illustrated in the chart titled, Examples of Assessments/ Observations and Annual Evaluation/Employment Contract Decisions for Employees on Performance Probation. In the event that an employee is absent on authorized leave in excess of 10 consecutive workdays, the Performance Probation is suspended until the employee returns to active duty, at which time it resumes. If the Performance Probation has not been completed during the current year of employment, the annual evaluation is withheld pending completion of the Performance Probation during the subsequent year of employment. Teachers who have not completed the requirements of the Performance Probation are ineligible for summer school employment. Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent. Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board continue or terminate his or her employment contract. If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing. On October 13, 1997, the Respondent was observed in his classroom by Assistant Principal Carrie Figueredo for one hour. The Respondent was found to be deficient in several categories and his performance was assessed as unsatisfactory. The observed deficiencies on this occasion included a failure to maintain appropriate classroom management. More than 90 percent of the students were "off task." Most of the students were either sleeping, filling out job applications, or otherwise inattentive. On October 20, 1997, Assistant principal Figueredo held a post-observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities, which it was hoped would help him improve his performance as a classroom teacher. On November 21, 1997, the Respondent was formally observed in his classroom by Principal Charles Hankerson. Principal Hankerson assessed the Respondent's performance as unsatisfactory. Among other things, Principal Hankerson observed that the Respondent continued to have serious deficiencies in the area of classroom management. On December 2, 1997, Principal Hankerson held a conference for the record with the Respondent to address his unsatisfactory performance. During that conference Principal Hankerson made recommendations as to how the Respondent might improve the specific areas of his unsatisfactory performance, and also discussed the Respondent's future employment status with Petitioner School Board. The Respondent was placed on a Performance Probation status in accordance with Section 231.29(3)(d), Florida Statutes, and he was provided with a plan of assistance to help him correct his deficiencies within the prescribed time frame. The Respondent's 90-day probation period began on December 8, 1997, which is the day on which he was furnished with a copy of the written plan of assistance. March 8, 1998. was the ninetieth day following December 8, 1997. During the Respondent's 90-day probation period there were at least 12 school holidays and school vacation days.3 Accordingly, the Respondent's probation period extended until at least March 20, 1998.4 On January 20, 1998, the Respondent was observed in his classroom by Assistant Principal William Henderson. Assistant Principal Henderson observed the Respondent for 60 minutes. During this observation, the Respondent was found deficient in techniques of instruction. Assistant Principal Henderson observed that the Respondent was not addressing the needs of the students, that there was confusion as to the assignment, and that the Respondent wasted too much time initiating the lesson. On January 27, 1998, Assistant Principal Henderson had a post-observation conference with the Respondent, during which he discussed the Respondent's deficiencies, and provided the Respondent with a number of prescriptive activities to assist the Respondent in correcting his deficiencies. Among those activities were, that the Respondent should meet with his department chairperson and review strategies which would be appropriate for the students assigned to the Respondent's classes. The Respondent was also directed to submit lesson plans to Assistant Principal Henderson. On February 27, 1998, the Respondent was observed in his classroom by Assistant Principal Figueredo for two hours. Assistant Principal Figueredo found the Respondent to be deficient in several areas, including classroom management.5 This was Assistant Principal Figueredo's second observation of the Respondent. While she noted some minimal improvement since her earlier observation, the Respondent's performance on February 27, 1998, was still not anywhere near an acceptable level. On March 5, 1998, Assistant Figueredo held a post- observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities in order to assist the Respondent in correcting his deficiencies. Among those prescriptive activities was a requirement that the Respondent develop lesson plans to be reviewed by Assistant Principal Figueredo's and by the Respondent's department chairperson. The Respondent was also directed to maintain a time log to determine when students arrived. Additionally, the Respondent was assigned several exercises in the Activities Manual to assist him in the area of teacher/student relationships. On March 27, 1998, Principal Charles Hankerson observed the Respondent in the classroom. On this occasion Principal Hankerson found the Respondent to be deficient in three categories: classroom management, techniques of instruction, and teacher/student relationships. This was the confirmatory observation, which did not require a prescription. The assistance provided to the Respondent through his prescriptions was appropriate assistance related to the Respondent's observed deficiencies. The Respondent completed all of the prescriptions. Nevertheless, the Respondent continued to fail to plan for lessons, continued to fail to manage his students, and continued to fail to interact appropriately with his students. These continued failures resulted in a failure of the Respondent to meet the instructional needs of his students. As a result of the Respondent's unsatisfactory performance during each of the last three observations described above, Principal Hankerson notified the Superintendent of Schools that the Respondent had not satisfactorily corrected his performance deficiencies during the probation period, and Principal Hankerson recommended that the Respondent's employment be terminated. On April 2, 1998, the Superintendent of Schools timely notified the Respondent that he was going to recommend that the School Board terminate his employment contract because he had failed to satisfactorily correct his performance deficiencies during his period of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999.
The Issue The issue for determination is whether the School Board has proven the allegations set forth in the Notices of Specific Charges dated April 3, 2001, and, if so, what penalty should be imposed.
Findings Of Fact The incident giving rise to this case occurred on November 14, 2000. At that time, Respondents Gregory Adams (Adams) and Brett T. Scanlon (Scanlon) were employed as teachers by the School Board and assigned to William Chapman Elementary School (Chapman). Adams has been employed by the School Board since August 1996, and has taught at Chapman since 1998. Scanlon has been employed by the School Board at Chapman since October 1999. Adams and Scanlon shared a second grade classroom during Scanlon's first year at Chapman, and Adams became a mentor to him. At the start of the 2000/2001 school year, Scanlon was assigned to teach third grade, while Adams continued to teach second grade. The complaining witness against Adams and Scanlon, Miguel Suarez (Miguel), was nine years old at the time of the incident. Like many of the teachers and administrators at Chapman, Miguel is of Hispanic origin. English is his second language. Miguel's academic functioning is quite low. In terms of expressing himself, he functions at a four or five-year-old level. His memory functions no better than that of a five- year-old. He was not sure, for example, what school he had attended last year. Miguel is unable to reliably sequence events. He is eager to please and, at least in the presence of the undersigned, attempted to ascertain what adult authority figures wanted and to give it to them. Miguel's learning disabilities are not the first thing one notices about Miguel. Indeed, Miguel began the 2000/2001 school year as a second grade student in a regular education class. It was not until mid-October that the professional educators who worked with him daily mustered sufficient evidence to identify his learning disabilities and appropriately place him into a learning disabilities (LD) program for part of the day. Miguel's family is not adept at communicating effectively with school teachers and administrators. Miguel's mother, Silvia Gomez (Gomez), does not strive for a united front between home and school. In addition to his mother, Miguel resides with her live-in boyfriend. Both are irregularly employed. Sometime prior to the incident on November 14, 2000, Miguel's father had committed suicide. Miguel was aware that his father had died, but had never received counseling directed to this loss. Adams is an African-American from an impoverished, hardscrabble background. Out of seven siblings, he and one other have achieved a college education. Adams feels an obligation to encourage children of similar background. Scanlon is a white male, who previously served in the armed forces. His professional bearing is reminiscent of what official Miami used to look like. He too is committed to teaching. At the time of the final hearing, Chapman’s racial and ethnic composition, as well as the mix of English and Spanish spoken as first languages, typifies the rich diversity of Miami-Dade County in the 21st century. But it also provided fertile ground for misunderstanding, miscommunication, and mixed signals. Compounding the potential for trouble at Chapman, at the time of the incident, some teachers employed a practice called ”time-out” to deal with students with whom they were having a problem at a moment when they were not able or willing to deal with the problem themselves. Time-out, though not part of the officially approved discipline program at Chapman, was widely known in the school. The practice was discontinued after and as a direct result of this incident. At the time of the incident, Adams and Scanlon had a good faith belief that it was a form of professional courtesy within the school, and not an act which would place one’s career in jeopardy. Time-out was initiated by the teacher having difficulty with a particular student. She would take or send the disruptive student to a fellow teacher who would use his own discretion in returning the child to a compliant mode. Sometimes, the mere act of sending the child to another teacher was sufficient to inspire contrition. Sometimes it wasn't. Sometimes a child would join the time-out teacher's classroom. Sometimes the child would be taken to a private area and given a stern lecture. Miguel, due to his learning disabilities and in particular his extremely poor communication skills, was not a good candidate to respond positively to a stern lecture. Rather, it was frightening to him, particularly when delivered by two adult male teachers previously unknown to him. Adams, on the other hand, had good results in the past with students referred to him for time-out. Adams was experienced in administering time-outs for fellow teachers, and the record reflects no complaints about either Respondent's techniques with reference to their handling of time-outs. Adams and Scanlon had no knowledge of Miguel’s limitations and special circumstances on November 14, 2000, when one of Miguel’s teachers, Leah Gilliard (Gilliard), was angry at Miguel for “helping” to collect books without permission. Gilliard delivered Miguel to Adams, who in turn sought the assistance of his colleague Scanlon. Miguel’s time-out ended in a student bathroom, where Respondents used language and metaphors which may have been effective with a third grader of average communication skills, but which served only to frighten Miguel. In particular, Scanlon asked Miguel why he wanted to throw his life away and if he wanted to flush everything down the toilet. Asked by Scanlon questions to the effect of why he was throwing his education away like he was flushing it down the toilet, Miguel started laughing. It may well be that Miguel laughed out of fear, or confusion, but Scanlon and Adams perceived disrespect. Rather than switch metaphors, Adams took Miguel to a child-size toilet stall and said “This is your life going down the drain if you don't get serious about education.” As he said this, he flushed the toilet with his foot. Miguel was sufficiently chastened to obey Adams' direction to apologize to Scanlon for having been (in Respondents' perception) rude. Miguel did not cry or exhibit other signs of distress to Respondents as they escorted him from the bathroom. Scanlon returned to his own classroom and Adams returned Miguel to Gilliard. At Adams' direction, Miguel apologized to Gilliard and the time-out ended. Miguel said nothing of the incident until later that night. At bedtime, Miguel told Gomez that “a brown man and a white man” had “put his head in the toilet.” Gomez did not take the claim seriously, and Miguel was not agitated or upset. Gomez told Miguel to go to sleep and he did so. The next morning, however, Miguel said he did not want to go to school, so his mother went to school with him. In the presence of Miguel, she first met with Gilliard, and next with teacher Millie Johnson (Johnson). Johnson, on hearing the toilet story, said to Miguel in a loud and “forceful” voice, “They didn't really do that, did they?” Miguel answered, “They almost.” Adams was summoned, and admitted to having had Miguel in his custody for time-out, but not to any type of physical abuse. By this time, Miguel had told at least three adults, his mother, Gilliard, and Johnson, that he, Adams, Scanlon, and a flushing toilet were all in proximity to one another while Miguel was being sternly double-teamed on the subject of his behavior—-a fact which Adams and Scanlon do not dispute. Dissatisfied with Adams’ explanation, an angry Gomez left an upset Miguel behind at school to be cared for by teachers, administrators, and counselors who were busy with their regular work. As the day progressed, Miguel was required to tell his story to no fewer than four more teachers and administrators. Miguel began to add substantially and horrifically to the story he had told his mother the night before. Meanwhile, Adams and Scanlon were immediately transferred out of Chapman and assigned to a district office. At different times and places, Miguel has claimed that Adams kicked walls and slammed doors; that Scanlon threatened to cut off his tongue and his fingers; that Adams threatened to cut out his tongue and teeth; and that Adams pushed his head just inside the rim of the toilet seat, near the water, and asked, “Do you want to drown?” In addition, Miguel has claimed that both teachers took him to a stairwell where Adams told Miguel that he would drop him down the stairs, pull out his teeth, and do "something" to him if he told his mother. Miguel's story has grown to include allegations that one or both teachers made him stand on one foot and pretended to push him down the stairs. It is also alleged that Adams made him run up and down the stairs chasing an unidentified boy that they had picked up on their way to the stairs. For reasons not reflected in the record, a couple of days after the incident, Miguel's mother's live-in companion came to the school office screaming, “How could teachers do this!” For several days following his mother's visit to Chapman, Miguel was agitated and did not want to go to his homeroom. The record is unclear as to whether his agitation was the product of the November 14th incident, or adult reaction to it as horrific details were added, or being simply overwhelmed by the attention. Soon after the incident, Miguel was administratively promoted to a third grade homeroom. He continues to be enrolled at Chapman. Gomez retained an attorney to pursue a civil action on Miguel's behalf. At the time of the final hearing in this case, the incident which occurred on November 14 is in active litigation and requires a significant amount of Miguel's time. He is fearful of failing this year because he is missing a lot of school due to the legal proceedings. Gomez and her lawyer sought and received publicity for their claims against Petitioner. In seeking media coverage they knowingly and voluntarily made Miguel's identity a matter of public notoriety for purposes of influencing the outcome of the litigation. Because Petitioner's case rests entirely upon Miguel's claims that he was subjected to criminal conduct far beyond the time-out described by Adams and Scanlon, the undersigned paid careful attention to his demeanor under oath. Miguel attended a significant portion of the final hearing accompanied by his mother and his lawyer, and listened again to teachers' accounts of what he had allegedly told them about the incident. Miguel's time on the witness stand was prolonged because he had significant difficulty understanding questions and even more difficulty in recalling and recounting facts crucial to the allegations against Respondents. On several occasions his attempted answers were simply unintelligible. Miguel's family, by virtue of its lawsuit against Petitioner, had an obvious financial stake in telling as horrifying a tale as possible. Similarly, Adams and Scanlon, whose careers and livelihoods are at stake, are motivated to downplay the extent of their efforts to intimidate Miguel into improving his behavior. The undersigned, therefore, carefully observed Respondents' demeanor as they testified. The testimony of the Respondents and of Miguel, when evaluated in the context of the entire record, reveals that Petitioner has failed to establish that Miguel was abused in the manner described in the Notice of Specific Charges. Rather, the version of the incident recounted by Adams and Scanlon is far closer to the truth. The Petitioner's allegations are utterly inconsistent with any evidence presented about the character and professional career of Adams and Scanlon. In addition, they are so horrific that one would expect that a child who had suffered such treatment would be far more traumatized than the cheerful, if intimidated, little boy who testified at the final hearing. The undersigned attaches particular significance to Gomez' claim at the final hearing that on the night of the incident, Miguel reported to her most, if not all, of the abuse allegations against Adams and Scanlon. Yet, all of Petitioner's witnesses agree that when Gomez confronted Adams and school authorities the following day, she said nothing of the alleged threats of violence and death made against her son. Gomez claims she did not mention the abuse allegations the next day because she deemed them unimportant when measured against the fact that--taking the evidence in the light most favorable to the Petitioner--Miguel's head had been placed near, but not in, the toilet water. The undersigned rejects Gomez' testimony that Miguel in fact claimed, on the night of November 14th, that he had been subjected to violence, physical abuse, and death threats. Not only did Gomez fail to mention these most serious charges to any of the teachers or administrators, she never mentioned them to school police. It is also significant that the day after the incident, Miguel did not suggest to anyone that any other children were present on the stairs. It was not until his deposition was taken in May 2001, that Miguel stated that another little boy was on the stairs and that the “Brown man” pulled the little boy from class and made both of them run up and down stairs. There is no corroborating evidence that this child exists, or this incident took place on November 14th nor at any other time. Neither is there any corroboration of any kind for Miguel's testimony that several children were in the bathroom at one time or other during the course of the incident and each of these children was ordered out by Adams or Scanlon. Such witnesses, if they existed, would be of obvious value in providing disinterested testimony as to, at a minimum, the demeanor of the Respondents during the incident. Being kicked out of a bathroom by a teacher is not a daily occurrence. Had multiple children been subjected to this unusual behavior by two teachers who were preparing to or were in the process of abusing a second grader, it should not have been difficult to identify them 24 hours later. Petitioner attempted to corroborate Miguel's testimony through a school psychologist, Diane Cotter (Cotter). She opined that the alleged abuse actually occurred. Cotter has no personal knowledge of the incident, does not treat Miguel, and has no credentials in forensic psychology. With deference to the witness, the undersigned disagrees with her opinion as to Miguel's reliability. The record as a whole establishes that Miguel's story grew in direct response to the attention and reinforcement he was receiving as the flushing toilet story was embellished with allegations of criminal child abuse. Petitioner, at its duly-noticed meeting of March 14, 2001, took action to suspend Adams and Scanlon without pay and to initiate dismissal proceedings against them pursuant to Sections 230.23(5)(f) and 231.36(6)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board issue a final order reinstating Gregory Adams and Brett T. Scanlon with back pay. DONE AND ORDERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2001.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a high school teacher assigned to Miami Norland Senior High School. Respondent holds a continuing contract. Respondent began teaching for the Dade County Public Schools during the 1968-69 school year. During that school year, the annual evaluation form utilized by Petitioner provided that a score of below 3.5 indicated unsatisfactory work. During that, his first year of teaching, Respondent received a score of 3.2 on his annual evaluation. For the next 15 years thereafter, Respondent was rated as being acceptable on his annual evaluations for each and every year. During the 1984 summer session, an incident occurred between Respondent and one of his students. As a result of Petitioner's investigation into the allegation that Respondent had committed a battery on that student, conferences were held between Respondent and administrative personnel. Respondent requested a leave of absence for the 1984-85 school year due to personal reasons, and his request for leave of absence was granted. Respondent was required, however, to undergo a psychological evaluation prior to returning to his duties as a classroom teacher. During that school year while Respondent was on leave of absence, he was evaluated by Dr. Gail D. Wainger, a psychiatrist to whom he was referred by Petitioner. Respondent thereafter saw Dr. Albert C. Jaslow, a private psychiatrist, on two occasions. Dr. Jaslow submitted two reports which contained, inter alia, a recommendation that Respondent be transferred to a different school. Dr. Wainger reviewed Dr. Jaslow's reports and her own earlier report and, on May 21, 1985, submitted a report to Petitioner stating, inter alia, that there was no barrier to Respondent's being reinstated into active teaching. Based upon that evaluation, Petitioner permitted Respondent to return to the same teaching position previously held by him for the 1985-86 school year. At the conclusion of that school year, Respondent was rated as being acceptable on his annual evaluation. Respondent again received acceptable annual evaluations for the following two years, i.e., the 1986-87 and the 1987- 88 school years. On his annual evaluation for the 1988-89 school year Respondent was rated as being unacceptable in the area of classroom management, one of the six categories of classroom performance. Pursuant to the rules governing the TADS evaluation system, a rating of unacceptable in any of the categories covered by the annual evaluation instrument requires an overall rating of unacceptable. On his annual evaluation for the 1989-90 school year Respondent was rated as being acceptable in all six categories of classroom performance, including the area of classroom management. It was specifically noted on his annual evaluation form that Respondent had performed satisfactorily during both of the official observations made of his classroom performance. However, Respondent was rated as unacceptable in the non-classroom category entitled professional responsibility. That rating of unacceptable in that one category required that Respondent's overall rating be unacceptable. The basis for the unacceptable rating in the area of professional responsibility involved the determination that Respondent had been disrespectful to students on two separate occasions. On April 16, 1990, one of Respondent's students called another of his students who had an unusual skin pigmentation condition "two-toned." Respondent immediately told the offending student, "do not call the girl two-toned." A conference for the record was conducted with Respondent on April 30, 1990, and Respondent was given a supervisory referral to the Employee Assistance Program. During the week of May 7, 1990, one of Respondent's students was being verbally abusive to the other students, and Respondent told him to stop. That student thereupon began being verbally abusive toward Respondent and using profanity. Respondent then said to that student, "you should talk. You look like Mr. Spock from Star Trek." A conference for the record was conducted with Respondent, and he was issued a formal reprimand. The summary of the conference for the record dated June 1, 1990, prepared by the principal of Miami Norland Senior High School states that the student involved has physically-deformed ears. On his annual evaluation for the 1990-91 school year Respondent was rated as being unacceptable in the areas of classroom management, techniques of instruction, and professional responsibility. Accordingly, he received an overall evaluation of unacceptable. During the 1990-91 school year there were no reported incidents of Respondent allegedly making disrespectful remarks to students. That basis for being rated unacceptable in the area of professional responsibility during the prior academic year was cured. The rating of unacceptable in the area of classroom management was based upon a number of observations of Respondent during the school year wherein the observers noted a lack of control in the classroom, Respondent's failure or inability to re-direct students who were off-task, Respondent's failure or inability to enforce classroom rules, and Respondent's failure or inability to deal with students who were tardy in coming to his class. As to his techniques of instruction, observers during that school year noted that Respondent was teaching from sub-standard books (without noting whether that was a matter within Respondent's control), that the students were confused by Respondent's directions on several occasions, that the students did not understand the lessons being taught, and that on several occasions Respondent made errors in math when writing examples on the board. Some of the observers also noted that Respondent spent too much time on some of the lessons that he was teaching. Numerous prescriptions were given to Respondent during that school year to improve his instruction and to manage his classroom, such as reading sections of the TADS manual and observing other teachers. Respondent complied with each and every prescription given to him. As to being unacceptable in the area of professional responsibility, Respondent failed to properly maintain student folders reflecting their work to justify grades being given to the students, and there were errors in Respondent's gradebook. It also became apparent that Respondent was not making parental contact for students that were performing unsatisfactorily. By March of the 1990-91 school year Respondent was directed in writing to make parental contact as required by Dade County Public School policy. By memorandum dated June 3, 1991, Respondent was notified that he was required to produce within 48 hours a complete up-to-date gradebook, a parent contact log substantiating parent contacts for the entire school year, and all student folders substantiating Respondent's gradebook. He was advised that if he did not do so, he would receive an unsatisfactory rating in the area of professional responsibility. The principal and assistant principal understood the directive to mean that Respondent must produce those documents by noon on June 6, and Respondent understood the directive to mean that he was to produce the documents on June 6. At noon, the principal was not available to Respondent. Respondent did produce many of the documents later that day. There was, of course, no parental log for the entire year since one did not exist. At the end of the 1990-91 school year a recommendation for dismissal was made. Based upon that recommendation, the School Board of Dade County, Florida, suspended Respondent from his employment effective at the close of the workday on July 25, 1991, for incompetency and gross insubordination. In 1984 Respondent filed a grievance against Assistant Principal Wessel and Principal Fowler at Miami Norland Senior High School. The subject of the grievance was that Assistant Principal Wessel had in a loud voice and in a demeaning manner criticized Respondent's lesson plans in front of other teachers, staff and students. The grievance was also filed against Principal Fowler to enlist his assistance in making Wessel refrain from repeated conduct of that nature. The Union considered the grievance to be valid and processed it through the grievance procedures. Thereafter, Respondent was advised by Fowler and Wessel that he had made a big mistake and he would be sorry for having filed that grievance. Respondent began to believe that he had lost the support of the administration and that his job was in jeopardy. When Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year he was moved to a classroom directly across from the main office. Respondent considered that action to be demeaning. He still achieved acceptable evaluations for that year and the following year. During the next school year, in the middle of February, the administration moved Respondent to an old metal shop room and gave his classroom to a new teacher. He still achieved an acceptable annual evaluation that year. For the following school year the administrators assigned Respondent to teach five low-level math classes using five different classrooms. For the last three years of his teaching career, the ones during which he received unacceptable ratings in different categories, Respondent was required to teach all low-level math classes. Although administrative personnel testified that some teachers like low-level classes, Respondent repeatedly made it clear that he did not want that assignment. Further, there is a specific contract provision between the Dade County Schools and the teachers' union prohibiting teachers from being locked into low-level classes year after year, as Respondent was. During the last several years while Respondent was achieving unsatisfactory ratings in some categories, while he was being switched from classroom to classroom, and while he was being required to teach only low-level classes year after year, the administrative staff actively undermined Respondent's authority and demeaned him in front of students and other teachers. They told teachers and students that they were trying to get rid of Respondent and that Respondent was a bad teacher. When Respondent referred disruptive students to the office, the administrative staff laughed or simply refused to take any follow-up action. On one occasion when Respondent referred a student to the office for throwing an eraser at another student, an assistant principal told the misbehaving student that he should have thrown the eraser at Respondent instead. Respondent "lost face" around the school. It became known that the students could misbehave in Respondent's classes with impunity. Even the students understood that Respondent was assigned only the most difficult of students. Although there was a new principal at Miami Norland Senior High School during Respondent's last year of teaching, the new principal, coincidentally, had been the principal for the 1984 summer session at Parkway Junior High School where Respondent had been involved in an incident with a student prior to taking his year's leave of absence from teaching. Under the new principal's administration, Respondent was retained in his assignment of five low-level math classes and was moved to the classroom directly across from the office. No evidence was offered that the new principal understood that efforts had been made to keep Respondent's authority undermined and to make him quit. It is clear, however, that no steps were taken to stop or reverse the damage to Respondent's reputation and ability to teach. In response to Respondent's referral to the Employee Assistance Program, Respondent did make the contact required of him. In fact, there were numerous contacts between Respondent and the personnel involved in that program. Additionally, Respondent was seen by Dr. Goldin, a mental health professional, on four occasions between April and June of 1990. Between June and September of 1990, he also saw an associate of Dr. Goldin eight times in individual sessions and four times in joint sessions with his wife. Respondent repeatedly requested transfers from his teaching assignment at Miami Norland Senior High School. Some of the requests were made to his principals and some of them were sent to the Office of Professional Standards. From the time that Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year, he requested transfers each and every year. He requested a transfer at least twice during his last year of teaching. Some of the requests for transfer were hardship requests and others were normal requests. Additionally, both Dr. Jaslow in 1985 and Dr. Goldin in 1990 recommended to the Office of Professional Standards that Respondent be transferred to a different school. All requests for transfer were ignored. During the last years of Respondent's teaching career, in addition to the stress placed upon him by the administrative staff's efforts to undermine and ridicule him, he experienced additional stress as a result of his wife's serious illness. He told a number of the administrative staff about the problem at home. The difficulty under which that placed him was part of the reason for the referral to the Employee Assistance Program. During those last years, during conferences with administrative staff regarding his performance, Respondent exhibited anxiety and showed signs of stress. He accused the administration of undermining him and of treating him unfairly. He even attributed some of the problems he was experiencing in the classroom to the administrators. Their reaction to Respondent's accusations was to accuse Respondent of being paranoid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent without pay for the 1990-91 school year and reinstating him as a full-time classroom teacher thereafter at a school other than Miami Norland Senior High School. DONE and ENTERED this 27th day of January, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4936 Petitioner's proposed findings of fact numbered 1, 4, 33, 35-37, 65, 67, 68, 72, and 74 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2, 3, 8, 11, 19, 32, 38, 58, 71, 75, and 77 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 5-7, 9, 10, 12-18, 20-31, 39-57, 59-64, 66, 69, 70, 73, and 76 have been rejected as being unnecessary in determining the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 34 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1, 4-11, 13, and 14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Copies furnished: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire 1450 N.E. Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue The first issue in this case is whether, as the district school board alleges, a teacher abused, mistreated, or otherwise behaved inappropriately towards one of his special-needs students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this case, Respondent Edouard Jean ("Jean") was employed as an Exceptional Student Education ("ESE") teacher in the Broward County public schools, a position which he had held for the preceding 16 years. During that period, Jean taught students with disabilities, who typically receive specially designed instruction and related services pursuant to individual educational plans. Ahead of the 2013-14 school year, Jean was transferred to Crystal Lake Middle School, where he had not previously worked. He was placed in an "SVE" class and assigned to teach ESE students having "varying exceptionalities." Jean's class contained a mix of high- and low-functioning students, about nine in number. Jean's colleague, Ray Montalbano, taught a similar SVE class in a nearby room. At the beginning of the school year, the two ESE teachers agreed to share responsibility for their respective students under an arrangement that separated the higher functioning students from the lower functioning students. Jean and Mr. Montalbano took turns teaching the two groups, exchanging one for the other at midday. In this way, each teacher spent roughly equal time with the respective sets of students. For the last hour of the day, they combined the two groups and jointly instructed the approximately 18 students in Mr. Montalbano's classroom, which was larger. There were two paraprofessionals, or teacher's assistants, working in Jean and Mr. Montalbano's SVE classes. One, named Lisa Phillips, was assigned to both teachers; she alternated between their classrooms during the day. The other, Donna Rollins, was assigned to Mr. Montalbano's class, where Jean spent an hour each afternoon. In view of the cooperative arrangement between Jean and Mr. Montalbano, both of the teacher's assistants regularly worked in the same classroom as Jean and assisted with the provision of instruction and services to the 18 students for whom Jean and Mr. Montalbano were responsible. On October 15, 2013, Jean was removed from his classroom and informed that he was the target of a criminal investigation arising from allegations that he recently had abused one of his pupils, a 13-year-old boy with Down Syndrome named Z.P., who was among the lower functioning students. Jean's accuser was an occupational therapist named Lisa Taormina, who at all relevant times worked as an independent contractor for the School Board, providing services to students at various public schools in Broward County. Jean consistently has denied Ms. Taormina's allegations, which shocked and surprised him. Ms. Taormina, who that year was seeing students at Crystal Lake Middle School once per week each Friday, reported having observed Jean mistreat Z.P. on October 4, 2013, and again on October 11, 2013. Ms. Taormina claimed that the alleged events of October 4 took place in Jean's classroom with Ms. Phillips in attendance. The alleged events of October 11, in contrast, purportedly took place in Mr. Montalbano's classroom during the hour when the two SVE classes were combined. Thus, the alleged abuse supposedly occurred in the presence of Mr. Montalbano, Ms. Phillips, Ms. Rollins, and a substitute teacher named Shirley Ashcroft who happened to be there that day. Ms. Taormina's allegations were investigated by the Broward County Sheriff's Office and the Broward District Schools Police Department. During these investigations, neither Z.P. nor any of the other students were interviewed, because most of them (including Z.P.) are either nonverbal or too intellectually limited to be reliable witnesses.1/ All of the adults were questioned, however, and none of them corroborated Ms. Taormina's allegations. Unsurprisingly, therefore, no criminal charges were brought against Jean. On the strength of Ms. Taormina's allegations, the School Board nevertheless determined that Jean had abused Z.P. and thus should be fired. As it happens, Ms. Taormina's final hearing testimony is the only direct evidence against Jean, whose colleagues Mr. Montalbano, Ms. Phillips, Ms. Rollins, and Ms. Ashcroft, to a person, credibly denied under oath having ever seen him mistreat Z.P. or any other student. The outcome of this case, therefore, depends on whether Ms. Taormina's testimony is believed likely to be an accurate account of the relevant historical events. In assessing Ms. Taormina's credibility, the undersigned finds it especially significant that Jean's co- workers, who were able to observe him for extended periods of time on a daily basis in the classroom, never witnessed him engage in any troubling or suspicious behavior during the roughly seven weeks he taught at Crystal Lake Middle School; to the contrary, everyone who testified (except Ms. Taormina) who had seen Jean in the classroom praised his performance generally, and his relationship with Z.P. in particular. The undersigned credits the consistent, mutually corroborative, and overwhelmingly favorable testimony about Jean's exemplary conduct. Because an isolated incident, however out of character, can be squared with evidence of otherwise superlative performance, the fact that Jean was well regarded by the employees with whom he closely worked does not exclude the possibility that Jean abused Z.P., but it does diminish the likelihood that he could have abused Z.P. on multiple occasions. For that reason, if Ms. Taormina claimed only to have seen Jean mistreat Z.P. once, her testimony likely would have been more believable. Ms. Taormina claims, however, to have seen Jean abuse Z.P. on two separate days——on consecutive weekly visits to the school, no less. If Ms. Taormina is to be believed, Jean's alleged abuse of Z.P. was not an isolated incident but was rather, if not necessarily part of a pattern of behavior, at least something Jean was capable of repeating. Here it bears emphasizing that Ms. Taormina saw Jean, at most, once per week for relatively brief periods of less than 30 minutes apiece. Within the context of this limited contact, Ms. Taormina (if she is believed) happened to witness Jean abuse Z.P. on back-to-back visits, while Jean's colleagues, who saw him every workday, never noticed anything amiss. Logically, there are, broadly speaking, two possible explanations for this anomalous situation. First, Jean might have abused Z.P. only when Ms. Taormina was present in the classroom, which would explain why no one else ever saw him mistreat the student, so long as the failure of the four other adults in the room on October 11 to witness the alleged misconduct——a lack of attentiveness that defies reasonable expectations——is overlooked. Given that Ms. Taormina's brief weekly visits comprised such a tiny percentage of Jean's total time with the students, however, to abuse Z.P. only in her presence probably would have required Jean to act according to a plan, which beggars belief;2/ otherwise, Ms. Taormina's presence at the very moments that all such abuse occurred was a most remarkable coincidence. At any rate, while the probability that Jean abused Z.P. only when Ms. Taormina was around to witness his misdeeds is perhaps greater than zero percent, the undersigned regards this explanation as far too implausible to be considered likely. Alternatively, and likelier, Jean might have abused Z.P. not only in Ms. Taormina's presence, but also in her absence. Because Ms. Taormina is the only person who has ever claimed to have seen Jean mistreat Z.P., however, to accept this explanation requires believing that Jean's co-workers never saw him abusing Z.P., or that everyone who witnessed such abuse except Ms. Taormina resolved not to report it.3/ Yet both situations are unworthy of belief. More likely than not, if Jean were abusing Z.P. at times when Ms. Taormina was not in the room, which was most of the time, then at some point over the course of seven weeks Mr. Montalbano or one of the paraprofessionals would have noticed something wrong4/——and none of them did, as found above. Similarly, it is difficult to imagine——and impossible reasonably to infer in the absence of any supporting evidence——that another teacher or paraprofessional, or some combination of these employees, would fail to report suspected child abuse and lie under oath to protect Jean. In any event, the undersigned has found that Jean's fellow employees never saw Jean abuse Z.P., which means that, in all likelihood, Jean did not abuse Z.P. when Ms. Taormina was not in the room. In sum, it is unlikely that Jean repeatedly abused Z.P. only in Ms. Taormina's presence; and yet, it is unlikely that Jean ever abused Z.P. during the vast majority of the time when Ms. Taormina was not in the room (but another adult or adults typically were). Therefore, the logical conclusion is that Jean likely never abused Z.P. at all, contrary to Ms. Taormina's allegations. The foregoing reasons are sufficient for the undersigned to reject Ms. Taormina's testimony as ultimately unpersuasive and to find that the School Board has failed to prove its allegations against Jean. Nevertheless, Ms. Taormina was a good witness in many respects. Her story has been consistent, her recollection seemingly clear, her testimony vivid and detailed. Ms. Taormina is articulate and her demeanor at hearing suggested sincerity. She had barely known Jean before the events at issue and was not shown to have had grounds to dislike him or any other motive for damaging him with false allegations of misconduct. Thus, while not necessary to the disposition, it is desirable to examine Ms. Taormina's specific accusations in greater detail. Ms. Taormina claims that on October 4, 2013, while Z.P. was lying on his back on the floor, Jean spun Z.P. around, using the student's legs as a handle for twirling the boy's body. Then, she says, Jean tapped Z.P. with a ruler to prod him into getting up from the floor. Z.P. refused to rise, and Jean resumed spinning the student. Ms. Taormina recognized that Jean and Z.P. were "playing around" and concluded nothing "abusive" had occurred, but she deemed Jean's conduct "inappropriate." As mentioned, Z.P. is cognitively limited in consequence of Down syndrome. He was also, at the time of the events at issue, aggressive, sometimes mean and abusive towards teachers, including Jean, and known to bite, scratch, kick, and spit on others. Z.P., who was a big boy, could be difficult to redirect. By October 2013, however, Jean had established a rapport with Z.P. The student liked his teacher, and Jean and Z.P. would play with each other. One activity that they enjoyed entailed Jean spinning Z.P. around——which is what Ms. Taormina observed. Except for Ms. Taormina, no one who witnessed Jean playfully spinning Z.P.——which Jean admits doing——considered this activity to be inappropriate. There is no persuasive evidence in the record establishing an objective standard of conduct that Jean might have violated when he played with Z.P. in this manner. Striking Z.P. with a ruler would be another matter, of course. Jean denies ever having done that, however, and no one but Ms. Taormina claims to have observed Jean misbehave in such fashion. The undersigned finds, based on the greater weight of the evidence, that Jean did not hit Z.P. with a ruler on October 4, 2013, as alleged, but rather tapped the floor with it, as he testified. According to Ms. Taormina, Jean's conduct the following week, on October 11, was worse. She testified that, upon arriving in the classroom, she noticed that Jean's fingers were resting on the back of Z.P.'s neck as he (Jean) moved the student around. To Ms. Taormina, "it looked . . . like [Jean] was searching for, like, a pressure point or tender point . . . ." In fact, Jean was not searching for a pressure point, and he did not dig his fingers into a tender spot on Z.P.'s neck, which explains why no one (including Ms. Taormina) saw or heard the student cry out or grimace in pain. The undersigned credits Jean's testimony that he touched Z.P.'s back and shoulders to guide or comfort him, not to hurt him. Ms. Taormina asserted that after putting his fingers on the back of Z.P.'s neck, Jean gave Z.P. a "violent shaking" which caused Z.P.'s head to rock up and down ("just flapping back and forth") so fast that Z.P.'s features were an unrecognizable blur, but only for "just a few seconds." Somewhat incongruously, however, she characterized this "mockery" as being "more, like, playing" and noted that Jean, who was smiling, did not appear to be acting out of anger. The behavior that Ms. Taormina recounted is indeed disturbing. Yet some of the details seem a bit off. For example, although no expert testimony was presented, the undersigned's rudimentary understanding of simple biomechanics makes him think that violently shaking a passive or helpless person so hard that his features become blurry (assuming this could be accomplished in just a few seconds' time) would cause the victim's dangling head, not to flap up and down (rapidly nodding), as Ms. Taormina described, but to rotate uncontrollably. The undersigned finds it difficult, too, to imagine that such abuse could ever look "like playing." Moreover, it seems peculiar, given the number of adults in the room, that Ms. Taormina did not immediately intervene or speak up to protect Z.P., if Jean were harming the student as she has stated. More important, it is likely that a vigorous physical battery such as the attack on Z.P. that Ms. Taormina recalls would have caused a considerable commotion. And yet, even though there were four other adults in the room besides Jean and Ms. Taormina, no one but the occupational therapist noticed Jean inflicting this alleged abuse. The undersigned cannot find, based on the greater weight of the evidence, that Jean violently shook Z.P. as alleged. This incident, therefore, was not proved. After Jean allegedly shook Z.P., according to Ms. Taormina, the student climbed up on a table, where he proceeded to eat a banana. Ms. Taormina testified that all of the students and adults in the room (except her) laughed at Z.P. when someone exclaimed that he looked like a monkey. She said that Jean then led Z.P. to a garbage can and made him spit out the piece of banana in his mouth. When Z.P. got down on the floor afterwards, said Ms. Taormina, Jean hit the student with a broom to compel him to stand and, having no success with that, lifted Z.P. by his shirt and pants and shook him a few times before standing the boy upright. Once on his feet, Z.P. wet his pants, Ms. Taormina stated. Based on a preponderance of the evidence, the undersigned finds that Z.P. did, in fact, eat a banana while standing on a table. Further, Jean did hustle Z.P. to the garbage can to spit out the banana in his mouth because the boy was gagging on the fruit. The evidence does not support a finding that the adults laughed at Z.P., although one student did call him a monkey, which prompted Jean to reprimand the offender. The evidence does not support a finding that Jean struck Z.P. with a broom, an act of abuse which Jean credibly denied, or that Jean picked up Z.P. and shook him, a feat which likely could not be accomplished, given the student's size and weight, and which Jean credibly denied. Z.P. did urinate on himself, as Ms. Taormina reported, but the greater weight of the evidence establishes that this was not a response to stress, fright, or abuse, but a common occurrence. In sum, the evidence does not support a determination that Jean likely mistreated Z.P. as alleged. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Jean is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6A-5.056(1).5/ The greater weight of the evidence fails to establish that Jean is guilty of the offense of misconduct in office, which is defined in rule 6A-5.056(2).6/ The greater weight of the evidence fails to establish that Jean is guilty of incompetency, which is defined in rule 6A-5.056(3).7/ It is undisputed that Jean was never charged with, much less found guilty of, any crime as a result of the events which gave rise to this proceeding. Therefore, the School Board does not have just cause to terminate his employment pursuant to section 1012.33(1)(a), Florida Statutes, for "being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Jean of all charges brought against him in this proceeding, reinstating him as an ESE teacher, and awarding him back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2014.
Findings Of Fact Each of the Petitioners is a school teacher at Rosenwald Middle School in Bay County, Panama City, Florida. Celestine Cherry has a total of twenty-four years of teaching experience, all of which have been in the Bay County school system. She has taught home economics and physical education at Rosenwald Middle School for the last nine of those years. Ida Conner has had twenty which have been in Bay County. She began at Rosenwald teaching language arts and U.S. history in 1988. Albert Harris has had fourteen years of teaching experience, all but one of which have been in Bay County. He has a BS degree in biology and is certified to teach science to grades seven through twelve. Grace Bryan has had twenty time of the hearing, she had been teaching at Rosenwald for fifteen years. She is an ESE teacher who is certified in the area of mental retardtion. Carol Love became the assistant principal at Rosenwald in 1989 and was promoted to principal of Rosenwald in 1990. During the 1989-90 school year, Love performed teacher evaluations of the four Petitioners and rated each as unsatisfactory. It is these unsatisfactory evaluations which the Petitioners allege were the result of racial discrimination. Love taught for eighteen years at all levels and has been an administrator since 1986. She holds a Masters Degree in Education and had served as assistant principal for three years at Rutherford High School prior to her assignment to Rosenwald. Jack Simonson was the superintendent of the Bay County schools from November 22, 1988, to November 16, 1992. The Bay County School Board is the entity ultimately responsible for the operation of the schools of that county and is the Petitioners' employer. One of Simonson's major campaign promises in seeking election as superintendent was to rigorously evaluate school administrators and employees. After his election, he regularly reminded the administrators of his desire that they conduct accurate evaluations. During his term as superintendent, Simonson strictly pursued the evaluation of district administrators. This policy resulted in the non-renewal of four white administrators, who either returned to the classroom or left the school system. He reduced one black administrator from principal to assistant principal. No black administrators were returned to the classroom or non-renewed. Except for his demand for rigorous evaluations, Simonson took no part in the 1989-90 annual evaluations of the Petitioners. When Carol Love began as assistant principal at Rosenwald in 1989, she worked for Eli Campbell, the principal. The other assistant principal was Lynn Stryker. Campbell is black and Stryker is white. The Bay County School District uses the Florida Performance Measurement System (FPMS), which is a Florida Department of Education approved method for teacher evaluation. Love is a certified FPMS evaluator. The FPMS identifies effective and ineffective teacher behaviors. The evaluator's responsibility is to observe whether or not the teacher exhibits these behaviors during the periods of observation. The actual observations are noted on a summative form and are then transferred to the evaluation form. A tallying of the observations determines whether or not the teacher receives a satisfactory or unsatisfactory evaluation. The FPMS evaluation instrument predetermines which behaviors are effective and which are ineffective. These decisions are not made by the evaluator. The evaluator merely notes the behaviors observed. Bay County teachers are all given in includes copies of the evaluation instruments. The teachers are therefore aware, at the beginning of each school year, of the behavior which will be observed, and whether or not they are effective or ineffective under the FPMS. For the 1989-90 evaluations, Campbell assigned one teachers to himself and one previously taught with Karl Elliott, who is white, and Conner, who is black, she felt uncomfortable in evaluating these two teachers, and therefore requested Love do their annual evaluations. In addition, the two assistant principals thought it best to keep departments together for the purpose of evaluation. It was agreed that Bryan and Laticia Washington, both of whom are black, would be assigned to Love, so that she would then be evaluating the entire EMH Department. All of these proposed changes in evaluations were discussed with Mr. Campbell at the administrators' regular Monday morning meeting and he gave his approval for these changes to be made. In addition to the unsatisfactory evaluations of the Petitioners, Love also gave unsatisfactory evaluations in 1989-90 to Karl Elliott, Fran Walters, Wayne Davidson, and Charles Clark, all of whom are white. Two black teachers, Ms. Washington and Ms. Smith, received satisfactory evaluations from Love for that same evaluation period. Campbell signed all of the evaluations and improvement notices given to the Petitioners in their annual evaluation in 1989-90. It was not until some time later that he raised some procedural objections to the improvement notices. None of these procedural objections are at issue in this matter. For the 1989-90 school year, Simonson assigned Assistant Superintendent Glenda Hamby to evaluate Campbell. Prior to the beginning of the 1989-90 school year, Simonson determined that teacher evaluations at Rosenwald had not been appropriately conducted for the 1988-89 school year. By a memo dated August 1, 1989, Simonson gave specific directions to Campbell regarding Campbell's performance and the expectations regarding Campbell's administration of Rosenwald for the 1989-90 school year. Campbell clearly was on notice that big improvements were expected or else Campbell would be removed as principal of Rosenwald. Rather than making a genuine effort to improve his administration at Rosenwald, Campbell instead embarked on a campaign of public challenges to Simonson, agitated the faculty and the black community to help him keep his position as principal, failed to acknowledge deficiencies in his performance, and publicly alleged that his problems were the result of racism. Campbell was unhappy that Love had been assigned to Rosenwald and his relationship with her was markedly uncooperative. Campbell publicly aired his allegations of racism, going so far as to discuss them on television. Hamby's unsatisfactory evaluation of Campbell was the final factor that resulted in his removal as principal at Rosenwald and his reassignment within the Bay County School District. Love's evaluations of the Petitioners for the 1989-90 school year were consistent with the requirements of the FPMS system. She conducted several classroom observations of each Petitioner and based the teacher assessments, professional development plans and improvement notices on the observations. Cherry received an overall assessment of unsatisfactory based on deficiencies in the areas of Instructional Organization and Development and Communication: Verbal and Nonverbal. A professional development plan was given which further identified the specific goals and strategies for correcting the deficiencies. Finally, improvement notices were given that specifically defined the unsatisfactory performance, the improvement desired and the assistance to be provided to the teacher for achieving that improvement. Cherry was unsatisfactory for her use of incorrect English in the classroom, inadequate verbal and nonverbal communication skills, inadequate instructional organization and development, and inappropriate and/or lack of supervision in class. She refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Instead, Cherry took the position that the evaluations were incorrect and were based on racism. In May, 1990, Love went to Cherry's class in response to a complaint from a teacher and a student. She discovered that the student's were engaged in writing and turning in to Cherry letters directed to Love concerning Cherry's unsatisfactory evaluation and her quality of teaching. Love sent Cherry from the room and conducted an investigation of the incident. As a result, Cherry received two letters of reprimand for these actions in her classroom. While Cherry did grieve these two letters of reprimand, the grievances were denied after binding arbitration. Cherry has received unsatisfactory evaluations from Love in each school year since the 1989-90 school year. Cherry continues to believe that the evaluations and reprimands are the result of racism. To support this belief, Cherry also cites to an incident during a school picture when Love told her to sit on the ground, a time when Love told Cherry not to read her newspaper during faculty meetings, and an occasion when Love required Cherry to get to her class room in a timely fashion. In fact, the great weight of evidence is contrary to Cherry's allegations of racism and no racial content in these incidents has been shown. Cherry maintains that the deficiencies noted in the evaulations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Cherry's evaluations were based and in comparing those observations with Cherry's demeanor as a witness at hearing, it is found that some of the unsatisfactory observations regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Cherry did not use grammatically correct English, was at times vague and rambling, maintained a hostile posture, and was verbally hostile and caustic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Conner received an overall evaluation of unsatisfactory with areas of deficiency in Instruction Organization and Development, Knowledge/Presentation of Subject Matter, and Communication: Verbal and Nonverbal. Conner also received a Professional Development Plan with goals and strategies for remediating the deficiencies and three improvement notices which set forth a description of the unsatisfactory performance, improvement desired, and assistance to be provided to assist Conner in improving the unsatisfactory performance areas. Conner was unsatisfactory for verbal and nonverbal communication; for failure to begin instruction promptly, handle materials efficiently, maintain academic focus, conduct beginning and ending review, question effectively, recognize and amplify responses, and give appropriate praise; and for her inability to use English correctly. Conner also refused to accept the validity of the criticisms and failed to carry out any of the strategies for improvement. Conner took the position that the evaluations were incorrect and were based on racism. Conner has received unsatisfactory evaluations from Love in each school year since 1989-90. The inadequacies remained the same. Because of her failure to remediate these deficiencies, Conner was removed from teaching language arts and history and was reassigned to teach alternative education for the 1990-91 school year. Conner suggests that her charge of racism is supported by several incidents. Conner asserts that Love took money from her alternative education budget to buy computers to go in other classrooms. This is simply not so. Conner also believes that Love's racist motivation resulted in omission of an award for Conner in September 1990, in interception of a note that Conner sent by way of a student, in the failure to invite Conner to a school literary luncheon in January, 1993, and in the failure to invite Conner to an in program on Macintosh computers in December, 1992. The evidence is to the contrary in each of these incidents. No evidence of racial content or motivation has been presented in any of these incidents. Conner also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Conner's evaluations were based and in comparing those observations with Conner's demeanor as a witness at hearing, it is found that some of the unsatisfactory behaviors regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Conner did not use grammatically correct English, mispronounced basic words, and was at times loud, hostile, and sarcastic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Harris received an overall evaluation of unsatisfactory for the 1989- 90 school year. Deficiencies were noted in the areas of Instructional Organization and Development, Communication: Verbal and Nonverbal, and Personal Qualities. As with the other Petitioners, a professional development plan and improvement notices were provided. Harris was unsatisfactory for his inability to question effectively, to recognize and amplify responses, to give appropriate praise and to express enthusiasm and interest verbally and through body behavior. He was also frequently tardy to his classes thus leaving students unsupervised and he needed improvement in classroom behavior management. As did Cherry and Conner, Harris refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Harris also believed that the unsatisfactory evaluation was the product of racism. Harris complained that he could not effectively teach science from a regular classroom as he had done since 1987. At the beginning of the 1990-91 school year, Love assigned Harris to a science room, which gave him better access to the science closet for equipment and a demonstration table, running water, and an outside access door. Harris' teaching did not improve and he has been evaluated as unsatisfactory in every subsequent year. He was finally reassigned to teach alternative education. To support his claim that these unsatisfactory evaluations are the result of racial discrimination, Harris cites to two incidents in which he thought Love was rude and abrasive. One incident occurred when Love chided Harris in the hallway about being late for his class; the other occurred in the gymnasium just before an assembly when Love told Harris to "move it" and to "get those kids in line." No evidence was offered to show a racially discriminatory motivation for these incidents. Harris also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In examining the Summative Observation Instruments and in comparing those observations with Harris' demeanor as a witness at hearing, it is found the some of those same unsatisfactory behaviors were evident in the hearing. Specifically, Harris spoke in a low monotone, showing no enthusiasm or interest. He was lethargic, made no eye contact, and had a flat affect. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Bryan received an overall unsatisfactory evaluation for the 1989-90 school year, with deficiencies noted in Instructional Organization and Development, Communication: Verbal and Nonverbal, and Management of Student Conduct. Bryan was given a Professional Development Plan and improvement notices. She also believes that the unsatisfactory evaluation was the result of a racial motivation, but she, unlike the other Petitioners, took advantage to the suggested strategies for improvement by reviewing tapes and research, exploring new methods, practicing those improved behaviors, and attending a class. Bryan's efforts to improve were successful and she has not received another unsatisfactory evaluation from Love. Bryan tendered no competent evidence to show a racially discriminatory motivation for the unsatisfactory rating given in 1989-90. The improvement notices given to the Petitioners required "Improvement will be demonstrated by October 1, 90." The stated consequences if improvements were not made was "Progressive discipline which could lead to dismissal." No disciplinary actions have been taken against the Petitioners at any time since the initial evaluations. Love has consistently reproved both black and white teachers for being late to class. In dealing with the faculty, staff and students of Rosenwald, Love is direct, firm, aggressive, and at times, abrasive, regardless of the race of the party with whom she is dealing. It is not unusual for her to call out instructions to teachers or students in the common areas of the campus. The assistant principals under Love are Stryker and Linwood Barnes. Barnes is black. Both have observed Love's interactions with students and faculty on a daily basis. Neither have ever observed Love to treat black students or teachers in a manner different than that with which she treats white students and faculty. Petitioners assert that Love acknowledged her prejudice to Bronkelly Porter, a black student at Rosenwald. In fact, the incident cited occurred after Campbell had rallied students, teachers and the black community in an effort to retain his job. Because of Campbell's accusations against Love, she was regularly harassed by students. The event in question occurred in the cafeteria when she was challenged by Porter, a student with whom she had had problems in the past. Bronkelly yelled out to Love a question about whether she was prejudiced. Love spontaneously and sarcastically said "Yeah, right, Bronkelly, I am." While it is recognized that Love, in an off used a poor choice of words, this statement is not taken to be probative evidence of racial prejudice on the part of Love. Love also made certain statements while counseling Michelle Ward regarding her discipline problems. Specifically, Love told Ward that "if she'd hang around with her own kind then she would not get in so much trouble." The statement was not made in reference to the race of any individual, but instead was intended to get Ward to reconsider the group she was running with in an attempt to decrease Ward's discipline problems. The greater weight of the probative and material evidence establishes that Love at no time took any discriminatory action against the Petitioners on account of their race. Further, there is even less evidence of racial discrimination on the part of Simonson or the Bay County School Board. Petitioners have simply failed to prove their case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying and dismissing the claims for relief filed by Albert Harris, Celestine Cherry, Grace D. Bryan and Ida Conner. DONE and ENTERED this 1st day of June, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 1st day of June, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 92-1698, 92-1699, 92-1700, and 92-2304 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7(6); 9(7); 15(18); and 17(13). Proposed findings of fact 8, 10, 16, 21-23, 26-32, and 37-39 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 11-14, 20, 25, and 33 are irrelevant. Proposed findings of fact 18, 19, 24, and 34-36 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(10); 3(6&11); 4(12); 5(13); 6(15); 7(23); 14(39); 15(35); 16(34); 18(42); 20(39); 22(40); and 24 & 25(14). Proposed findings of fact 8-13, 17, 21, 23, 28, and 29 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 19, 26, and 27 are irrelevant. Proposed finding of fact 30 is unnecessary. COPIES FURNISHED: Leslie Holland Attorney at Law 924 North Gadsden Street Tallahassee, Florida 32303 Franklin Harrison Attorney at Law 304 Magnolia Avenue Panama City, Florida 32402 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149
The Issue The issues in this case are whether Respondent violated Pinellas County School Board Policies 8.25(1)(j) and 8.25(1)(t), and, if so, whether Petitioner should suspend Respondent for three days.
Findings Of Fact Ms. Rosenthal is employed by Petitioner as a clerk specialist III in the specialized hiring section of the human relations department of the Pinellas County School District. Part of her assigned duties includes processing applications for substitute teachers to be employed by Pinellas County Schools. Ms. Rosenthal has been employed as a clerk specialist III since 2000. Her job responsibilities include the accurate and timely processing of data and files in the specialized hiring department of the Pinellas County School District. On January 12, 2008, Ms. Rosenthal met with Starla Metz, who at that time was the human resources director for specialized hiring, concerning the length of time Ms. Rosenthal was taking to process on-line substitute applications. Ms. Rosenthal was directed to use a weekly list to track the status of the on-line applications and to enter information in the sub database when she spoke with or emailed an applicant. Terri Alford, a human resources specialist, was directed to meet with Ms. Rosenthal each Friday to offer support as needed. In February Marilyn Lusher replaced Ms. Metz as director. Beginning on April 10, 2008, and continuing for about five meetings thereafter, Ms. Lusher met with the specialized hiring department to clarify and explain the department’s processes, to communicate transitions within the department, and to emphasize her expectations regarding accuracy and the need for confidence in the clerks’ data entry process. A checklist for the front of each file was updated, as well as detailed instructions for the clerks. Terri Alford and Karen Cope, a human resource specialist, supervised Ms. Rosenthal. They advised Ms. Lusher that Ms. Rosenthal continued to make clerical errors. Ms. Lusher requested that they provide her with specific instances in which errors were made. Ms. Alford and Ms. Cope documented the errors and presented them to Ms. Lusher. Additionally, Ms. Alford and Ms. Cope were instructed to document errors made by others in the department. On August 7, 2008, Ms. Lusher met with Ms. Rosenthal concerning performance deficiencies in Ms. Rosenthal’s work. Ms. Rosenthal had inaccurately retrieved information on an individual which would make the individual ineligible for hiring. A letter to the individual stating that the individual was a no hire had to be retrieved from the mailroom. Additionally, Ms. Rosenthal had made other errors such as: filing information in an applicant’s file that should have been filed in another applicant’s file, making inaccurate data entries in Winocular, and delaying the processing of applications. Ms. Rosenthal was given some steps to take in order to improve her work performance. Ms. Alford was to continue to meet with Ms. Rosenthal on Fridays to determine what support Ms. Rosenthal might need. Ms. Rosenthal always declined any additional help. Ms. Rosenthal’s poor work performance continued, and Ms. Lusher met with Ms. Rosenthal on August 15, 2008, to again discuss performance deficiencies. Ms. Rosenthal had taken some steps to correct her errors, but she continued to have delays in processing, inaccurate data entry, incomplete files, and errors in pulling the correct files. At that time, it was determined that future evaluations of Ms. Rosenthal’s performance were to be done using the Supporting Services Performance Appraisal form, which meant that Ms. Rosenthal’s performance would be rated as unsatisfactory, needs improvement, satisfactory, or better than satisfactory. On August 15 and September 12, 2008, Ms. Lusher met with Ms. Rosenthal to discuss errors that Ms. Rosenthal continued to make in her work. On September 26, 2008, Ms. Lusher and Dr. Ron Stone, assistant superintendent of Human Resources, met with Ms. Rosenthal to discuss Ms. Rosenthal’s inappropriate use of the computer and the Internet during working hours. Ms. Rosenthal was cautioned to refrain from the inappropriate use of the computer and to improve the accuracy and timely completion of her work. She was advised that there appeared to be a correlation between her inordinate use of the Internet and her poor work performance. Prior to the September 26, 2008, meeting, Ms. Rosenthal had requested that she be given additional time beyond her scheduled work hours to complete her work. This time would be compensated either as overtime or as compensatory time. At the September 26, 2008, meeting, Ms. Lusher informed Ms. Rosenthal that she would no longer be given additional time to complete her work. On October 23, 2008, Ms. Rosenthal was given a written reprimand for the unacceptable quality and quantity of her work. Ms. Rosenthal was directed to improve her work performance. After the written reprimand was issued, Ms. Rosenthal continued to make numerous clerical errors. Ms. Lusher’s job responsibilities increased dramatically, and she did not have the time to devote to meetings with Ms. Rosenthal to discuss Ms. Rosenthal’s deficient work performance. However, in August 2009, Ms. Lusher again met with Ms. Rosenthal to discuss Ms. Rosenthal’s errors in the processing or the absence of processing additional duty forms that were needed to process payroll for certain employees. Ms. Rosenthal had also provided some inaccurate information on extra duty time that was used in an agenda item for Petitioner, resulting in a complaint from the Superintendent of the Pinellas County Schools. Other issues were discussed such as Ms. Rosenthal’s personal telephone conversations while at work, Ms. Rosenthal’s transferring telephone calls to other team members when Ms. Rosenthal should have been able to answer the telephone inquiries, and Ms. Rosenthal’s failure to stay at her desk to answer the telephone when other team members were at lunch. On September 29, 2009, Ms. Rosenthal received a performance appraisal. She received an unsatisfactory rating for quality of work and a needs-to-improve rating for job knowledge, quantity of work, and initiative. She received satisfactory ratings for the other areas of her work. Ms. Rosenthal argues that, although she made mistakes, other team members also made mistakes. When Ms. Rosenthal’s mistakes are compared to the mistakes of other team members, Ms. Rosenthal’s are significantly greater in number. The use of the Internet and the conduct of personal business during work time contribute to Ms. Rosenthal’s inability to improve the quantity of her work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Rosenthal is guilty of incompetence in violation of Pinellas County School Board Policy 8.25(1)(j) and failure to correct performance deficiencies in violation of Pinellas County School Board Policy 8.25(1)(t) and suspending her for three days without pay. DONE AND ENTERED this 7th day of July, 2010, 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 7th day of July, 2010.
The Issue The issues in this case are whether Respondent satisfactorily corrected specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3) (d), Florida Statutes, and, if not, whether Respondent's employment should be terminated.
Findings Of Fact A. 1. One of the statutory duties of Petitioner Miami-Dade County School Board ("Board") is to evaluate the performance of every teacher employed in the Miami-Dade County School District ("District"), at least once per year. To accomplish this, the Board uses a personnel assessment system known as "PACES," which is an acronym for Professional Assessment and Comprehensive Evaluation System. PACES is the product of collective bargaining between the Board and the teachers' union, and it has been duly approved by the Florida Department of Education. 2. The Board's evaluation procedure begins with an observation of the subject teacher, conducted by an administrator trained in the use of PACES. On a score sheet called the Observation Form for Annual Evaluation ("OFAE"), the evaluator rates the teacher's performance on 44 independently dispositive "indicators." The only grades assignable to the respective indicators are "acceptable" and “unacceptable”; thus, the evaluator's decision, for each indicator, is binary: yes or no, thumbs up or thumbs down.! A negative mark on any one of the 44 indicators results in an overall performance evaluation of "unsatisfactory." For the teacher under observation, therefore, each indicator constitutes, in effect, a pass/fail test, with his or her job hanging in the balance. 3. If the teacher passes all 44 of the independently dispositive indicators, then the teacher's performance is rated "setisfactory” and the evaluative process is complete. If, on the other hand, the teacher is given a failing grade on one or more of the 44 indicators and hence adjudged an unsatisfactory performer, then the initial observation is deemed to be "not of record" (i.e. inoperative) anda follow-up, “for the record" evaluation is scheduled to occur, upon notice to the affected teacher, about one month later. 4, In the meantime, the teacher is offered the assistance of a Professional Growth Team ("PGT"), a group of peers who, having received special training in PACES, are in a position to help the affected teacher correct performance deficiencies in advance of the follow-up evaluation. 5. The follow-up evaluation is conducted in the same manner as the initial "not of record" evaluation. If the teacher passes all 44 indicators, then his performance is deemed satisfactory and the evaluative process is complete. If he fails one or more of the indicators, however, then the teacher is placed on probation for a period of 90 calendar days (excluding vacations and holidays). The probation period is preceded by a formal Conference-for-the-Record ("CFR"), at which notice of the specific performance deficiencies is provided to the teacher. As well, the teacher is provided a PGT and given a Professional Improvement Plan ("PIP"), wherein particular remedial tasks, intended to help the teacher correct the noted performance deficiencies, are assigned. 6. During the performance probation, the teacher must be formally observed at least twice, by an evaluator using the OFBE. If, on any of these probationary observations, the teecher fails at least one indicator, then another PIP is prepared and offered. 7, The performance probation could end early, before 90 days have passed. This occurs when, during probation, the teacher is deemed to have mastered all the required indicators. At that point, should it come, the teacher receives a satisfactory performance rating, and the evaluative process is terminated. 8. ‘Within 14 days after the end of probation, assuming the process has not ended sooner as just described, a "confirmatory evaluation" is conducted, using the OFAE. The purpose of the confirmatory evaluation is to determine whether the noted performance deficiencies were corrected. If they were, then the teacher's performance is rated "satisfactory." If not, the principal then makes a recommendation to the superintendent whether to continue or terminate the teacher's employment. 9. As mentioned above, a PACES evaluation takes account of 44 crucial indicators. The indicators are organized under "components." The 44 outcome determinative indicators fall within 21 components, which are identified on the OFAE. These components are organized, in turn, under "domains," of which six are identified on the OFAE. 10. Each domain has been assigned a Roman numeral identifier: I through VI. The components are distinguished alphabetically: A, B, C, etc. The indicators are numbered using Arabic numerals. Each specific indicator is named according to the Roman numeral of its domain, the letter of its component, and its own Arabic number. Thus, for example, the first indicator under Component A of Domain I is referred to as "TL,A.1." 11. Notwithstanding the PACES taxonomy, the classifications of "domain" and "component" are useful only as a means of organizing the indicators. This is because a teacher does not pass or fail a performance evaluation at the domain level or at the component level; rather, he passes or fails at the indicator level, for, again, each of the 44 indicators is independently dispositive under PACES.” Thus, each of the determinative 44 indicators is of precisely equal weight. None is more important or less important than another.? B. 12. At all times material to this case, Respondent Leopoldo Mutis ("Mutis") was a teacher in the District. From 1999 until April 2004, when the Board suspended him pending termination of employment, Mutis taught middle school Spanish and ESOL at Key Biscayne K-8 Center ("Key Biscayne"). 13. During the 2003-04 school year, an evaluator observed Mutis in his classroom on five separate occasions, each time using the OFAE. The dates of these evaluations were, and the names of the respective evaluators are, as follows: Evaluation Date Evaluator October 23, 2003 Ana Maria Rasco, Principal, Key Biscayne November 17, 2003 Ms. Rasco January 13, 2004 Blanca Herrera-Torres, Assistant Principal, Key Biscayne February 18, 2004 Cathy Williams, Assistant Principal, Key Biscayne March 15, 2004 Ms. Rasco 14. The Board contends that Mutis failed ali five evaluations; the first, however, was deemed "not of record" and thus is relevant only insofar as it opened the door to the process that followed. The following table shows, for each evaluation for the record, the indicators that the respective evaluators thought Mutis had failed: Ti-lt-05 Gl-1s-08 02-18-06 G3-15-04 ; | | x | O1-13-04 [ TvEt_[ vat ver Ti-17-03 CU td 04 x | x [x 2-28-08 03-15-04 x 15. Because Ms. Rasco identified five performance deficiencies on November 17, 2003, Mutis was placed on 90-day performance probation, effective November 26, 2003, pursuant to the procedure described in detail above. Ms. Rasco held a CFR on November 25, 2003, to review with Mutis the identified deficiencies and explain the procedures relating to the 90-day probation. Following the CFR, Mutis was given written notice of unsatisfactory performance, in the form of a "Summary of Conference-For-The-Record And Professional Improvement Plan (PIP)," dated November 26, 2003 ("Summary"). In the Summary, Ms. Rasco charged Mutis with failure to satisfactorily perform the following PACES indicators: IV.A.3, IV.A.5, IV.B.2, VI.C.2, and VI.C.4. (These five indicators are highlighted vertically in the table above.) At the same time, Mutis was given a PIP, anc a PGT was assembled to provide assistance. 16. Following the confirmatory evaluation on March 15, 20C4, based on which Ms. Rasco identified 13 deficiencies as shown in the table above, Ms. Rasco notified the superintendent thet Mutis had failed to correct noted performance deficiencies during a 90-day probation and recommended that Mutis's employment be terminated. The superintendent accepted Ms. Rasco's recommendation and notified Mutis, by letter dated March 31, 2004, of his decision to recommend that the Board terminate Mutis's employment contract. On April 14, 2004, the Board voted to do just that. Cc. 17. In general terms, the ultimate issue in this case, according to Section 1012.33(3) (d)2.b., Florida Statutes, is whether Mutis corrected noted performance deficiencies as of the two-week period after the close of the 90 calendar days' probation. In view of the issue, the initial "of record" evaluation of November 17, 2003, is primarily relevant because it established the five "noted performance deficiencies" that Mutis needed to correct.’ Indeed, the Board cannot terminate Mutis's employment based on other deficiencies allegedly found during probation or at the confirmatory evaluation, but rather must focus exclusively on those five particular deficiencies which Mutis was given 90 calendar days to correct, for reasons that will be discussed below in the Conclusions of Law. Stated more precisely, then, the ultimate question in this case is whether any of the five specific deficiencies identified in the Summary provided to Mutis on November 26, 2003, persisted after the 90-day probation. 18. The two evaluations that were conducted during Mutis's probation (on January 13, 2004, and February 18, 2004) are of present interest mainly because they show Mutis making steady progress toward eliminating the noted deficiencies. By January 13, 2004, according to Ms. Herrera-Torres, Mutis had corrected three of the five noted deficiencies (Indicators IV.A.3, VI.C.2, and VI.C.4), leaving just two (Indicators IV.A.5 and V.B.2). When Ms. Williams evaluated Mutis on February 18, 2004, she found that the teacher had corrected four of the five noted performance deficiencies, failing him only on Indicator IV.A.5. 19. The evidence presented at hearing is insufficient, however, to support findings that Mutis was, in fact, deficient 10 with respect to (a) Indicators IV.A.5 and V.B.2 as determined by Ms. Herrera-Torres or (b) Indicator IV.A.5 as determined by Ms. Williams. As for the evaluation of January 13, 2004, it is found that the purpose of the learning task observed by Ms. Herrera-Torres that day was obviously to teach students rules relating to gender identification in the Spanish language. Thus, Indicator IV.A.5, which requires that the purpose or importance of learning tasks be clear to learners, was met. Regarding Indicator V.B.2, which requires that wait time be used as appropriate to enhance the development of thinking skills, Ms. Herrera-Torres gave no testimony at hearing; and, her cor.temporaneous written summary of Mutis's alleged deficiency in this area merely states, in conclusory fashion, that Mutis afforded students insufficient “wait time to think and develop answers to questions." A subjective opinion, devoid of facts, is not enough to justify an ultimate determination of insufficient performance in this regard. 20. As for the evaluation of February 18, 2004, it is found that Mutis informed the class observed by Ms. Williams that he intended to review a previous lesson or lessons. Having told his students that the purpose of the learning task was review, Mutis satisfied Indicator IV.A.5. 21. Thus, based on the evidence presented, it is found that Mutis's performance probation in connection with the five 11 noted deficiencies should have been terminated on January 14, 2004, or February 18, 2004, at the latest.° 22. As it happened, however, Mutis’s probation was not prematurely terminated, and Ms. Rasco performed a confirmatory evaluation on March 15, 2004. She found that Mutis had corrected two of the five noted performance deficiencies, giving Mutis a passing grade on Indicators IV.A.3 and VI.C.2. The remaining three deficiencies upon which termination could legally be based are identified in the table above with the "@" symbcl. It is to these three allegedly uncorrected deficiencies thet our attention now must turn. 23. The Board contends, based on Ms. Rasco's confirmatory evaluation of March 15, 2004, that Mutis was still, as of that date, failing satisfactorily to perform the following PACES indicators: IV.A.5: The purpose or importance of learning tasks is clear to learners. V.B.2: Wait time is used as appropriate to enhance the development of thinking skills. vI.C.4: Learners receive specific feedback when learning tasks and/or learning outcomes are completed. 24. The only descriptive evidence in the record regarding Muzis's performance on March 15, 2004——and hence the only evidence of historical fact upon which the undersigned can decide whether Mutis failed adequately to perform the three 12 indicators just mentioned—consists of Ms. Rasco's testimony, together with a memorandum dated March 15, 2004, that Ms. Rasco prepared for Assistant Superintendent Essie Pace. 25. At the final hearing, Ms. Rasco recounted what she had seen on March 14, 2004, when she observed Mutis in the classroom for 50 minutes: [1] This lesson—this lesson was atrocious. [2] First of all, Mr. Mutis walked into class three minutes late, the children were already seated in class. [3] When he walked in late, and I found this particularly offensive to the students because Mr. Mutis had been free for the two periods prior, this was fourth period, he had been free during second and third period so for him to have come in late was very difficult for me to understand. [4] Secondly, he was unprepared. He did not have his lesson plans readily available. He had to rummage through the stacks of papers on his desk to find his lesson plans. [5] This was a Monday morning, he had been out Friday, and he had proceeded to teach the lesson that the children had already done on Friday with the substitute. [6] Several students started to complain they could not understand why they had to repeat the lesson that they had already done on Friday, he was asking them to read some pages from a story, and they kept on explaining to him that they had already done it. He didn't explain to the children his rationale for doing—-for having them do it again, he just went through the lesson. 13 [7] There was an inordinate amount of off- task behavior. There was one student——and in this class there were maybe seven or eight students, this was a small class, there was one student who spent a long time catapulting a pen. There was another student who had birthday balloons attached to the back of her chair, and she was playing with the birthday balloons, fidgeting with the balloons for an extended period of time. [8] There was another student who was doing his writing assignment on a little, must have been a little five, maybe, a five by eight sheet of paper even though he told the students at the beginning of the lesson to take out their folders, this child was writing on a small piece of paper, and he didn’t address it. [9] Q. Did he address any of that off-task behavior? [10] A. He did not address any of these behaviors, he did not redirect the students at any point and time. [11] Again, the questioning techniques, he was asking questions without, again, any regard to the student responses, without probing. 12] Some students, I think, were speaking in Spanish, and, again, this was an English lesson, and yet they were never redirected to the English language. This one was just— 13] Q. They were in his class to learn English? [14] A. This was an English class. Students were not given any feedback. Sometimes he asked questions, if he didn't get a response he would answer, he would 14 answer the question himself and go to the next question. is Q. Could you tell whether he appeared to care about the class? 16 A. No, it's like he had given up. 17 Q. Do children react to that? 18 A. Children were definitely reacting [19] Q. His children were? 20} A. Yes, I mean, he was not getting any cooperation or engagement from the children. Final Hearing Transcript at 74-76 (numbering added) . 26. In her contemporaneous memorandum of March 15, 2004, which supplements and explains the foregoing testimony, Ms. Rasco stated in relevant part as follows: A chronology of observations and results for the above employee is provided for your review. Data indicate that this employee has not demonstrated corrective action. Of particular concern during the confirmatory observation in Seventh/Eighth Grades Language Arts Through ESOL was: II.A.1 The teacher entered the classroom three minutes after the bell signaling the beginning of fourth period had rung. The learners had already entered the classroom. The teacher did not have his lesson plans readily available and had to take time to locate them. There was no rationale for not being prepared since the teacher did not have students in his class during second or third period. 15 TII.B.4 At the beginning of the lesson when the teacher instructed the learners to turn to pages 162-163, three different learners told the teacher they had already read those pages with the substitute teacher on Friday. The learners did not understand why they had to repeat the assignment and the teacher did not give them any reason for repeating the lesson. V.A.1 When learners attempted to develop associations using their own experiences, the teacher curtailed this experience by allowing interruptions from other learners and letting several learners speak at the same time. V.C.1 No concepts that required critical analysis or problem-solving were developed. For example, the teacher asked, "Why is it important to learn about people who have difficulties in life?" He did not get a response and proceeded to ask, "Should everyone learn sign language?" V1.A.2 Learner engagement was not monitored. There were numerous instances of off-task behavior throughout the lesson which the teacher did not address. One learner was catapulting a pen, second learner was daydreaming and not following along as others read orally, a third learner was fidgeting with her birthday balloons, and a fourth learner was writing on a 3"x8" sheet of paper instead of her notebook as the teacher had initially instructed. The teacher never re-directed the off-task behaviors during the lesson. v1l.C.4 At various points throughout the lesson, several learners made comments and responded to questions in Spanish. At no time did the teacher redirect the responses to English, assist the learners in making their comments in English, or provide feedback. 16 27. To repeat for emphasis, any findings of historical fact concerning Mutis's performance during the confirmatory evaluation must be based on the foregoing evidence, for that is all the proof there is on the subject.® 28. Ms. Rasco did not explain how she had applied the PACES indicators to her classroom observations of Mutis to determine that the teacher's performance was not up to standards. D. 29. The three indicators at issue in this case, it will be seen upon close examination, are not so much standards upon which to base a judgment as factual conditions ("indicator- conditions") for which the evaluator is supposed to look. Ifa particular indicator-condition (e.g- the purpose of learning tasks is clear to learners) is found to exist, then the evaluator should award the teacher a passing grade of "acceptable" for that indicator (in this example, Indicator IV.A.5); if not, the grade should be "unacceptable." 30. But the indicator-conditions are not objective facts, equally perceivable by all observers; they are, rather, subjective facts, which come into being only when the evaluator puts historical (or observed) facts against external standards, using reason and logic to make qualitative judgments about what occurred. Subjective facts of this nature are sometimes called 17 "ultimate" facts, the answers to "mixed questions” of law and fact. 31. To illustrate this point, imagine that the class Ms. Rasco observed on March 15, 2004, had been videotaped from several different camera angles. The resulting tapes would constitute an accurate audio-visual record of what transpired in Mutis's class that day. Anyone later viewing the tapes would be able to make detailed and accurate findings of objective historical fact, including words spoken, actions taken, time spent on particular tasks, etc. But, without more than the videotapes themselves could provide, a viewer would be unable fairly to determine whether, for example, the purpose of learning tasks was "clear" to the students (Indicator IV.A.5),/ or whether “wait time" was used appropriately to enhance "thinking skills" (Indicator V.B.2).° This is because to make such determinations fairly, consistently, and in accordance with the rule of law requires the use of standards of decision, yardsticks against which to measure the perceptible reality captured on film. 32. Another term for standards of decision is "neutral principles." A neutral principle prescribes normative conduct in a way that permits fair judgments to be made consistently— that is, in this context, enables the reaching of similar results with respect to similarly performing teachers most of 18 the time. A neutral principle must not be either political or results oriented. It must be capable of being applied across-~- the-board, to all teachers in all evaluations. 33. In the unique milieu of PACES, neutral principles could take a variety of forms. One obvious form would be stendards of teacher conduct. Such standards might be defined, for example, with reference to the average competent teacher in the District (or school, or state, etc.). In an adjudicative proceeding such as this one, expert testimony might then be necessary to establish what the average competent teacher does, for example, to provide specific feedback upon the conclusion of learning tasks (Indicator VI.C.4) or to enhance the development of thinking skills through appropriate use of wait time (Indicator V.B.2).° 34. Other standards might be definitional. For example, definitions of terms such as "wait time” and "thinking skills" would facilitate the application of Indicator V.B.2. Still other standards might be framed as tests, e.g. a test for determining whether wait time enhances the development of thinking skills. 35. However the neutral principles are framed, at bottom there must be standards that describe what "satisfactory" performance of the indicators looks like, so that different people can agree, most of the time, that the indicator- 19 conditions are present or absent in a given situation-—and in other, similar situations. Without neutral principles to discipline the decision-maker, the indicators can be used as cover for almost any conclusion an evaluator (or Administrative Law Judge) might want to make. 36. In this case, the record is devoid of any persuasive evidence of neutral principles for use in determining, as a matter of ultimate fact, whether the conditions described in the three relevant indicators were extant in Mutis's classroom on March 15, 2004, or not. E. 37. In this de novo proceeding, the undersigned fact- finder is charged with the responsibility of determining independently, as a matter of ultimate fact, whether, as of the two-week period following probation, Mutis had corrected all of the performance deficiencies of which he was notified at the outset of probation. As mentioned, the only evidence of Mutis's post-probation teaching performance consists of Ms. Rasco's testimony about her observation of Mutis for 50 minutes on March 15, 2004, which was quoted above, along with her contemporaneous memorandum to Ms. Pace. 38. Ms. Rasco's contemporaneous memorandum sheds light on her testimony by clarifying which of the indicators was implicated by particular observations. Not much of this 20 evidence, as will be shown below, is relevant to Mutis's performance in relation to the three indicators on which termination could be based. (The discussion that follows refers to che numbered answers as quoted in paragraph 25 supra.) 39. Answers 2, 3, and 4 pertain to purported deficiencies with regard to Indicator II.A.1.*° Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 40. Answers 5 and 6 relate to alleged deficiencies with respect to Indicator III.B.4.*' Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 41. Answers 7, 8, and 10 relate to alleged deficiencies pertaining to Indicator VI.A.2.° Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 42. Answers 16, 18, and 20 were not clearly associated with any particular deficiency. The undersigned finds this testimony unhelpful in determining whether Mutis was unsatisfactorily performing in the areas of Indicators IV.A.5, V.B.2, or VI.C.4. 21 43. Answer 1 is simply a conclusion, which the undersigned finds unhelpful as a basis for independent fact-finding. 44. This leaves Answers 12 and 14, which relate to alleged deficiencies in Indicator VI.C.4, which is a noted performance deficiency upon which termination could be based. The thrust of this testimony is that Mutis addressed some students in Spanish, rather than English. Even if Mutis did this, however, such does not implicate the Indicator in question, which is concerned with the provision of specific feedback upon the completion of learning tasks or outcomes, because Indicator VI.C.4 is silent as to the means of communication. Beyond that, Ms. Rasco offered the naked conclusion that Mutis failed to provide feedback, which merely tells the undersigned how to rule and her.ce is unhelpful. 45. In sum, the evidence is insufficient for the undersigned to find, as a matter of ultimate fact, that Mutis's performance on March 15, 2004, was deficient with regard to Indicators IV.A.5, V.B.2, and VI.C.4. 46. As important as the paucity of evidence establishing the objective historical facts concerning Mutis's performance on March 15, 2004, is the failure of proof regarding neutral principles for use in determining the existence or nonexistence of the relevant indicator-conditions. Even if the undersigned had a clear picture of what actually occurred in Mutis's 22 classroom that day, he has been provided no standards against which to measure Mutis's performance, to determine whether the indicator-conditions were met or not. 47. The absence of evidence of such standards is fatal to the Board's case. To make ultimate factual determinations without proof of neutral principles, the undersigned would need to apply standards of his own devising. Whatever merit such standards might have, they would not be the standards used to judge other teachers, and thus it would be unfair to apply them to Mutis.
Conclusions For Petitioner: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 For Respondent: Leopoldo Mutis, pro se 4001 North 67th Terrace Hollywood, Florida 33024
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Mutis of all charges brought against him in this preceeding; (b) providing that Mutis be immediately reinstated to the position from which he was suspended; and (c) awarding Mutis back salary, plus benefits, to the extent these accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2004. 37
The Issue The issues in this case are whether Respondent violated the Principles of Professional Conduct for the Education Profession, specifically Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and, if so, what disciplinary action should be taken against him pursuant to Section 231.2615(1)(i), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Chavero holds a Florida Educator's Certificate that is currently valid. Chavero was employed as a public school teacher in the Dade County School District at all times pertinent to this proceeding. In the 1999-2000 school year, Chavero taught English and math at Braddock. All of his students were enrolled in an Alternative Education Program known as the STARS Program. The STARS Program is offered as a last resort to students who, because of bad behavior, poor grades, or other problems, need extra assistance and attention to remain in school. If a student in the STARS Program fails to perform satisfactorily, he or she may be expelled. Chavero believed that student misconduct and a general lack of discipline at Braddock (and other schools) were preventing pupils from learning and teachers from teaching. Consistent with his pedagogic philosophy, Chavero aspired to teach his students not only the content of a course but also such social skills as proper behavior, dress, and manners. Braddock's Principal, Dr. Donald Hoecherl, disagreed with Chavero's view that behavior and social skills should be taught in the classroom. Principal Hoecherl told Chavero not to teach his students how to conduct themselves in socially acceptable ways. Apparently, the principal's admonition reflected the administration's sensitivity to the perceived "low self-esteem" of students in the STARS Program. Chavero was expected to be flexible and to refrain from confronting students or "coming on too strong" with them. This type of teaching was completely out of character for Chavero. Predictably, he was not able to abandon the authoritarian style that suited his personality and beliefs. As a result, Chavero developed a reputation as a strict disciplinarian — but "nothing out of the ordinary," in the words of V. D., a former student who testified against him at hearing. Transcript ("T-") 49. Indeed, according to this same student, Chavero's classroom rules were "pretty much the same" as other teachers'. T-49. Students began to complain, however, that Chavero was making too frequent use of a form of punishment called an “exclusion.” An exclusion is a temporary in-school suspension that the teacher may impose when a student is disrupting the class. Upon being excluded, the misbehaving student must leave the classroom and spend the remainder of the period in detention at another location. Assistant Principal Jane Garraux investigated the student complaints and concluded that Chavero’s use of the exclusion was excessive. She also determined that most of Chavero’s students (as many as 70 percent) were failing his classes. By comparison, other teachers in the STARS Program were giving passing grades to between 80 and 95 percent of their students. Following her investigation, the assistant principal initiated an evaluation of Chavero in November 1999 that led to the identification of performance deficiencies in the area of classroom control. He was placed on a 90-day performance probation and, as a result, needed to correct the identified deficiencies within that period or face termination of employment. See Section 231.29(3)(d), Florida Statutes. While on performance probation, Chavero was observed and evaluated several times. In the opinion of his assessors, Chavero’s performance continued to be unsatisfactory. In February 2000, he resigned. 2/ The Commissioner sought to prove that, in the months leading to his resignation, Chavero: (a) refused, on occasion, to answer students’ questions about lessons and assignments; (b) used the exclusion tool excessively, in relation to other teachers in the STARS Program; (c) demanded more from his students in terms of academic performance and classroom decorum than his colleagues were requiring; and (d) became angry and raised his voice in class at times. This is not a proceeding to terminate Chavero’s employment, however, and poor performance does not constitute a basis for discipline under Section 231.2615, Florida Statutes — not, at least, without more than has been shown here. 3/ Therefore, even if all the general deficiencies in Chavero’s performance that the Commissioner attempted to prove at hearing were found to have existed, none amounts to a violation either of Rule 6B-1.006(3)(a) or of Rule 6B- 1.006(3)(e), Florida Administrative Code. There were, however, two specific occasions on which Chavero allegedly lost his temper and threatened the physical safety of a student or students. Together, these particular instances are the heart of the Commissioner’s case against Chavero and therefore require closer scrutiny. The First Period Incident On January 27, 2000, Chavero gave his first period class a mid-term examination. Near the end of the period, Chavero allowed the students who had completed the test to talk quietly, provided they would not bother the few who were still working. V. D. and J. A., who were sitting together in the back of the room, began conversing with one another. The class soon began to get loud, and Chavero told the students to be quiet. He held up V. D. and J. A. as an example of how he would like the class to behave, saying: "Why can't you guys whisper like J. A. and V. D." The class momentarily calmed down but quickly became noisy again. Chavero began to get angry. He told the students to lower their voices. V. D. continued to talk, and Chavero yelled at her to be quiet. Instead of obeying, V. D. denied that she had been talking loudly, which caused Chavero to yell at her some more. V. D. asked Chavero not to scream at her; he did not stop. At some point during this exchange, V. D. said to Chavero: “What the f*** is your problem?” Enraged, Chavero slammed his fist on a desk and moved quickly toward V. D. Some students, including V. D. and J. A., recall that as Chavero approached V. D., he raised his open hand, palm facing forward, as if to strike her. A number of other students, however, in written statements prepared on January 27, 2000, made no mention of the teacher’s raised hand. For his part, Chavero adamantly denied having raised his hand against V. D. V. D.’s immediate reaction suggests that she was not intimidated or frightened by Chavero’s rapid approach, regardless where his hand was. V. D. testified that she “lost [her] temper,” “got up and . . . exchanged a few words” with Chavero. T-55. More important, it is undisputed that Chavero did not touch V. D. Rather, he returned to his desk at the front of the class to write a “referral” — that is, a written account of V. D.’s misconduct that would be provided to the assistant principal for further handling. V. D. gathered her belongings and left the room. The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to hit V. D. or to cause her unnecessary embarrassment or disparagement; that V. D. suffered any physical or emotional injury or felt embarrassed or degraded; or that V. D. was in danger of likely being harmed in Chavero’s classroom on January 27, 2000. As a result, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety. The Third Period Incident R. G. was a student in Chavero’s third period math class. R. G.’s academic performance was extremely poor, and he frequently was excluded for bad behavior. He was defiant and aggressive, openly challenged Chavero’s authority, and, on at least one occasion, threw staples at the teacher. One day — the precise date of this event is not clear, but it apparently occured after January 27, 2000 — R. G. was in Chavero’s class, sitting in the back, not doing his assignment. Because R. G. was refusing to do his schoolwork, Chavero wrote a referral to send him to the assistant principal. R. G. testified that before Chavero wrote the referral, he had insulted R. G. by saying that his (R. G.’s) mother was raising an animal. However, another of Chavero’s former students named F. V., who witnessed this particular incident and testified at hearing on the Commissioner’s behalf, did not hear Chavero make this remark to R. G. Indeed, F. V. testified that he had never heard Chavero make rude or disrespectful comments to his students, nor had he observed Chavero become angry with the class. Chavero denied having insulted R. G., and the evidence supports his denial. After Chavero had filled out the referral, R. G. rose from his seat and approached Chavero’s desk. R. G. reached out to snatch the referral from Chavero’s hand in a manner that, according to F. V., was apparently intended “just to . . . annoy” Chavero. T-93. Specifically, as R. G. grabbed for the referral, he made a feint toward Chavero’s grade book. As F. V. explained, it was well known that Chavero “didn’t like it when people touched [his] grade book.” T-93. In the process, R. G. may have hit Chavero’s hand, although he denied having done so. Reacting to R. G.’s provocative act, Chavero slapped R. G.’s hand away. R. G. was neither injured nor embarrassed by this. Rather, he became angry and began yelling and cursing at Chavero, insulting him. Both R. G. and F. V. recalled that Chavero then said to R. G., “Oh, hit me if you’re a man,” or words to that effect. Chavero, however, testified that his exact statement to R. G. was: “[I]f you try to be physical you’ll get in trouble.” T-124. Chavero was the most credible witness of the three. After Chavero warned R. G. not to become physical, R. G. left the classroom. The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to harm R. G. or to cause him unnecessary embarrassment or disparagement; that R. G. suffered any physical or emotional injury or felt embarrassed or degraded; or that R. G. was in danger of likely being hurt in Chavero’s classroom on the day of the third period incident. To the contrary, it appears that R. G.’s aggressive and provocative behavior may have threatened Chavero’s physical safety. Consequently, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Administrative Complaint against Respondent Armando M. Chavero. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2001.
