The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including Carol City Senior High School (Carol City). At all times material to the instant case, Mary Henry has been the principal of Carol City and James Meehan has been an assistant principal at the school. At all times material to the instant case, Respondent was a language arts teacher at Carol City holding an annual contract. Respondent began teaching at Carol City in September of 1997. She remained at the school until February of 2000. In accordance with the School Board's Teacher Assessment and Development System (TADS), which it developed in concert with the United Teachers of Dade, the collective bargaining representative of the School Board's teachers, school principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe required remedial activities designed to improve the teacher's performance. The categories of classroom performance that are assessed are "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," "teacher-student relationships," and "assessment techniques." Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. TADS was modified following the 1997 session of the Florida Legislature to provide for a 90-day "performance probation period" for annual contract and professional service contract teachers determined to be performing unsatisfactorily. The modification was set forth in a Memorandum of Understanding between the School Board and the United Teachers of Dade, which provided, in pertinent part, as follows: 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 address: 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 the 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 . . . . 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 21, 1999, Respondent was formally observed in her classroom by James Meehan, an assistant principal at Carol City and a certified TADS observer. Mr. Meehan rated Respondent deficient in "preparation and planning" (Category I.B.2.); "knowledge of subject matter" (Category II.A.2.); "classroom management" (Categories III. B.2. and 4. and III.C.1. and 4.); and "techniques of instruction" (Categories IV.H.1. and 2.). These unsatisfactory ratings were justified. Following Mr. Meehan's October 21, 1999, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (First Report). The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson plan prepared by the instructor was not followed. The stated objective in the lesson plan was: "Student will demonstrate test taking skills and ability to visualize descriptive language; FCAT worksheet (reading comprehension)." The activities used to accomplish these objectives were stated as follows: "Test on literature; pictures of a descriptive passage with language being discussed included; reading comprehension worksheets." The actual lesson consisted of: (1) quiz on run-on sentences; (2) the introduction of the elements of a short story by the instructor; (3) the reading of an essay which the instructor mistakenly identified as a short story; and (4) students' written responses to "Questions for Study and Discussion," after the reading of the essay. There was no demonstration by students of their ability to visualize descriptive language, no FCAT reading comprehension worksheet, and no literature test." PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairman, on each Friday, for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.A.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor attempted to teach the elements of a short story by applying them to a work by Maya Angelou which is described in the handout given to students, as a "self-contained section from her first autobiography," and later on as an "essay" in the "Questions for Study and Discussion." The instructor continuously referred to this literary work as a short story; however, it is a work of non-fiction. The instructor erroneously applied the elements of a short story such as exposition complication, conflict, climax, and denouement to this non- fiction literature. This work was an example of a descriptive essay, not a short story. PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairperson, on each Friday, for review and discussion, prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.A.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not utilize non-verbal techniques to redirect off-task learners. Off-task behavior was frequent and persistent throughout the class period. Of the 30 students present, 20 were off-task for significant period[s] of time. Students in A1, B1, C2, C4, D1, D2, G1, and G4 slept some 20 minutes or more. The students in F1 and F2 continuously passed notes to one another while the student in E4 read a sports catalog for at least 30 minutes. At one point, the students in A4 and G3 walked to the front of the room in back of the instructor, exchanged notes, and returned to their seats. The student in B5 combed the hair of the student in B4 and afterwards massaged his hands. The student in A1, when not sleeping, played with her hair. Other students stared into space or otherwise wasted time. The instructor never attempted to use non-verbal techniques such as eye contact, silence, clapping, or proximity to redirect these off-task behaviors. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, designated by the assessor, to record how he/she has successfully used non-verbal techniques to deal with off-task student behavior. The instructor will type a summary of the interview and develop a plan, incorporating some of the suggestions, to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Julia Fehr, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Often times during the period, 50 to 70 percent of the students were off-task. Students were engaged in activities not associated with the lesson. They daydreamed, drew pictures, wrote notes, slept, or were distracted in other ways. The instructor made an attempt to verbally redirect some students who were off-task; however, they were not revisited and the off-task behavior continued when the instructor directed her attention elsewhere. The student in E4 was told to put his catalog away. He then put his head down on his desk instead. He was not revisited. The students in A1 and F1 were told to do their work and move their desks closer to the front of the room. When they did so, they continued their off-task behavior, F1 by throwing papers across the room into the garbage pail and gyrating to imaginary music, A1 by continuously getting up from her desk and fiddling with her hair. Neither student was revisited. Verbal and non- verbal techniques to maintain the attention of redirected learners were not employed by this instructor. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, to record how he/she has successfully use[d] verbal and non- verbal techniques to maintain the attention of redirected learners. The instructor will type a summary of this interview and develop a plan, incorporating some of the suggestions presented, to reduce the frequency of recurring off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably resigned to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior had not been established or were not clear to learners. Of the 30 students present, 14 arrived late. None of these students was asked for an explanation. The only reaction from the instructor was, "Do you see how aggravating this is?" When students had to sharpen pencils, they left their seats and walked across the room. Four students were observed leaving their seats to sharpen pencils while the instructor was lecturing or reading to the class. When disposing of garbage, several students threw their papers across the room. The student in F1 and another student in row G played basketball with balled up paper and the trash can. When responding to questions, students would blurt out answers. There was no systematic method established for asking or answering questions. At the end of the period, before the bell, 11 students left their seats and began walking around the room. One student left his seat and walked across desks to get to the side of the room. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, for suggestions on how to deal with inappropriate student behavior during class. She will type a summary of each interview. The material will be submitted to Mr. Meehan for review and discussion. Mr. Meehan and Pamela Salkey, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly or appropriately by this instructor. During the quiz, students in A3, A4, and F1 continuously looked at other students' papers, while students in A5 and B4 conversed. These behaviors continued without the instructor identifying or responding to the students involved. At another point during the lesson, the student in B5 yelled, "I don't give a fuck," loud enough to be heard across the room. There was no response from the instructor. The magnitude and frequency of talking that occurred during the lesson made it extremely difficult for students to hear what the teacher was saying and for students to complete their assignments. During the last 35 minutes of the class when students were assigned to respond to 4 questions dealing with the reading selection, only 8 of 30 students completed the assignment, 12 handed in no paper at all, while 7 did 1 or 2 of the questions. PRESCRIPTION PLAN ACTIVITIES The instructor will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a reward system to promote and maintain appropriate student behavior in class. The instructor will submit the plan to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan, Ms. Howard, and Ms. Theodora Woltch, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Areas of confusion were not identified before learners asked questions. During the quiz on run-on sentences, students were confused as to what to do. Many students were puzzled as to why they could not use coordinating conjunctions or another method of connecting run-on sentences, rather than being restricted to writing two separate sentences as instructed by the teacher. Confusion was exacerbated by an explanation on the reverse side of the test which stated, "In fact, it is often better to join them than to put them into separate sentences." When students asked if they could use another method, the instructor said they could not, but would not be incorrect if they did. Students remained puzzled as to what was acceptable. These potential areas of confusion with the run-on sentence should have been anticipated by the instructor, but were not. PRESCRIPTION PLAN ACTIVITIES The instructor will construct detailed lesson plans each week and discuss potential areas of confusion with her department chairperson on the Friday prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help Respondent improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION When students were assigned to write the answers to "Questions for Study and Discussion," several students asked if they could work in groups. The instructor responded that they could work in pairs. She then changed her mind and said they had to work individually. Afterwards, she again said they could work in pairs. Students were puzzled as to what to do. Students were further confused by what question they were assigned. Initially, the instructor assigned question 1, then 2 through 5, and later on told a student, "Do number 2 and I'll be happy." Again, many students were confused. When the instructor assigned students to grade each other's quiz papers, students did not understand what was correct, what was minus 5, and what was minus 10. The student in F3 stated that he was confused and the student in E3 claimed, "I don't understand." The instructor made no attempt to clarify these misunderstandings. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor chosen by the assessor, regarding how he/she approaches the organization [of] his/her lessons on a daily, weekly, and long term basis. The instructor will type a summary of this interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.2. On October 28, 1999, Ms. Henry held a conference- for-the-record with Respondent to discuss the contents of the First Report, a copy of which was provided to Respondent. Also present were Mr. Meehan and United Teachers of Dade representatives. An explanation of the deficiencies found by Mr. Meehan was given. In addition, Respondent was advised of the commencement (that day, October 28, 1999) of the 90-day "performance probation period" and warned that "failure to demonstrate remediation of [her] deficiencies may result in termination of [her] employment contract" and that failure to complete "prescription plan activities" by the November 22, 1999, deadline would "result in an unacceptable rating on the Professional Responsibilities Component of TADS." On November 17, 1999, Ms. Henry held another conference-for-the-record with Respondent. Also present were United Teachers of Dade representatives. The purpose of the conference was to discuss Ms. Henry's findings concerning an incident that had occurred in Respondent's classroom during her fifth period class on October 5, 1999. Ms. Henry had determined, based upon statements from students, that Respondent, during this fifth period class, had "inappropriately disciplined a student by grabbing her by the arm to remove her from the classroom." 1/ At the conference, Ms. Henry advised Respondent of the determination she had made and admonished Respondent accordingly. Among other things, she told Respondent that she should seek the assistance of an administrator or security monitor if she had a disruptive student in her classroom. The following day, November 18, 1999, Respondent received a letter of reprimand from Ms. Henry, which read as follows: On October 5, 1999, you inappropriately disciplined a student while instructing your language arts class. You violated Rule 6Gx12-5D-1.07- Corporal Punishment and 6Gx13-5D-1.08- Maintenance of Appropriate Student Behavior. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline are outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.07 and the Faculty Handbook- Item 9 - Classroom Management, Item 16- Corporal Punishment Policy, and Item 85- Supervision of Students. You are immediately directed to refrain from using any physical means to manage student behavior. Your are also immediately directed to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the above documents. The infraction, Case Number E-02750, was substantiated by students' statements. You are hereby officially reprimanded for violating your professional contractual responsibilities in that you grabbed the student's arm to remove her from class. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are hereby directed to implement approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. The reprimand was signed and dated (November 18, 1999) by Respondent. Respondent failed to complete the "prescription plan activities" set forth in the First Report by the November 22, 1999, deadline. On December 8, 1999, Respondent was formally observed in her classroom by Ms. Henry, who, like Mr. Meehan, is a certified TADS observer. Ms. Henry rated Respondent deficient in "knowledge of subject matter" (Categories II.B.2. and 3.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1.,3., and 4.); "techniques of instruction" (Categories IV.A.2. and 3. and F.1. and 3.); and "assessment techniques" (Categories VI.A.2., 3., and 4. and B.2. and 3.). These unsatisfactory ratings were justified. Following Ms. Henry's December 8, 1999, observation, she completed a "record of observed deficiencies/prescription for performance improvement" (Second Report), a copy of which was provided to Respondent. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.2., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The sequence of information presented was not logical. The teacher's lesson for the entire two hour block involved a test on vocabulary words, a bell shaped curve drawn on the chalkboard with the words "exposition," "climax" and "resatution (resolution)" around it, and an FCAT assignment for students to answer questions from pages 48, 49, and 50. Before one activity was completed, the teacher moved on to the next and then back again. This vacillation between activities was continuous throughout the lesson. At no point did the teacher attempt to establish a connection between elements of the lesson. There was no meaningful framework established by the teacher in which students could relate one component of the lesson with another. PRESCRIPTION PLAN ACTIVITIES The teacher will observe Ms Hayes' class during period 4 and summarize the instructional activities, techniques and strategies used by the teacher. The teacher must submit her observation in typed form to Ms. Henry, the principal. Elois Hayes, a language arts instructor at Carol City, and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to help to improve her performance in Category II.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.3, and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher failed to select or incorporate important dimensions and applications of the subject to make the lesson meaningful to learners. Without preparation or warning the teacher began to call loudly four words to students to write down. After much student confusion about the vocabulary words, the teacher then drew a bell shaped curve on the board and asked students to read a story and write down the exposition, climax, and resolution. Shortly after assigning this activity, the teacher wrote another assignment on the board and instructed students to answer questions from the assigned pages. The classroom activities required only copying answers and writing responses to questions on paper. At no time did the teacher provide examples or explanations nor did she attempt to engage the students in any meaningful or relevant activities. The lesson presented by the teacher demonstrates limited knowledge by the teacher in selecting activities that required higher order thinking skills such as reasoning, synthesis, comparison, or evaluation. PRESCRIPTION PLAN ACTIVITIES The teacher must plan and present lessons on different cognitive levels beginning with information that is knowledge based and extends to the highest level which is evaluation. All lessons should be introduced, presented on two or more cognitive levels and summarized by the teacher. The teacher must prepare appropriate lesson plans which must be submitted and discussed with Ms. Henry, the principal. Ms. Henry was listed in the Second Report as a "recommended resource" Respondent could draw upon to improve her performance in Category II.B.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.4., and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Subject matter was not presented at more than one cognitive level. The entire lesson was presented on the knowledge level. The instructional activities were limited to copying from the chalkboard. To entice students to copy or write assignment, the teacher instructed the class that each student would get three A's for the assignments. There were no other techniques used to encourage higher order thinking skills. PRESCRIPTION PLAN ACTIVITIES The teacher must meet with her department chairperson and media specialist to review lesson plan objectives, activities and supplemental materials that incorporate higher levels of reasoning in her lesson plans. The teacher must submit and discuss her lesson plans with Ms. Henry on a weekly basis. Ms. Henry, Ms. Howard, and Elaine VanNostrand, a media specialist at Carol City, were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.2., and directed Respondent to engage in and complete by January 6, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were constant unnecessary delays and disorderly behavior by both the teacher and students. The teacher began class by calling out vocabulary words during which time she stopped several times to threaten students about their behavior and about not taking the vocabulary test. She repeatedly told students, "Go to the office and get your class changed, if you don't want to be in here." Students talked loudly, moved freely around the classroom and yelled out answers to the vocabulary test. Approximately 9 to 12 students refused to do anything. Confusion resulted from the lack of clear directives being provided by the teacher. Time was wasted when the teacher argued with students, repeatedly yelled out the same vocabulary words to students, and passed out literature books to individual students who asked in confusion, "What words? What page? What are we doing? What story are we supposed to read? I don't know what you are talking about." So much time was wasted that the entire class became chaotic and neither teaching nor learning occurred. Approximately 65 to 75 minutes of instructional time was lost to unnecessary delays. PRESCRIPTION PLAN ACTIVITIES The instructor will invite her department chairperson to observe her class. During that time the visitor is to record the time the instructor spends on various activities while in class. Using the data, the instructor will then analyze her instruction on the basis of how much time she spends on instructional versus noninstructional activities. Once that information is known, the instructor will develop strategies to reduce her percentage of noninstructional time while in class. The instructor will type a summary of the results of this exercise. She will submit the material to Ms. Henry for review and discussion. Ms. Howard and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the allocated time period. The lesson attempted by the teacher ended at 1:40 p.m. while the students continued to do whatever they chose to do until 2:30 p.m., which was the time the class was scheduled to end. There was drumming and dancing, students playing church, students walking and socializing individually and in groups, hair combing, 4 to 5 students sleeping at various times and students who just took a break from misbehaving. Their teacher made no attempt to regain control of the classroom or to continue with the instructional activities. Instruction stopped 40 minutes before the scheduled end of the class. PRESCRIPTION PLAN ACTIVITIES The teacher must develop a seating chart for each class and use the seating chart to help maintain classroom management. The teacher must also make parental contacts and keep a log of all contacts made or attempted. The seating chart and parent contact log must be submitted to Ms. Henry for review and discussion. "Seating Chart," "Parental Contact Log," Student Service Staff," and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by January 8, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use non-verbal techniques to redirect off-task learners. Twenty-three students were present during the lesson. Of that number, 19 students in the classroom exhibited constant off-task behavior that lasted throughout the class period. Students were constantly observed walking around the classroom, drumming on desks, combing their hair, playing with the television, yelling, singing and dancing. The entire class was in a state of frenzy. The teacher did not use non-verbal techniques such as proximity, clapping or facial expressions, to redirect students to the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record the number of times she identifies and responds to off-task behavior. The teacher will also analyze her instruction and lesson plans to devise a strategy to significantly reduce the frequency of off-task behavior observed in her classroom. The teacher will submit her seating charts and strategy to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by January 4, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Constant and persistent off-task behavior was noted in this teacher's classroom. Students were observed talking, walking around the room, sleeping, singing, drumming on desks, dancing and playing with the television. Although the teacher yelled our commands and threats for behavior to cease, the behavior reappeared quickly once the teacher's attention was redirected to someone or something else. At 1:40 p.m. the teacher seemed defeated. She sat at her desk and attempted to address the assignments with students who were standing around her desk amidst total confusion. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will submit the seating charts with the recorded instances of misbehavior to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by January 13, 2000, the following "prescription plan activities" reasonably designed help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior were not established or clear to the students. Throughout the class period, 80% of the class were talking, walking around the room, yelling at other students or the teacher, singing, drumming on desks, dancing, combing hair, or turning on the television. The noise level was so high that the teacher had to yell to make a point. At one time the teacher walked over to the observer and said, "I guess you are happy. This is what happens when you bribe students in order to fire me." The teacher also advised students by stating, "Find a spot on the wall and talk to it and don't ask me anything." Other than yelling out commands to sit down, be quiet or threats to get out of the class, recurrent inappropriate behaviors were allowed to occur without consequences. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. The assertive discipline plan will be submitted to Ms. Henry for review and discussion prior to implementation. Ms. Henry and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.3., and directed Respondent to engage in and complete by January 10, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly by this teacher. Students were observed in various acts of off- task behaviors. The behaviors would sometimes persist until students became tired of that misbehavior and moved to another inappropriate behavior. The teacher appeared angry and overwhelmed with students' misbehavior. Off-task behavior was not dealt with quickly. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave and the resulting consequences imposed by the teacher. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The charts and the resulting analysis will be submitted to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by January 7, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this teacher. Students were observed throughout the class period engaging in inappropriate behaviors. In certain instances, the teacher responded in anger yelling out a command to sit down or stop talking. As soon as the teacher's attention was diverted to another off-task behavior or question, the behavior challenged earlier would return. No consequences were ever imposed by the teacher when she addressed any particular behavior. PRESCRIPTION PLAN ACTIVITIES Using outside resources, the teacher will identify and describe, at least two additional behavior management techniques which have been shown to be effective in the classroom. Using the information obtained, the teacher will devise a written plan to significantly reduce the frequency of inappropriate behavior in [her] classes. The teacher will submit this information to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.2., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructional methods employed by this teacher were not appropriate for the needs and abilities of the learners in the classroom. The teacher began the class by saying, "You are going to have a vocabulary test." Students were confused as to what vocabulary test they were to take, while some students stated that, "You never assigned us any words to study." After much confusion, the teacher yelled out four vocabulary words for students to write down. While students were copying vocabulary words from each other, the teacher hurriedly drew a bell curve on the chalkboard, wrote three words around the bell curve and asked students to find a sentence in the story that related to each of these words. Again, students informed the teacher that the class had not read the story. The teacher continued with this assignment by asking students to get a literature book. The teacher then began to vacillate between the vocabulary words and the bell curve relating to the story. Later, in the class period, the teacher wrote another assignment on the chalkboard which required students to answer question from the FCAT booklet. Students became frustrated, inattentive and disengaged with the lesson. PRESCRIPTION PLAN ACTIVITIES The lesson plans will reflect at least (3) different methods of delivering each lesson. The teacher will review the plans and methods with Mrs. Howard and Ms. Henry prior to their delivery. Ms. Henry and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The only materials used by the teacher were the chalkboard, textbook and FCAT workbooks. Supplemental materials such as handouts, computer assisted instruction, textbook glossary of words or dictionary and/or sticky notes were not employed to bring variety to the lesson and stimulate students' interest. The off-task behaviors manifested by students were the consequences of the teacher's failure to use a variety of materials. The instructor's limited use of basic curriculum materials was not appropriate for the needs and abilities of the learners in this class. PRESCRIPTION PLAN ACTIVITIES The instructor will meet with her department chairperson and the director of the Media Center in order to obtain assistance in finding supplementary materials that may assist her in her endeavors to instruct her English classes. The instructor will list the materials available and develop a plan to utilize some of these materials in her classes. The instructor will submit a copy of the list and the plan to Ms. Henry. The instructor will discuss the plan with Ms. Henry prior to implementation. Brenda Harrell, a media specialist at Carol City, Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.1., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not establish the necessary background for the lesson. She began the lesson by calling out vocabulary words. A majority of the students informed the teacher that they had not been assigned any vocabulary words for study. The next assignment required students to use a short story to respond in writing to the three words (exposition, climax and resolution) written around the bell shaped curve on the chalkboard. The teacher insisted the students had read the story. Students likewise indicated that they had not read the story because of an incident relating to the teacher's stolen purse on the day they should have read the story. Next, the teacher placed another assignment on the chalkboard from the FCAT booklet. It was apparent from the students' responses that there was no background or prerequisites for the lesson nor did the teacher facilitate students' understanding of the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher must prepare lesson plans that require more than student centered activities involving reading, writing, and copying answers from a textbook. The teacher must prepare lesson plans that are teacher/student centered and provide for the various levels of cognitive learning. She must also include activities that will motivate students to participate in the lesson. The lesson plans must be submitted to Ms. Henry prior to their implementation. "Lesson Plans," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.1 The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.3., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher presented three different lesson components which were not appropriately sequenced during the class period. She began the lesson with four vocabulary words which [were] not related to any lesson. It appeared that the sole purpose of this exercise was to give the students a test. The next assignment was for students to find a sentence in the story that related to words written around a bell curve. Several students asked, "What story?" Other students informed the teacher that they never got to read the story because of her stolen purse. The teacher ignored the students' comments and proceeded with the assignment amidst confusion. In the last assignment, students were instructed to answer questions on certain pages from the FCAT booklet. Because of the lack of appropriate sequencing in the lesson components, students were unable to understand the lesson presented. PRESCRIPTION PLAN ACTIVITIES The teacher will include in her lesson plans the sequence in which the components of the lesson will be presented. The teacher will also include in her lesson plans at least three (3) different methods of delivering each lesson. The lesson plans will be submitted to Ms. Henry for review and discussion prior to implementation. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not solicit responses or demonstrations from students. Students were asked only to write their responses to vocabulary words, to write sentences [with] words listed on the bell shape[d] curve and to write answers to question[s] from the FCAT booklet. At no time did the instructor ask students for a verbal response nor did she ask them if they understood the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will solicit informal responses from individual students as well as assessing students in a group. The teacher must also assess student demonstrations of the instructional objectives. This assessment must be properly labeled and dated in the gradebook. A weekly review will be made by Ms. Henry. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Multiple levels of learning were not monitored. The teacher did not appear to monitor any level of learning. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least two (2) class activities each week that require[] multiple levels of assessment of students' performance. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION A review of the teachers' gradebook and students' folders revealed only two to five teacher graded assignments. There was no documented nor observed activities in which students evaluated their own or each others' performance. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least one (1) class activity each week that requires students to assess their own classwork or the classwork of another student. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use a variety of assessment techniques to assess students' performance. A review of the gradebook revealed that only two to four grades had been recorded since the beginning of the school year. A review of students' folders revealed only two to three papers filed with dates [of] September, 1999. During the observation period, students were only required by the teacher to provide written responses to assignments. Most students did not complete the assignments. Of the 23 students present only 3 submitted papers for the FCAT assignment while 6 did so for the reading assignment and 17 for the vocabulary quiz. The teacher made no attempt to assess students' progress other than collecting papers at the end of the class. There was no evidence in the gradebook or student folders of unit tests, projects, homework, etc. PRESCRIPTION PLAN ACTIVITIES The teacher will present to Ms. Henry on a weekly basis her gradebook and sampling of students' folders showing classwork and the teacher's assessment of that classwork. The teacher must also properly label grades in the gradebook according to the assignment and date. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete "weekly on Friday," from January 3, 2000, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were no summative assessments reflected in students' folders nor in the teacher's gradebook for the period of August 31 through December 8, 1999. There were only two to four grades recorded for her five classes during the above period. There were no unit test[s] with a variety of test items. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a unit test which will include the following: 20 multiple choice question[s] 10 matching items 5 fill in the blank items 2 essay questions Submit to principal for review prior to testing of students. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. Respondent failed to timely complete the "prescription plan activities" set forth in the Second Report. On January 19, 2000, Ms. Henry presented Respondent with a memorandum advising Respondent that she was being "granted 24 hours to complete" these activities and that "[f]ailure to comply w[ould] result in disciplinary action." On January 25, 2000, Respondent was again formally observed in her classroom by Mr. Meehan. Mr. Meehan rated Respondent deficient in "preparation and planning" (Categories I.A.1. and 2. and B.1. and 2.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1. and 4.); "techniques of instruction" (Categories IV.B.1.,2., and 3.); and "assessment techniques" (Categories VI.A.1., 2., and 4 and B.2. and 3.). These unsatisfactory ratings were justified. Following Mr. Meehan's January 25, 2000, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (Third Report). The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have written lesson plans for the lesson presented. She did not have a stated objective, a homework assignment, activities or a means of monitoring student progress. PRESCRIPTION PLAN ACTIVITIES The instructor will develop weekly lesson plans containing objectives, activities, homework, and a means of monitoring student progress. She will submit the plans to Mr. Meehan for review and discussion on each Friday prior to their implementation. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The objectives of the lesson were not based on nor did they go beyond the Competency Based Curriculum or the Sunshine State Standards. Since there was no written lesson plan and learning outcomes were not communicated to students, it was difficult to decipher what the instructor was attempting to accomplish. When preparing to distribute a handout to students at the beginning of the period, she stated, "These are the wrong ones." She distributed them anyway. Since there weren't enough copies, she said, "You'll just have to share. Students worked on these handouts for approximately one hour. She then sent two students to leave the room to get workbooks. Without explanation, she assigned page forty-one. Students worked on this assignment for approximately thirty minutes. Neither of these assignments was reviewed nor evaluated. Students were given free time for the remainder of the period. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare detailed lesson plans with objectives based on the Competency Curriculum and the Sunshine State Standards. She will review these plans with Ms. Howard, Language Arts Chairperson, on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson presented by the instructor did not fill the allotted time with prepared content and instructional activities related to objectives. The first hour of the period was consumed on a vocabulary puzzle. The next thirty minutes were spent on a spontaneous assignment given from page forty-one of a workbook. Neither assignment was reviewed. The remainder of the period was given as free time. PRESCRIPTION PLAN ACTIVITIES When preparing her weekly lesson plans, the instructor will divide the time allotted for each period into thirty minute intervals. She will them state the specific activities that will take place within each of these intervals. She will discuss these timelines with Ms. Ann Howard on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION In the absence of a lesson plan, the instructor distributed puzzles and gave an assignment from a workbook. The remaining portion of the class was assigned as free time. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard, regarding how to best utilize the time allotted in block scheduling to plan her classes. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the class period. The instructor stated that she wanted to close the period by allowing students to watch thirty minutes of television but could not because Mr. Meehan was in the room. She assigned free time instead. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding how to utilize the final thirty minutes of a two hour block to enhance student learning. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Woltch was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category III.A.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use non-verbal techniques to correct off-task behavior that was evident throughout the class period. Many of the twenty-eight students in attendance were off-task for significant periods of time. During the portion of the class when students were given classwork, three students in rows B and C read Spider Man comics, while the two students in the front of row A worked on unrelated assignments. Two students in the last seats of the middle rows of the classroom slept in each other's arms. A student in front of them drew on the arms of the student next to him. Another student in the middle of row B slept and one in the front of row C played the drums on his desk. During the entire two hour block, students left their seats to walk around the room, talk, and play. The off-task behavior was so extensive that the instructor accused the observer of collaborating with students to cause distractions. A student named Torrey stated, "Mr. Meehan, Ms. Abril thinks we're down." The student in front of row A told the instructor, "They don't do that." The instructor never attempted to return students to task by the use of non-verbal techniques such as eye contact, clapping, silence or proximity. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Julie Fehr's class to see how she uses non- verbal techniques to deal with off-task behavior in her classes. She will then discuss with Ms. Fehr the techniques observed. The instructor will type a summary of her discussion and submit it to Mr. Meehan for review. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use techniques to maintain the attention of learners who were redirected. At times during the period more than thirty-three percent of the students were off-task. Students were engaged in activities not associated with the lesson. They talked, sang, slept, and worked on unrelated assignments. The instructor attempted to verbally redirect some students, but their off-task behavior was not revisited and therefore resumed when the instructor turned her attention elsewhere. One young man in row B was corrected for using a Game Boy. He began to read a comic instead. His off-task behavior was not revisited and continued uninterrupted. He proceeded to share his comics with those around him. A young man named Torrey was told to get back to his seat after walking to the side of the room to see his reflection in a mirror. When he returned to his seat, he began to sing. His off-task behavior was never revisited. Verbal and non-verbal techniques to maintain the attention of redirected learners were not evident in this instructor's classroom. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Theodora Woltch's class to observe how she deals with off-task student behavior. The instructor will prepare a typed summary of this observation and develop a plan to incorporate some of the strategies she learned to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review prior to implementation. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The inappropriate behavior manifested by students throughout the class period indicated that expectations about behavior were not made clear to learners. When seeking clarification about the puzzle assignments, students repeatedly blurted out questions without raising their hands. No standardized procedures were established for students to turn in their assignments. Some walked to the front of the room while others passed their papers to students in front of them or beside them. Students left their seats at will to walk around the room or open the classroom doors. With five minutes remaining in the period all of the students, except one, left their seats to go to the door. Some pushed the door open while others tried to close it. These inappropriate behaviors indicated that expectations about behavior had not been communicated previously. PRESCRIPTION PLAN ACTIVITIES The instructor will establish a set o[f] rules regarding appropriate student behavior and classroom procedures. She will type these rules and discuss them with Mr. Meehan before posting them around her classroom. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this instructor. Of the twenty-eight students present in the classroom more than 50 percent walked in late, thereby disturbing students attempting to do the puzzle assignment. Nothing was said by the instructor. Neither the students in rows B and C who began singing, "I'm a Soul Man," nor the students in row A who began singing an unidentified song, were given consequences as a result of their misbehavior. The instructor made no attempt to subdue or control the constant buzz created by students talking and yelling to each other across the room. Most of the students present contributed to this noise which lasted the entire two hour period. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. In addition, the teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The teacher will submit this information to Mr. Meehan for review and discussion. The "Assertive Discipline Handbook" and Mr. Meehan were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about weaknesses in their performance. The assignments for the class period were a puzzle and page forty-one of the "Buckle Down" workbook. These assignments were neither reviewed nor corrected during the class period. Since the instructor failed to monitor the performance of students as a group or individually, she was not able to provide feedback regarding inadequacies in their work. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback regarding their inadequacies. She will type a summary of the interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about strengths in their performance. The instructor failed to monitor the performance of the students on any of the assignments during this class period. She was therefore unable to acknowledge good work and adequate performance. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback about their good work. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION No suggestions for improving student performance were made by the instructor during the class period. The instructor neither orally reviewed the answers to the assignments nor individually corrected student work. Consequently, she could not make suggestions for improving student performance and an opportunity for enhancing student learning was lost. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard about how learning is enhanced when suggestions for improvement are specific to the learner and the learning task, and when they are communicated in a way that encourages continued effort. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION During this two hour class period there was no formal or informal examination of pupil work by the instructor. She made no attempt to periodically assess student progress by moving about the room making appropriate observations and asking pertinent questions. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding making informal assessments of student work by moving about the room and asking probing questions. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not solicit responses or demonstrations from pupils relative to instructional objectives. She did not ask questions that reflected lesson content nor did she require students to demonstrate what they learned. There were no informal assessment techniques used by the instructor during this class period. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding various ways to informally assess student work by having them demonstrate what they have learned during the class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have students evaluate their own and/or each other's performance. She did not request that learner's work together on checking each other's work or that pupils check their own responses against answers in the book or on the chalkboard. There was no assessment of student learning and progress made during this lesson. PRESCRIPTION PLAN ACTIVITIES The instructor will discuss with Ms. Ann Howard, Language Arts Chairperson, the advantages of having students grade their own work or each other's assignments during a class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION An examination of student folders revealed no evidence that more than one kind of assessment was made during the second quarter. Formative assessments such as a library classwork assignment and one quiz were found in some folders but there was no indication that any summative assessment was made during the second nine week grading period. PRESCRIPTION PLAN ACTIVITIES The instructor will read an article from an educational textbook or journal regarding formative and summative assessments. She will type a summary of this article and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Harrell were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Student folders did not indicate that adequate and sufficient summative assessments were made by the instructor during the second nine week grading period. There was no evidence of a summative assessment that included essay questions or performance tasks which are required of students to pass the FCAT examination. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Julie Fehr regarding types of essay questions and performance tasks that should be included in ninth grade English assessments. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. On January 27, 2000, Ms. Henry held a conference- for-the-record with Respondent to discuss Respondent's failure to complete the "prescription plan activities" set forth in the First and Second Reports. Also present were Craig Speziale, an assistant principal at Carol City, and United Teachers of Dade representatives. At the conference, Ms. Henry reviewed the First and Second Reports with Respondent and admonished her for not completing the "prescription plan activities" set forth in these reports, which, she informed Respondent, she considered to constitute insubordination for which Respondent would receive an unsatisfactory rating in the seventh TADS category, professional responsibility. Ms. Henry subsequently completed a "record of observed deficiencies/prescription for performance improvement" (Fourth Report), in which she rated Respondent deficient in Category VII.B. based upon her "fail[ure] to comply with prescriptive activities and timeliness as outlined in the [First and Second Reports]" and directed her to complete all of these "prescriptive activities" no later than February 16, 2000. A copy of the Fourth Report was provided to Respondent on January 31, 2000. On that same day, January 31, 2000, Mr. Meehan directed Respondent to report for a "post-observation conference" to discuss the Third Report. Respondent refused to go. Respondent was formally observed in her classroom for a final time on February 18, 2000. This observation was conducted by Ms. Henry. Ms. Henry justifiably found Respondent to be deficient in "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," and "assessment techniques." Because Respondent's 90-day "performance probation period" had expired without Respondent having corrected her performance deficiencies, and Ms. Henry therefore intended to recommend Respondent's termination, the report that Ms. Henry completed following the observation (Final Report) did not contain any additional "prescription plan activities" for Respondent to complete. The "prescription plan activities" described in the First, Second, and Third Reports were not completed by Respondent. On February 19, 2000, the day following Ms. Henry's formal observation of Respondent, Respondent was absent from school. Respondent telephoned the school to notify the administration of her absence, stating that she had injured her ankle and foot on February 17, 2000, and that she did not intend to return to work until after she had been seen by a doctor. Respondent never returned to work. (She did go to Carol City, however, on February 25, 2000, to pick up her pay check. During this visit, Respondent was asked to sign the Final Report, as well as a written recommendation for her termination that Ms. Henry had prepared and sent to the regional and district offices on or about February 22, 2000. Respondent refused to sign these documents.) By letter dated February 24, 2000, the Superintendent of Schools advised Petitioner that, pursuant to Section 231.29, Florida Statutes, he was recommending that the School Board, at its March 15, 2000, meeting "terminate her employment contract as a teacher, effective at the close of the workday, March 15, 2000 . . . because [she had] failed to satisfactorily correct identified performance deficiencies during [her] 90-Calendar Day Performance Probation and [because of her] gross insubordination." In his letter, the Superintendent further informed Respondent that she could contest his recommendation by requesting, within 15 days of her receipt of the notice, a hearing on the matter. Respondent requested such a hearing. Respondent was suspended without pay pending the outcome of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the ground set forth in Count I of the Notice of Specific Charges ("Unsatisfactory Performance"). DONE AND ENTERED this 8th day of September, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 8th day of September, 2000.
The Issue The issues to be determined are whether Respondent, Mr. Alain Sanon, violated section 1012.795(1)(j), Florida Statutes (2013), and implementing administrative rules,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Sanon holds Florida Educator's Certificate 1010405, covering the area of mathematics, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Sanon was employed as an intensive math teacher at John F. Kennedy Middle School in the Miami-Dade County School District. Mr. Sanon was born in Haiti and lived there most of his life. He came to the United States in 2003. His native language is French. He also speaks Creole and is fluent in English. In August 2017, Mr. Sanon taught a seventh-grade intensive math class during fifth period. About 50 percent of this class was Haitian-American, and some students in the class spoke French and Creole. Student A.R. testified at hearing that, on August 27, 2013, Student N.R. was laughing and talking with some other students who did not quiet down after Mr. Sanon asked them to. Student A.R. testified that Mr. Sanon asked them if they were gay. At this question, many of the students in the class started laughing. Student A.R. testified that Mr. Sanon then said, "This is a no homo zone." Student A.R. testified that Mr. Sanon said these things in a playful, not hostile manner, as a joke. Student A.R. testified that Student N.R. looked embarrassed. Mr. Sanon, in his deposition and later at hearing, admitted that he used the word "gay," but denied that he used it to refer to anyone as a homosexual, even jokingly, but rather used it in the sense of "happy." He testified that it was all a misunderstanding stemming from his question in French to Student N.R. and his companions: "Why are you so happy today?" Mr. Sanon explained that the French word for happy is "gaie" and that, when other students in the class heard that word, they began to say that Mr. Sanon had made an allusion to the boys' sexual preferences. Mr. Sanon testified that students were becoming excited and things were beginning to get out of hand, so he then said, "You know what? This is no homo calling. Nobody is calling anybody names in this classroom." He denies ever saying, "This is a no homo zone." The testimony of Student A.R., as supplemented by the written statements of other students, is more credible than that of Mr. Sanon, and Student A.R.'s testimony is credited. Student N.R. was removed from Mr. Sanon's class. The other fifth-period students remained with Mr. Sanon for the rest of the school year. It can be reasonably inferred, from Student A.R.'s testimony and the fact that Student N.R. was subsequently removed from Mr. Sanon's class, that Student N.R. was embarrassed by the incident. This is corroborated by Student N.R.'s written hearsay statement. Mr. Sanon has been employed at the Miami-Dade County School District for about 12 years. He has never before had any discipline imposed against his license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Alain Sanon in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6A-10.081(3)(a) and 6A- 10.081(3)(e), and issuing him a letter of reprimand. DONE AND ENTERED this 8th day of March, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2017.
Findings Of Fact Richard L. Gryte holds Florida Teacher's Certificate Number 323641, issued on January 4, 1983, covering the areas of elementary education, early childhood education, emotionally disturbed education and Junior College. Until his resignation on March 13, 1984, Gryte was employed by the Seminole County School Board as a teacher of emotionally handicapped students at the Milwee Middle School located in Longwood, Seminole County, Florida. Gryte was initially hired by Douglas Smith, assistant principal at Milwee, in the summer of 1981, to serve as an emotionally handicapped (herein referred to as EH) resource teacher. This was based on Gryte's prior work history, as well as his educational background; including a master's degree in exceptional education. As a resource teacher, Gryte did not have academic responsibilities, but was used as a counselor who would work with students for a period during the day. These students would be assigned to the resource room by their regular classroom teachers, primarily if they had problems regarding behavior. As a teacher involved with emotionally handicapped students, it was necessary for Gryte to prepare forms known as Individual Educational Plans (hereinafter referred to as IEP's). The IEP's were required by Federal and State law and were necessary in order for the school district to obtain funding. From the beginning of his employment and assignment at Milwee Middle School, Gryte had difficulty performing administrative duties regarding documentation and other paperwork. Gryte recognizes that correct documentation is the responsibility of a good teacher, but also acknowledges his weakness in that area. When this problem was brought to the attention of Douglas Smith, assistant principal, he immediately sent memos and spoke with Gryte regarding the problem. During the 1981-82 year, out of the 22 IEP's necessary for Gryte to complete, at least 12 were incomplete or not done. The IEP's that were done were incomplete in that they lacked objectives, goals and other qualitative methods by which to determine the progress of the child. Even as a resource teacher, Gryte failed to prepare lesson plans which were required of all teachers. In fact, Respondent failed to prepare lesson plans for the entire 1981-82 school term, despite being counseled and informed about the necessity of preparing and submitting lesson plans. Overall, Gryte's teaching performance for the 1981-82 school term was not in keeping with minimum standards required of his profession. In addition to the paperwork and other administrative tasks, Gryte had a problem maintaining classroom discipline and control and would violate school rules by leaving the class unattended. During the 1982-83 school term, Mr. Willie G. Holt became the principal at the school. He first became concerned regarding Gryte's performance because of safety concerns he had for student's in Gryte's resource class. Due to the nature of these children and their behavioral problems, it was a policy of the school that children would not be left alone and unattended. Gryte knew of this policy. During the 1982-83 school year, Gryte would periodically leave his class unattended. On two occasions in the spring of 1983, a female student was involved with and performed sexual acts including masturbation and oral sex in the presence of two male students. These acts occurred when Gryte left his class unattended. Gryte recognized that it was wrong to leave the class unattended, but felt he could trust the boys involved and was only gone for a brief period of time. Due to concern for the safety and welfare of the students entrusted to Gryte and because of a need to relieve the previous self-contained teacher, Mr. Holt, school principal, and Mr. Smith, assistant principal in charge of the exceptional education program, decided to place Gryte in the self-contained EH class for the 1983-84 school year. This was thought to be appropriate since the self-contained class had a full-time aide, Betty Manly, who would always be present in the event Gryte would leave the class unattended. Gryte objected to this assignment, but based on his certification and education, he was qualified to be in the self- contained classroom and he was so assigned. Gryte's teaching performance in the self-contained classroom during the 1983-1984 school term was extremely unsatisfactory in all aspects. As in previous years, Gryte was required to submit weekly lesson plans. This was a requirement of all teachers. As in prior years, Gryte was derelict in preparing his lesson plans. From the beginning of the school term until January, 1984, he submitted lesson plans for the first five weeks, but failed to submit any lesson plans thereafter. He next submitted lesson plans for two weeks during the weeks of January 20 and 27, 1984. Thereafter, he did not submit any additional lesson plans until the date of his resignation in March, 1984. The assistant principals, Gordon Hathaway and Douglas Smith, repeatedly instructed Gryte to submit lesson plans timely, but he failed to do so. Even the lesson plans which were submitted were not proper in that they were too generalized and did not serve the proper function. In addition, for the 1983-84 school term, Gryte still had problems completing his IEP's timely and in a proper manner. It was a concern of the school officials that if they were ever audited, they would lose funding. Gryte was counseled by Dr. Daniel Scinto and Dr. Robert Carlton regarding the preparation of IEP's, as well as class management, but little improvement occurred. Gryte's classroom was extremely noisy, unruly and out of control. Dr. Carlton worked with Gryte on several occasions regarding implementation of behavioral management techniques. However, no improvement was noted. The excessive noise from Gryte's classroom was disturbing to the adjoining classes. Mr. Holt started receiving complaints from other teachers. Mrs. Poole indicated that students in her classroom actually complained about the noise from Respondent's class, as did she. The teacher's aide, Betty Manly, observed that Gryte did not assert control. He allowed the students to do as they pleased and demonstrated an apparent lack of classroom control. Gryte himself recognized that there was an excessive amount of noise in his class which was disturbing to other teachers. Some of the noise was due to Gryte's policy of allowing students to use curse words and engage in verbal altercations, which at times led to physical violence. He would permit the students to use "damn", "hell", and other similar curse words. On occasion, fights would break out among the students because Gryte would allow an argument to become too heated and would not assert control. He thought it was necessary for the children to have the freedom to release their anger in this manner. He ultimately hoped to be able to work with the students and this was part of his counseling therapy. Gryte often imposed corporal punishment as a means of discipline with the students. However, he frequently imposed the punishment in violation of State law and School Board policy. The School Board policy, as set forth in the student disciplinary code, requires that all corporal punishment be administered in the presence of another adult and not administered in the presence of other students. On numerous occasions, Gryte paddled a student in the classroom without the presence of another teacher or administrator as a witness and also while in the presence of other students. This practice was against direct orders of the principal. In addition, students were embarrassed by punishment being administered in front of other children. Further, the practice is not appropriate when dealing with any student, but even less so when dealing with emotionally handicapped students. On one occasion, Gryte lined the entire class up for "licks." The noise of the paddling and the student's yelling brought an adjoining teacher to see what had occurred. When she arrived, a student was lying on the floor and his leg was shaking and the student was grimacing and in pain. The teacher advised Gryte not to administer any more punishment, because it was in violation of the school policy. During the first nine weeks of the 1983-84 school year, Gryte failed to provide grades for the students in his class. He was unable to give grades because students had not performed a sufficient amount of work in order for Gryte to evaluate their progress and to assign a competent grade. This was in violation of the school policy as well as the State law, and was upsetting to the administration. The school was required to send blank report cards, with the exception of P.E. grades. Gryte was told to produce his grade book and test papers which had been performed by the students. A review of the grade book showed tests and work had not been required or performed or recorded in order to evaluate the students. What papers were produced by Gryte were not of sufficient quality or quantity to effectively grade the students. The policy of the school was to assign enough work each week to allow the students to receive periodic grades. Gryte recognizes his duty to maintain paperwork and other documentation. He understands this is part of being a competent and effective teacher, even though he would place greater emphasis on the students. Jeanette Burgess was a female student in Gryte's self- contained classroom his last year at Milwee. Gryte had a propensity to touch Jeanette in an inappropriate and unprofessional manner. He would periodically touch her on her face, ears and buttocks. This was embarrassing to Jeanette. On one evening, Gryte called Jeanette's home to speak with her. Her mother, Diana Oliver, answered the phone and inquired as to the nature of the call. Gryte indicated it was a private matter and he needed to speak with Jeanette personally. This offended the mother and she refused to allow him to speak with her daughter and advised him that any matters pertaining to Jeanette in school should be discussed with her. In addition, in the mother's opinion, Gryte had been drinking. She formed this opinion based on slurred speech and other mannerisms. On another occasion, Betty Manly entered the classroom and discovered Gryte standing extremely close to Jeanette and, in Ms. Manly's opinion, touching Jeanette inappropriately. Jeanette was forced back against Ms. Manly's desk and was obviously embarrassed by the situation. Gryte had dismissed the other students to attend P.E. class and was left in the room alone with Jeanette. The situation was upsetting to Jeanette, because she dropped her head and started crying when she was questioned about what had occurred between Gryte and her. Following the telephone incident, Gryte, the principal, and Jeanette's mother had a conference and Gryte was directed not to administer corporal punishment or otherwise touch Jeanette for any reason. Gryte violated this direct order in that he did subsequently administer corporal punishment to Jeanette. Another student in Gryte's self-contained class was a child by the name of Kelly Owens who had self-destructive tendencies and frequently would injure herself. On one occasion, Gryte sent her to the office alone and on the way, she took a piece of glass and cut her wrist and neck, not severely enough to cause death, but enough to result in extensive bleeding. Gryte had been specifically advised not to leave this child unattended. On one occasion, he gave her a pass to leave the school and go to an area known as the "swamp". This is an area off campus where students gather to smoke marijuana and allegedly participate in other similar activities. This occurred after a conference with the child's parents which Gryte attended and in which it was emphasized that the child needed close supervision. On another occasion, Gryte actually left the child in the classroom asleep. This was at the end of the school day. Another teacher came by and found the child sleeping in the class by herself. Gryte indicated he was unaware that Kelly was still in the classroom. In addition to the incident involving the telephone conversation with Jeanette Burgess' mother, Gryte appeared at an open house held on the school campus in the beginning of the 1983-84 school term. It was apparent that Gryte had been drinking. Those teachers present were definitely under the·impression that he had been drinking too much due to his slurred speech and demeanor. When confronted by Mr. Holt, Gryte admitted he had been drinking, but stated he only had one drink prior to the meeting. Based on Gryte's conduct and performance at Milwee, the principal and assistant principal felt he was neither effective nor competent and would not employ Respondent in a teaching position. Respondent recognizes he is not qualified and competent to teach certain areas of his certification. He basically desires to be a counselor and not a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order revoking the teaching certificate of Richard L. Gryte for a period of three years, subject to reinstatement thereafter pursuant to Section 231.28(4)(b), Florida Statutes. DONE and ORDERED this 11th day of April, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: L.Haldane Taylor, Esquire 331 East Union Street Jacksonville, Florida 32202 Richard L. Gryte 7703 Meadowglen Drive Orlando, Florida 32810 Karen B. Wilde Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 Ms. Marlene Greenfield, Administrator Professional Practice Service 319 West Madison Street, Room 3 Tallahassee, Florida 32301 APPENDIX The following constitutes any specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Petitioner's Proposed Findings of Fact 1-31 are all adopted in substance. Rulings on Proposed Findings of Fact of Respondent Respondent filed no Proposed Findings of Fact.
Findings Of Fact Respondent began working for Petitioner School Board in 1960 as a teacher and has been so employed for approximately twenty years, with several breaks in service. At all times material hereto, Respondent has held Florida Teacher's Certificate No. 112370, Rank 1, covering the areas of elementary education, social studies, and junior college. During the 1981-82 and 1982-83 school years, Respondent worked as a social studies teacher at Cutler Ridge Junior High School. Prior to the 1981-82 school year, Respondent served as a CSI instructor for several years. CSI is the Center for Special Instruction and is an indoor suspension system. Students who have had difficulty in school, such as skipping classes and defiance of authority, are sent to the CSI room where they are isolated from their classmates to work on their regular school assignments. When Dr. John Moore became principal of Cutler Ridge Junior High School for the 1981-82 school year, he became aware that the CSI program needed to be strengthened. Parents, community leaders, and staff members of the school felt that the CSI program was not supportive of the disciplinary structure of the school, and teachers had been complaining about CSI. When Respondent was informally observed in the CSI room, the students "seemed to be having an extremely good time there . . . [,and] were running their own show, . . . [so] they liked going to CSI." The students were out of their seats, moving around at will, and some were walking in and out of the classroom. The room was noisy and in one instance in November 1979 the students were throwing a football around the room. When Dr. Moore reviewed the schedule for 1981-82, he saw that Respondent had a split schedule of part-time in CSI and part-time in social studies. He changed Respondent to a full-time social studies schedule, initially with four seventh-grade classes and one eighth-grade class. As a result of the suggestion of Respondent and another teacher, Dr. Moore merged the two teachers' schedules so that Dr. Sullivan ended up with a straight seventh- grade schedule. This would have reduced the amount of lesson planning required by Respondent and would have made his work load easier. Seventh-grade social studies is the simplest assignment Dr. Moore could have given a social studies teacher. During the 1981-82 and 1982-83 school years, a pattern could be discerned in Respondent's teaching. During each of those years, there was a relatively positive start with erratic performance during the first semester. By second semester, there was substantial disaster and a total lack of a learning environment. This erosion pattern was attributed to Respondent's teaching techniques. During the first semester of each year, Respondent had the students working at the lowest level of cognitive ability, i.e., memory work. Students became bored with that after a period of time. Respondent was not using feedback mechanisms to tell him what the students were understanding. Respondent did not teach in a logical sequence beginning with the first semester. These things led to frustration and boredom on the part of the students, and negative behavior became apparent. The negative behavior became resistive. This led to the erosion as above described. Respondent was formally observed by Assistant Principal James Marshall on November 16, 1982. Respondent was rated overall unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Respondent was unacceptable in preparation and planning because he had no lesson plans. He was rated unacceptable in classroom management because of the disorganization of his class. He was rated unacceptable in techniques of instruction because he did not adapt materials and methods to the needs and abilities of his students and failed to provide opportunities for the students to express their ideas. He failed to give specific directions to the students and only used one technique of instruction, i.e., the lecture method. Mr. Marshall prescribed help for Respondent. He recommended that Respondent formulate good lesson plans according to the scope and sequence of the curriculum. A portion of the lesson plan should contain a procedure for the evaluation of the students. He recommended that Respondent praise the students and that Respondent try to obtain enough textbooks. If he could not, he should utilize duplicated materials. Mr. Marshall pointed out how Respondent could change the seats of his disruptive children and call the parents to see whether he could get some backup from them. The next formal observation of Respondent was performed by Assistant Principal Albert Villar on January 8, 1982. Respondent was found overall unacceptable and was rated unacceptable in the categories of preparation and planning, classroom management, assessment techniques, teacher-student relationships, and professional responsibility. He was rated unacceptable in preparation and planning because the students were taking a test which was written on the chalkboard. The test was confusing to the students, and they were not certain as to what part of the test they were to take. Further, the test was not visible to the entire class. Respondent was rated unacceptable in classroom management because students walked in and out of the classroom, several students were talking during the test, and some were putting on makeup. Respondent was marked unacceptable in techniques of instruction because the students needed to answer questions with the textbook, and not all of the students had a textbook accessible to them. Respondent told the students to share, which is inappropriate because there would be a tendency to cheat on the examination. Respondent was marked unacceptable in assessment techniques because he did not have a written copy of the test; therefore, it would be impossible for students who are absent to make up the test. There also should have been a copy of the test in the students' folders. Respondent was marked unacceptable in teacher-student relationships because the lack of textbooks led to a relationship which did not reflect equal recognition and respect for every individual. Mr. Villar made recommendations for improvement. He recommended that if Respondent wanted to use a chalkboard test, he should have a written copy in the students' folders, and he should enforce his classroom rules about students not talking during a test. Respondent's next formal observation was performed by the principal, Dr. John Moore, on January 27, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, teacher-student relationships, and professional responsibility. He was rated unacceptable in preparation and planning because the lesson he taught was not the lesson described on his lesson plan. The inadequate planning led to classroom management problems. Throughout the observation, the students were "off task, doing their own thing, talking to each other and so on." The students and Respondent were talking at the same time. Eight students were chewing gum, which is against school rules. Techniques of instruction were rated unacceptable because the students were no on task. Respondent was not getting the students involved in discussions or in expressing their ideas. He was not getting feedback from the students because the students were talking among themselves. With teacher-questioning techniques, Respondent could have gotten the students involved. He could have gotten them on task by giving them quizzes or handouts which could structure their learning. Instructions were given while the majority of the class was talking, and the students were not challenged. Respondent was rated unacceptable in teacher-student relationships because throughout the observations there were repeated examples of students' disrespect, students yelling out across the room, students talking back and refusing to follow instructions. There was no reaction by Respondent. The bulk of the students were not responding. Professional responsibility was marked unacceptable because at the beginning of the year, Respondent was directed to enforce his class rules and to establish an effective learning environment. This was a general disciplinary project for the whole school. Dr. Moore prescribed help for Respondent. He recommended that Respondent work with his department chairman to review grade level objectives and to be certain that his lesson plans reflected the Dade County Balanced Curriculum requirements. Dr. Moore also recommended that he meet with a fellow teacher to review how she prepared her lesson plans. Dr. Moore recommended that Respondent enforce his class rules and that instead of using an oral approach, Respondent should develop handouts for the students. This would give them some structure as to what they are going to do. He recommended having homework guidelines and using review quizzes. Respondent was next formally observed by Mr. Marshall on February 5, 1982. Respondent was rated unacceptable overall and was marked unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Respondent was rated unacceptable in preparation and planning because while he had lesson plans, they were not done according to the sequence and pattern prescribed in the school. Respondent did not get the students to work right away at the beginning of the period and the students were not on task. Classroom management was rated unacceptable because Respondent had no control of the students. The students were doing what they wanted to do and were disrupting the class. Respondent was marked unacceptable in techniques of instruction because he did not adapt materials and methods to the interests, needs and abilities of his students. He was lecturing the students, and this technique did not allow the students to participate. Respondent was marked unacceptable in teacher-student relationships because the relationship was not a positive one: the students were not guided into a class discussion by Respondent; there was no relationship between Respondent and the students, and the students did not want to give information to the teacher. They just wanted to sit there. Mr. Marshall prescribed help for Respondent. He requested that Respondent make sure that each student participate in the learning activities. He recommended that Respondent duplicate the assignments so that there would be enough for all students to have and that Respondent guide the students in a discussion from his daily lesson plan. Respondent was next formally observed on February 16, 1982, by Phyllis Cohen, Area Line Director for the Dade County Public Schools. Respondent was rated overall unacceptable and was found unacceptable in the areas of preparation and planning, knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relationships. The instructions given to the class were not comprehensible. None of the things that were indicated in the lesson plan occurred. As a result, when the students were divided into three groups and told to read, without the appropriate directions, each group proceeded not to read. As the lesson progressed, the behavior deteriorated more and more until at the end of the lesson, three-quarters of the class was off task. There was an elaborate lesson plan, but it was not followed. Knowledge of the subject matter was rated unacceptable because the teacher did not demonstrate a knowledge of the content of the chapter while he was giving class directions. Respondent was marked unacceptable in classroom management because his class management practices needed much improvement. Respondent was marked unacceptable in techniques of instruction because he did not adapt materials and methods to the interests, needs and abilities of the students. Further, he did not use instructional strategies for teaching the subject matter. Respondent was rated unacceptable in assessment techniques because many of the students' papers were not graded, most of the work on file was work book papers consisting of mostly short answers and recall questions, and there were very few essays. Mrs. Cohen recommended help for Respondent. She directed him to develop lesson plans which are useful and which list key concepts, activities, questions and vocabulary. She directed him to work with the principal who would provide models for his use. She recommended that the department head arrange to have Respondent observe a master teacher presenting a civics lesson. She recommended that he observe teachers who exhibit good class control, that he become aware of what the students are doing, and that he review and enforce class standards for behavior. She recommended that he work with the assistant principal to improve class management techniques and that Respondent have a five-minute start-up activity on the board fro students to do when they enter the class in order to settle the class down, take attendance, and begin the lesson in a more orderly fashion. She also recommended that he improve his presentation strategies and teaching techniques by working with the social studies department head. The next formal observation was performed by Mr. Marshall on March 11, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. He was rated unacceptable in preparation and planning because his lesson plans were not adequate, unacceptable in classroom management because there was still a problem with student control and participation, and unacceptable in techniques of instruction since he still was not adapting materials and methods to the interests, needs and abilities of the students and was not providing opportunities for the students to express their ideas. Mr. Marshall prepared a memo in which he listed teaching techniques that would help improve Respondent's teaching. He recommended that Respondent praise the students more. Respondent was next formally observed by the social studies supervisor for the Dade County Public Schools, Paul Hanson, on March 19, 1982. Respondent was rated overall unacceptable and was found unacceptable in the categories of classroom management, techniques of instruction, assessment techniques, teacher- student relationships, and in one subcategory of preparation and planning because the plans which were written were not compatible with what actually took place in the classroom. Respondent was rated unacceptable in classroom management because there was no means of controlling the students who talked and moved about the classroom at will. The discipline was nonconducive to a learning environment since students were talking, out of their seats, and not on task. Very little learning was taking place. Techniques of instruction were marked unacceptable because the students were not motivated, and the instruction given them was not conducive to learning for junior high students. The activities in the classroom did not reflect the adoption of materials and methods to the interests, needs, and abilities of the students, and there was confusion in the class. Respondent was rated unacceptable in assessment techniques because the test which was observed did not equate with the instruction taking place, the test construction was very poor, and there were a number of grammatical errors on it. What was being tested was not compatible with what was being taught at the time, according to the lesson plan. The grades and records of the students' achievement were not up to date but rather were about two to three weeks behind. Therefore, the students' progress was not being monitored on a daily basis. Respondent was marked unacceptable in teacher-student relationships because of the behavior problem in the class. There seemed to be very little respect for the students on the part of the teacher, and it was difficult to determine who was in control of the class. Mr. Hanson recommended that the lesson plan be more specific and that it equate with what takes place in the classroom. He recommended that Respondent observe other teachers for their classroom management techniques and that a staff development course be taken. He also suggested that Respondent observe a master teacher for the techniques of instruction. Mr. Hanson provided some reading materials to Respondent dealing with such topics as how to conduct a classroom discussion, how to manage a social studies classroom, and how to use audiovisual films in a social studies classroom. The next formal observation of Respondent was done by Dr. Moore on April 13, 1982. Respondent was rated overall unacceptable and unacceptable in the categories of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, assessment techniques, teacher- student relationships, professional responsibility, and supportive characteristics. There was no improvement in this observation over the prior observations. Preparation and planning was unacceptable because the majority of students were off task during the observation, the written plan was not in compliance with the prior prescriptions and the lesson plan was not followed by Respondent. Knowledge of subject matter was marked unacceptable because Respondent failed to provide students with necessary explanations to implement the lesson plan. He confused the teaching objective with directions for student activity. Classroom management was marked unacceptable because the students were off task, were frequently moving, were constantly socializing, and a student was permitted to defy Respondent without consequences. Also, there were forty wads of paper on the floor. Techniques of instruction wee marked unacceptable because Respondent gave materials to the students prepared by the National Council of Social Studies for teacher use without modifying or adapting these materials for student use. He did not provide opportunities for students to express their ideas, although this was called for in his lesson plan, and he gave confusing directions to the students. The distribution of the National Council materials caused organization problems, and confusing directions used excessive class time. Respondent was marked unacceptable in assessment techniques because he did not make an assessment of each student's academic progress. He gave the students credit based upon untested assertions of mastery of assignments. He asked the students to "Tell me if you know this . . . I'll mark it down and you can go on. . . ." Teacher-student relationships was rated unacceptable because defiant students regularly disregarded his direction to stop talking. Respondent was marked unacceptable in professional responsibility because he had failed to comply with directives regarding remediation practices. He was found unacceptable in supportive characteristics because it was found that he did not contribute to the total school program. Dr. Moore recommended that Respondent review prior directives on lesson planning and comply with those. He further recommended that Respondent review material with his department head and that Respondent implement the posted consequences for student behavior. Dr. Moore submitted a memorandum to Respondent outlining the problems that he saw in this observation and compiled a list of pertinent materials available in the media center. On April 16, 1982, Dr. Moore made Respondent aware of a parent complaint concerning the basis for a student's grade and the failure to notify the parent of the lack of student progress. As a result of that parent complaint, Dr. Moore reviewed Respondent's grade book and found a variety of deficiencies: There were grades that were not identified; there was no indication of makeup work, and the mechanics of keeping grades were absent. The grade book is a document which is required by law and by School Board rule. It is an attendance record and a primary record of the student's progress as compared to the course standards. Dr. Moore provided a memorandum to Respondent indicating what improvement was needed. Around the same time, Respondent became ill and was hospitalized. A series of memoranda were sent from the school to the Sullivans and vice versa. It was difficult to ascertain the nature of Respondent's illness and the expected length of his absence. Eventually it was determined that Respondent's illness was genuine, and he was given an opportunity to return to his school to complete his prescriptions. Respondent was next formally observed by Althea King, Assistant Principal, on October 18, 1982. This was the first formal evaluation under the TADS system. There is no overall rating on the individual TADS observation forms. This observation showed a great improvement over the prior observations. Prior to this observation, Mrs. King met with Respondent to go over the things she would be looking for and made an appointment with Respondent for her observation. Although Respondent sincerely desired to improve, he was found unacceptable in preparation and planning because his plan did not fill the allotted time. Mrs. King observed Respondent for one hour and found that there were 20 to 25 minutes remaining in the class period when the students had finished an activity and were not provided another activity. Mrs. King noted that preparation and planning is very significant because it is the means of gaining control of the classroom. She recommended that Respondent read certain sections of the teacher handbook and complete activities therein to help him develop a lesson plan that would have the various essential parts. The next formal observation was done by Dr. Moore on November 8, 1982. He found that Respondent's classroom management was above a minimally acceptable level. The class was noisy, but it was under control. There was, however, substantial deterioration in the other categories. Dr. Moore directed Respondent to give priority attention to the other five areas since progress had been made in classroom management. He further directed Respondent to outline the sequence of key concepts and generalizations for each unit and to discuss them with the department head to insure consistent comprehension. He directed Respondent to use inquiry strategies and to review a section in the faculty handbook to implement activities listed therein. He directed Respondent to list specific student objectives in behavioral terms in his lesson plans. The next formal observation was done by Dr. Moore on December 15, 1982. The observation, which was scheduled in advance, was relatively good. There was improvement in a number of areas over the preceding observation although Respondent was still not dealing with students who were off task, a fault which eventually leads to deterioration. Respondent was weak in using feedback mechanism. This is a shortcoming in teacher-student communication, indicating whether or not the teacher knows what the students are really perceiving and learning. In order to help Respondent, Dr. Moore recommended that Respondent read sections in the TADS prescription manual and attend Teacher Education Center workshops on teacher-student relationships and on assessment techniques. Shortly after the Christmas break, there was apparent deterioration of behavior in the classroom. There were reports from other teachers of loud, disruptive behavior. Respondent was directed to confer with Assistant Principal Daniel McPhaul and to make sure the students know that there will be consequences if they do not behave. Starting at this point, there was the same pattern of disruption that had been seen in the prior school year. Respondent was making no visible effort to restore order in his classroom. The next formal observation of Respondent was done by Dr. Moore and Mr. Hanson jointly on February 8, 1983. Respondent was not found acceptable in any category. The class lesson consisted of giving workbooks to the students. There was no teaching, simply a passing out of materials. This failed to keep the students on task. There were consistent violations of the class rules and no consequences. Media still was not being used, and there were wads of paper on the wall. Respondent was marked unacceptable in preparation and planning because his lesson plan did not fill the allocated time. What was planned covered only 30 minutes of a 55-minute period. What was going on in the classroom did not follow the lesson plan, and what was being done was not included either in that lesson or the lesson plan for the next day. While Respondent exhibited knowledge of the subject matter, he was not found acceptable in the area of presentation of the subject matter. He used a "scattergun" approach. With the remaining 30 minutes, he filled in the time with something completely irrelevant to the plan for the day and irrelevant to the general overall plan for the week. The information presented to the children was simply handed to them with no logic or reason why they were getting this information. The information presented was not timely. Only one cognitive level was utilized in the entire classroom period, the lowest level-recall or remembering. No higher or challenging cognitive levels were presented, and the lesson was presented in an uninteresting manner. Classroom management was unacceptable because approximately two-thirds of the students were not on task, and the behavior was inappropriate for a classroom. This resulted in no learning taking place, and Respondent did not seem to make any attempt to correct the situation. Respondent was marked unacceptable in techniques of instruction because he gave a skills lesson which needed some demonstration. However, he simply gave the students materials and told them to do the work. He should have taken the time to give instructions and actually demonstrate what the students were to do. The activities that took place did not give the students an opportunity for participation and verbal interaction with Respondent. The students were not invited to raise questions and were not actively involved in the lesson. It was basically a teacher-directed lesson. The lesson that Respondent presented would have been an opportune one for using media, but Respondent chose not to do so. There was a great deal of confusion on the part of the learners -- they did not know what to do with the materials, and very little clarification took place. Respondent was marked unacceptable in assessment techniques because he did not give the students more than a book-type exercise, which was not challenging, and only required students to recall basic information. This technique did not require them to actually think or apply the knowledge they learned. In the student folders, there was only one kind of evaluation, a dittoed workbook-type of page with mostly fill-in-the-blank type activities. Respondent was marked unacceptable in teacher-student relationships because there was not any mutual respect on the part of the students or teacher. Mr. Hanson found no improvement over his prior observation of March 19, 1982. Mr. Hanson prescribed help for Respondent, and Dr. Moore concurred with those prescriptions. It was recommended that Dr. Sullivan observe a master teacher at a school close to his and that Dr. Moore, a former social studies teacher, help in demonstrating some of the techniques needed in a social studies room. Mr. Hanson provided additional reading materials for Respondent. The next formal observation of Respondent was done by Mrs. King and Mrs. Cohen on March 29, 1983. Mrs. Cohen found Respondent unacceptable in all categories, and Mrs. King found him unacceptable in all categories except teacher-student relationships. Mrs. King found that his lesson plan was much decreased in quality over her prior observation: the objectives did not reflect good planning, the activities did not fill the allotted time, and the plan was not followed. Because of these, she rated Respondent unacceptable in preparation and planning. Knowledge of the subject matter was rated unacceptable because the subject presentation was unacceptable. Information and activities were not timely and accurate, and the sequence of presentation was not logical. Interesting, unusual or important dimensions were not included, and different cognitive levels were not presented. Respondent was rated unacceptable in classroom management because many students were not on task, and behavior management was not done appropriately. Techniques of instruction was marked unacceptable because the materials that were used were inadequate for the lesson. Student participation was very minimal, and there was little, if any, discussion. Students were asked to work on information in their folders. Individual questions were asked and answered but there was no other kind of instruction taking place during the observation. Assessment techniques was marked unacceptable for there was no indication that assessment had taken place or would take place for this particular lesson. The students seemed vague as to what they were supposed to be doing. Teacher-student relationships was unacceptable because there was no attempt to involve all students in the instruction. Basically, there was no instruction. Mrs. Cohen found the same conditions that existed on her previous observation of February 16, 1982. While the method of teaching had changed, as worksheets were distributed and folders were given out, there was still no teaching occurring, there was lots of confusion, and there was little attempt to draw relationships. These things contributed to a lack of control and off task behavior. Mrs. King discussed with Respondent activities that he might use to direct the students, to establish and gain control of their behavior in the class. She recommended written assignments, discussions, and lectures, using a variety of activities that might help give direction to him and to the students in the classroom. The next formal observation was performed by Daniel McPhaul, Assistant Principal, on May 5, 1983. Mr. McPhaul found Respondent unacceptable in all categories except knowledge of subject matter. Preparation and planning was unacceptable because there were some items lacking from the lesson plans, and the lesson plan did not have objectives. Classroom management was unacceptable because there were many students who were not on task strewn about the classroom floor, the desks were out of order, and students were walking around communicating with each other while Respondent was giving instructions. Techniques of instruction was unacceptable because there was no student participation. His instructional strategies were limited. There was no use of media from the library, although some was available to him. Assessment techniques were unacceptable because the lesson ended with the ringing of the bell. There was no time allowed for assessment. He did not ask questions to see if the students understood the lesson and did not evaluate the students. Respondent was found unacceptable in teacher-student relationships because if the students were interested in receiving instructions from Respondent, they would not have been playing around and communicating with each other. Mr. McPhaul suggested that Respondent get the students on task as soon as possible. One way to do this is to have handouts or pop quizzes ready at the beginning of the class. He also suggested that Respondent communicate with parents. He suggested that the students be made to clean the classroom before leaving. On May 25, 1983, Dr. Moore dropped in to visit Respondent because of a teacher's complaint. When he got there, there were several students running out of the door. Respondent indicate that no lesson was in progress, and the students were running around because there was nothing to do. The next formal observation was performed by Dr. Moore on June 1, 1983. There was no improvement: the class was noisy and off task; the lesson did not match the lesson plan; the lesson was not attended to by most of the students; many students talked while Respondent gave instructions; and nineteen out of twenty students did not follow directions. Further, since Respondent was using an inappropriate teaching technique for a fact recall level lesson, five students did nothing, fourteen students wrote statements totally unrelated to the unit they were studying, and only one student wrote one question pertinent to the unit under study. Seven weeks into the nine-week grading period, there were no grades recorded in the grade book. Based on this there would be no way to know what a student had done or how well. There were no codes in the front of the grade book to interpret the grades. There was no basis to explain a child's grade to a parent. Dr. Moore gave Respondent copies of his summatives on or about November 12, 1982, December 17, 1982, February 10, 1983, April 11, 1983, and May 1, 1983. A summative combines the preceding two classroom observations and rates a teacher overall acceptable or unacceptable at any point in the process. All of Respondent's summatives were rated overall unacceptable. Respondent was offered help at other times as well. The assistant principal had conferences with parents of disruptive students. Mrs. Parker taught directly across the hall from Respondent and observed that at times students were completely out of control, with desks and books being thrown across the room. Respondent asked her for help, and she suggested methods of control. There was so much noise coming from Respondent's room that Mrs. Parker would put her stool in the doorway and sit there and control both her class and Respondent's class at the same time. Mrs. Griswold, Respondent's department head, taught across the hall from Respondent. At times she noted the chaos. Quite frequently the students would be talkative and on occasions they would be walking around. The noise interfered with her class to the point that she would have to close her door. She offered to help Respondent by meeting with him on several occasions to discuss lesson plans, methods of controlling students, and using different techniques. She gave him materials to help him. During the 1981-82 school year, she met frequently, on a weekly basis, to go over Respondent's lesson plans. During some time periods, Respondent's lesson plans were more than adequate; at other times, they were not adequate. During the 1981-82, Respondent was told by Dr. Moore to submit lesson plans to Mrs. Griswold. He did not always comply. When he did , Mrs. Griswold went over his lesson plans with him, checking to make sure that the materials that he was using were applicable to the students in his class. She checked to be sure he was following the course outline for social studies for seventh graders. She tried to aid him in any way she could to try to maintain discipline and control in his class. On January 28, 1982, Assistant Principal Marshall gave Respondent a memorandum which dealt with tips for teaching. Mr. Marshall then monitored Respondent with informal observations two to three times a week to see whether Respondent was utilizing the suggestions made to him. The assistant principals had to enter Respondent's room at numerous times to gain control of or restore order to the classroom. Fellow teacher Beverly Dunbar also went into Respondent's room to restore control to his class. She observed that the children were so noisy that her own students could not do their work. When she went into Respondent's room, almost all of the students in the room were out of their seats, throwing papers, books, and throwing over desks. Respondent was standing there, not saying anything to them. They were out of control. On February 5, 1982, Respondent's room was changed to the first floor so that he could be closer to the administrative offices and to relieve the classes which had been around Respondent's classroom. The assistant principals were directed to assist Respondent whenever needed to restore order to his class when it was out of control. The assistant principals removed youngsters from Respondent's classroom and offered to take others out. Mr. Villar had a conference with Respondent to set up classroom rules for him and offered suggestions on the use of a seating chart to take attendance quickly and to become familiar with where students were sitting and to notice patterns in behavior that may become disruptive. Mr. Villar tried several times to talk to Respondent about his problems, but Respondent was not responsive. Mr. Villar also suggested that Respondent observe teachers in their school and in other schools in the same academic areas. He also recommended that Mrs. Griswold assist Respondent on lesson plans, ordering materials, and making sure he had a complete set of classroom textbooks. Mrs. King had conferences with Respondent. She called these her "lay-it-on-the-line" conversations. These dealt with how to get control of the students and force them through classroom activities through discipline measures, to do what they are supposed to be doing. She gave very specific recommendations such as moving certain students and specific kinds of activities that would keep the students involved. One day she went into Respondent's class and began the class for him to show how it could be done and how students could be controlled through various methods. Dr. Moore invited Mr. Hanson, the social studies supervisor, to observe Respondent's class and make recommendations to help the situation. At one point, when the principal observed Respondent's class, the room was so noisy and the students were so off task that he suggested that Respondent work with the students regarding the necessity of self control and following directions. He further recommended that Respondent work with Assistant Principal Villar to arrange for any kind of backup he would need. Dr. Moore also gave education articles to Respondent to read. The principal followed through and arranged for observations of other teachers by Respondent. Respondent was given an opportunity to raise any questions that he had about the type of support he needed. He was given an opportunity to give the administration feedback of the things they were not doing that he would like them to do for him. Dr. Moore compiled a composite record of all the prescriptions that had been given to Respondent in order that Respondent could review them and did a demonstration lesson for Respondent as an example showing the use of techniques which were explained in the readings that were given to Respondent. In spite of all the help that was given, Respondent's class continued to interfere with other teachers' classes. Mr. May testified that the noise was so loud that his students could not hear him dictating a spelling test during a semester examination. Mr. May saw things thrown through the room, such as books, and saw students out of their chairs and totally out of control. He heard glass breaking and saw glass on the ledges of the second floor. He was also afraid that some child would go out a second floor window and recommended to Dr. Moore that Respondent's class be changed to the ground floor. There was no improvement in the control of Respondent's class after he was moved to the first floor. On the occasion that Mrs. Dunbar went up to gain control of Respondent's class, her students were prevented from doing their work by the noise coming from Respondent's room. Other teachers in Mrs. Dunbar's department complained to her, and teachers complained to the assistant principals about the noise in Respondent's room. During informal observations, Respondent fared no better than he did no his formal observations. His class was generally disorganized with 100% of the time being spent without teachings. When Mrs. Dunbar observed Respondent, he was not teaching. There was commotion going on. At times, clapping and chanting could be heard coming from Respondent's room across the courtyard. The administrators received more student and parent complaints about Respondent's class than they did about other teacher's classes. When Mrs. King walked by the halls, she would come in to help establish order in Respondent's class. Sometimes she would be sent for by Respondent or by a student or other teachers. Very often she notices that there was chaos in the classroom with students moving around without inhibition. They were talking, tossing paper, and off task. They were not involved in any kind of constructive classroom activity, and the noise level was very high. On Mrs. Cohen's informal visits to the school, she observed Dr. Moore going into Respondent's room to quiet it because someone had thrown paper outside the room. It was the consensus of opinion of the experts who observed Respondent in the classroom that there was a repeated failure on his part to communicate with and relate to the children in his classroom to such an extent that they were deprived of a minimal educational experience. Respondent has not maintained direction and discipline of students as assigned by the principal and has not kept good order in the classroom. He has not taken precautions to protect the life, health and safety of every student. On one occasion Mr. Marshall had to respond to the Respondent's classroom because of the presence of a railroad spike in the possession of one of the students. Because of the gravity of the situation, the parents of the student were contacted and additional documentation was forwarded to Dr. Moore. During the 1982-83 school year, Assistant Principal King walked by the Respondent's class and observed a student holding a chair up in the air "as if in the intent of throwing it at another student." Another time she observed a student on all fours crawling along a back counter. On those occasions Respondent was standing in the front of the class, simply observing and doing nothing to (re)gain control of the class. During the 1982-83 school year, on several occasions jalousie windows were broken in Respondent's classroom by students playing and bumping into each other. Some students complained to Assistant Principal McPhaul about the noise level and disorder in Respondent's class and the difficulty they had in doing their work due to harassment by other students who wanted to play during class. Overall, during the last two years of Respondent's service, in the 1981-82 and 1982-83 school years, Respondent failed to achieve an acceptable performance rating as determined by eight formal evaluations during the 1981-82 school year, done by five different evaluators, two of which were external to the work site. In the 1982-83 school year, Respondent failed to achieve an acceptable performance rating as noted on nine different formal evaluations conducted by six different evaluators, two of which were external to the school site. The administrators asked Respondent whether there were any health conditions or medical conditions which should be considered in his case. Respondent stated that health was not a factor in his classroom observations. Neither Respondent nor his wife ever communicated to the administrators that there was a health problem that interfered with Respondent's teaching. After his suspension by the School Board, Respondent was examined psychologically and was found to have an inability to organize his social events into a meaningful order. His perceptual abilities are significantly below his age level, and his functioning is significantly below what one would expect given Respondent's level of education and teaching experience. He has extreme difficulty in differentiating relevant versus nonrelevant aspects in his environment. His thinking is highly concrete, and he is unable to coordinate data and integrate them into meaningful concepts. Respondent is verbose and uses circular reasoning to eventually reach a final conclusion. Respondent's examining psychologist determined that it would be difficult for Respondent to learn new techniques for getting a class into order, it would be difficult for him to learn new ways of doing lesson plans in order to structure his classroom activities, he would have a hard time working in a school organization where he had to perceive social situations and what is going on in a classroom, he would have a difficult time dealing with teachers, administrators, and students, and he would have a hard time perceiving the motives of the administration. His perceptions are vague and amorphous, and descriptive in nature. He has inordinate difficulties in capturing the essence of what was presented to him. While there is no evidence of thought disorder, his thinking is vague, disorganized, fuzzy, and reflective of an individual with possible organic factors interfering with his thinking and organizational abilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that a Final Order be entered in Case No. 83-2649 finding Respondent guilty of the allegations contained in the Specific Notice of Charges filed against him, affirming his suspension, dismissing him from his employment, and denying him any claim for back pay. It is further RECOMMENDED that a Final Order be entered in Case No. 83-3793 finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and permanently revoking Respondent's Florida Teacher's Certificate No. 112370. DONE AND ENTERED this 3rd day of January 1985 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig Wilson, Esquire 315 Third Street West Palm Beach, Florida 33401 George F. Knox, Esquire Penthouse 200 Southeast First Street Miami, Florida 33129 Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County School Board 1410 Northeast Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (DADE COUNTY SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 83-2649 WILLIAM D. SULLIVAN, Respondent. /
The Issue The issues are whether Respondent, William Doran, committed the acts alleged in the Statement of Charges and Petition for Ten-Day Suspension Without Pay, and, if so, the discipline to be imposed.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at SMS, a public school in St. Lucie County, Florida, pursuant to a professional services contract. Respondent has been employed by the School Board for approximately eight years. Respondent most recently provided individualized instruction and assistance to students with individualized education plans. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the St. Lucie Classroom Teachers’ Association. Lydia Martin, principal of SMS, was authorized to issue directives to her employees, including Respondent. The 2010-2011 School Year On November 8, 2010, Respondent was counseled by Principal Martin for discourteous and disparaging remarks to students causing them to feel unnecessary embarrassment. Students and parents reported that Respondent made comments in the classroom including “the Bible is crap and we should not believe it,” told students they could not work in groups because they “would just bullshit,” called a student “stupid,” and referred to a group of African-American students as the “black coffee group.” Parents also expressed concern that Respondent discussed prostitution and told students that, in some countries the younger the girls are, the better it is considered because they have not lost their virginity. Respondent denied saying that the Bible is “crap” but admitted telling students that he did not believe in it. Respondent denied calling a student stupid but admitted that he told a student certain choices may be what a “not so smart” person would do. Respondent admitted to referring to a group of black students as a “coffee klatch,” but denied any reference to race or ethnicity. Respondent admitted discussing prostitution in the context of human rights and his personal observations of sex trafficking while serving in the military in East Germany. Principal Martin provided Respondent with a written Summary of Conference that stated, “In the future, do not make comments to students that may cause them embarrassment or that are unprofessional. My expectation is that you will treat students with respect and follow the district guidelines under 6.302 Employee Standards of Conduct and Code of Ethics for Educators.” On May 2, 2011, Principal Martin gave Respondent a Letter of Concern for making comments to a student that caused embarrassment to the student when Respondent stated that, “somebody cried about not getting their stupid PTO FCAT Goodie bag” and that “they were filled with cheap candy.” The daughter of the PTO president was in the class. The 2011-2012 School Year During the fall of 2011, Respondent was accused of inappropriately touching students.1/ As a result, on December 5, 2011, Respondent was removed from the classroom at SMS and placed on Temporary Duty Assignment at the School Board district office pending an investigation into the allegations. In a letter from Maurice Bonner, director of personnel, dated December 14, 2011, Respondent was directed not to engage witnesses, their parents, or potential witnesses during the open investigation. While he was working at the district office, two co- workers of Respondent overheard Respondent contact the parents of one of the student witnesses involved in the investigation by telephone to discuss the investigation. Also, during the investigation, it was discovered that Respondent had taken pictures of students when they were misbehaving in his class as a means of disciplining those students. On February 13, 2012, Principal Martin provided Respondent a Letter of Reprimand for the violation of the administrative directive (not to contact witnesses and parents during a pending investigation) and inappropriately disciplining students. This Letter of Reprimand reminded Respondent of his previous counseling and Letter of Concern and notified Respondent that his failure to follow the prior directives or violation of any other School Board policy would result in more severe disciplinary action being taken against him. In May 2012, Respondent received a three-day suspension without pay for embarrassing students. Respondent is alleged to have announced a student’s name in class and stated that he (Respondent) was “just wasting red ink” by grading the student’s paper. Respondent does not deny the statement, but claims he muttered it under his breath, and it was overheard by several students. Respondent embarrassed another student by sharing personal information about her family with the class. A student’s mother had privately discussed with Respondent the fact that her daughter might act out in class due to the distress she was experiencing as a result of her parents’ divorce. During a classroom discussion about families, this student made a comment that she had a “normal” family. Respondent said to the student, in front of the class, “If you’re so normal, where is your father?” Respondent admits this was inappropriate behavior on his part. The 2012-2013 School Year On May 3, 2013, Respondent was in the classroom of another teacher for the purpose of providing additional teaching assistance for several students. On this date, the usual classroom teacher was absent, and a substitute teacher was present. While walking around the classroom, Respondent observed two students, M.M. and A.L., engaged in a game of “slaps,” in which both students tried to hit each other’s hands. Respondent directed M.M. to stop and asked why he was doing the game during class time. M.M. responded that he was trying to cheer up A.L., it felt good, and they liked playing the game. At this time, Respondent was approximately eight to ten feet away from M.M. who was sitting at a desk. Respondent told M.M. that he didn’t care if it felt good for M.M. to “jump off a bridge,” it was not to go on in the classroom and to get back to work. M.M. asked Respondent what he meant and the two began to argue. Respondent approached M.M. and bent over him while M.M. remained seated at his desk. Respondent testified that he closed the gap between him and M.M. when he felt M.M. told him to shut up by saying “get out of my face.” Respondent stated, “At that point I decided I wasn’t going to let him push me around and I decided to engage him.” The credible testimony from several of the student witnesses was that Respondent approached M.M. and stood over him and that M.M. repeatedly asked Respondent to “please, get out of my face” and to leave him alone. M.M. also cursed and used a racial slur directed at Respondent.2/ Respondent told M.M. to get up and get out of the classroom. When Respondent did not move away from looming over M.M., M.M. said something to the effect of “I don’t want to do any of this.” M.M. stood up, and he and Respondent were face to face, only a few inches apart. M.M. told Respondent that he was a grown man and that he was “acting like a bitch.” Respondent repeatedly mocked M.M., yelling in his face, “Come on big man-- What are you going to do about it, hit me?” and told M.M. to hit him because it would “make my day.” Respondent called M.M. a coward several times when M.M. refused to hit Respondent and backed away. While this was going on, the other students in the classroom believed that Respondent and M.M. were going to have a physical fight, and they stood up, pushed the desks and chairs back, and got out their cell phones to take photos and video. Several of the students began screaming and yelling.3/ M.M. left the classroom and continued to curse at Respondent as Respondent followed him to the Dean’s office. During this altercation, the substitute teacher did not intervene or attempt to help or contact the SMS office. Respondent admits that, once M.M. told Respondent to “get out of his face,” Respondent did nothing to de-escalate the situation. To the contrary, Respondent intentionally escalated the altercation. According to Respondent, “He [M.M.] needed to be shown you can’t tell an adult to shut up.” Respondent testified that he believed that he was teaching M.M. a “life lesson”-–that “you can’t engage an adult and expect to get away with it.” SMS has a protocol for handling belligerent students in the classroom. Teachers receive training at the beginning of each school year regarding the difference between classroom managed behaviors and office managed behaviors. Teachers are trained not to engage a belligerent student but rather to use the buzzer which is tied to the intercom or telephone, available in every classroom, to notify the main office of the situation. In response, someone from the trained management team will come to the classroom to retrieve the student and bring them back to the Dean’s office. As explained by Principal Martin, the purpose of sending an adult from out of the classroom to retrieve a disruptive student is to minimize the possibility of harm to either the student, teacher, or other students, and to allow a “cooling off period” while the misbehaving student is escorted to the Dean’s office. During the altercation with M.M., Respondent made no effort to use the buzzer or the telephone or ask anyone else to notify the office of the escalating situation. Respondent was aware of the protocol but chose to ignore it. According to Respondent, “[M.M.] wanted to intimidate me and he failed and I let him know about it.” Respondent was purposely confrontational and testified that he wanted to show M.M. that Respondent “was not going to back down.” Respondent disregarded the protocol because he believed it would be ineffective and he wanted to teach M.M. a “humility lesson.” Respondent’s explanation, that he thought using the buzzer or telephone would be ineffective because sometimes the buzzer does not work or he was blocked from reaching the buzzer by M.M., was not supported by credible evidence. Further it was directly contradicted by Respondent’s explanation that he didn’t contact the office because M.M.’s behavior problems likely started in elementary school and that at this point, M.M. was not responsive to “conventional means of disciplining students.” While the undersigned is sensitive to the difficulty faced by teachers when dealing with confrontational and unruly students, no rational justification was provided for Respondent’s extreme and outrageous act of attempting to engage M.M. in a fight and labeling him a coward in front of his peers. Respondent’s actions were an unwarranted attempt to bully and belittle a middle school student. In May 2013, Respondent received a letter from then Superintendent Michael Lannon advising Respondent that he was recommending him to the School Board for a ten-day suspension without pay. During the School Board’s investigation and at the final hearing of this matter, Respondent expressed no remorse regarding his actions towards M.M. and testified that, despite knowing his actions constitute a violation of School Board policies, he would do the same thing again. Respondent received all the necessary steps of progressive discipline required by the collective bargaining agreement between the parties prior to receipt of the recommendation for the ten-day suspension without pay. As discussed in greater detail below, the School Board proved by a preponderance of the evidence that Respondent engaged in misconduct in office in violation of rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order finding William Doran guilty of misconduct in office, suspending his employment without pay for a period of ten school days, and placing him on probation for a period of one year. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 19th day of August, 2014.
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.
The Issue Whether Respondent, Teresa Wimmer, violated Florida Administrative Code Rules 6A-10.080, the Code of Ethics of the Education Profession in Florida (Code of Ethics), or 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida (Principles of Professional Conduct), as alleged in the Hernando County School Board’s March 9, 2015, notice of recommendation of termination, and March 24, 2015, modification of that notice; and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Hernando County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Respondent has been a teacher at Pine Grove for roughly 11 years. During the 2014-2015 school year, Respondent was a teacher of first-grade students, with a class of approximately 18 students. As a classroom teacher, Respondent was expected to comply with the 2014-2015 Staff Handbook. Among the provisions applicable to Respondent was the following: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety and/or welfare of a student or for protection of themselves. Respondent has been the subject of several disciplinary proceedings over the years. In September 2004, Respondent was involved in an employee conference for grabbing a student’s arm on two occasions to correct misbehaviors, the result of which appeared to be a reprimand. The report of the employee conference was to remain in the school file for one year. In January 2006, Respondent was involved in an employee conference for making derogatory comments regarding a student and allowing classmates to do the same. Respondent was required to re-read the Code of Ethics and Professional Practice forms and write a letter of apology to the student and parents. The employee conference report closed with “[a]ny further behaviors involving embarrassment to students will result in further disciplinary action.” In September 2013, Respondent was involved in an incident that is of more direct relevance to this proceeding. In that instance, Respondent was accused of roughly handling students in her classroom. As a result, she was offered, and accepted, a Stipulation for Employee Discipline and Last Chance Agreement (Stipulation). In the Stipulation, Respondent acknowledged that she “engaged in misconduct by having inappropriate and unprofessional interactions with students in her classroom” and that such conduct “warrants disciplinary action up to and including termination.” In lieu of termination, the School Board and Respondent agreed that she would be suspended for ten days and, thereafter, serve a probationary period for the remainder of the 2013-2014 school year. The Stipulation further provided that Respondent “agrees that she will not engage in the conduct which gave rise to this Stipulation at any time or any place so long as she is an employee of the Hernando County School District. Further, [Respondent] understands that if she does engage in misconduct, it will result in disciplinary action, up to and including termination.” Respondent successfully completed the terms of her probation without incident. School principals, assistant principals, guidance counselors, and persons in similar duties are trained in Crisis Prevention Intervention (CPI), which is an approved method of restraining or transporting completely out-of-control students or removing children from the classroom. CPI training is not provided as a matter of course to classroom teachers. Respondent has not received CPI training. Holding a student’s hand is not a CPI hold. There is nothing inherently inappropriate with a teacher taking a student by the hand and walking with the student. The 2014-2015 Staff Handbook provides, in the section entitled “Return of Students to Classroom (Authority of the Teacher),” that: Teachers should follow their school’s procedure for the removal of students who are acting out. Suggestions include: having an adult accompany the student from the class or requesting an administrator to come to the class. (emphasis added). The routine procedure for removal of a disruptive or unruly student from the classroom is for the classroom teacher to call the office, whereupon Ms. Johnson, Ms. Kasten, or a guidance counselor, each of whom are trained in CPI, would go to the room, try to calm the student, and, if warranted, take the student to the office. Despite the procedure described above, Ms. Kasten testified that teachers, on occasion, “would bring the student down for me to talk to or the guidance counselor to talk to.” In such instances, “[t]hey would just walk them down” to the office. Although the teacher would usually call the office first, the evidence did not support a finding that a call was required or necessary, or that it happened in each event. Although the timing of those other events of taking students to the office was described as generally occurring “during their planning period or whatever, if they were at specials or whatever,” the preponderance of the evidence supports a finding that the act of walking a student to the office, per se, does not constitute a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook and that the school has not previously determined it to be so. Among the reasons for having teachers call the office for assistance with disruptive students is to limit those periods in which a teacher may leave students unattended or, as in this case, leave a co-teacher responsible for up to 36 students while the disruptive student was walked to the office. However, Ms. Tyree testified that there have been times when she would ask Respondent to “keep an eye on [her] class” while she went to attend to other things, and vice versa. There was no suggestion that asking a co-teacher to watch over a class was improper, as long as “your class is covered.” In the weeks prior to February 4, 2015, J.S., a student in Respondent’s classroom, had become increasingly disruptive in the classroom. The behaviors ranged from J.S. talking in “baby-talk” and rolling crayons on his desk, to choking another student with a lanyard. Respondent did not know why J.S.’s behavior had spiraled out of control, but indicated to Ms. Kasten that it was creating a problem for her ability not only to teach J.S., but to teach the other students in her classroom. The office was called on three occasions to deal with J.S., and Ms. Kasten went to the class to address the situations. On two occasions, J.S. remained in the classroom after Ms. Kasten’s intervention. On one occasion, Ms. Kasten removed J.S. from the classroom. On the occasion when Ms. Kasten removed him from Respondent’s classroom, J.S. was walking around the room and disturbing the other students. Ms. Kasten could not get J.S. to listen to her. Thus, she decided to take J.S. to the office. She did not employ her CPI training or use a CPI hold, but took him by the hand “with the idea of keeping him from getting away.” During the walk to the office, J.S. “was pulling a little bit” to try and get away.1/ There was no suggestion that the actions of Ms. Kasten in taking J.S. by the hand and walking him to the office were inappropriate or contrary to the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. On the afternoon of February 3, 2015, Ms. Kasten met with Respondent to discuss the behavior of J.S. in her classroom. Respondent was upset and frustrated with J.S.’s unruly behavior and wanted to know what could be done about it. Ms. Kasten suggested that the two of them could work to develop a behavior plan for J.S. and indicated that she would bring a plan to Respondent the next day for them to work on. The incident that forms the basis of this proceeding occurred on February 4, 2015. As students were entering the class for the day, Respondent heard screaming and the words “stop hitting me.” She turned and saw J.S. striking a female student with his fists. Respondent was able to verbally quell the disturbance. However, after initially returning to his seat, J.S. went to the back of the room where he began kicking table legs and other items. Respondent asserted that prior to her taking the student to the office, she called Ms. Kasten to advise her that she would be doing so and received permission from Ms. Kasten. Ms. Kasten had no recollection of having received any such call. The telephone records admitted at the hearing do not reflect that any calls were placed between Respondent’s line and the office.2/ There was no evidence to support a finding that the telephone records maintained by the school were unreliable. The greater weight of the evidence indicates that Respondent did not receive prior approval before taking the student to the office on the morning of February 4, 2015. However, the issue of whether Respondent received or did not receive permission to take J.S. to the office, and whether the act of doing so violated any school policy, was not pled as a basis for Respondent’s termination. On her way out of the classroom with J.S., Respondent passed through the classroom of her co-teacher, Ms. Tyree, with whom she shared a paired classroom, and stated to her something to the effect of “[c]an you watch my class? They told me to take [J.S.] to the office.” Although not a frequent occurrence, it was not unusual for Respondent and Ms. Tyree, as paired teachers, to watch one another’s classes while the other was out for short periods. In this case, Respondent’s class was covered while she walked J.S. to the office. Respondent took J.S. by the hand and tucked his arm inside her arm. Although J.S. did not want to go to the office, his resistance was described by Ms. Tyree as “verbal like ‘I don't want to go, I don't want to go.’ But there wasn't a, like, a tug of war going on there.” Respondent indicated that she took J.S. by the hand in order to keep him safe. Given J.S.’s actions of physically assaulting a fellow student, followed by continued physical agitation at the back of the room, Respondent’s concern for safety, not only for J.S., but for the other students in her charge, was warranted. The walk to the office was captured by the school’s video system. The video covered the time from 8:33:00 to 8:33:58. Respondent and J.S. are clearly visible in the video for approximately 30 seconds, from frame 08:33:04 to frame 08:33:32. The video is somewhat grainy, and certain details are not readily observable. However, the video is consistent with Respondent’s statement that she was holding J.S. by the hand. Thus, the preponderance of the evidence supports that Respondent was holding J.S. by the hand as she walked with him to the office and not by the “wrist area,” as surmised by Ms. Johnson. At frames 08:33:12 and 08:33:13, J.S. appears to briefly resist Respondent’s efforts to take him to the office by trying to remove his hand from Respondent’s hand as they walked side-by-side. Despite his resistance, Respondent was not “pulling/dragging” J.S. during those frames. At frames 08:33:18 and 08:33:19, J.S. appears to briefly pull away from Respondent. The action was that of J.S., not of Respondent. Respondent did not release J.S., but neither did she pull or drag J.S. The action at frames 08:33:18 and 08:33:19 is entirely consistent with that described by Ms. Kasten when giving the account of her earlier walk to the office with J.S. -- which did not involve a CPI hold -- when J.S. “was pulling a little bit” to try and get away. Despite J.S.’s efforts to pull away in both instances, neither Respondent nor Ms. Kasten was “pulling/dragging” J.S. during their walks to the office. For the remainder of the walk to the office, Respondent and J.S. walked side-by-side at a consistent pace. The evidence suggests that J.S. was vocal in his reluctance to be taken to the office, consistent with the description of his verbal resistance when being taken from the classroom as described by Ms. Tyree. The verbal resistance apparently continued, as evidenced by the reaction of the boy using the walker, who comes into the picture at frame 08:33:22. However, J.S.’s verbal protestations did not involve pulling or dragging and do not form the basis of a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. Respondent’s actions, though firm, did not appear to be aggressive. They were consistent with the description offered by Ms. Tyree, who testified that, as to the Respondent’s walk through her classroom, “there wasn't an altercation of, like, dragging or, you know -- it wasn't -- she was walking, he was walking. But he wasn't happy, you could tell that he didn't want to.” As Respondent entered the office with J.S., Ms. Kasten, the elementary assistant, was in the office, though on the other side of the office. Respondent approached the office with J.S. The door to the office opens out. It occasionally slams, and Ms. Kasten has seen it slam on students. In order to ensure J.S.’s safety, Respondent placed both of her hands on his arms to move him through the door and into the office. Respondent yelled for Ms. Kasten to “take him.” Ms. Kasten observed that Respondent was trying to get J.S. into the doorway to someone who could help. Although Respondent’s calls for Ms. Kasten to take J.S. were loud, her tone of voice was not pled as a basis for Respondent’s termination. Upon their entry into the office, Ms. Kasten went over to Respondent and J.S. J.S. stopped resisting once he saw Ms. Kasten. There was no evidence that J.S. was physically harmed in any way, i.e., there were no bruises, scratches, or marks of any kind. Respondent indicated to Ms. Kasten that J.S. had come to class very angry and was physically fighting with his female cousin. Ms. Kasten’s contemporaneous statement of the incident indicated that J.S. was “very upset that he had a fight with his sister.”3/ There was no suggestion that J.S. was upset about his walk to the office with Respondent. Ms. Kasten took J.S. off to the side and talked with him. After J.S. calmed down, Ms. Kasten advised Respondent that she would handle the situation from there, and Respondent left the office. J.S. was ultimately kept in the in-school suspension room for an hour or two. Ms. Kasten reported the incident to Ms. Johnson, who was not in her office or out front and did not witness the event. Shortly thereafter, in a conversation regarding other matters, Ms. Johnson reported to Ms. Martin at the District office that Respondent “brought a student in yelling and dragging.” Ms. Johnson was instructed to immediately remove Respondent from student contact. Ms. Johnson called to Respondent’s classroom and left a message with Respondent that she needed to speak with her. The following day, a meeting was convened to discuss the incident. Present at the meeting were Ms. Johnson, Respondent, and Respondent’s union representative. The confidential secretary to the school principal, Mr. Deen, was also in attendance to take minutes of the meeting. During her February 5, 2015, interview regarding the incident, Respondent indicated that “I was keeping him safe. I was holding his hand at first and he was okay. Then he started pulling away from me and I wanted to make sure he didn't hurt himself.” Her statement is consistent with the video. During the meeting, Respondent remained adamant that she had called Ms. Kasten and received the instruction to bring J.S. to the office. In conjunction with the investigation of the incident by Petitioner, Ms. Johnson reported the incident to the Department of Children and Families. The School Board received nothing from the Department of Children and Families to suggest that it found wrongdoing on the part of Respondent. Ms. Johnson believed, based on the information conveyed to her, that there was no reason for Respondent to remove the disruptive student from the classroom and that such action did not follow the protocol for the school for the removal of an unruly student. The alleged breach of protocol involved in taking the child to the office was not pled as a basis for Respondent’s termination. On February 18, 2015, Respondent was advised of the opportunity for a pre-determination meeting to be held the following week. Respondent took advantage of the opportunity. The pre-determination meeting was held on February 25, 2015. In attendance were Respondent, Ms. Martin, labor counsel Tom Gonzales, Ms. Johnson, and Joann Hartage, who appeared to be representing Respondent. Ms. Martin’s secretary, Sherrie Kudla, was also in attendance to take minutes of the meeting. During the pre-determination meeting, Respondent gave her account of the incident and was questioned, primarily by Ms. Martin. In addition to questions regarding the walk to the office, Ms. Martin asked about interviews of Respondent’s students undertaken by Ms. Johnson, which Ms. Martin found to be “very concerning.” Among the issues raised by Ms. Martin was “their perception [] that you yell and get aggravated with students and that you’re mean to [J.S.].” Although Respondent stated that she had read the statements, she was not involved in the interviews, and had no opportunity to ascertain the accuracy of the statements. More to the point, whether Respondent yelled or was a mean teacher was not pled as a basis for Respondent’s termination. At the conclusion of the pre-determination meeting, Ms. Martin conferred with the school superintendent, and the decision was made to recommend to the School Board that Respondent be terminated from employment. By letter dated March 9, 2015, Respondent was advised that, as a result of her “pulling/dragging a student to the front office,” the District determined that she had violated rules 6A-10.080(2) and (3), rules 6A-10.81(3)(a) and (3)(e), and the School Board Policy/Staff Handbook; that she was suspended with pay; and that she had the right to appeal the recommendation of termination. On March 23, 2015, Respondent appealed the recommendation of termination. By letter dated March 24, 2015, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective April 22, 2015, and referral of her appeal to the Division of Administrative Hearings. At the April 21, 2015, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. Ultimate Findings of Fact Based upon the facts as set forth herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent engaged in an incident of “pulling/dragging a student to the front office.” The preponderance of the evidence supports a finding that Respondent walked J.S. to the office and, despite J.S.’s verbal protestations and brief efforts to resist, did so in a safe and effective manner. Any “pulling” was brief and on the part of J.S., not on the part of Respondent. There was no “dragging.” The preponderance of the evidence demonstrates that a teacher’s act of walking an unruly or disruptive student to the office is not, in and of itself, a violation of any applicable procedure or standard and has not been determined to be so in the past. The preponderance of the evidence demonstrates that there is nothing inherently inappropriate or improper with a teacher taking a student by the hand and walking with the student. Issues of whether Respondent received telephonic approval to take J.S. to the office, should have left Ms. Tyree to watch her class, spoke to Ms. Kasten in a loud voice, or was loud or mean with her students were not pled as bases for Respondent’s termination, and, thus, cannot form the basis for any disciplinary sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order: dismissing the March 9, 2015, notice of recommendation of termination; reinstating Respondent to a position equivalent to that previously held with the Hernando County School Board; and to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes back pay as a remedy for Respondent’s wrongful termination/suspension without pay, Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S GARY EARLY 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 25th day of August, 2015.
The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 for Petitioner to suspend Respondent from his employment as a teacher for ten days without pay in Case No. 19-3380; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to terminate Respondent's employment as a teacher in Case No. 19-3381.
Findings Of Fact The Parties Petitioner is the entity charged with operating, controlling, and supervising all district public schools in Broward County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.33. Respondent is employed by the District as a mathematics teacher at Miramar High School ("MHS") pursuant to a professional services contract issued in accordance with section 1012.33(3)(a). He holds a professional educator's certificate in mathematics for 6th through 12th grades. Respondent was employed by the District in 2007, and has been a teacher at MHS since the 2007-2008 school year, with the exception of most of the 2015-2016 school year, during which he was administratively reassigned with pay pending the outcome of a personnel investigation. He returned to teaching at MHS for the 2016-2017 school year, and was a teacher at MHS during the 2018-2019 school year, when the conduct giving rise to these proceedings is alleged to have occurred. The Administrative Complaints February Administrative Complaint The February Administrative Complaint, which gives rise to Case No. 19-3380, alleges that during the 2017-2018 school year and the first semester of the 2018-2019 school year, Respondent engaged in conduct that violated specified statutes, DOE rules, and School Board policies. Pursuant to the February Administrative Complaint, Petitioner seeks to suspend Respondent from his employment as a teacher for ten days without pay. Specifically, the February Administrative Complaint alleges that after previously having been disciplined for making racially insensitive and inappropriate comments to students, Respondent continued to use embarrassing or disparaging language toward students. As a result, a cease and desist letter was issued to Respondent on or about March 23, 2017, directing him to cease engaging in such conduct. The Administrative Complaint alleges that Respondent continued to use racially insensitive, embarrassing, and disparaging language toward students—specifically, that he referred to an African-American male student as "boy." The February Administrative Complaint also alleges that Respondent threatened to remove students who talked from his class; graded students based on their behavior, rather than their work product; and failed to grade student work in a timely manner. As a result of this alleged conduct, Respondent received a meeting summary memorandum on or about December 7, 2017. The February Administrative Complaint alleges that Respondent still failed to contact the parents of students who were failing and engaged in unfair grading practices, resulting in issuance of another meeting summary memorandum to him on or about April 27, 2018. The February Administrative Complaint alleges that in the first semester of the 2018-2019 school year, during a Code Red Drill, Respondent is alleged to have engaged in racially insensitive conduct by disparately disciplining African-American students for engaging in the same type of conduct in which white and Hispanic students engaged, without any disciplinary consequences. The Administrative Complaint also alleges that during the Code Red Drill, Respondent was so disengaged from his students that he did not know one of his student's name and, consequently, wrote a disciplinary referral for the wrong student. The February Administrative Complaint alleges that Respondent engaged in conduct demeaning to students. Specifically, it is alleged that Respondent did not respond to student questions regarding how to do problems; embarrassed a student by saying he did not understand fifth grade math; and wrote "1 + 1" on the board to mock students in his class. He also allegedly reduced a student's class participation grade for talking. The February Administrative Complaint alleges that Respondent spoke to a "black girl who is Jamaican in Creole because he assumes she is Haitian." The February Administrative Complaint alleges that Respondent embarrassed and degraded a student by saying he did not understand the classwork "because it's not fifth grade math." The February Administrative Complaint also alleges that Respondent demeaned students by saying "'slick stuff,' such as 'math is simple and we are used to [second] or [fifth] grade math.'" The February Administrative Complaint alleges that Respondent lowered the grade of a student for talking, and told her that she and several other students were "on his 'watch list'" of students who would have their grades lowered for talking. The February Administrative Complaint further alleges that when that student asked about Respondent's grading practices, he responded "you ask too much questions," causing the whole class to laugh. The February Administrative Complaint alleges that on or about October 10, 2018, during the administration of the Preliminary Scholastic Aptitude Test ("PSAT"), Respondent did not follow proper testing protocol. Specifically, it is alleged that Respondent did not pick up the testing materials on time, started the test late, and did not read all of the directions to the students. It is also alleged that he did not collect book bags and cell phones and place them at the front of the room, and that a cell phone rang during the test. Additionally, he is alleged to have allowed students to talk loudly during the test. The February Administrative Complaint alleges that Respondent took points off of a student's grade for talking. The February Administrative Complaint alleges that Respondent refused to allow students who had missed class due to a band trip to make up their class work. The February Administrative Complaint alleges that Respondent made demeaning comments about students' writing; used the word "horrible" to describe their work, which made them feel "dumb or stupid"; was "disrespectful and sarcastic"; and deducted students' class participation points for talking or asking for a pencil or paper. The February Administrative Complaint alleges that Respondent talked to students in a demeaning manner about being "slow" and told students he thought the Chinese were smarter than Americans. May Administrative Complaint The May Administrative Complaint, which gives rise to Case No. 19-3381, alleges that in the second semester of the 2018-2019 school year, Respondent continued to engage in conduct that violated specified statutes, DOE rules, and School Board policies. Specifically, the May Administrative Complaint alleges that in February 2019, Respondent threatened to put tape over students' mouths for talking; disparaged students through racially insensitive treatment and comments; and made insulting and offensive comments to students regarding their mental health and ethnicity. The May Administrative Complaint also alleges that Respondent wrote a "red list" of students' names on the board who were disruptive or talking and continued to engage in inappropriate grading practices, such as lowering students' grades as a means of discipline for behavior issues. The May Administrative Complaint also alleges that Respondent continued his practices of not contacting parents of failing students; not writing referrals to deal with disciplinary matters; and failing to create a discipline plan for dealing with behavior issues in his classroom, as directed. In addition, the May Administrative Complaint alleges that Respondent claimed that during the past four years, Respondent's students were manipulated by an assistant principal, Ms. Hoff, to write false statements against him, notwithstanding that Hoff had not been employed at MHS for the previous two years. Pursuant to the May Administrative Complaint, Petitioner seeks to terminate Respondent's employment as a teacher. Stipulated Facts Regarding Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of disciplinary corrective actions while employed as a teacher with the District.8 On or about February 13, 2013, Respondent received a verbal reprimand for failing to meet the performance standards required of his 8 Petitioner's Corrective Action Policy, Policy 4.9, section I(b), states: The types of corrective action may include, but are not limited to the following employment actions: verbal reprimands, written reprimands, suspension without pay, demotion, or termination of employment. There are other types of actions to encourage and support the improvement of employee performance, conduct or attendance that are not considered disciplinary in nature. These actions may include, but are not limited to: coaching, counseling, meeting summaries, and additional training. Policy 4.9, Corrective Action. Respondent cannot be subjected to discipline in these proceedings for previous violations of statutes, rules, or policies for which he has already been disciplined. See Dep't of Bus. & Prof'l Reg., Case No. 11-4156 (Fla. DOAH Dec. 19, 2011; Fla. DBPR Oct. 2, 2012)(multiple administrative punishments cannot be imposed for a particular incident of misconduct). However, under Policy 4.9, section III, the history of disciplinary corrective actions is relevant to determining the appropriate penalty, if any, to be imposed in these proceedings, and history of disciplinary and non-disciplinary corrective actions is relevant to determining whether Respondent subsequently engaged in conduct constituting gross insubordination, as charged in these proceedings. position, by failing to follow School Board policy and procedures and engaging in unprofessional conduct. On or about May 30, 2013, Respondent received a written reprimand for not following proper procedures, and being insubordinate by failing to follow such procedures after numerous directives. Specifically, he failed to contact the parents of students who had been habitually truant or were failing his class; arrived late to work several times; lied about parking in the student parking lot; and left students unsupervised on multiple occasions. On November 8, 2016, Respondent received a verbal reprimand for not providing accommodations to his exceptional student education ("ESE") students; not taking attendance; not grading students’ work or grading students’ work inaccurately; and failing to provide feedback to students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. This five-day suspension resulted from a personnel investigation by the District police department into allegations that Respondent made racist and racially insensitive remarks to students. The request for the investigation was made on or about October 16, 2015. Respondent was administratively reassigned out of the classroom on November 6, 2015, and was not released from administrative reassignment until August 15, 2016. Respondent originally challenged the five-day suspension in Case No. 17-1179TTS, but later withdrew his challenge, and the case was closed on May 19, 2017. The Commissioner of Education ("COE") also filed an administrative complaint with the Education Practices Commission, based on Respondent making racially, ethnically, and/or socioeconomically-driven disparaging comments toward students. Respondent entered into a settlement agreement with the COE under which he received a written reprimand; was fined and placed on probation for one year; and was assessed costs for monitoring his probation. The written reprimand was placed in his District personnel file. On or about October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; grading inaccuracies; refusing to accept work; grading student behavior rather than student work product; failing to contact parents; failing to follow a discipline plan; failing to grade student work in a timely manner; entering incorrect grades; failing to provide ESE accommodations to students entitled to receive such accommodations; and making disparaging remarks about colleagues. This letter of reprimand resulted from a personnel investigation conducted by the District police department regarding numerous allegations against Respondent. These allegations included, but were not limited to, unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; lowering grades based on behavior; failing to contact parents; grading and attendance inaccuracies; providing fake lesson plans to his assistant principal; and making remarks to a student that a fellow math teacher did not know what she was doing. The request for the investigation was made on or about November 21, 2016. Respondent did not challenge the letter of reprimand. Stipulated Facts Regarding Non-Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of non-disciplinary corrective actions while he was employed as a teacher with the District. On or about July 16, 2011, Respondent received a concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures, and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 20, 2011, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 31, 2012, Respondent received another concerns and expectations memorandum for failing to follow the District’s grading system. On or about January 7, 2013, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records of students and failing to follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his class; and making students feel disparaged or embarrassed. He was directed to ensure that students understand his grading criteria for classwork and homework; use strategies to help students with new knowledge; use strategies to help students practice and deepen the new knowledge in all lessons and activities; and not intentionally expose students to unnecessary embarrassment or disparagement. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students; failure to contact parents or write referrals for behavior issues; and concerns about his failure to provide daily remediation. Respondent was advised that he was expected to create and maintain a positive and pleasant learning environment in the classroom; use effective instructional strategies and feedback techniques that do not embarrass students; create and follow a discipline plan for his classroom; contact parents when students are failing; write referrals for referable acts; and remediate and teach students daily. Respondent was informed that his failure to correct these issues may result in disciplinary action. On or about March 23, 2017, Respondent was issued a cease and desist letter for his continued use of embarrassing and disparaging language toward students. On or about December 7, 2017, Respondent received a meeting summary for his use of embarrassing and condescending language towards the students, by referring to an African-American male student as "boy"; threatening to remove students from his class if they misbehaved during a formal observation; grading students on their behavior rather than their work product; and failing to grade student work in a timely manner. He was directed to refrain from using condescending language that makes students feel inferior in math; learn his students’ names and refer to them by name; create and follow a discipline plan for his classroom without removing students unless they have completely disrupted the teaching and learning process in the classroom; enter grades in a timely manner and refrain from deducting participation points from students' grades for talking; and contact parents and write referrals for student misbehavior. On or about April 27, 2018, Respondent received a meeting summary memorandum for failing to contact parents of students who had D's or F's in his classes, and for keeping inaccurate grades. Findings of Fact Based on Evidence Adduced at Final Hearing Based on the preponderance of the competent substantial evidence; the following Findings of Fact are made regarding the conduct charged in the February Administrative Complaint and the May Administrative Complaint. February Administrative Complaint The February Administrative Complaint charges Respondent with having engaged in conduct during the first semester of the 2018-2019 school year that is alleged to violate statutes, DOE rules, and School Board policies. By way of background, Tevin Fuller and Julian Cardenty were students in Respondent's financial algebra class in the 2017-2018 school year. Both credibly testified that during a class in the 2017-2018 school year, Respondent called Fuller, who is African-American, "boy" and "bad boy." Both Fuller and Cardenty were offended by Respondent's use of the word "boy" in referring to Fuller, and considered it a racially demeaning remark. They reported Respondent's conduct to Assistant Principal J.P. Murray. Fuller credibly testified that as a result of Respondent's disrespectful conduct toward him, he avoided attending Respondent's class. As discussed above, in December 2017, as a result, Respondent previously had been issued a summary memorandum—a non-disciplinary corrective action—which instructed him to, among other things, cease using racially demeaning terms toward African-American students, and cease using condescending language that made students feel inferior regarding their mathematical ability. The credible, consistent evidence establishes that during the first semester of the 2018-2019 school year, Respondent continued to make racially insensitive and demeaning comments, and engage in conduct directed toward students in his classes that they found embarrassing and offensive. Specifically, several students testified, credibly, that on one occasion during the 2018-2019 school year, after Respondent gave an unannounced quiz to his financial algebra class, he stated that he would not grade the quiz papers because he could "see the F's on their foreheads," or words to that effect. The credible evidence establishes that the students considered this remark as demeaning to their ability and intelligence, and they were offended. This testimony corroborated several written statements, admitted into evidence, which were provided by students at or about the time this incident took place. Two students, Malik Cooper and Nyesha Dixon, credibly testified that they witnessed Respondent belittle and mock a student, Jordan Lee, when he asked for assistance on a class assignment in Respondent's financial algebra class. Specifically, they saw and heard Respondent comment to Lee that he (Lee) did not understand the lesson because he could "only understand fifth grade math," or words to that effect. Dixon and Cooper both credibly testified that the whole class laughed at Respondent's comment to Lee. Dixon testified, credibly, that Lee appeared shocked and embarrassed by Respondent's comment. Although Petitioner did not present Lee's testimony at the final hearing, Lee provided a written statement that was admitted into evidence, describing this incident. An email from Lee's mother to Murray regarding this incident corroborates Dixon's and Cooper's testimony and Lee's reaction to Respondent's insulting comment to him. Two students, Breanna Dwyer and Malik Cooper, credibly testified that on one occasion, Respondent told his students that the Chinese were smarter and learned faster than Americans, a comment that the students interpreted as belittling their intelligence. Two students, Dorcas Alao and Nyesha Dixon, testified, credibly, to the effect that Respondent singled out Haitian students and made remarks to them, which those students found offensive. Specifically, they testified that Respondent would attempt to speak to Haitian students in Creole, that the students told him they found his behavior offensive, and that Respondent would "just laugh." Several students credibly testified, in more general terms, that Respondent frequently spoke down to them, treated them in a condescending manner, made rude remarks to them, and was disrespectful toward them, and that his conduct and remarks were insulting and made them feel as if they were ignorant and unintelligent. Additionally, one student, Whitney Malcolm, testified, credibly, that in response to her asking a question about a syntax error on a calculator, Respondent yelled at her loudly enough for the entire class to hear. Malcolm testified, credibly, that she was embarrassed by the incident. The credible evidence establishes that Respondent continued to lower students' academic course grades as a means of addressing behavioral issues, notwithstanding that he had been issued a meeting summary on April 27, 2018, directing him not to do so. Specifically, several students testified, credibly, that Respondent kept a "watch list" of students for whom he deducted points off their academic course grade for behavioral issues, such as talking in class. Murray credibly testified, and the MHS Faculty Handbook for the 2018-2019 school year expressly states, that student misbehavior cannot be reflected in the academic course grade, and, instead, is to be addressed in the conduct grade. Murray testified that he counseled Respondent numerous times on this issue and directed him to cease deducting points from students' academic course grades for behavior issues. The evidence regarding Respondent's history of disciplinary and non-disciplinary corrective actions bears out that he repeatedly has been directed not to lower students' academic course grades as a means of dealing with classroom behavioral issues. The competent substantial evidence also establishes that Respondent did not follow proper testing protocol when administering the PSAT to his homeroom students on October 10, 2018. Specifically, notwithstanding that all teachers, including Respondent, who were administering the PSAT had been given training and provided written instructions regarding picking up the exams, reading the instructions to the students, and administering the exams, Respondent did not timely pick up the exams on the day it was administered. The exams for his homeroom students had to be delivered to the room in which he was to administer the exam, and as a consequence, he was late starting the exam administration. The credible evidence establishes that Respondent instructed the students to turn off their cell phones, place them in their book bags, and put their book bags away. However, he did not collect students' book bags or require students to place their book bags at the front of the room, as expressly required by the exam proctor reminders document and the PSAT/NMBQT Coordinator Manual, both of which previously had been provided to the teachers, including Respondent, who were administering the PSAT. As a result of Respondent's failure to follow exam protocol, the students kept their book bags next to, or under, their desks, in violation of that protocol. A cell phone rang during one of the testing sessions. The persuasive evidence establishes that Respondent had instructed students to silence their cell phones and put them away; thus, the cell phone ringing during a testing session was the result of a student failing to follow instructions, rather than Respondent failing to provide such instructions. Two teachers, Tamekia Thompson and Richard Cohen, went to Respondent's classroom at different times on the day the PSAT was administered, to tell the students in his classroom to be quiet. Amaya Mason, a student in Respondent's homeroom class who took the PSAT that day, complained in a written statement, and subsequently testified, that students were talking during the testing sessions, while the students were in the process of taking the exam. Other students who took the PSAT in Respondent's homeroom class that day testified that students did not talk during the testing sessions, but that they did talk loudly during breaks between the testing sessions. Thus, the evidence does not definitively establish that students were talking during the testing sessions themselves. As a result of these testing protocol irregularities, Alicia Carl, the Student Assessment Specialist at MHS, contacted the College Board regarding the testing conditions in Respondent's classroom. Ultimately, the students' exam scores were not invalidated. The February Administrative Complaint alleges that Respondent refused to allow two students, Dejah Jeancharles and Asia Parker, to make up classwork they had missed, notwithstanding that they had excused absences due to a band trip. However, the credible evidence established that Respondent ultimately did allow the students to make up the missed work. The February Administrative Complaint charges Respondent with disciplining African-American students during a Code Red Drill conducted on or about September 6, 2018, while not subjecting white and Hispanic students to discipline for engaging in the same conduct during the Code Red Drill. The students' testimony regarding whether Respondent engaged in this conduct was conflicting, and the greater weight of the competent, credible evidence fails to establish that Respondent engaged in this behavior. The February Administrative Complaint alleges that on or about April 27, 2018, Respondent was issued a meeting summary for failing to contact parents of failing students and engaging in unfair grading practices. Murray testified, and Petitioner presented excerpts of Respondent's grade book showing, that as of March 6, 2018, approximately 75 percent of Respondent's students were earning either D's or F's in Respondent's classes. Murray testified that MHS has a policy, stated in the 2018-2019 Faculty Handbook, that teachers "shouldn't have that many D's or F's."9 Murray testified, and Petitioner presented evidence consisting of an email from Murray to MHS Human Relations Specialist Nicole Voliton, stating that he (Murray) had spoken to parents, who told him that Respondent had not contacted them regarding their children's failing grades. Murray also testified that Respondent acknowledged to him that he had not 9 However, the February Administrative Complaint does not specifically charge Respondent with conduct related to the amount of D's and F's his students earned. Additionally, as discussed below, the Faculty Handbook policy does not establish a mandatory compliance standard regarding the amount of D's and F's given students on which disciplinary action can be based. contacted the parents of all students who were failing his courses. Murray's email and his testimony regarding parents' statements made to him constitute hearsay evidence that has not been shown to fall within an exception to the hearsay rule in section 90.802, Florida Statutes, and is not substantiated by any competent substantial evidence in the record; accordingly, the undersigned cannot assign weight to this evidence.10 May Administrative Complaint The May Administrative Complaint charges Respondent with having engaged in conduct in the second semester of the 2018-2019 school year that is alleged to violate DOE rules and Petitioner's policies. The credible evidence establishes that Respondent continued to engage in conduct, directed toward his students, that was demeaning and racially insensitive. Specifically, several students submitted written statements that in February 2019, Respondent threatened to tape students' mouths shut because they were talking in class. Students Dorcas Alao, Breanna Henry, and Darius Gaskin credibly testified about this incident, confirming that Respondent had engaged in such conduct toward students in his class. Alao, who is of Nigerian heritage, testified, credibly, that Respondent remarked to her that if she couldn't understand something in English, he would "say it in Yoruba," or words to that effect. She also testified, credibly, that Respondent told her that she had "mental issues." She was offended by Respondent's comments and reported the incidents to Murray. The credible evidence also establishes that Respondent continued to deduct points from students' academic course grades for behavioral issues, such as talking in class. 10 § 120.57(1)(c), Fla. Stat. (hearsay evidence may be used for the purpose of supplementing or explaining other evidence but is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The burden of establishing that hearsay evidence falls within an exception to the hearsay rules in sections 90.803 and 90.804 is on the proponent of the hearsay. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)(evidentiary proponent has burden to establish predicate for exception to hearsay rule). To this point, Alao and Henry credibly testified that Respondent deducted points from their academic course grades for talking in class. Murray corroborated this testimony, credibly testifying that he examined Respondent's grade book and confirmed that Respondent had deducted points from their grades. As a result, Henry's class grade dropped a letter grade, from an "A" to a "B." Several students also testified, credibly and consistently, that Respondent did not timely grade their classwork or homework papers, so they were unable to determine what their grades were, even when they accessed the Pinnacle electronic gradebook. The 2018-2019 Faculty Handbook for MHS expressly requires that grades be posted within 48 hours of collecting the assignment/test. Respondent has repeatedly been directed to timely and accurately grade classwork and homework, and to record the grades in Pinnacle so that students and parents can be apprised of student progress in the course. The disciplinary and non-disciplinary corrective actions to which Respondent previously has been subject bear this out. Murray testified, credibly, that in the second semester of the 2018-2019 school year, Respondent still did not timely or accurately grade classwork, homework, or tests, as required by the Faculty Handbook, and as previously directed through disciplinary and non-disciplinary corrective actions, discussed above. The May Administrative Complaint also alleges that Respondent made claims that former assistant principal Cornelia Hoff had manipulated students, during the previous four years, to write false statements about him. Murray testified, credibly, that Respondent did, in fact, make such claims. There was no evidence presented to substantiate any of Respondent's claims against Hoff, and the competent substantial evidence establishes that Hoff had not been employed at MHS for over two years at the time Respondent made such claims. The May Administrative Complaint also charges Respondent with failing to contact parents, write disciplinary referrals, and create a discipline plan for student behavior issues in his classroom, as previously directed. However, Petitioner failed to present any competent substantial evidence to substantiate the allegation that Respondent engaged in this specific conduct during the second semester of the 2018-2019 school year, which is the period covered by the May Administrative Complaint.11 Thus, Petitioner did not demonstrate that Respondent engaged in this conduct during the timeframe covered by the May Administrative Complaint. Witness Credibility Respondent contends, on the basis of inconsistencies between student witness's testimony and written statements regarding various details of Respondent's alleged conduct and surrounding circumstances, that these witnesses were not credible, so that their testimony should not be afforded weight in these proceedings. The undersigned rejects this contention. Although the students' accounts of Respondent's conduct and surrounding circumstances were not uniformly consistent, the inconsistencies concerned minor or collateral details, which the undersigned ascribes to the fact that the students were testifying about incidents that occurred as much as two years earlier. The undersigned found the student witnesses to be credible and persuasive. Crucial to this credibility determination is that the students' testimony was remarkably consistent with respect to whether Respondent 11 The evidence presented regarding this charge concerned conduct that is alleged to have occurred in the first semester of the 2018-2019 school year, which is not addressed in the May Administrative Complaint. Notably, the February Administrative Complaint, which addressed conduct that is alleged to have occurred in the 2017-2018 school year and the first semester of the 2018-2019 school year, did not charge Respondent with having engaged in such conduct. See Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint violates the Administrative Procedure Act). engaged in, and the significant circumstances pertaining to, the conduct at issue in these proceedings. Findings of Ultimate Fact Under Florida law, whether conduct charged in a disciplinary proceeding constitutes a deviation from a standard of conduct established by statute, rule, or policy is a question of fact to be determined by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether conduct alleged in an administrative complaint violates the statutes, rules, and policies cited as the basis for the proposed disciplinary action is a factual, rather than legal, determination. February Administrative Complaint Here, Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the February Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules, School Board policies, and Florida Statutes. Rule 6A-5.056(2) – Misconduct in Office As found above, Respondent made racially insensitive comments and comments that demeaned and belittled students in his classes. The evidence also established that Respondent yelled at students. As a result, many of his students felt disrespected, embarrassed, and offended. One student, Tevin Fuller, even went so far as to avoid going to Respondent's class in order to avoid Respondent's harassment and disrespectful treatment of him. Respondent's behavior toward his students constituted misconduct in office under Florida Administrative Code Rule 6A-5.056(2), because it disrupted the students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office, pursuant to rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes a teacher's professional obligations to students. Specifically, in making demeaning, racially insensitive, and embarrassing comments to students in his classes, he failed to make reasonable effort to protect his students from conditions harmful to their learning and mental health, in violation of rule 6A-10.081(2)(a)1. He also intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5., and harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and disrespectful comments toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because they violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and in engaging in disrespectful conduct toward his students, Respondent failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed above, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Additionally, as found above, Respondent did not follow established exam protocol when he failed to collect students' book bags and place them at the front of the room during administration of the PSAT to his homeroom class on October 10, 2018, as specified in the PSAT/NMSQT administration manual and mandated pursuant to section 1008.24(1)(f), Florida Statutes. Thus, Respondent failed to perform duties prescribed by law, which constitutes incompetency due to inefficiency under rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language toward students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, Respondent received a meeting summary for making racially insensitive comments to a male African-American student. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive, demeaning, and disrespectful comments to his students during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non- disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination under rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional12 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive and demeaning comments, and engaging in disrespectful conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing 12 "Intentional" is defined as "done with intention" or "on purpose." Dictionary.com, https://dictionary.com (last visited Apr. 21, 2021). The evidence establishes that Respondent's actions in this regard were done with intention or on purpose; there was no evidence presented from which it reasonably can be inferred that Respondent's actions in this regard were accidental. students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. Section 1008.24 – Test Administration and Security Based on the facts found above, it is determined that Respondent did not follow testing protocol when he failed to collect students' book bags before administering the PSAT on October 10, 2018. However, in order to violate section 1008.24, the failure to follow test administration directions must be done both "knowingly and willfully." Neither "knowingly" nor "willfully" are defined in chapter 1008. Where the legislature has not defined the words used in a statute, the language should be given its plain and ordinary meaning.13 The term "knowingly" is defined as "having knowledge or information"14 or "deliberate, conscious."15 The term "willfully" is defined as "deliberate, voluntary, or intentional."16 The evidence fails to establish that Respondent made the deliberate decision not to collect the book bags, notwithstanding the test manual and exam directions. From the evidence in the record, it is equally reasonable to infer17 that he either did not realize that he needed to collect the book bags, 13 Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009). It is appropriate to refer to dictionary definitions when construing a statute in order to ascertain the plain and ordinary meaning of words used in the statute. Id.; Barco v. School Bd. of Pinellas Cty., 975 So. 2d 1116, 1122 (Fla. 2008); see also Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000)(when necessary, the plain and ordinary meaning can be ascertained by reference to a dictionary). 14 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). 15 Black's Law Dictionary, Deluxe 7th ed., at p. 876. 16 See id. at p. 1593, describing "willful" or "willfully" as meaning "only intentionally or purposely as distinguished from accidentally or negligently." 17 See Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985)(it is the presiding officer's function to, among other things, draw permissible inferences from the evidence). or that he simply forgot to do so. The latter inference is particularly plausible, given that he was running late in beginning administration of the test. Thus, it is found that Respondent did not violate section 1008.24, as charged in the February Administrative Complaint. School Board Policy 4008 - Responsibilities and Duties (Principals and Instructional Personnel) As discussed above, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 6314 – Testing – Assessing Student Achievement School Board Policy 6314, the text of which is set forth in the Conclusions of Law, below, establishes a District-wide policy regarding annual achievement testing. The plain language of the policy states, in pertinent part, "[a] program of achievement testing shall be conducted annually . . . ," and "[t]esting within the Broward County School District should be conducted to . . . [p]rovide parents/guardians with a yearly individual student test report and interpretation for those students who have been tested." Policy 6314, at preamble, ¶ 2 (emphasis added). From this language, it is clear that Policy 6314 is specifically directed toward annual achievement testing, rather than routine classroom tests and quizzes. Further to this point, nowhere in Policy 6314 is there any language establishing a prohibition on giving unannounced class quizzes, or deciding not to count quiz grades in a class. Additionally, although the February Administrative Complaint cites Policy 6314 as a basis for imposing discipline, the policy does not establish any specific standards of conduct to which instructional personnel must adhere, or which can constitute the basis of disciplinary action for lack of compliance. Petitioner's Proposed Recommended Order cites Policy 6314 as a basis for imposing discipline on Respondent for having given an unannounced quiz in his class on material that he allegedly had not yet taught his class, and then deciding not to grade the quiz "because he could 'read the F's on their foreheads.'" However, as discussed above, the language of Policy 6314 makes clear that it does not apply to routine class tests and quizzes. Additionally, the February Administrative Complaint does not specifically charge Respondent with having engaged in any of this conduct. As discussed herein, Respondent cannot be disciplined for conduct which was not specifically charged in the Administrative Complaint.18 Therefore, even though credible testimony and other evidence was provided showing that Respondent engaged in this conduct, that evidence is relevant only with respect to whether Respondent made demeaning comments to his students. That conduct was charged in the February Administrative Complaint, and, as discussed herein, has been considered in determining that Respondent engaged in conduct constituting misconduct in office, pursuant to rule 6A-5.056(2). School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be 18 Cottrill, 685 So. 2d at 1372 (Fla. 1st DCA 1996). See note 11, supra. violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct established in statutes, DOE rules, and School Board policies. In this case, Respondent has been charged with "Category B" offenses under Policy 4.9. Section III of Policy 4.9, titled "Other Considerations," sets forth a non-exhaustive list of circumstances that may be considered in determining the appropriate penalty for Category B offenses. The racially insensitive and demeaning comments that Respondent repeatedly made to his students, over a substantial period of time in his employment with Petitioner, constitute a severe offense. The evidence establishes that Respondent's comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher—to the point that one student avoided going to class in order to avoid Respondent's racially insensitive and disrespectful conduct toward him. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct, negative impacts on his students. Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He previously has received two verbal reprimands, two written reprimands, and a five-day suspension without pay. Additionally, he has received numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, he has received approximately 14 corrective actions, five of which were disciplinary, between July 2011 and November 2018. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the February Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined or issued non- disciplinary corrective actions. The competent, credible evidence shows that these corrective actions have had little, if any, deterrent effect on Respondent's conduct. Based on the foregoing Findings of Fact, it is determined that Respondent should receive a ten-day suspension without pay in Case No. 19-3380, for having engaged in conduct that was charged in the February Administrative Complaint and proved by a preponderance of the competent substantial evidence. May Administrative Complaint Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the May Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules and School Board policies. Rule 6A-5.056(2) – Misconduct in Office As found above, in the second semester of the 2018-1019 school year, Respondent continued to make racially insensitive and disparaging comments, and engage in demeaning and disrespectful conduct, directed toward his students. Specifically, he directed racially insensitive comments toward an African-American student, Dorcas Alao, regarding her language and ethnicity. As discussed above, Alao found Respondent's conduct offensive. Respondent's conduct in this regard constituted misconduct in office, pursuant to rule 6A-5.056(2). Specifically, it disrupted his students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office under rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes his professional obligations to students. Specifically, in making racially insensitive and demeaning comments, he failed to make reasonable effort to protect his students from conditions harmful to their learning and to their mental health, in violation of rule 6A- 10.081(2)(a)1.; he intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5.; and he harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and demeaning comments and disrespectful conduct toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because it violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Respondent's conduct in making unsubstantiated accusations against former assistant principal Hoff constituted misconduct in office because it violated rule 6A-10.081(2)(c)5., which establishes the professional standard that an educator shall not make malicious or intentionally false statements about a colleague. Although the evidence does not establish that Respondent's accusations about Hoff were malicious—i.e., characterized by, or showing malice, intentionally harmful, or spiteful19—it is reasonable to infer that they were intentionally false, given that Hoff had not been employed at MHS for over two years when Respondent made those accusations, and that Murray had succeeded Hoff as Respondent's supervisor. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and engaging in disrespectful conduct, toward his students, Respondent also failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency as a result of inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed herein, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the School Board’s professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, 19 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). Respondent received a meeting summary for making racially insensitive comments to a male African-American student. Additionally, as discussed herein, the undersigned recommends that Respondent be suspended without pay for ten days in Case No. 19-3380, for continuing to engage in such conduct during the timeframe covered by the February Administrative Complaint. This ten-day suspension constitutes yet another disciplinary corrective action against Respondent for continuing to engage in conduct about which he repeatedly has been admonished, and has been directed to cease. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive and demeaning comments and engage in disrespectful conduct toward his students during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional20 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive, demeaning, and disrespectful comments and conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. School Board Policy 4008 – Responsibilities and Duties (Principals and Instructional Personnel) As discussed herein, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As previously discussed and further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct. The racially insensitive and demeaning comments that Respondent made to his students, repeatedly, over a substantial period of his employment with Petitioner, constitute a severe offense. The evidence establishes that his comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct and negative impacts on his students. As discussed above, Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He has previously received two verbal reprimands, two written reprimands, and a 20 See note 12, supra. five-day suspension without pay. Additionally, in Case No. 19-3380, the undersigned has recommended that Respondent be suspended for ten days without pay for engaging in conduct charged in that case. Respondent also has been subjected to numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, counting the ten-day suspension that has been recommended in Case No. 19-3380, Respondent has received approximately 15 corrective actions, six of which were disciplinary in nature, between July 2011 and March 2019. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the May Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined and issued non- disciplinary corrective actions. The evidence shows that these corrective actions have had essentially no deterrent effect on Respondent's conduct. The competent, credible evidence establishes that Petitioner has given Respondent numerous chances, through its corrective action policy, including the progressive discipline process, to change his conduct which violated, and continues to violate, DOE rules and School Board policies. The competent, credible evidence establishes that nonetheless, Respondent has continued, during the timeframe covered by the May Administrative Complaint, to engage in much of the same conduct which violates DOE rules and School Board policies, and for which he previously has received numerous disciplinary and non-disciplinary corrective actions. Petitioner has closely adhered to the progressive discipline provisions in Policy 4.9, meting out multiple verbal and written reprimands, interspersed with non-disciplinary corrective actions to Respondent, before resorting to suspending him from employment—first, for five days, then for ten days—for his persistent conduct which violated DOE rules and School Board policies. The purpose of Policy 4.9 is "to improve and/or change employees' job performance [and] conduct."21 Despite giving Respondent numerous opportunities, through disciplinary and non-disciplinary corrective actions, to change his conduct, Respondent has not done so. Given that Petitioner has closely followed the progressive discipline provisions of Policy 4.9, and the fact that Respondent has received numerous corrective actions over his period of employment with Petitioner—which have not resulted in him changing his conduct such that he does not engage in behavior which violates DOE rules and School Board policies—it is determined that, pursuant to Policy 4.9, Respondent should be terminated from his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a Final Order in Case No. 19-3380 suspending Respondent for ten days without pay, and enter a Final Order in Case No. 19-3381 terminating Respondent's employment as a teacher. DONE AND ENTERED this 5th of May, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2021. COPIES FURNISHED: Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Elizabeth W. Neiberger, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert W. Runcie Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent violated Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6(3)(e), Florida Administrative Code, and if so, what discipline should be imposed.
Findings Of Fact Respondent is licensed to teach emotionally handicapped children in the elementary schools of Florida. She holds Florida teaching certificate number 696889 which is valid through June 30, 1998. At all times material to this proceeding, Respondent was employed by the Volusia County School Board as a teacher of emotionally handicapped children in a self-contained classroom at New Smyrna Middle School. Prior to November 13, 1995, Respondent had no prior disciplinary history. The 1995-96 school year was Respondent's first year as a teacher at New Smyrna Middle School. Her previous teaching experience consisted of serving as a resource teacher. In that circumstance the students went to Respondent's class for a portion of the school day for instruction in certain academic areas. In August of 1995, Respondent requested a conference with the assistant principal, Sue Wolter. One of the items that Respondent wanted to discuss was the procedure she should follow in case a student had a weapon in the classroom. Ms. Wolter instructed Respondent that she should press the buzzer in the classroom three times. When the office staff receives this signal, they know there is a severe problem in the classroom. When a teacher presses the buzzer a light turns on beside the room number. Ms. Wolter also told Respondent that she could use the school intercom and say "Code 3" to alert the office about an emergency situation without letting the class know that she was calling for help. Lastly, Ms. Wolter advised Respondent to send her teaching assistant to the office for assistance. Respondent used these methods to summon help to her classroom on numerous occasions prior to the incident at issue here. In November of 1995, Respondent's class consisted of 12 sixth-grade students. The students' chronological ages varied from 11-to-14 years of age. Respondent's class consisted of students with "varying exceptionalities." Many of the students were dually diagnosed as having psychological and emotional disorders as well as mental retardation. The students' I.Q.'s were exceptionally low. Respondent's students were impulsive, volatile, and often exhibited poor judgment. They had difficulty at times distinguishing between right and wrong. Therefore, it was essential for Respondent to exercise appropriate classroom control at all times. Respondent had a difficult time maintaining discipline in the class. Students were frequently out of their seats or leaving the classroom without permission. Due to the chaotic classroom environment, several different teaching assistants were assigned to Respondent's classroom prior to November 13, 1995. On November 13, 1995, Ms. Linda Baker was Respondent's teaching assistant. Respondent and Ms. Baker did not have a successful working relationship. Ms. Baker felt that Respondent was a poor classroom disciplinarian. Ms. Baker also resented what she perceived as Respondent's condescending attitude. Respondent, on the other hand, resented Ms. Baker's admitted refusal to follow instructions which, at times, amounted to blatant insubordination. As a result of their communication problems, Respondent often wrote notes to Ms. Baker setting forth her classroom duties instead of speaking to her directly. Lavagus Brown, Michael Binder, and Klara Mills were students in Respondent's classroom on the morning of November 13, 1995. Klara Mills was the only girl in the class. As class began that morning, Lavagus Brown told Respondent that Klara had something in her bag that the teacher should know about. Next, Michael Binder told Respondent that Klara had a knife in her bag. Ms. Baker was sitting in the back of the room. She also heard from the children that Klara had a knife. Respondent wrote a note to Ms. Baker and took it to her in the back of the classroom. Respondent asked Ms. Baker to take the note to the office and get an administrator. Respondent did not reveal the contents of the note or explain to Ms. Baker why it was necessary for an administrator to come to the classroom immediately. Ms. Baker took the note and left the classroom. She returned later without an administrator. When questioned by Respondent, Ms. Baker told Respondent that she had delivered the note to the office. Respondent still did not discuss the seriousness of the situation with Ms. Baker. Respondent asked Klara to get her things together so that they could go to the office. Klara took her backpack purse and left the room with Respondent. She did not take her bookbag with her. Ms. Baker stayed in the classroom with the remaining students. She began taking the boys down the hall to the restroom. In order to get to the main office, Respondent and Klara had to walk out of one building, down the main walkway past a second building, and into the second entrance of a third building. Respondent did not attempt to retrieve Klara's backpack purse during the walk through the campus. When Respondent and Klara arrived at the office, Jasmine Gutierrez, a teacher's aide, was waiting in the outer office to see Ms. Wolter, who was in her office with the door partially closed. Cheryl Tucker, one of two secretaries, was also in the outer office. Ms. Tucker was busy answering the phone and writing passes for students. While she was waiting for Ms. Wolter, Ms. Jasmine Gutierrez helped Ms. Tucker write passes for students so they could go to class. Respondent and Klara stood in a corner of the office where they had an argument. Klara denied that she had a knife, claiming that she only had a toy in her bookbag, which was still in the classroom. Klara wanted to go back to the classroom. Respondent wanted Klara to give an object to Respondent or someone that Klara trusted. Respondent asked Ms. Tucker if Ms. Wolter was in the office. Ms. Tucker responded in the negative. Respondent then asked Ms. Tucker to watch Klara while she looked for an administrator. Respondent did not see anyone in Ms. Wolter's office through the partially opened door. Respondent walked toward the office workroom to check her mailbox. Klara was still in the office when Respondent walked back toward the office and around a corner to go to the clinic. Respondent thought that Ms. Wolter might be in the clinic helping the nurse. Unable to locate Ms. Wolter in the clinic, Respondent returned to the office. Ms. Tucker was no longer in the outer office. Ms. Debra Gutierrez, the main secretary, was at her desk next to the office door which was slowly closing. Klara was not in the office. Learning that Klara had returned to class, Respondent left the office without telling anyone in the office that Klara possibly had a knife in her possession. Respondent caught up with Klara before she re-entered the classroom. Respondent told Klara to go to her desk and gather all of her things, including her backpack purse and bookbag, because they needed to return to the office. When Respondent entered the classroom, Ms. Baker was sitting at her place in the back of the room. Respondent immediately began to deal with a student who was in the time-out room, screaming and yelling. Respondent attempted to calm the student down. The time-out room is a small closet with a desk where students can go when they want to work undisturbed. Respondent also used the room for students who were behaving inappropriately and needed time to cool off before returning to class. At times, Respondent would put herself in the time-out room when she felt she was losing patience with the children. While Respondent was in the time-out room with the other student, Ms. Baker took Klara to the restroom. In the hallway, Ms. Baker asked Klara if she had a knife. Klara denied having a knife. As Ms. Baker and Klara entered the classroom, other students began asking Klara about her knife. Klara did not respond to their comments. When Ms. Baker and Klara came back into the classroom, Respondent was standing in the doorway of the time-out room with the door partially closed. From that vantage point, Respondent could talk to the student who was upset and watch Klara who was sitting at her desk. Ms. Baker sat at her place in the back of the room for a few minutes. Then she went to the office where she located Elaine Haskins and Lenny Carr, campus advisors, advising them that Klara possibly had a weapon in the classroom. Ms. Haskins used her walkie-talkie to advise Ms. Wolter that she and Mr. Carr were proceeding with Ms. Baker to Respondent's room because there was a problem. When Ms. Haskins, Mr. Carr, and Ms. Baker arrived at Respondent's classroom, Klara was working quietly at her desk. Ms. Haskins entered the room and told Klara to get all of her things and accompany her to the office. Mr. Carr and Ms. Baker stayed in the hall. At this time, Respondent was still in the time-out room with the other student. Ms. Haskins walked to the time-out room and knocked on the partially-open door. Ms. Haskins advised Respondent that she was taking Klara to the office. Respondent did not advise Ms. Haskins that Klara possibly had a knife. Mr. Carr escorted Ms. Haskins and Klara back to the office. On the way, Ms. Haskins radioed Ms. Wolter to tell her that they were taking Klara to the office. Ms. Haskins told Ms. Wolter that Klara possibly had a weapon in her bag. The school resource officer met the campus advisors and Klara in Ms. Wolter's office. Klara admitted to Ms. Wolter that she had a knife in her bookbag. As Klara emptied her bag on Ms. Wolter's desk, she took out a large hunting knife. The knife was approximately eight and three-quarter inches in length when the retractable blade was extended. The blade alone was four inches long. Subsequently, Ms. Haskins went back to Respondent's classroom to tell her that Klara would not be coming back to class. There is no persuasive evidence of the following admissions by Respondent: (a) to Ms. Haskins that she knew Klara had a knife and "just hadn't responded on that" and (b) to Ms. Baker that she (Respondent) was too busy to handle the situation with Klara and the knife. About one week after the incident involving Klara, Respondent and Ms. Baker had a major disagreement. Ms. Baker was removed as the teaching assistant in Respondent's classroom. Respondent knew from the beginning that she had a potentially dangerous situation in her classroom. The potential for violence created an extremely unsafe environment for all the children involved, including Klara. The Volusia County School District's Student Code of Conduct states that possession of a weapon is a major offense which requires a recommendation of expulsion. Pending a decision on expulsion, a student will be suspended and lose all extracurricular privileges. Respondent was familiar with the Student Code of Conduct. However, the Volusia County School District has no written policy explaining the proper procedure a teacher should follow in searching a student when confronted with actual knowledge or a reasonable suspicion that the student has possession of a concealed weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Petitioner's teaching certificate for two weeks and imposing two years of probation. DONE AND ENTERED this 16th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 16th day of September, 1997. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver and Associates, P.A. Post Office Box 10825 Tallahassee, Florida 32302-2865 Paul Kwilecki, Esquire 433 Silver Beach Avenue, Suite 104 Daytona Beach, Florida 32176 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Jerry Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in this case concern whether the Petitioner may lawfully terminate the Respondent's employment as a teacher by reason of alleged acts of misconduct set forth in an Administrative Complaint.
Findings Of Fact At all times material to this case, Ms. Engar Dennard (the Respondent) was employed as a teacher by the Palm Beach County School Board (the Petitioner). During the 1999/2000 school year, the Respondent was an Emotionally Handicapped (EH) teacher at H. L. Watkins Middle School until she was reassigned on January 6, 2000, pending an investigation. During the 1999/2000 school year, M. M.2 was a seventh grade student at H. L. Watkins Middle School. M. M. was a student in the Respondent's classroom for one period each day. Prior to December 17, 1999, M. M. had not created any behavior problems in the Respondent's classroom, although the Respondent knew that he was sometimes a behavior problem in the classrooms of other teachers. On Friday, December 17, 1999, M. M. misbehaved in the presence of the Respondent. While outside on the school grounds, M. M. made several inappropriate, vulgar, and offensive remarks to a girl who was passing by. Another student told M. M. that he should not use that type of language in the presence of the Respondent. M. M. replied by saying, "Fuck her." The Respondent promptly reported M. M.'s conduct to a Crisis Intervention Teacher (CIT) who was nearby.3 The CIT interviewed and redirected M. M. On Monday, December 20, 1999, M. M. and several other students were approximately ten minutes late for class because another teacher had kept them in class longer than usual. The Respondent told all of the late students, including M. M., that, because they were late, they had to get a pass before they could come into her class. With the exception of M. M., all of the late students left, presumably to obtain the necessary pass. M. M. remained and began to address the Respondent in terms that were confrontational, vulgar, offensive, and obscene.4 The Respondent brought this tirade to an end by closing and locking the classroom door with M. M. on the outside. A moment later, another teacher arrived and explained why the students had been late. The Respondent allowed all of the late students, including M. M., to enter her classroom. M. M. did not engage in any further misconduct on December 20, 1999. The Respondent did not write a referral about M. M.'s misconduct on December 20, 1999, because use of inappropriate language was a manifestation of one of M. M.'s handicaps and was an issue targeted in his Individualized Educational Plan (IEP). On December 21, 1999, M. M. arrived at the Respondent's classroom approximately twenty minutes late. All of the other students were engaged in taking a final exam. M. M. entered the classroom quietly, took a seat, and began taking the final exam. Moments later, M. M. began to disturb the class by talking to other students. The Respondent asked him to be quiet, and he complied, but only for a moment. When M. M. again disturbed the class by talking, the Respondent told him that if he could not be quiet, he would have to leave the classroom. In response to the Respondent's admonition, M. M. used confrontational, vulgar, and offensive language to tell the Respondent that she could not tell him what to do.5 At this point the Respondent became upset and embarked on a series of inappropriate overreactions to M. M.'s misbehavior. The Respondent began walking towards M. M. and M. M., concerned about what she might do to him, stood up from his desk and began backing away from his desk and from the Respondent. When the Respondent reached the desk that was between her and M. M., she violently shoved the desk to one side, causing the desk to fall over on its side. When the Respondent knocked over the desk, M. M. shouted "fuck you" and ran out of the classroom. The Respondent ran out after him. M. M. ran directly to the nearby office of the CIT, Curtis White. As M. M. ran to the back of Mr. White's office, he shouted, "Mr. White, get that lady!" Before Mr. White could figure out what was happening, the Respondent rushed into his office and headed straight for M. M. As the Respondent approached, M. M. backed up as far as he could until he was against a row of boxes stacked against the wall. The Respondent pushed M. M. back against the row of boxes and then grabbed his shirt with one hand and kept him pressed against the boxes while she slapped him in the face three times with her other hand. When the Respondent pushed and slapped M. M., he was shouting vulgar and offensive things to her, but his hands were down by his sides and he did not attempt to push or hit the Respondent. Immediately after the Respondent slapped M. M., another student in the CIT office grabbed the Respondent and began pulling her away from M. M. The Respondent turned and began to leave the CIT office. At that point, M. M. balled up his fists and it appeared that he might attempt to hit the Respondent. Yet another student grabbed M. M. and restrained him from following the Respondent. During the course of the events in the CIT office described above, M. M. and the Respondent were offensive and confrontational to each other. The Respondent's remarks to M. M. included, "Don't you ever fucking call me that again." The Respondent also told M. M. that she would "beat his ass" if he did not stop saying offensive things to her. The Respondent also said to M. M., "Boy, you don't know who you're messing with! I'll kill your ass!" On at least two prior occasions the Respondent has lost control and engaged in inappropriate conduct directed towards students. In 1999, the Respondent received a five-day suspension without pay for inappropriate physical contact with a student. The inappropriate contact on this occasion was grabbing a student by the face when the student misbehaved in a car. Later in 1999, the Respondent received a verbal reprimand with a written notation for throwing water on a student and calling the student a "faggot." Among the consequences of the Respondent's conduct on December 21, 1999, is the notoriety which resulted from publication of information about the incident in a local newspaper. M. M. cried as a result of the incident and was reluctant to return to school. At least one student who witnessed the events in the CIT office was worried that in the future a teacher might strike him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order terminating the Respondent's employment and denying all relief sought by the Respondent. DONE AND ENTERED this 14th day of December, 2000, 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 14th day of December, 2000.
